Document Type
Article
Abstract
Youth with precarious legal status (PLS) in several provinces are entitled to access primary and secondary education regardless of their immigration status. However, once they graduate from high school their opportunities for post-secondary education are highly constrained. This article sets out an argument for expanding post-secondary educational opportunities for PLS students, drawing on the example of the only existing program in Canada targeting such students: York University’s “Access for Students with Precarious Immigration Status Program.” The article considers possible legal impediments to the establishment of such programs, including offences under Canadian immigration legislation, and argues that charges against post-secondary institutions or their employees are unlikely. Moreover, the article contends that if such charges were pursued, courts would likely find that the relevant legislative provisions are unconstitutional due to overbreadth and because they penalize humanitarian assistance, which was not the intention of the drafters of the provisions. The article also argues that in the unlikely scenario that post-secondary institutions were foundto be in breach of Canadian immigration law for admitting PLS students, this is one of the limited sets of circumstances where pushing back against the law—and even breaking the law if necessary—would be warranted. Overall, the article argues that it is time for faculty, students, and administrators at Canadian colleges and universities to join the fight to create pathways for post-secondary education for PLS students.
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Citation Information
Mercier, Elise; Rehaag, Sean; and Rico-Martinez, Francisco.
"Canadian “Dreamers”: Access to Post-Secondary Education."
Osgoode Hall Law Journal
60.3 (2023)
: 699-753.
DOI: https://doi.org/10.60082/2817-5069.3927
https://digitalcommons.osgoode.yorku.ca/ohlj/vol60/iss3/5
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References
1. Elise Mercier is an Associate Lawyer at North Star Immigration Law and former Research Lawyer, Centre for Refugee Studies, York University; Sean Rehaag is Director of the Centre for Refugee Studies and Associate Professor, Osgoode Hall Law School, York University; Francisco Rico-Martinez (deceased 13 August 2021) was Co-Director of the FCJ Refugee Centre. This co-author approved the original version of the submitted article, but subsequent versions were prepared after his death. The remaining co-authors have attempted to ensure that the final version would, in their best judgment, likely also have received his approval. This article draws on research supported by the Social Sciences and Humanities Research Council. The authors are grateful for the research assistance provided by Alexander Toope, Anisha Nag, Emily F Wuschnakowski, Kevin Cho, and Daniel Yoon Sik Choi. They also appreciate the helpful comments provided by Nathasha Rollings, Tanya Aberman, Luin Goldring, Benjamin Berger, and Amar Bhatia. They thank the Osgoode Public Interest Requirement program for facilitating access to research assistance.
2. See FCJ Youth Network, Uprooted Education: 2015-2016 Ontario Report (FCJ Refugee Centre, 2016) at 38 [FCJ Youth Network, Uprooted].
3. Ibid.
4. Research on the number of people living with precarious status in Canada is notoriously difficult, but the 200,000 to 500,000 range is sometimes pointed to as a reasonable estimate. For a discussion, see Luin Goldring, Carolina Berinstein & Judith K Bernhard, "Institutionalizing Precarious Migratory Status in Canada" (2009) 13 Citizenship Studies 239 at 242; Luin Goldring & Patricia Landolt, Producing and Negotiating Non-citizenship: Precarious Legal Status in Canada (University of Toronto Press, 2013). Other sources point to the likelihood of there being at least 500,000 undocumented individuals in Canada, if not more. For a discussion, see Anthony Delisle & Delphine Nakache, "Humanitarian and Compassionate Applications: A Critical Look at Canadian Decision-Makers' Assessment of Claims from 'Vulnerable' Applicants" (2022) 11 Laws 1 at 16; Migrant Rights Network, "Canada Rejected Double the Number of Humanitarian Applications for Immigration In 2020" (13 July 2021), online: migrantrights.ca/hc202rejections [perma.cc/3N6M-XSM7].
5. This term is discussed in Part I(A), below.
6. For details about these estimates, see Faria Kamal & Kyle D Killian, "Invisible Lives and Hidden Realities of Undocumented Youth" (2015) 31 Refuge 63 at 63 https://doi.org/10.25071/1920-7336.40310; House of Commons, Temporary Foreign Workers and Nonstatus Workers: Report of the Standing Committee on Citizenship and Immigration (May 2009) (Chair: David Tilson) at 47.
7. See Paloma E Villegas & Tanya Aberman, "A Double Punishment: Post-secondary Access for Racialized Migrant Youth with Precarious Status in Toronto, Canada" (2019) 35 Refuge 72. Villegas and Aberman detail the ways in which "the immigration and schooling systems in Canada intersect to deny access to migrant youth with precarious status throughout educational trajectories" (ibid at 72). https://doi.org/10.7202/1060676ar
8. Discussed in Part I(E), below.
9. See Tanya Aberman, Francisco Rico-Martinez & Philip Ackerman, "School Outside These Four Walls: Contesting Irregularization through Alternatives to Education" (2017) 165 Studia Migracyjne 131 at 139.
10. See generally Walter J Nicholls, The DREAMers: How the Undocumented Youth Movement Transformed the Immigrant Rights Debate (Stanford University Press, 2013).
11. See generally Kristen Green, "Sanctuary Campuses: The University's Role in Protecting Undocumented Students from Changing Immigration Policies" (2019) 66 UCLA L Rev 1030; Natasha Newman, "A Place to Call Home: Defining the Legal Significance of the Sanctuary Campus Movement" (2017) 8 Columbia J Race & L 122; Aleksandar Dukic, Stephanie Gold & Gregory Lisa, "Key Legal Considerations Relating to Sanctuary Campus Policies and Practices" (2018) 44 JC & UL 23; Danielle Holley-Walker, "Searching for Equality: Equal Protection Clause Challenges to Bans on the Admission of Undocumented Immigrant Students to Public Universities" (2011) Mich State L Rev 357; Irma Aboytes, "Undocumented Students and Access to Higher Education: A Dream Defined by State Borders" (2009) 12 J Gender Race & Just 579; Josue Espinosa, "Undocumented, Uneducated, Unconstitutional: An Equal Protection Analysis of State Laws that Ban Undocumented Immigrants from Higher Education" (2017) 21 Holy Cross JL & Public Policy 139; Elizabeth M McCormick, "Federal Anti-Sanctuary Law: A Failed Approach to Immigration Enforcement and a Poor Substitute for Real Reform" (2016) 20 Lewis & Clark L Rev 214; Virgil Wiebe, "Immigration Federalism in Minnesota: What Does Sanctuary Mean in Practice" (2017) 13 U St Thomas LJ 581.
12. Laura Emiko Soltis, "From Freedom Schools to Freedom University: Liberatory Education, Interracial and Intergenerational Dialogue, and the Undocumented Student Movement in the U.S. South" (2015) 17 Souls 20 at 21-22. https://doi.org/10.1080/10999949.2015.998578
13. See e.g. Tanya Aberman, Francisco Villegas & Paloma E Villegas, eds, Seeds of Hope: Creating a Future in the Shadows (FCJ Refugee Centre, 2016); Francisco J Villegas, "'Access without Fear!': Reconceptualizing 'Access' to Schooling for Undocumented Students in Toronto" (2017) 43 Critical Sociology 1179; FCJ Youth Network, From Youth to You (FCJ Refugee Centre, 2016) [FCJ Youth Network, From Youth to You]; FCJ Youth Network, Uprooted, supra note 2. https://doi.org/10.1177/0896920516677352
14. Sarah Marsden, "The New Precariousness: Temporary Migrants and the Law of Canada" (2012) 27 CJLS 209 at 212 [Marsden, "New Precariousness"]. See also Francesca Meloni, "The Ambivalence of Belonging: The Impact of Illegality on the Social Belonging of Undocumented Youth" (2019) 92 Anthropological Q 451; Kamal & Killian, supra note 6; Judith K Bernhard et al, "Living with Precarious Legal Status in Canada: Implications for the Well-Being of Children and Families" (2007) 24 Refuge 101; Julie Young, "This Is My Life: Youth Negotiating Legality and Belonging in Toronto" in Luin Goldring & Patricia Landolt, eds, Producing and Negotiating Non-Citizenship: Precarious Legal Status in Canada (University of Toronto Press, 2013) 99; Maria Yau, "Refugee Students in Toronto Schools" (1996) 15 Refuge 9; Francisco J Villegas, "'Don't Ask, Don't Tell': Examining the Illegalization of Undocumented Students in Toronto, Canada" (2018) 39 British J Sociology Education 1111 [F Villegas, "Don't Ask"]; Graham Hudson et al, "(No)Access T.O.: A Pilot Study on Sanctuary City Policy in Toronto, Canada" (2017) Ryerson Centre for Immigration & Settlement Working Paper No 2017/1; Villegas & Aberman, supra note 7; Paloma E Villegas, "Bridging Borders: Teaching a Bridging Course with Precarious Status Students Transitioning to the University" in Francisco J Villegas & Janelle Brady, eds, Critical Schooling: Transformative Theory and Practice (Springer, 2019) 245; Aberman, Rico-Martinez & Ackerman, supra note 9; Tanya Aberman, Philip Ackerman & members of the FCJ Refugee Centre's Youth Network, "'Isn't the Right to an Education a Human Right?': Experiences of Precarious Immigration Status Youth Navigating Postsecondary Education" in Sara Carpenter & Sharhrzad Mojab, eds, Youth as/in Crisis: Young People, Public Policy and the Politics of Learning (Sense, 2017) 127; Tanya Aberman, Expanding Access to Post-Secondary Education at York University (And Beyond) For Students With Precarious Immigration Status (2015) [unpublished, archived at the FCJ Refugee Centre] [Aberman, Expanding Access].
15. Aberman, Villegas & Villegas, supra note 13 at 63.
16. See e.g. Villegas & Aberman, supra note 7; Marietta Armanyous & Graham Hudson, "Barriers vs. Bridges: Undocumented Immigrants' Access to Post-secondary Education in Ontario" (December 2019) Ryerson Centre for Immigration and Settlement Working Paper No 2019/5, online (pdf): www.torontomu.ca/content/dam/centre-for-immigration-and-settlement/tmcis/publications/workingpapers/2019_5_Armanyous_Marietta_Hudson_Graham_Barriers_vs_bridges_Undocumented_immigrants_access_to_post-secondary_education_in_Ontario.pdf [perma.cc/ZY3H-NK43].
17. Ibid.
18. Foreign nationals (including PLS students) are prohibited from studying in Canada without a permit in many circumstances. See Immigration and Refugee Protection Act, SC 2001, c 27, s 30(1) [IRPA]. See also Immigration and Refugee Protection Regulations, SOR/2002-227, s 212 [IRPR]. Section 41 of the IRPA renders people who do not comply with the Act inadmissible to Canada. Section 44 of the IRPA provides sweeping discretion to immigration officers to commence procedures leading to removal of inadmissible foreign nationals. Thus, a PLS student who is authorized to be in Canada but not to study in Canada who chooses to study without a study permit may be subject to a removal order if found in contravention of IRPA or IRPR.
19. For example, PLS students who are in Canada without authorization may be inadmissible on multiple grounds. See e.g. IRPA, supra note 18, ss 40, 41. PLS students are thus already vulnerable to an immigration officer commencing procedures that lead to removal under section 44 of the IRPA. Inadmissibility is binary, meaning that students who are already inadmissible would not become "more" inadmissible by studying without a permit.
20. PLS students can apply to regularize their immigration status by applying for PR through a humanitarian and compassionate ("H&C") application, which is a highly discretionary application that provides immigration officers with the "flexibility to approve deserving cases not anticipated in the legislation." Immigration, Refugees and Citizenship Canada, "Humanitarian and Compassionate Considerations: Assessment and Processing" (last modified 11 July 2017), online: Government of Canada www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletinsmanuals/permanent-residence/humanitarian-compassionate-consideration/processing.html [perma.cc/9BUE-3QZR]. One factor that is assessed in H&C applications is whether the applicant has demonstrated successful establishment. See IRPA, supra note 18, s 25. It can be difficult to predict outcomes in H&C applications, which often seem arbitrary. See e.g. Delisle & Nakache, supra note 4. Some caution is also warranted, as some officers take a negative view of establishment gained without authorization-a position supported in some Federal Court case law. See e.g. Browne v Canada (Citizenship and Immigration), 2022 FC 514 at para 28. Nonetheless, the Federal Court has overturned many negative H&Cdecisions that placed an undue focus on the applicant's lack of status. See e.g. McDonald v Canada (Citizenship and Immigration), 2022 FC 394 at para 24. It stands to reason that the establishment demonstrated by studying at a post-secondary institution may be considered a positive factor in an H&C application. In the experience of Francisco Rico-Martinez, the Co-Director of the FJC Refugee Centre and one of the co-authors of this article, H&C applications with evidence of post-secondary education were more likely to succeed than other similar applications. However, that is merely anecdotal experience, and it involves a small (and possibly skewed) sample, so caution is necessary in generalizing.
21. Kamal & Killian, supra note 6 at 65.
22. At York University, low-income prospective PLS students can obtain summary legal advice about immigration law matters and assistance with H&C applications for PR via Osgoode Hall Law School's Community & Legal Aid Services Program. See Community & Legal Aid Services Program, "Legal Services," online: www.osgoode.yorku.ca/community-clinics/welcome-community-legal-aid-services-program-clasp/legal-services [perma.cc/2HCK-RT6Q].
23. See e.g. Migrant Rights Network, "Open Letter: Full Immigration Status for All" (2022) online: migrantrights.ca/status-for-all [perma.cc/R2S4-DNHH]; Joseph H Carens, Immigrants and the Right to Stay (MIT Press, 2010); Canadian Council for Refugees, "Proposal for Regularization of Individuals and Families Without Status" (June 2006), online: ccrweb.ca/en/proposal-regularization-individuals-and-families-without-status [perma.cc/S66Q-RZ7D].
24. Amrita Hari & Jamie Chai Yun Liew, "Introduction to Special Section on Precarity, Illegality and Temporariness: Implications and Consequences of Canadian Migration Management" (2018) 56 Intl Migration 169 at 170. https://doi.org/10.1111/imig.12523
25. Goldring, Berinstein & Bernhard, supra note 4 at 241.
26. Ibid.
27. Ibid at 240-41.
28. Sarah Marsden, "Silence Means Yes Here in Canada: Precarious Migrants, Work and the Law" (2014) 18 CLELJ 1 at 5-6 [Marsden, "Silence"].
29. For a discussion of how PRs become citizens, see Sharryn J Aiken et al, Immigration and Refugee Law: Cases, Materials, and Commentary, 2nd ed (Emond, 2015) at 1063-95.
30. For important exceptions, see Immigration, Refugees and Citizenship Canada, "Understand Permanent Resident Status" (last modified 18 May 2022), online: Government of Canada www.canada.ca/en/immigration-refugees-citizenship/services/new-immigrants/pr-card/ understand-pr-status.html [perma.cc/JY4M-FH5A].
31. For details about common ways in which PRs can lose their status, see Lorne Waldman, Inadmissible to Canada: The Legal Barriers to Canadian Immigration, 2nd ed (LexisNexis Canada, 2018). See also Audrey Macklin, "Citizenship Revocation, the Privilege to Have Rights and the Production of the Alien" (2014) 40 Queen's LJ 1.
32. At the time of writing, this process was estimated to take approximately twenty-four months. See Immigration, Refugees and Citizenship Canada, "My Immigration or Citizenship Application: Check Processing Times" (last modified 23 February 2023), online: Government of Canada www.canada.ca/en/immigration-refugees-citizenship/services/application/check-processing-times.html [perma.cc/GUJ9-UJG3] [Canada, "My Application"]. See also Samantha Jackson & Harald Bauder, "Neither Temporary, Nor Permanent: The Precarious Employment Experiences of Refugee Claimants in Canada" (2014) 27 J Refugee Studies 360 at 361-62. https://doi.org/10.1093/jrs/fet048
33. Marsden, "New Precariousness," supra note 14 at 220-21.
34. We refer to both "H&C applicants who have been approved in principle" and "H&C applicants." The latter are still awaiting a determination on their H&C applications.
35. Sections 34 to 42 of the IRPA identify several grounds on which foreign nationals or PRs can be removed from Canada or denied a visa, including, among others, health grounds, criminality, non-compliance with the Act, having inadmissible family members, and the commission of human and international rights violations. See supra note 18. For details, see Waldman, supra note 31.
36. At the time of writing, this process was estimated to take approximately twenty-six months for H&C applicants. See Canada, "My Application," supra note 32.
37. Jackson & Bauder, supra note 32 at 370-71. For details about delays in refugee protection decisions, see Canada, Office of the Auditor General, Reports of the Auditor General of Canada to the Parliament of Canada, Report 2: Processing of Asylum Claims, Catalogue No FA1-27/2019-1-2E-PDF (OAGC, 2019), ss 2.12, 2.25-2.26.
38. For details about how TFWs are made precarious, see Marsden, "New Precariousness," supra note 14 at 216-18.
39. For a discussion of "how people become undocumented," see Kamal & Killian, supra note 6 at 64.
40. Aberman, Expanding Access, supra note 14 at 6.
41. For a discussion of international students' access to various benefits, see Patricia Mirwaldt, "Health and Wellness Services" in Donna Hardy Cox & C Carney Strange, eds, Achieving Student Success: Effective Student Services in Canadian Higher Education (McGill-Queen's University Press, 2010) 124. See The Higher Education Quality Council of Ontario, International Students in Ontario's Postsecondary Education System, 2000-2012: An Evaluation of Changing Policies, Populations and Labour Market Entry Processes, by Keegan Williams et al (HEQCO, 2015). https://doi.org/10.1515/9780773575721-012
42. Not all PLS youth are "brought" to Canada-many come to the country as unaccompanied minors. A discussion of the different barriers faced by unaccompanied PLS youth and other PLS youth is beyond the scope of this article. However, it is important to note that unaccompanied minors, who do not have family members present in the country to help support and advocate for them, face additional barriers.
43. Nicholls, supra note 10 at 53. Although we are differentiating between PLS students and international students for the narrow purposes of this article, we caution our reader against using this differentiation to perpetuate "[n]arratives of deserving and undeserving immigrants." Sujatha Fernandes, Curated Stories: The Uses and Misuses of Storytelling (Oxford University Press, 2017) at 104-34. Fernandes provides a discussion of how problematic such narratives can be and details about why many "Dreamers" in the US "rejected the 'good immigrant' trope that had guided much of their public image." Ibid. For details about how "imagery of the undocumented as law-abiding, hard-working, and family-oriented" had the effect of "simultaneously render[ing] more vulnerable the millions of immigrants who [did] not qualify" for "legalization" through a 2013 American immigration reform bill, see Angélica Cházaro, "Beyond Respectability: Dismantling the Harms of 'Illegality'" (2015) 52 Harv J on Legis 355.
44. See IRPR, supra note 18, s 220.
45. Ibid, s 222.
46. See e.g. Ryan Hayes, "Neoliberal Citizenship: The Case of International and Non-Status Students in Canada" in Veronica P Fynn, ed, Documenting the Undocumented: Redefining Refugee Status, Center for Refugee Studies 2009 Annual Conference Proceedings (Universal, 2009) 101 at 104, cited in P Villegas, supra note 14 at 11-12; Alex Usher, "Canada's Growing Reliance on International Students" (29 August 2018), online: Policy Options policyoptions.irpp.org/magazines/august-2018/canadas-growing-reliance-on-international-students [perma.cc/9ZW6-K26H]; Tim Anderson, "News Media Representations of International and Refugee Postsecondary Students" (2020) 91 J Higher Education 58; Nicholas Hune-Brown & Cornelia Li, "The Shadowy Business of International Education," The Walrus (18 August 2021), online: thewalrus.ca/the-shadowy-business-of-international-education [perma.cc/CJ5S-ZXGW].
47. Supra note 18, s 212.
48. Ibid, s 207(d); Immigration, Refugees and Citizenship Canada, "Study Permits: Refugees and Protected Persons" (last modified 26 April 2022), online: Government of Canada www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/study-permits/making-application.html#InCanada [perma.cc/KD8W-C5UQ] [Canada, "Study Permits"].
49. Canada, "Study Permits," supra note 48.
50. This can be done provided that their status is valid at the time that they submit their application. See Meghan Wilson, Access to Postsecondary Education for Undocumented Immigrants (2009) [unpublished, archived at Parkdale Community Legal Services] at 15.
51. Ibid. Additionally, students over the age of twenty-two could "age out" of an opportunity to apply for a study permit as a dependant. See generally Immigration, Refugees and Citizenship Canada, "Who You Can Include as a Dependent Child on an Immigration Application" (last modified 8 December 2022), online: Government of Canada www.canada.ca/en/immigration-refugees-citizenship/services/immigrate-canada/age-limit-requirementsdependent-children.html [perma.cc/27P5-S4BC].
52. Assuming that they are from a "visa-required" country. See Immigration, Refugees and Citizenship Canada, "Temporary Residents: Eligibility and Admissibility Considerations" (last modified 1 April 2019), online: Government of Canada www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/visitors/eligibility-admissibility-considerations.html [perma.cc/KAX8-S2LS]; Immigration, Refugees and Citizenship Canada, "Find out If You Need a Visa to Travel to Canada" (last modified 31 January 2023), online: Government of Canada [perma.cc/R25U-QQBY].
53. See Armanyous & Hudson, supra note 16 at 9; P Villegas, supra note 14 at 249-50.
54. The OUAC website requires applicants to provide information regarding status in Canada and country of citizenship and requests that applicants upload proof of status in Canada, though it notes that these documents "are not mandatory." Ontario Universities' Application Centre, "101 - Personal Information" (last modified 22 September 2022), online: www.ouac.on.ca/guide/101-personal-information [perma.cc/AKU7-JHL7].
55. See e.g. Wilson, supra note 50 at 19-20; Armanyous & Hudson, supra note 16 at 9.
56. Statistics Canada, Tuition Fees for Degree Programs, 2021/2022 in The Daily, Catalogue No 11-001-X (Statistics Canada, 8 September 2021) at 4 [Statistics Canada].
57. See Ontario, Ministry of Training, Colleges and Universities, Ontario Operating Funds Distribution Manual: Manual Governing the Distribution of Ontario Government Operating Grants to Ontario Universities and University-Related Institutions (Formula Manual) (MTCU, 2009) at 67 [MTCU, Distribution Manual].
58. A 2018 report noted that international student fees made up 12 per cent of operating revenue and 35 per cent of all fees collected by institutions, that these "proportions continue to climb," and that international students' tuition fees "have risen at twice the rate of hikes in domestic students' tuition fees." Usher, supra note 46.
59. Ontario, Ministry of Training, Colleges and Universities, Tuition and Ancillary Fees Reporting (MCTU, 2003) at 22-26, online (pdf): www.tcu.gov.on.ca/pepg/documents/TuitionandAncillaryFeesReporting2012.pdf [perma.cc/WM2S-KTMZ] [MTCU, Tuition].
60. Refugee students have, however, "reported being commonly mistaken for international students by post-secondary institutions." Jaswant Kaur Bajwa et al, "Refugees, Higher Education, and Informational Barriers" (2017) 33 Refuge 56 at 60. https://doi.org/10.7202/1043063ar
61. Provided that they have or are able to provide evidence of their approval in principle to the school and that this is accepted.
62. Students are not exempted from international student fees if they cannot present a family member's work permit that names a "specific Canadian employer situated in Ontario." MTCU, Tuition, supra note 59 at 24.
63. Although these students may be entitled to pay domestic fees in theory, this may not occur in practice due to the "severe misunderstandings and misinformation" that continue to surround these exceptions. See Aberman, Expanding Access, supra note 14 at 6.
64. See Meloni, supra note 14 at 476.
65. Foreign nationals are not included in the "[c]ategories of individuals exempt from international student tuition fees." MTCU, Tuition, supra note 59 at 22-26.
66. See generally Kamal & Killian, supra note 6 at 65; Paloma E Villegas, "Temporalising Barriers: Postsecondary Schooling Access among Precarious Status Students in Toronto" (2021) 27 Population Space & Place 1. https://doi.org/10.1002/psp.2477
67. For details about how government student loans are distributed in Canada, see Stephanie Ben-Ishai, "Government Student Loans, Government Debts and Bankruptcy: A Comparative Study" (2006) 44 Can Bus LJ 211 at 215-19.
68. Wilson, supra note 50 at 25. https://doi.org/10.1086/103680
69. Canada Student Financial Assistance Act, SC 1994, c 28, s 2(1). Note that protected persons have been eligible for provincial financial aid since 2003. See Louise Slobodian & Harry J Kits, Student Loans for Refugees: A Success Story for Policy Change (The Caledon Institute of Social Policy, December 2003), online: Maytree www.maytree.com/publications/student-loans-for-refugees-a-success-story-in-policy-change [perma.cc/FRW5-88W2].
70. Only citizens, PRs, and protected persons are "qualifying students" in section 2(1) of the CSFA.
71. Michael A Olivas, "Plyler v Doe, Toll v Moreno, and Postsecondary Admissions: Undocumented Adults and Enduring Disability" (1986) 15 JL & Educ 19 at 28.
72. Marsden, "Silence," supra note 28 at 33.
73. Jackson & Bauder, supra note 32 at 377.
74. Kamal & Killian, supra note 6 at 65.
75. Unfortunately, high-performing PLS students who could otherwise secure scholarships or prizes based on their academic performance are frequently ineligible for these scholarships or prizes due to their legal status, making high tuition an even more significant barrier.
76. See e.g. Wilson, supra note 50 at 25-26; Statistics Canada, supra note 56.
77. For details about these groups, see Francisco Javier Villegas, The Politics of "Access": Undocumented Students and Enrollment in Toronto Schools (PhD Dissertation, University of Toronto, Ontario Institute for Studies in Education, 2014) [unpublished]. See also Patricia Landolt & Luin Goldring, "Assembling Noncitizen Access to Education in a Sanctuary City: The Place of Public School Administrator Bordering Practices" in Xóchitl Bada & Shannon Gleeson, eds, Accountability Across Borders: Migrant Rights in North America (University of Texas Press, 2019) 214. https://doi.org/10.7560/318355-010
78. RSO 1990, c E.2, s 49.1. See Philip Cheshing Kuligowski Chan, "Sanctuary Toronto": Municipal Authority, Policing Cities, and Residents with Precarious Immigration Status (Master of Arts Thesis, University of Toronto, Department of Geography and Planning, 2018) [unpublished] at 44-45.
79. See e.g. Ontario, Legislative Assembly, Official Report of Debates (Hansard), 37-3, No 20A (13 June 2002) at 963. Minister Gerard Kennedy noted protests and petitions on this issue.
80. Ontario, Ministry of Education, "Policy/Program Memorandum 136: Clarification of section 49.1 of the Education Act: Education of persons unlawfully in Canada" (3 December 2004), online: www.ontario.ca/document/education-ontario-policy-and-program-direction/policyprogram-memorandum-136 [perma.cc/A52C-87DY].
81. See e.g. Toronto District School Board, "Policy P061: Students Without Legal Immigration Status" (16 May 2007), online: www.tdsb.on.ca/About-Us/Detail/docId/1555 [perma.cc/RDY9-K7HH]. For a discussion about the role of activists in pushing for this policy, and for a discussion about some of the limits of pursuing change through such policies, see F Villegas, "Don't Ask," supra note 14.
82. Chan, supra note 78 at 44-45.
83. As in Ontario, activists played a key role in pursing this policy for many years. See e.g. Darya Marchenkova, "School Now Free for All Quebec Children, No Matter Immigration Status," Montreal Gazette (23 August 2018), online: montrealgazette.com/news/local-news/school-now-free-for-all-quebec-children-no-matter-immigration-status [perma.cc/XR7R-VERA]; Quebec, National Assembly, Journal des débats de la Commission permanente de la culture et de l'éducation, 41-1, vol 44, No 72 (5 September 2017) at 41.
84. Bill 144, An Act to amend the Education Act and other legislative provisions concerning mainly free educational services and compulsory school attendance, 1st Sess, 41st Leg, Quebec, 2017 (assented to 9 November 2017), SQ 2017, c 23.
85. Collectif Éducation Sans Frontières, "The Exclusion of Children with Precarious Immigration Status from School and the New Law 144" (20 August 2018), online: collectifeducation.org/en/conference-de-presse-sur-lexclusion-denfants-a-statut-dimmigration-precaire-delecole-et-implementation-de-la-nouvelle-loi-144 [perma.cc/N9L4-RCLA].
86. RSBC 1996, c 412, s 82(2). https://doi.org/10.1097/00000539-199602000-00035
87. Sarah Marsden, Enforcing Exclusion: Precarious Migrants and the Law in Canada (UBC Press, 2018) at 109-11 [Marsden, Enforcing Exclusion] https://doi.org/10.59962/9780774837750; Government of British Columbia, "Eligibility of Students for Operating Grant Funding" (5 May 2011), online: www2.gov.bc.ca/gov/content/education-training/k-12/administration/legislation-policy/public-schools/eligibility-of-students-for-operating-grant-funding [perma.cc/F6C7-3XVE].
88. The Sanctuary Health Collective is a grassroots community group that advocates for services for all regardless of their immigration status. For more information on the work done by this group, see Sanctuary Health, "About the Sanctuary City Movement" (last visited 22 February 2023), online: www.sanctuarycityvan.com/?fbclid=IwAR3483z4TbKzfVgp_tdp0vYkCjJ9u1jg0-DLMvdnIJc0SpoQ8seJ1k2GNTI [perma.cc/V7AW-7BWP].
89. New Westminster Schools, "First in BC: School Board Adopts Sanctuary Schools Policy" (7 March 2017), online: newwestschools.ca/first-in-bc-school-board-adopts-sanctuary-schoolspolicy [perma.cc/T4E6-NB2K].
90. For more information on the policy, see New Westminster Schools, "Our Sanctuary Schools Policy," online (pdf): newwestschools.ca/wp-content/uploads/2021/04/3170_NWS_PolicyPostcard_FINAL.pdf [perma.cc/324V-YPCT].
91. Ibid.
92. Although access to primary and secondary school is beyond the scope of this article, we note that admission practices of school boards across the country can be very restrictive. Both the Toronto District School Board and the Toronto Catholic School Board prohibit the admission of students on multiple-entry visas. One co-author, Francisco Rico-Martinez, regularly struggled to assist them with accessing schooling in his role as Co-Director of the FCJ Refugee Centre. See e.g. Toronto District School Board, Admission Eligibility Requirements, Operational Procedure PR518 (TDSB, 28 January 2020) at Appendix D, online (pdf): ppf.tdsb.on.ca/uploads/files/live/98/1635.pdf [perma.cc/2WLE-UCW3]. For a discussion of further barriers for PLS youth in primary and secondary school, see Aberman, Expanding Access, supra note 14 at 5; Marsden, Enforcing Exclusion, supra note 87 at 117-18; F Villegas, "Don't Ask," supra note 14 at 1112.
93. This article has been heavily relied upon by many who have proposed other access programs in Ontario. See Wilson, supra note 50 at 38. See e.g. Aberman, Expanding Access, supra note 14; Dayana A Gonzalez Mateus, Expanding Access to Postsecondary Education for Youth with Precarious Legal Status: A Ryerson University Case-Study (Masters Thesis, Toronto Metropolitan University, 2017) [unpublished] at iii, 11.
94. Villegas & Aberman, supra note 7 at 77; Aberman, Expanding Access, supra note 14 at 5.
95. See e.g. FCJ Youth Network, Youth to You, supra note 13 at 60; Villegas & Aberman, supra note 7 at 77.
96. This program was modeled after similar "Freedom University" initiatives in the United States. See P Villegas, supra note 14 at 251.
97. Many involved with the CRS contributed to this project, including the long-serving CRS Coordinator, Michele Millard. See Aberman, Expanding Access, supra note 14 at 18.
98. Armanyous & Hudson, supra note 16 at 11; Aberman, Expanding Access, supra note 14 at 19.
99. Mary Weims, "York First Canadian University to Give 'Dreamers' a Chance at a Degree," CBC News (15 January 2018), online: www.cbc.ca/news/canada/toronto/canadian-dreamers-york-university-1.4488252 [perma.cc/Q796-AP3X]. See also Villegas & Aberman, supra note 7 at 77.
100. Villegas & Aberman, supra note 7 at 77. The program was "meant to encourage the continuing development of students' critical, writing, and oral presentation skills" and "attempted to introduce students to university policies…and the types of resources…available at the university." P Villegas, supra note 14 at 246, 253-56. Paloma E Villegas, the bridging course's first instructor, reflects on how PLS students "pushed the boundaries of who is expected and welcome in university settings" (ibid at 254).
101. Aberman, Expanding Access, supra note 14 at 15. We discuss the legality of admitting students without study permits in detail in Part II, below.
102. Ibid at 15-16, 18.
103. Ibid at 16.
104. Ibid at 15-16.
105. See Armanyous & Hudson, supra note 16 at 11.
106. Aberman, Expanding Access, supra note 14 at 17.
107. MTCU, Distribution Manual, supra note 57 at 4.
108. Ibid at 44-45; Aberman, Expanding Access, supra note 14 at 15.
109. Aberman, Expanding Access, supra note 14 at 15-18.
110. Centre for Refugee Studies, "Scholarships & Bursaries," online: YorkU www.yorku.ca/crs/scholarships-bursaries [perma.cc/6YLH-CLDL].
111. Ontario, Ministry of Colleges and Universities, "Maximum Amounts of Aid" (22 September 2022), online: www.ontario.ca/page/maximum-amounts-aid [perma.cc/SZQ2-AP59].
112. Armanyous & Hudson, supra note 16 at 11-12.
113. Tanya Aberman, Report on Access Program for Precarious Status Students (2018) at 5 [unpublished, on file with authors] [Aberman, Report].
114. Ibid.
115. Correspondence with Office of the Vice-Provost Academic at York University (20 August 2020) [unpublished, on file with authors]. For details about why many students who enrolled in the bridging course were unable to complete it, see Aberman, Report, supra note 113 at 5-6.
116. The Working Group on Access to Higher Education for Students with Precarious Immigration Status reportedly presented a proposal for a pilot program to be established at the University of Toronto in 2018. See Armanyous & Hudson, supra note 16 at 12.
117. Ibid at 12-13.
118. RSO 1990, c F.31; Wilson, supra note 50 at 20-21. https://doi.org/10.1353/flm.1990.a486664
119. Loss of revenue was a concern for York University administrators as universities are largely funded by a combination of tuition and MCU grants. MCU grants are distributed based on the number of citizens, PRs, and migrants approved in principle for PR reported. See discussion in Aberman, Expanding Access, supra note 14 at 15; MTCU, Distribution Manual, supra note 57.
120. Supra note 18, s 131.
121. Ibid, s 124(1)(a).
122. Ibid, s 125.
123. A penalty is not specifically provided in this provision. Ibid, ss 30, 131.
124. R v Boule, 2020 BCSC 1846 (Memorandum of Fact and Law of the Applicant) [on file with authors] [R v Boule, Applicant's Memo]. See R v Boule, 2020 BCSC 1846 [Boule].
125. Boule, supra note 124 at paras 89, 143, 160-65.
126. R v Appulonappa, 2015 SCC 59 [Appulonappa, 2015].
127. Ibid at paras 1-2.
128. R v Appulonappa, 2017 BCSC 1316 at paras 4-9 [Appulonappa, 2017]; David Moffette & Nevena Aksin, "Fighting Human Smuggling or Criminalizing Refugees? Regimes of Justification in and around R v Appulonappa" (2018) 33 CJLS 21 at 28. https://doi.org/10.1017/cls.2018.2
129. In a subsequent criminal trial, Justice Silverman concluded that "all of the conduct performed by the four accused was performed in pursuit of that mutual goal [of getting themselves to Canada] and amounts solely to mutual aid." Appulonappa, 2017, supra note 128 at paras 7, 286.
130. Appulonappa, 2015, supra note 127 at paras 34, 72. https://doi.org/10.1145/2747884.2747897
131. Ibid at paras 34, 74.
132. Ibid at paras 74-77.
133. This remedy was subsequently re-interpreted by the BCCA in 2019; the court concluded that Appulonappa "created true defences to a charge of human smuggling under s. 117 of the IRPA." The BCCA set out four elements to a new "humanitarian aid defence." Appulonappa, 2015, supra note 127 at para 85; R v Rajaratnam, 2019 BCCA 209 at paras 173, 208 [Rajaratnam].
134. Boule, supra note 124 at para 165.
135. R v Boule, Applicant's Memo, supra note 124 at para 17.
136. Ibid at para 21.
137. Boule, supra note 124 at para 97 [sic].
138. House of Commons, Standing Committee on Citizenship and Immigration, Evidence, 37-1, No 24 (15 May 2001) at 09:40 (Yolande Thibeault).
139. See Bill C-84, An Act to amend the Immigration Act, 1976 and the Criminal Code in consequence thereof, 2nd Sess, 33rd Parl, 1986-87 (as passed by the House of Commons), SC 1988, c 36; House of Commons, Legislative Committee on Bill C-84, Evidence, 33-2 (18 August 1987).
140. Ibid at 28 (Mary Collins).
141. Ibid at 30 (Benoît Bouchard).
142. Ibid at 15 (Benoît Bouchard).
143. Ibid.
144. Ibid at 28 (Mary Collins).
145. Ibid.
146. R v Boule, Applicant's Memo, supra note 124 at para 88.
147. Appulonappa, 2015, supra note 127 at para 63.
148. Boule, supra note 124 at paras 84, 137. https://doi.org/10.1017/S204216990000523X
149. Ibid at paras 113, 123, 127, 129, 133.
150. Ibid at paras 124-27.
151. For example, in the context of a residency obligation breach, the court notes that prosecution of a PR who has breached their residency obligation is rationally connected to maintaining the integrity of the immigration system where the PR "has not complied with any of the available means to satisfy the residency obligation, has been unsuccessful on appeal and refuses to renounce their status." Boule, supra note 124 at para 123.
152. Canada, Immigration and Refugee Board, Access to Information and Privacy Request No A-2017-09644 at 71 [on file with authors] [IRB ATIP].
153. These examples are in breach of section 52(1) of the IRPA. Supra note 18, s 52(1). See also R v Polnac, 2017 BCSC 2408 at paras 34-40; Suarez c R, 2019 QCCA 649.
154. This example is in breach of section 18(1) of the IRPA. Supra note 18, s 18(1). See e.g. R v Singh, 2016 BCPC 407; R v Cenolli, 2015 ONSC 468.
155. Many cases involved foreign nationals who committed a crime either inside or outside Canada, whose release orders stipulated that a breach of the release order would "constitute an offence pursuant to" section 124(1)(a) of the IRPA. Supra note 18, s 124(1)(a). See e.g. Harkat v Canada (Minister of Citizenship and Immigration), 2006 FC 628 at para 95; Re Mahjoub, 2011 FC 506 at para 54. https://doi.org/10.1080/00332925.2011.622665
156. See Regulations Amending the Immigration and Refugee Protection Regulations, SOR/2014-6, (2014) C Gaz II, 240 at 366-67.
157. Canada Border Services Agency, Evaluation of the Criminal Investigations Program (CBSA, 2016), online (pdf ): web.archive.org/web/20160206134457/http://cbsa-asfc.gc.ca:80/agency-agence/reports-rapports/ae-ve/2015/cip-pec-eng.html.
158. Canada Border Services Agency, CBSA Enforcement Manual, Part 9: Investigations and Criminal Proceedings (25 May 2012), ch 1 at para 8, in IRB ATIP, supra note 152. High-risk investigations are defined in the manual as cases presenting "aggravating factors" such as "previous enforcement or conviction, concealment and evidence of illicit or clandestine means." Ibid at para 5.
159. Ibid at para 9.
160. Public Prosecution Service of Canada, Public Prosecution Service of Canada Deskbook (PPSC, 2020), ss 1.1-1.3, online (pdf): www.ppsc-sppc.gc.ca/eng/pub/fpsd-sfpg/fps-sfp/tpd/d-g-eng.pdf [perma.cc/8C9R-XZTZ] [PPSC, Deskbook].
161. Law Society of Ontario, Rules of Professional Conduct (LSO, 2022, as amended), r 5.1, online: lso.ca/about-lso/legislation-rules/rules-of-professional-conduct/complete-rules-of-professional-conduct [perma.cc/C9QQ-Y9AQ]. See also Adam Dodek, "The Unique Role of Government Lawyers in Canada" (2016) 49 Israel LR 23; PPSC, Deskbook, supra note 160 at preface, s 2.3-1; Andrew Flavelle Martin, "Legal Ethics and the Political Activity of Government Lawyers" (2018) 49 Ottawa L Rev 263 at 270.
162. PPSC, Deskbook, supra note 160, s 2.3-2.
163. Ibid.
164. Ibid, s 2.3-3.2(4).
165. See discussion in Part III(B), below.
166. PPSC, Deskbook, supra note 160 at 2.3-3.2(6).
167. Ibid, 2.3-3.2(1).
168. Supra note 18, s 3(1)(f.1).
169. PPSC, Deskbook, supra note 160 at 2.3-3.2; Public Prosecution Service of Canada, "Ontario Regional Office Student Program" (last modified 3 March 2022), online: www.ppsc-sppc.gc.ca/eng/wop-oce/0502.html [perma.cc/KU76-2VZV].
170. Appulonappa, 2015, supra note 127 at para 75. Scholarly commentary has criticized the degree of court deference shown towards prosecutors in various contexts such as plea bargaining. See e.g. Marie Manikis & Peter Grbac, "Bargaining for Justice: The Road Towards Prosecutorial Accountability in the Plea Bargaining Process" (2017) 40 Man LJ 85. https://doi.org/10.29173/mlj991
171. See Sean Rehaag, "Bordering on Legality: Canadian Church Sanctuary and the Rule of Law" (2009) 26 Refuge 43 [Rehaag, "Bordering on Legality"] https://doi.org/10.25071/1920-7336.30605; Randy K Lippert, "Rethinking Sanctuary: The Canadian Context, 1983-2003" (2005) 39 Intl Migration Rev 381 https://doi.org/10.1111/j.1747-7379.2005.tb00271.x; Caroline Patsias & Nastassia Williams, "Religious Sanctuary in France and Canada" in Randy K Lippert & Sean Rehaag, eds, Sanctuary Practices in International Perspectives (Routledge, 2012) 175 at 182 [Lippert & Rehaag, Sanctuary Practices]; Randy K Lippert, "Whither Sanctuary?" (2009) 26 Refuge 57 https://doi.org/10.25071/1920-7336.30606; Randy K Lippert & Sean Rehaag, "Sanctuary in Context" (2009) 26 Refuge 3. https://doi.org/10.25071/1920-7336.30601
172. More specifically, these individuals will generally be in violation of an enforceable removal order pursuant to section 48(2) of the IRPA. For a detailed discussion on this, see Rehaag, "Bordering on Legality," supra note 171 at 48.
173. See e.g. Robert Fleury, "Le droit d'asile des réfugiés," Le Soleil (29 July 2004) A15; Sean Rehaag, "No One Is above the Law on Refugees," The Toronto Star (30 July 2004) A19; Catherine Dauvergne, "Why Judy Sgro is Just Plain Wrong," The Globe and Mail (2 August 2004) A11; Mitchell Goldberg, "Why Sanctuary is Necessary," The Montreal Gazette (20 August 2004) A21.
174. Randy K Lippert, Sanctuary, Sovereignty, Sacrifice: Canadian Sanctuary Incidents, Power, and Law (University of British Columbia Press, 2005) at 143-50 [Lippert, Sanctuary].
175. Rehaag, "Bordering on Legality," supra note 171 at 49.
176. See e.g. Lippert, Sanctuary, supra note 174 at 22.
177. Ibid at 35.
178. For instance, the cases of Mohamed Cherfi and Amir Kazemian. See e.g. Isabelle Porter, "Le Canada expulse le militant algérien Mohamed Cherfi," Le Devoir (6 March 2004) A5; Ingrid Peritz, "Algerian Arrested in Church Denied Asylum in U.S.," The Globe and Mail (23 October 2004) A24; "100 Demonstrate For Deported Man," The Montreal Gazette (7 March 2004) A5; Louise-Maude Soucy, "Le mouvement d'appui à Cherfi prend de l'ampleur," Le Devoir (10 March 2004) A5; "Refugee Claimant's Supporters Demand His Return from U.S.," The Toronto Star (10 March 2004) A7; Petti Fong, "Iranian Refugee Granted Asylum," The Globe and Mail (20 February 2007) A12.
179. See Rehaag, "Bordering on Legality," supra note 171.
180. See Idil Atak, "The Securitisation of Canada's Refugee System: Reviewing the Unintended Consequences of the 2012 Reform" (2018) 37 Refugee Survey Q 1 at 7-9. See also generally Petra Molnar Diop, "The 'Bogus' Refugee: Roma Asylum Claimants and Discourses of Fraud in Canada's Bill C-31" (2014) 30 Refuge 67. https://doi.org/10.25071/1920-7336.38604
181. R v Boule, Applicant's Memo, supra note 124 at para 154.
182. R v Christhurajah, 2017 BCSC 2455; R v Christhurajah, 2017 BCSC 1212.
183. Rajaratnam, supra note 133.
184. Ibid at para 275.
185. Ibid at para 245.
186. Newman, supra note 11 at 153-54.
187. B010 v Canada (Citizenship and Immigration), 2015 SCC 58 at para 60 [B010]. For a detailed discussion of this decision, see Lobat Sadrehashemi, "The MV Sun Sea: A Case Study on the Need for Greater Accountability Mechanisms at Canada Border Services Agency" (2019) 42 Dal LJ 213.
188. B010, supra note 187 at para 60. For details about the role that the profit motive played in the Sun Sea cases, see Sadrehashemi, supra note 187 at 227-28.
189. Aberman, Expanding Access, supra note 14 at 15.
190. Rajaratnam, supra note 133 at para 221.
191. Ibid. In the context of section 91 of the IRPA, which details who can "represent or advise a person for consideration," Immigration, Refugees and Citizenship Canada has reportedly indicated that the phrase "for consideration" covers "anyone who receives a salary for their work, including at an NGO, even if the services offered are free." See Canadian Council for Refugees, "IRPA Section 91: Assisting People with Immigration Processes" (September 2019), online (pdf): ccrweb.ca/en/irpa-91-CCR-paper [perma.cc/3AGZ-RTZ7].
192. Appulonappa, 2015, supra note 127 at para 51.
193. Ibid at para 86; Rajaratnam, supra note 133 at paras 225, 228.
194. See discussion in Part I, above.
195. Appulonappa, 2015, supra note 127 at para 40.
196. International Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969).
197. Azadeh Shahshahani & Chaka Washington, "Shattered Dreams: An Analysis of the Georgia Board of Regents' Admissions Ban from a Constitutional and International Human Rights; Perspective" (2013) 10 Hastings Race & Poverty LJ 1 at 14-15, 17. Convention on the Rights of the Child, 20 November 1989, 1577 UNTS 3, art 28(1)(c) (entered into force 2 September 1990). See also Gregory M Dickinson, "The Right to Education in Canada: A Difficult Beast to Tame" (2005) 1 Intl J for Education L & Policy 47 at 52.
198. Ibid at 19; Convention on the Rights of the Child, 20 November 1989, 1577 UNTS 3, art 28(1)(c) (entered into force 2 September 1990). See also Gregory M Dickinson, "The Right to Education in Canada: A Difficult Beast to Tame" (2005) 1 Intl J for Education L & Policy 47 at 52.
199. Samantha Arnold, Children's Rights and Refugee Law: Conceptualising Children within the Refugee Convention (Routledge, 2018) at 150.
200. Ibid at 47.
201. Universal Declaration of Human Rights, GA Res 217A(III), UNGAOR, 3rd Sess, Supp No 13, UN Doc A/810 (1948) 26.
202. Dickinson, supra note 198 at 52; Shahshahani & Washington, supra note 197 at 23. For a discussion of customary international law, see Jeffrey L Dunoff, Steven R Ratner & David Wippman, International Law Norms, Actors, Process: A Problem-Oriented Approach, 4th ed (Wolters Kluwer, 2015) at 379-81.
203. Canada ratified the ICESCR in 1976. See Dickinson, supra note 198 at 52; International Covenant on Economic, Social and Cultural Rights, GA Res 2200A (XXI), UNGAOR, 21st Sess, Supp No 16, UN Doc A/6316 (1966) 49 (entered into force 3 January 1976).
204. Implementation of the International Covenant on Economic, Social and Cultural Rights, General Comment No. 13, The Right to Education, UN Doc E/C.12/1999/10 (1999). For a discussion of these rights, see Shahshahani & Washington, supra note 197 at 17; Arnold, supra note 199 at 46-47, 147-48.
205. R v Appulonappa, 2014 BCCA 163 at para 98 [Appulonappa, 2014].
206. Ibid at para 108.
207. Ibid at para 111.
208. Appulonappa, 2015, supra note 127 at para 66.
209. Ibid at para 30.
210. Ibid at para 55 [emphasis added].
211. Supra note 18, ss 3(1)(a), 3(1)(c), 3(1)(e).
212. Supra note 133.
213. Ibid at paras 182-84.
214. Ibid at paras 182, 188; Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61 at para 13.
215. Rajaratnam, supra note 133 at para 208.
216. Ibid at para 229.
217. It should be noted that the BCCA rejected the inclusion of "humanity," meaning "the centrality of saving human lives and alleviating suffering wherever it is found," from this list of principles because "it is covered by the requirement that the purpose of humanitarian aid be to save lives or alleviate suffering." Ibid at paras 231, 239, 242.
218. Ibid at para 241.
219. Ibid.
220. Ibid.
221. Ibid at para 254.
222. 8 USC § 1324 (2021) [INA].
223. Ibid, cl 1(A)(iii); Raquel Aldana, Beth Lyon & Karla Mari McKanders, "Raising the Bar: Law Schools and Legal Institutions Leading to Educate Undocumented Students" (2012) 44 Ariz St LJ 5 at 43.
224. Ibid; INA, supra note 222, cl 1(B).
225. See generally Kristina M Campbell, "Humanitarian Aid Is Never a Crime: The Politics of Immigration Enforcement and the Provision of Sanctuary" (2012) 63 Syracuse L Rev 71; Allan Colbern, Melanie Amoroso-Pohl & Courtney Gutierrez, "Contextualizing Sanctuary Policy Development in the United States: Conceptual and Constitutional Underpinnings, 1979 to 2018" (2019) 46 Fordham Urb LJ 489.
226. Amnesty International, "USA: Authorities Are Misusing Justice System to Harass Migrant Human Rights Defenders" (2 July 2019), online: www.amnesty.ca/news/usa-authoritiesare-misusing-justice-system-harass-migrant-human-rights-defenders%C2%A0 [perma.cc/399T-S67T].
227. Jasmine Aguilera & Billy Perrigo, "They Tried to save the Lives of Immigrants Fleeing Danger. Now They're Facing Prosecution" (11 November 2019), online: Time time.com/5713732/scott-warren-retrial [perma.cc/5CJ8-GF7R].
228. Amnesty International, "USA: Drop Abusive Criminal Charges against Humanitarian Volunteer Scott Warren" (7 November 2019), online: www.amnesty.org/en/latest/news/2019/11/usa-drop-criminal-charges-against-scott-warren [perma.cc/W5BH-JPXN]; Amnesty International, "USA: Exoneration of Scott Warren Is a Triumph for Humanity" (20 November 2019), online: www.amnesty.org/en/latest/news/2019/11/usa-exoneration-scottwarren-triumph-for-humanity [perma.cc/4MTD-B8KR].
229. Aldana, Lyon & McKanders, supra note 223 at 49, 52-53.
230. Dukic, Gold & Lisa, supra note 11 at 43.
231. See Unnati Gandhi, "Crown Drops Human Smuggling Charges," The Globe and Mail (9 November 2007), online: www.theglobeandmail.com/news/national/crown-drops-human-smuggling-charges/article697456 [perma.cc/A6D2-JB9N]; Canadian Council for Refugees, "Proud to Aid and Abet Refugees" (2007), online: ccrweb.ca/sites/ccrweb.ca/files/static-files/aidandabet/index.htm [perma.cc/KW3Q-6ETY]; Bernard Amyot, Letter from the Canadian Bar Association to the Attorney General of Canada, "Re: Janet Hinshaw-Thomas" (25 October 2007), online (pdf): www.cba.org/CMSPages/GetFile.aspx?guid=f1a64a30-835b-44a1-b436-b995e36d8ae7 [perma.cc/H4QF-CRU7].
232. R v Callahan (1 November 2012), Thunder Bay 113204 (Ont CJ)
Appulonappa, 2014, supra note 205 at para 104. https://doi.org/10.1017/S0075435814000057
233. Ibid at paras 92-105. Interestingly, the BCCA determined that the Hinshaw case had little utility in the analysis because information about whether she had been designated a "humanitarian" by the law enforcement agencies was absent, but the Callahan decision allowed the BCCA to conclude that the Attorney General had consented to the institution of proceedings against a humanitarian.
234. The criminalization of humanitarian aid appears to be increasing in various European countries as well. See e.g. Sara Bellezza & Tiziana Calandrino, eds, Criminalization of Flight and Escape Aid (Borderline-Europe, 2017); Sergio Carrera et al, Policing Humanitarianism: EU Policies Against Human Smuggling and their Impact on Civil Society (Hart, 2019).
235. William Smith & William Foster, "Equality in the Schoolhouse: Has the Charter Made a Difference?" in Michael Manley-Casimir & Kirsten Manley-Casmir, eds, The Courts, the Charter, and the Schools: The Impact of the Charter of Rights and Freedoms on Educational Policy and Practice (University of Toronto Press, 2009) 14 at 37 https://doi.org/10.3138/9781442698819-003; Green, supra note 11 at 1044. Although we focus on access to education, please note that "Canadian study experience does not necessarily guarantee an immigrant's economic success in the Canadian labour market." Yuqian Lu & Feng Hou, "Student Transitions: Earnings of Former International Students in Canada's Labour Market" in Ann H Kim & Min-Jung Kwak, eds, Outward and Upward Mobilities: International Students in Canada, Their Families, and Structuring Institutions (University of Toronto Press, 2019) 219 at 220. https://doi.org/10.3138/9781487530563-014
236. The wider adoption of access programs raises further questions with which colleges and universities must grapple to make PLS students feel truly safe on campus. Many sanctuary campuses in the United States have policies about sharing documents and information with immigration officials and about permitting immigration officials access to campus. Much of the American scholarship discusses the enforceability of these policies. We encourage further Canadian scholarship on these issues. See e.g. Dukic, Gold & Lisa, supra note 11 at 33-42.
237. Green, supra note 11 at 1076.
238. For a discussion of the "differences in the production of migrant illegality" between Canada and the United States, see Goldring, Berinstein & Bernhard, supra note 4 at 245-46.
239. Newman, supra note 11 at 152. See also Espinosa, supra note 11 at 156.
240. Aldana, Lyon & McKanders, supra note 223 at 42. For details about the laws governing provincial financial aid, which differ from American laws, see Ben-Ishai, supra note 67 at 215-16.
241. We encourage provinces and territories to consider looking to American examples in these states to open up provincial financial aid to PLS students. For a discussion of some of these policies, see Olivia Osei-Twumasi & Guadalupe Lopez Hernandez, "Resilience in the Face of Adversity: Undocumented Students in Community Colleges" in Carola Suarez-Orozco & Olivia Osei-Twumasi, eds, Immigrant-Origin Students in Community College: Navigating Risk and Reward in Higher Education (Teachers College Press, 2019) 46 at 48; Aboytes, supra note 11. For details about past federal changes in Canada expanding student financial aid to refugees, see Slobodian & Kits, supra note 69.
242. Aboytes, supra note 11 at 595-96.
243. Newman, supra note 11 at 139-40. For a comprehensive look at each state's policies regarding undocumented students and their ability to enroll in post-secondary institutions, see Higher Ed Immigration Portal, "Portal to the States" (2022), online: www.higheredimmigrationportal.org/states [perma.cc/KW2Q-PQ8E].
244. Jonathan Blitzer, "An Underground College for Undocumented Immigrants," The New Yorker (15 May 2017), online: www.newyorker.com/magazine/2017/05/22/an-underground-college-for-undocumented-immigrants [perma.cc/T2Z6-DKFF]. This bar was subsequently upheld. See Bill Rankin & Eric Stirgus, "Atlanta Court Upholds University System ban on Unauthorized Immigrants," The Atlanta Journal-Constitution (6 March 2019), online: www.ajc.com/news/local/atlanta-court-upholds-university-system-banunauthorized-immigrants/IxwkDzIV8VAwjRHY76fPiK [perma.cc/X3Y8-VBPP].
245. Newman, supra note 11 at 133.
246. Sanctuary Campus petitions typically asked colleges or universities (1) to "refuse access to immigration officials on campus without a warrant"; (2) to "refuse to participate in any voluntary sharing of information with immigration officers or agencies"; and (3) to "prohibit inquiry into or the recording of an individual's immigration status." Newman, supra note 11 at 155-56. Many American legal academics have weighed in on this debate, arguing that "state laws prohibiting education are unconstitutional" because they are contrary to the Plyler v Doe decision, which guaranteed access to schooling for all minor resident children in the United States. Plyler v Doe, 457 US 202 at 230 (1982). See Espinosa, supra note 11 at 142; Newman, supra note 11 at 133, 138-39; Aldana, Lyon & McKanders, supra note 223 at 72; Green, supra note 11 at 1043; Holley-Walker, supra note 11 at 361-62. See also Laura Emiko Soltis & Azadeh Shahshahani, "When Undocumented Youth Are Banned From College, The Entire Nation Fails" (22 August 2018), online: Huffpost www.huffpost.com/entry/opinion-undocumented-immigrants-daca-college_n_5b7d408ae4b0cd327df84eda [perma.cc/4CN7-SACJ]; Greg Bluestein, "New Georgia Law Strips State Funding of 'Sanctuary' Campuses," Atlanta Journal-Constitution (27 April 2017), online: www.ajc.com/blog/politics/new-georgia-law-strips-state-funding-sanctuary-campuses/wYE4SVFqSn83PVUI3ITf2I [perma.cc/2NK6-6HAH].
247. Soltis, supra note 12 at 21-22; Blitzer, supra note 244; Matt Vasilogambros, "The Folly of Under-Educating the Undocumented," The Atlantic (16 March 2016), online: www.theatlantic.com/politics/archive/2016/03/the-folly-of-under-educating-the-undocumented/473877 [perma.cc/VUV5-LQFP].
248. Blitzer, supra note 244.
249. Bluestein, supra note 246; Emory University School of Law, "Emory Immigrant Legal Assistance," online: www.law.emory.edu/academics/clinics/student-led-clinics/emory-immigrant-legal-services.html [perma.cc/3CRR-5GAT].
250. Dukic, Gold & Lisa, supra note 11 at 46.
251. Rehaag, "Bordering on Legality," supra note 171 at 44. For a discussion about the "emphasis on legality" in Canadian sanctuary practice, see also Julie Young, "Seeking Sanctuary in a Border City: Sanctuary Movement(s) across the Canada-US Border" in Lippert & Rehaag, Sanctuary Practices, supra note 171, 232 at 240-42.
252. Goldring, Berinstein & Bernhard, supra note 4 at 241, 245-46; Meloni, supra note 14 at 457.
253. Genevieve Negrón-Gonzales, "Undocumented, Unafraid, and Unapologetic: Re-articulatory Practices and Migrant Youth 'Illegality'" (2014) 12 Latino Studies 259 at 271-72. https://doi.org/10.1057/lst.2014.20
254. Meloni, supra note 14 at 476.
255. Ibid at 457-58.
256. Blitzer, supra note 244.
257. Villegas & Aberman, supra note 7 at 53, 78.
258. Some of the dedicated community advocates who helped these students to prepare their applications for PR on H&C grounds believe that including evidence of their enrolment at York University was key to their applications' success. This reflects the experience of one of the article's co-authors, Francisco Rico-Martinez, who (through the FCJ Refugee Centre) engaged with many of the students involved in the program and with advocates who assisted them with H&C applications, several of which have been successful. However, as noted above, H&C applications are highly discretionary and non-transparent processes, and it can be difficult to predict how a particular factor will influence outcomes. See supra note 20.
259. P Villegas, supra note 14 at 247.
260. Michael Rabaja Manalo-Pedro, The Role of a Dream Resource Center at a CSU: How Institutional Agents Advanced Equity for Undocumented Students through Interest Convergence (EdD Dissertation, University of California Los Angeles, 2018) [unpublished] at 31-32.
261. P Villegas, supra note 14 at 248. See generally Ruben Elias Canedo Sanchez & Meng L So, "UC Berkeley's Undocumented Student Program: Holistic Strategies for Undocumented Student Equitable Success Across Higher Education" (2015) 85 Harvard Educational Rev 464 https://doi.org/10.17763/0017-8055.85.3.464; International Human Rights Law Clinic, DREAMers at Cal: The Impact of Immigration Status on Undocumented Students at the University of California at Berkeley (University of California, Berkeley, School of Law, May 2015), online (pdf): www.law.berkeley.edu/wp-content/uploads/2015/05/DREAMersReport2.pdf [perma.cc/66KM-NYKY].
262. For example, some PLS students at York University have encountered barriers in completing mandatory practicum placements that require documentation that they are unable to provide.
263. Correspondence with York University's Access Program Coordinator (30 August 2020) [on file with authors].
