Proposed new removal “fees” are really fines and is deportation now punishment?

by Asaf Rashid on Feb. 04, 2021

Immigration Deportation 

Summary: The whole idea of charging someone for being removed from the country is rife with problems. For one, they have already been removed, and suffered a forced change in their – and possibly their family’s – lives as a result. Secondly, charging anything assumes that they cost Canada for actions that they are culpable for. Third, the whole point of increasing the fees to such a degree – likely unaffordable to anyone removed – can only be to prevent those deported from ever returning to Canada. Fourth, it separates family from each other, which is contrary to Canada’s objectives in its immigration and refugee laws. Fifth, charging money for being forced into immigration detention should be cruel and unusual punishment. Finally, how is it fair to call these charges “fees”? Fees are administrative costs, which only make sense if they can actually be paid. They are better described as fines because they are punitive rather than administrative. They are designed to ward off those deported from the country from ever returning, akin to banishment.

On January 5, 2021, the Canada border Services Agency publicized that they would be drastically increasing the so-called fees charged to those deported from the country.  Anyone deported would owe $3,250, regardless of how far they are actually travelling. Those who were escorted out of the country would be charged a blink-worthy $10,900.  Those who were detained in immigration detention would be charged $1,300.  Currently, Canada charges $750 for those deported to the United States and St. Pierre and Miquelon and $1,500 for everywhere else.  The way that Canada would charge those who have been deported is to tag the costs onto applications to return to Canada.

The whole idea of charging someone for being removed from the country is rife with problems.  For one, they have already been removed, and suffered a forced change in their – and possibly their family’s – lives as a result.  Secondly, charging anything assumes that they cost Canada for actions that they are culpable for.  Third, the whole point of increasing the fees to such a degree – likely unaffordable to anyone removed – can only be to prevent those deported from ever returning to Canada.  Fourth, it separates family from each other, which is contrary to Canada’s objectives in its immigration and refugee laws.  Fifth, charging money for being forced into immigration detention should be cruel and unusual punishment.  Finally, how is it fair to call these charges “fees”? Fees are administrative costs, which only make sense if they can actually be paid.  They are better described as fines because they are punitive rather than administrative.  They are designed to ward off those deported from the country from ever returning, akin to banishment.

It is helpful to think about who exactly is being targeted.  The list includes failed refugee claimants, permanent residents (PRs) who lost status due to convictions for serious criminal offences, temporary residents who lost their status due to relatively minor convictions, and those who remained in Canada without status.

In the case of failed refugee claimants, they came to Canada to seek asylum, and may have traveled with their whole family.  Their failed claim could have been a close call, or perhaps it was not, but the claimants sincerely believed that they had a good claim.  Or perhaps they were simply desperate to get out of a difficult situation in their country and did what they could to survive by coming to Canada. Should all these failed refugee claimants be effectively banished from Canada?

Additionally, Canada has created a pathway for permanent residence for refugee claimants and failed refugee claimants – albeit full of uncertainty — who have done at least 6 months of full-time health care work (or the part-time equivalent) during the COVID-19 pandemic. For those who just missed the cut, is it fair that they have a wall of fees built behind them, so they cannot return?

In the case of PRs who lost their status due to serious criminal convictions, they would have already served their sentence prior to their removal, thus would have already been punished.  According to the principles of sentencing in the Criminal Code of Canada, completion of a sentence should entail rehabilitation and readiness to resume life outside of jail and without probationary conditions.  Should these individuals be tagged with an enormous sum of money for the opportunity to return home after they already completed their sentence? For temporary residents, such as international students, convictions for minor offences, such as shoplifting, can result in being found inadmissible, and subject to removal from Canada.  For such international students, who often pay about twice or higher that what Canadian students pay in tuition – and are considered cash cows for universities — should they suddenly end up on the hook for thousands more to if they wanted to return?

Regarding those who lived in Canada without status, but were eventually caught by the Canada Border Services Agency, countless numbers of them have worked for below minimum wage, endured no basic employment protections and lived without access to healthcare.  They have done jobs no one else was willing to do, and perhaps built a life and family in Canada while at it.  In what world do they owe Canada anything in order to return?

Canada Border Services Agency has re-stoked the fire on the issue of deportations as punishment with the proposed super-increases in fees / fines.  There is already a $400 processing cost for an Authorization to Return to Canada application, plus any owed immigration debts.  A massive increase in the amount to pay to return to Canada – effectively barring their return forever – suggests that the government views individuals deported as being morally culpable for their actions.  That suggests a criminalization of deportation, which should be rejected, as it is plainly wrong and out of bounds of immigration and refugee protection law in Canada.

Furthermore, any greater consequences of deportation should make it harder for the government to proceed with it.  In the Supreme Court of Canada (SCC) case of Canada (Minister of Employment and Immigration) v. Chiarelli, the court rejected the idea that deportation is a form of punishment, however, they acknowledged that it is a form of “treatment”.  In the SCC case of R v Pham, the effects of deportation were considered “collateral consequences”, in that its effect needed to be taken into account to determine a fair sentence for a criminal conviction.

If the fees to return to Canada are stacked so high as to be almost insurmountable, these consequences of deportation should be kept in mind when Canada Border Service Agency officers receive requests to not issue deportation orders.  But it should not have to come to that.  The new fees, and even the old ones, should be cast aside.

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