On the Importance of Language

If you are on this site, I can assume with reasonable confidence that you are already a wordsmith. I have always had an affinity for the label “wordsmith”, possibly because I am reminded of “blacksmith” and it conjures skills of which I have none. I do, perhaps, have some skills related to language, although I suppose this is also debatable. Notwithstanding, even from my humble position, I am both angered and ashamed by the comments of Ontario Minister of Social Services Lisa MacLeod and her dim view of the importance of language. In particular, her comments related to the Safe Third Country Agreement and the language used to describe those individuals who cross the border into Canada from the United States.

Language is important. The terms we use to describe how these individuals and families have crossed into Canada must be correct. And yes, there are correct terms to use and there are incorrect terms. In particular when we are dealing with a point of settled law within the Canadian immigration system. In my view, an elected official has the duty to learn and employ those correct terms so that she can understand the issues to deal with them.

In her words, as reported by CTV News:

“I just feel that it became more of a matter of rhetoric and who’s Canadian, who’s not; irregular, illegal,” MacLeod told reporters at a press conference in Ottawa. “The words around that became far more important than actually fixing the problem.”

The debate between irregular entry vs illegal entry is not new. I have published posts and given many interviews on CTV, CBC and other media outlets on issues related to the irregular crossings into Manitoba.

Typically, before I discuss the issues with reporters, we have a conversation to ensure that we are using the correct, legal terminology. Occasionally, the reporter will slip in an incorrect term and I find myself in an internal debate whether to interrupt and correct or to let it slide and try to inject the correct term in my answer so that acute listeners will catch the error.

I want to be clear on this point: refugee claimants entering Canada are not entering “illegally”. In an op-ed published in the Toronto Star by Osgoode Hall law students Jesse Beatson and Kylie Sier (who, no doubt, received good legal experience at PCLS):

“Irregular” is used by the Immigration and Refugee Board of Canada to describe border crossings “between ports of entry.” This is not about people trying to sneak across the border undetected, but about the right to seek asylum from persecution. The Universal Declaration of Human Rights protects this right. Importantly, the 1951 Refugee Convention and the 1967 Protocol, to which Canada is a signatory and which are incorporated into Canadian law, both recognize that refugee claimants should not be penalized for irregular entry to seek refuge.

They go on to explain:

Applying the term “illegal border crossing” to refugees is based on a misconception. Irregular entry is not an offence in the Criminal Code, and should not be labelled as such. The language of illegality also tends to violate the presumption of innocence. This is a principle that should inform ethical journalism.

In my view, it is even more important that our elected representatives use the correct terms and they understand the power & importance of language. If she is so keen on “fixing the problem”, perhaps she should realize that using incorrect language is part of the problem.

Comments

  1. It appears that the Globe and Mail has joined the bandwagon.

    Article published today: “Illegal border crossings from U.S. increase by nearly 23 percent from June to July”

    https://www.theglobeandmail.com/politics/article-illegal-border-crossings-from-us-increase-by-nearly-23-per-cent-from/

    Interestingly, the references to government officials correctly describe the crossings as “irregular”. Perhaps the writer is simply

  2. Alastair,

    With due respect, persons crossing the border “irregularly” are also doing so”illegally”. It is a criminal offense to enter Canada irregularly. That it is not an offense in the criminal code is neither here nor there – not all criminal offenses are listed in the criminal code, this particular offense is under the Immigration and Refugee Protection Act.

    That Canada, quite rightly, defers the prosecutions of refugee claimants pending the outcome of their refugee hearing (and doesn’t prosecute them at all if their hearing is successful) doesn’t mean that the original crossing wasn’t illegal, it just means that Canada has chosen, as a matter of policy, not to prosecute such offenses with respect to legitimate refugees. You would not suggest, for example, that forgery, is not an illegal act. The fact that section 131 of the Immigration and Refugee Protection Act defers prosecution for bona fide refugees for that offense under section 366 of the Criminal Code (presumably, because legitimate refugees may have need to forge travel documents and should not be punished for doing so) doesn’t change the legality of the underlying act- forgery is illegal.

    Our policy decisions not to prosecute certain offenders, doesn’t mean that their “irregular” crossing isn’t illegal – it clearly is. It just means that there are no criminal consequences to successful refugee claimants – nor should they be, provided that their refugee claim is successful. Contrary to the claims of Beatson and Sier, our law doesn’t recognize that refugee claimants should not be penalized for their “irregular entry”, it only provides for a deferral of prosecution for refugee claimants pending the outcome of their hearing – which deferral becomes permanent only for successful refugee claimants. That we can prosecute unsuccessful refugee claimants merely highlights that the underlying activity is illegal.

    I agree with you, language is important. It is unambiguously illegal to enter Canada irregularly. Persons who do so are potentially liable to criminal prosecution in Canada. It behooves lawyers to not mislead the public by suggesting that it is not illegal to enter Canada irregularly.

  3. If one has a good defence to criminal charges (necessity perhaps?), or the Canadian government has recognized it is unfair to prosecute under particular circumstances, is it fair to say that one “unambiguously” committed a crime?

  4. David,

    Also, since we’re talking about the importance of precision in language, what I said was that “it is unambiguously illegal to enter Canada irregularity”. There is no dispute about that claim (indeed, the government of Canada posts large signs at the border reminding potential border crossers of that point: https://www.cbc.ca/news/politics/hussen-asylum-border-quebec-1.4609259) .

    But dealing with your substantive point, unfortunately, being a bona fide refugee is not a defense to offenses under the Immigration and Refugee Protection Act – the act simply provides that Canada will not prosecute you for certain offenses. The commission of a crime depends on whether or not the criminal offense is committed, whether or not the offender is prosecuted (for whatever reason) is neither here nor there.

    Again, this is obvious when one looks at section 131 of the IRPA which defers prosecution for various criminal code offenses, such as forgery, committed by refugees in the course of fleeing to Canada. There is not doubt that forgery is a crime, that we don’t prosecute bona fide refugees for committing it in their flight to Canada doesn’t change the underlying character of the actions. It would be both legally and factually untrue to say that a crime – the crime of forgery, for example – wasn’t committed in those circumstances. That we (quite reasonably) decide not to prosecute the offenders, doesn’t change that truth.

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