Interesting. If someone is not technically in the United States what authority does the US government have to detain them?

It would be interesting to read the brief from the government to see the authority upon which the argument is based.

Ben: They're not people, so the US has authority to detain them; they're abandoned chattle inside the US border -- their owner isn't aruond, so the US can do what they like as long as they're not violating Department of Trade guidelines.

Hey! Maybe US prison corporations could sue, saying that Canadian humans detained at the border are unlawfully subsidized by the Canadian Government because they received healthcare, education and social assistance, thus have an unfair competitive advantage over US prison labour.

Dagnabit!

Generally or specifically?

As per usual, I am more concerned with Canadian law applied in analogous contexts. Immigration and Refugee Protection Act (IRPA) has specific regulations about inadmissability to Canada (http://laws.justice.gc.ca/en/I-2.5/SOR-2002-227/132531.html#rid-132689) but does not make clear the constitutional status of someone as that admissability is being determined. What I am curious about is the legal status of someone in the same liminal border context as the NYT article describes. In other words, at what point does Canadian territory begin and do we have a comparable limbo of non-territorial status as a person is being held.

I suppose it should not surprise me that even in 2004 I find it much easier to find material discussing the legality of searches for stuff the Canadian government can tax (http://www.canlii.org/ca/com/chart/s-8.html#_Toc68428978) rather than discussion of the status of people trying to cross the border.

As a preliminary, consider these two sections of the Charter:<blockquote class="smalltext">2. <b>Everyone</b> has the following fundamental freedoms:<blockquote>a) freedom of conscience and religion;<br>b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;<br>c) freedom of peaceful assembly; and <br>d) freedom of association.</blockquote>3. <b>Every citizen</b> of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.</blockquote>Certain rights accrue to people and some to citizens. Some are not available to the corporations which are also legally "people".

Does that "everyone" apply to people who are not Canadian citizens and are not in Canada? Because it seems to me that is the issue the NYT article is addressing in the US context, i.e. at what point does Canadian territory/the jurisdiction of the Charter begin. I am not certain what the status of a border checkpoint is vis a vis this stuff and it would not surprise me if our policy was as restrictive, if not more so, than the American one. The difference is that American media seems to be ready to critique American governance while Canadian media also seems to be ready to critique American governance.

It is quite true that border points are quite harsh spots for legal rights but that is really not what the US executive branch was saying yesterday for the first time. Border rights are set out in statutes. Statutes are enacted under constitutions. So under Canadian law, in a case like <i>Mitchell</i> v. <i>M.N.R.</i> the Customs Act and section 35 of the Constitution relating to "aboriginal people" were reviewed to determine Mohawk right to transfer goods amongst their cross-border communities. Similarly, a Mr. Monney, a Ghanaian passport holder with a belly full of heroine tabs, ended up before the Supreme Court of Canada for determination of his rights under that same Act and constitution in which his rights were respected as included in the word "everyone" found in section 7 and 8 of the <i>Charter</i>. In each case, there was no question that the event was one of the legal determination of the balance of interests.<p>But the lawyer said that persons at the border were beyond the constitution - something I do not think is possibly said by an entity that only said by an entirely constitutionally created entity like the US Federal government. Remember that the Crown in Canada and the US People and to some extent (I think) the states are entities entirely on natural law. They theoretically pre-exist the constitution. The whole thing at the Founding of the US was defining what that unnatural Federal entity was and what relationship it had with the People and the states. I do not understand how human beings at a US border cannot be recognized as the subject of rights by the Federal state, excluding them from bring be evaluated by that government under law and the constitution. But that is why I need that text book, isn't it. <p>So the question is only about the capacity of non-citizens to be subjects of US constitutional rights by their physical presence on the territory of that country. It is not whether or not our border laws are harsh or not. They should be tough and I am very grateful for that when I pass over the other side as I do so often.

Ahh...it is about "the People" as I suspected. Here is a nice illustrative case, <i>United States</i> v. <i>Verdugo-Urquidez</i>, 494 U.S. 259 (1990), from the US-Mexican border...and perhaps a wee bit south thereof. See these helpful points from the lawyer's best pal, the headnote:<blockquote class="smalltext">(b) The Fourth Amendment phrase "the people" seems to be a term of art used in select parts of the Constitution and contrasts with the words "person" and "accused" used in Articles of the Fifth and Sixth Amendments regulating criminal procedures. This suggests that "the people" (p.260)refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. Pp. 264-266.<p>(c) The Fourth Amendment's drafting history shows that its purpose was to protect the people of the United States against arbitrary action by their own Government and not to restrain the Federal Government's actions against aliens outside United States territory. Nor is there any indication that the Amendment was understood by the Framers' contemporaries to apply to United States activities directed against aliens in foreign territory or in international waters. Pp. 266-268.<p>(d) The view that every constitutional provision applies wherever the Government exercises its power is contrary to this Court's decisions in the Insular Cases, which held that not all constitutional provisions apply to governmental activity even in territories where the United States has sovereign power. See, e.g., Balzac v. Porto Rico, 258 U.S. 298. Indeed, the claim that extraterritorial aliens are entitled to rights under the Fifth Amendment--which speaks in the relatively universal term of "person"--has been emphatically rejected. Johnson v. Eisentrager, 339 U.S. 763, 784.</blockquote>So non-citizens at US borders are not protected by the US constitution in the same way that non-citizens in Canada are not entitled to vote. It would appear that the constitutional status of the non-citizen at Canadian border is to be preferred.

The spot where I am still unclear is the point at which - in spatial and legal terms - Canada begins. Under the Safe Third Country Agreement, Canada Customs turns refugee claimants back into the United States saying that, as they landed in the US first, that is the place where their refugee status should be determined. It seems to me then that mere interaction with the border patrol, even setting foot across the border, entitles any person to Charter protection.

Or perhaps I have got this wrong. They * are * protected by the Charter but in practice they are turned back regardless.

Hmm.

That would be my guess. It is interesting that most Charter cases on border rights occur at airports, though that may just be my hunch.