2.1 Cities as Sites of Migration and Apprehension

In Canada, between 2011 and 2016, fully two-thirds of all immigration was to the five most populated cities and nine out of ten migrants relocated to an urban centre.Footnote ²⁵ This is not a uniquely Canadian phenomenon. Globally, migration to cities is ‘a constitutive element of modernity’.Footnote ²⁶ This can place cities in tension with state authorities. Cities that attempt to integrate irregular migrants or prevent the removal of non-citizens ‘take a direct policy stance against national immigration and citizenship policies’.Footnote ²⁷

Under Canada’s federal constitutional order, only the federal government and provincial governments have authority to regulate in their respective jurisdictional areas. Cities ‘are creatures of [provincial] statute and can only act within the powers conferred on them by the provincial legislature’.Footnote ²⁸ Formally, they have no legal authority over immigration. However, practically, cities and other substate actors play a crucial role in the integration of migrants.Footnote ²⁹ For example, the federal government may fund city libraries or non-profit organizations to deliver language classes and other integration services to migrants even though regulation of city libraries and non-profit organizations are not federal responsibilities.

Given the services many major Canadian cities are responsible for regulating and administering, either directly or by delegation from provincial or federal governments, it is unsurprising that cities are key actors in integrating migrants. Though constitutional authority for civil and political rights is vested at the provincial level, in practice, major municipalities are responsible for public education, welfare provision, social housing, policing, and child protection. Each of these services comes with a unique legal regulatory regime as well as governmental and non-governmental employees who interpret and apply that regime. For many migrants, these are the government officers who matter the most – far more than any official in the federal immigration department.

Child protection falls under provincial jurisdiction in Canada, and in each province, there is a department or ministry that is responsible for child protection legislation and service delivery. In some provinces, service delivery is delegated to children’s aid societies, which are agencies mandated by provincial law to deliver child protection services in a specified territorial jurisdiction. In practice, this means that there is often a children’s aid society for a given city, for example the ‘Children’s Aid Society of Toronto’. Such societies develop local policies and deliver child protection services in their respective city. In cities where there is a sizeable population of non-citizen children in care, those policies may relate to the unique immigration and citizenship needs of non-citizen children. In other provinces, these frontline child protection services are delivered by provincial employees, often without any tailoring of the services to the unique needs of non-citizen children. Other than providing some funding for children who are refugee claimants or government-assisted refugees (and Indigenous children), the federal government is not responsible for child protection. The federal government does, however, retain jurisdiction over the naturalization and citizenship of children in care, but the initiation of such processes is left to provincial child protection authorities or their children’s aid society delegates.

If emplacement entails migrants navigating networks of power to overcome barriers and make the most of opportunities, municipal service delivery becomes one site where multi-scalar migration governance takes shape. Migrants, like all people, have economic and social needs that involve engaging with state service delivery regimes. How these regimes treat migrants or specific classes of migrants influences the extent to which this multi-scalar governance acts as a barrier or opportunity. This is especially the case for municipal child welfare agencies that are responsible for apprehending children in need of protection.

Until recently, many child welfare agencies made little to no effort to secure Canadian citizenship for wards in their care, it was simply ‘not something that has been required to be monitored’ as part of standard best practices.Footnote ³⁰ Worse, research shows that migrant children in care regularly assume that their child welfare worker is taking care of their most pressing needs, including the acquisition of citizenship, but these assumptions are often misplaced.Footnote ³¹

The reasons for this type of systemic failure are contested. At best, it is the result of child welfare workers who do not have an adequate understanding of the unique needs of migrant children or the resources to respond to those needs.Footnote ³² Others point to a more pernicious explanation that situates the apprehension, inadequate care, and potential displacement of migrant youth within Canada’s historic and ongoing race relations.Footnote ³³

Anti-Black racism is part of Canada.Footnote ³⁴ So is xenophobia.Footnote ³⁵ At the nation-state level, Canada has a long history of immigration policies designed to exclude non-White migrants, either explicitly or substantively.Footnote ³⁶ This racism has significant implications for the treatment of migrant children in the child welfare system.

While there is no formal discrimination in child protection in Canada, recent studies show stark disparities based on race. In Toronto, for example, when a report is made to children’s services, Black families are twice as likely to be investigated and Black children are more likely to be apprehended. Poverty, not abuse, is the strongest predictor of placement in care. Once in care, Black children are more likely to be adopted or ‘age out’ of care, whereas White children are more likely to be reunited with their families. All in all, on a population basis, Black children are overrepresented in care by a factor of five times.Footnote ³⁷

These racial dynamics do not mean that non-White migrant children are per se targeted by child protection services. It does, however, suggest that there is an intersectionality between immigration status and race that may affect emplacement for some migrants. Indeed, studies of separated refugee children show that they are subject to both anti-refugee and anti-youth discourses.Footnote ³⁸ To the extent that Blackness intersects with non-citizenship, this disproportionate treatment of Black children and families has led some scholars to argue that the child welfare system is complicit in facilitating a ‘pipeline that first normalizes the separation of largely racialized, poor, and/or immigrant families and then reframes foster children as threats to the social order requiring their incarceration and expulsion’.Footnote ³⁹

Even if we do not accept that Canada is consciously complicit in an apprehension to deportation pipeline, the emplacement of migrant children in the child welfare system functions as a barrier to their full integration in Canadian society, particularly with respect to gaining Canadian citizenship and all the inherent rights that such status entails. This makes former crossover youth vulnerable to deportation if they engage in criminal activity as young adults. At the same time, the emplacement of migrant children in poor systems of care may also challenge our conception of citizenship where former wards of the state face deportation because the state, as parent, failed to obtain citizenship on their behalf.

2.2 Redefining Citizenship in Response to Former Crossover Youth

The importance of cities in multi-scalar migration governance, including in the context of former crossover youth, has implications for how citizenship is defined. Globalization has changed the social fabric of cities.Footnote ⁴⁰ Transnational mobility, transnational migrant networks, neoliberal restructuring of states that deemphasizes public authority, and securitization of borders are factors related to changing cities that affect the national characteristic of citizenship.Footnote ⁴¹ Through these changing dynamics of cities and their place within the world, citizenship is being:

The rescaling, reterritorialization, and reorientation alter the role cities play in conceptualizing citizenship and belonging.

The implications of these changes are unsettled. Some scholars draw a connection between residence in cities and conceptions of ‘local citizenship’ that confer entitlement to services and possibly protection from deportation.Footnote ⁴³ Others suggest that belonging within cities requires the development of non-legal roadmaps to establish the temporal meaning of community and to situate migration within that meaning.Footnote ⁴⁴

These iterations of local citizenship propose alternative normative foundations of citizenship. In its most extreme form, local citizenship ‘proposes an ideal in which citizenship is no longer bound to an a priori political community but is based on the mere reality of presence and residence in a place’.Footnote ⁴⁵ This is not unlike conceptions of nation-state citizenship that require nothing more than birth in a country, it is just that the scale of place is different, shifting from the nation-state to the city. Relationally focused conceptions of local citizenship require something more. The concept of emplacement developed by Çağlar and Glick Schiller is capable of constituting that something more.Footnote ⁴⁶ Emplacement recognizes that a migrant’s engagement with local barriers and opportunities creates relations between that person and local networks. These relations then transform what it means to be a citizen and what it means to belong.

Just as the evolving approach to nationality at international law has not displaced the state, developing concepts of local citizenship also do not displace the state. ‘The real significance of urban citizenship for cosmopolitan democracy is not that it would provide an alternative basis to territorial federation, but that it could transform national identities and nationalist ideologies from below and from within’.Footnote ⁴⁷

The pathway through which this transformation takes place is relational. Citizenship is constituted through performative acts and social processes at the municipal level.Footnote ⁴⁸ This does not have to be limited to engagement through service provision, but service interactions will undoubtedly form part of this constitutive process, whether viewed as barriers or opportunities within the concept of emplacement.

What municipal citizenship also enables is space for migrants to more readily become political actors.Footnote ⁴⁹ This does not alleviate tensions between residents and newcomers. What it does, however, is bring to the forefront the question of ‘who is an established resident, legitimate local actor, or who is acceptable as a new resident and, thus, who has the right to local sociopolitical, cultural, and economic space and who does not’.Footnote ⁵⁰ Confrontation and consensus around this question need not exclude traditional nation-state conceptions of belonging, but it will not be limited to those formal definitions of citizenship.

In this context, migrant children who are apprehended by child welfare systems can make claims to both placed-based and relationally based citizenship. When children are apprehended by local child protection services, they are placed in care. For crossover youth, this often means residential care in group homes or other state-run institutions with concomitant poor outcomes on important determinates of development such as education, health, employment, and criminal involvement.Footnote ⁵¹ The opportunities and barriers of these ‘care’ placements inevitably shape who migrant youth become. Relationally, migrant children who become wards of the state are legally of the state. The state stands in loco parentis (in the place of a parent) especially for apprehended children who are not placed in foster care or adopted. Thus, the act of apprehension becomes a relationship of both responsibility and control.

One important site of responsibility and control is applications for citizenship, which until 2017 could not be made directly by minors.Footnote ⁵² Even today, the practice of applying for citizenship as a minor requires a guardian or the provision of additional information by the child.Footnote ⁵³ As a result, responsibility and control of citizenship applications for migrant children in care continues until those children ‘age out’ of the child welfare system as young adults.

It is at this point of aging out where former crossover youth are most vulnerable to ‘crimmigration’ consequences. Non-citizens who are convicted of crimes are inadmissible to Canada and subject to deportation.Footnote ⁵⁴ This applies equally to former crossover youth who spent their entire childhood in care, even where child protection agencies failed to apply for citizenship on their behalf.

The recent cases of Abdoul Abdi and Abdilahi Elmi show that this vulnerability to deportation is not fictitious for former crossover youth. Both Mr Abdi and Mr Elmi came to Canada as child refugees fleeing persecution in Somalia. Both were apprehended by child protection services, in Nova Scotia and Ontario, respectively, who failed to apply for Canadian citizenship on their behalf.Footnote ⁵⁵ In Mr Abdi’s case, his family attempted to apply for citizenship on his behalf, but child protection services ‘intervened on the basis that as a ward of the state only DCS [Department of Community Services] could apply for citizenship’.Footnote ⁵⁶ Both faced a tumultuous childhood and became crossover youth.Footnote ⁵⁷ In Mr Abdi’s case, he was transferred between thirty-one different placements between the ages of 6 and 18, many of which were group homes or other institutionalized settings.Footnote ⁵⁸ Because they were non-citizens, both Mr Abdi and Mr Elmi became inadmissible and deportable when, as young adults, they were convicted of criminal offences.

What makes these case studies interesting, from the perspective of multi-scalar migration governance, is that neither Mr Abdi nor Mr Elmi was deported. Mr Abdi’s deportation order was overturned by the Federal Court on two occasions.Footnote ⁵⁹ Mr Elmi’s deportation was temporarily halted by Canada following an interim measures request from the UN Human Rights Committee.Footnote ⁶⁰

Central to both outcomes was advocacy that challenged the conventional account of citizenship as strictly within the purview of the nation-state. For example, Muscati and Macklin argued: ‘The issue is not whether Mr Abdi is a model member of the Canadian community and so ‘deserves’ to stay. What matters is that he is already a product and member of this society’.Footnote ⁶¹ Black Lives Matter – Toronto ensured that Canadians were aware of the federal government’s efforts to deport a former crossover youth to a country too dangerous for Canadian officials to visit.Footnote ⁶² These types of interventions recast the state at a different scale, highlighting not just the federal state’s role in effecting deportation but also the provincial state’s role in making migrant children in care precarious by preventing them from acquiring citizenship. This lack of status then became a ‘gateway to a range of traumatic vulnerabilities that are systemic in nature [and] … experienced disproportionality and specifically by poor and racialized people’.Footnote ⁶³ At this scale, the ‘local citizenship’ of Mr Abdi and Mr Elmi mattered and challenged Canada’s assertion that citizenship at the level of the nation-state was determinative politically and morally.

In Mr Abdi’s case, the federal government decided not to pursue further deportation proceedings.Footnote ⁶⁴ Mr Elmi’s case remains pending while the UN Human Rights Committee considers a complaint that his deportation would violate international law. Following Mr Abdi’s case, the federal government changed its policy manual that governs what factors immigration officials must consider before deciding whether to deport a long-term resident of Canada. The province of Nova Scotia implemented a new policy to ensure that the citizenship status of wards in its child welfare system was tracked and that there was an individualized plan for each to ensure that they gained status if needed. These changes are important insofar as they acknowledge that emplacement in the child welfare system may redefine citizenship in a manner that requires recognition, but like much of the multi-scalar migration governance literature, the changes are grounded more in political, social, and moral arguments than in legal arguments. This is something that is changing.

3.1 The Administrative Discretion of Immigration Officials Not to Deport

Canadian immigration law is punitive. Penal populism creates the political conditions for Parliament to pass laws, such as the Faster Removal of Foreign Criminals Act, that make it easier to attach ‘crimmigration’ consequences to the criminal conduct of non-citizens.Footnote ⁶⁸ The Supreme Court of Canada, for its part, has held that the objective of immigration legislation is to prioritize security over integration ‘by removing applicants with [criminal] records from Canada, and by emphasizing the obligation of permanent residents to behave lawfully while in Canada’.Footnote ⁶⁹ This is part of the securitization of migration.Footnote ⁷⁰

Nonetheless, immigration officials retain some discretion not to deport a long-term resident even where their criminality is well founded.Footnote ⁷¹ The scope of this discretion is unsettled but may be broader where the person concerned is a long-term resident.Footnote ⁷²

In Mr Abdi’s case, his counsel urged the Federal Court to recognize a broad scope of discretion not to deport in circumstances where the person concerned was a former crossover youth for whom the state had failed to obtain citizenship. As Nath notes, the Court was presented with excruciating detail on the intensity of harm Mr Abdi experienced in care, as well as the experience of similarly situated individuals, but this was not the focal point of the Court’s decision:

In response, the Court resolved the case based on the failure of immigration officials to even consider the arguments that were presented, but the Court did not provide guidance on how those arguments should have been treated if they were properly considered.Footnote ⁷⁴

Following Abdi v. Canada (Public Safety and Emergency Preparedness), it may be possible to recognize an expanded scope of discretion not to deport in circumstances where the person concerned was failed as a child in care. This would require an explication of emplacement and a discussion of the different scales of failure that took place, especially substate policies that prevented non-citizen children in care from acquiring the protections of citizenship. A multi-scalar account of migration governance and deportation practices is helpful here because it reveals the causal pathway between the state’s apprehension of migrant children and the state’s deportation of those children who become former crossover youth. The strength of this avenue is the existing precedent that at least requires consideration by immigration officers of circumstances beyond the scale of the nation-state, including the provincial and city scales responsible for child protection. But the weakness of this avenue is the narrow jurisdictional scope of the Federal Court. In Canada’s federal system of government, provincial superior courts are responsible for the family law and criminal law dimensions of former crossover youth. The Federal Court is traditionally focused on immigration consequences and security rather than what might be decades of emplacement that preceded a discrete criminal conviction that prompted the ‘crimmigration’ consequences at issue. The multi-scalar account of deportation practices challenges this traditional focus by revealing the interconnections between child protection and deportation. This may demand an expanded focus when the Federal Court reviews exercises of administrative discretion by immigration officials.

3.2 The Fiduciary Duties Owed by Child Welfare Agencies to Wards of the State

If responding to the multi-scalar dimensions of former crossover youth is beyond the scope of the Federal Court, an alternative avenue for transforming social legality into formal legality is to look to courts that have jurisdiction to consider the broader, multi-scalar circumstances of a former crossover youth. One possible avenue is a claim for breach of fiduciary duties in a provincial superior court responsible for family law.

Under Canadian law, a fiduciary duty can arise in various relationships where ‘one party, the fiduciary, [must] act with absolute loyalty toward another party, the beneficiary … in managing the latter’s affairs’.Footnote ⁷⁵ This duty arises from the power the fiduciary holds over the more vulnerable beneficiary and the potential misuse of that power to the detriment of the beneficiary. It protects the ‘integrity of the relationships’ not the rights of the parties.Footnote ⁷⁶

Fiduciary relationships are characterized by ‘an undertaking of responsibility’ towards a ‘person or class of persons’ whose ‘legal or substantial practical interests’ are vulnerable to the fiduciary’s exercise of discretion.Footnote ⁷⁷ They arise in social or economic interactions, deemed important by law, where the ‘high trust and confidence’ necessitated by the relationship creates ‘an implicit dependency and peculiar vulnerability of beneficiaries to their fiduciaries’.Footnote ⁷⁸ Such relationships can be between private actors or between government and individuals or classes of individuals, though the general performance of government functions does not in itself create a fiduciary obligation.Footnote ⁷⁹ Types of private fiduciary relationships include relationships between executor-beneficiary, lawyer-client, physician-patient, broker-investor, director-corporation, and parent-child. Types of public fiduciary relationships include the relationship between the Crown (as represented by government) and Indigenous peoples.Footnote ⁸⁰

The fiduciary duty in the parent-child context arises from ‘obvious reasons’, according to the Supreme Court of Canada, that extend from the fact that ‘society has imposed upon parents the obligation to care for, protect and rear their children’.Footnote ⁸¹ It is this relationship of care that grounds the fiduciary obligation in the family law context.Footnote ⁸² Unlike other fiduciary duties, the parent–child duty does not require an undertaking of responsibility on the part of the parent.Footnote ⁸³ As a result, a parent may be liable to their child for breach of their fiduciary duty if they do not act in the child’s best interests, for example, where they sexually abuse the child in their care, knowingly expose them to sexual abuse, or fail to intervene to prevent abuse when they knew or ought to have known that abuse was occurring.Footnote ⁸⁴

When a child is apprehended by a child welfare agency, however, liability for breach of fiduciary duties becomes more complex. In Canada, constitutional responsibility for child protection rests with provincial governments who have a ‘transcendent statutory duty to promote the best interests, protection and well-being of the children in their care’.Footnote ⁸⁵ But this does not necessarily mean that failure to adequately care for children who are wards of the state will constitute a breach of fiduciary duties.

In K.L.B. v. British Columbia, the Supreme Court of Canada held that the province did not owe fiduciary duties to state wards placed in abusive foster care settings, though the Court did find that the province could be vicariously liable for a failure to properly supervise such settings.Footnote ⁸⁶ Following this reasoning, the Court held in a later case that there is no general fiduciary duty imposed on government actors responsible for children to secure their best interests:

The absence of a general fiduciary duty, however, does not prohibit liability for specific conduct that causes harm where the beneficiary is a defined person or class of persons who is under the requisite degree of control needed to establish a fiduciary relationship.

Under the guise of such specific circumstances, several class action proceedings have been initiated against provinces for systemic failure that caused harm to children in care. In Papassay v. The Queen (Ontario), the Court refused to summarily dismiss a class action brought by former children in care who alleged that the province had breached its fiduciary duty to them in failing to seek compensation on their behalf for ‘physical or sexual abuse before and/or during their Crown wardships’.Footnote ⁸⁸ This failure to secure the wards’ legal interests was considered a potential breach of the fiduciary duty owed by guardians to children in their care.Footnote ⁸⁹ In T.L. v. British Columbia (Children and Family Development), the Court approved a class action settlement between former children in care and the province resulting from a guardianship social worker’s breach of fiduciary duties.Footnote ⁹⁰ The parties agreed that the social worker had harmed children in his care by neglecting them, misappropriating their funds, and failing to plan for their welfare, and that the province was vicariously liable for this harm.Footnote ⁹¹ In the specific context of migrant children in care, a class action has also been commenced against a province alleging, amongst other things, that the failure to apply for citizenship for wards of the state is a breach of fiduciary duties and that the province knew or ought to have known that the failure secure citizenship for migrant children in care would cause them immediate- and long-term harm.Footnote ⁹² The multi-scalar governance literature is likely to play a role in explicating these harms should this case advance to trial. By showing the connection between the child protection system’s failure to acquire citizenship for non-citizen children in care and the subsequent risk of deportation of those children as former crossover youth, the multi-scalar governance literature can qualify harm caused by state failure of non-citizen children in care.

The strength of the fiduciary avenue for transforming social legality into formal legality is that it transforms emplacement into obligation not discretion. Fiduciary duties are premised on relationships and the implications of asymmetrical power in those relationships. In this sense, the emplacement of migrant children in the child welfare system, followed by a failure to secure them citizenship, is not just a denial of the right to have rights, it is also a fundamental breach of the obligation to preserve the integrity of the relationship between guardian and child. Fiduciary law better captures the social dimension of the relationship breakdown and the juridical reason that law provides a responsive remedy.

Two doctrinal aspects of fiduciary law also make it a promising avenue for former crossover youth facing deportation. First, there is no limitations period for fiduciary claims, which means that such claims can be raised well after a migrant child ages out of care. This is important because former crossover youth may not even realize that child welfare agencies failed to apply for citizenship on their behalf. Second, the remedies available following a breach of fiduciary duty include ‘equitable compensation’. In Frame v. Smith, Justice Wilson, dissenting but not on this point, explained that the purpose of equitable compensation is ‘to restore to the plaintiff what has been lost through the defendant’s breach or the value of what has been lost’.Footnote ⁹³ If what has been lost from the state’s neglect of migrant children in care is access to Canadian citizenship and the safety from deportation it provides, then equitable compensation for that loss could include a grant of Canadian citizenship or a stay of deportation.

The weakness of the fiduciary avenue is the need to bring such claims in provincial superior courts that do not normally consider immigration law. Additionally, actions in provincial superior court can easily take two to three years to be heard and cost tens of thousands of dollars. Given these access to justice barriers, it is unsurprising that to date, the fiduciary claims advanced in this context have occurred through class action proceedings. A pre-requisite of such proceedings is that there are common issues between class members, which diminishes the ability of this mechanism to respond to particularized harms of individuals.

3.3 The Constitutional Right to Equality and Non-discrimination

The final avenue for transforming social legality into formal legality is the Canadian constitution and its guarantee of equality rights. Section 15 of the Canadian Charter of Rights and FreedomsFootnote ⁹⁴ provides: ‘Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability’.

The test for discrimination under section 15 requires a claimant to prove: (1) that a law or government action ‘creates a distinction on the basis of an enumerated or analogous ground’ and (2) that this distinction constitutes arbitrary or discriminatory disadvantage.Footnote ⁹⁵ A law will amount to arbitrary or discriminatory disadvantage where it ‘fails to respond to the actual capacities and needs of the members of the group and instead imposes burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating their disadvantage’.Footnote ⁹⁶

In Mr Abdi’s case, he argued before Canadian immigration officials that the state’s denial of citizenship to him as a child was discriminatory. Canada’s Citizenship Act prevented him from applying for citizenship directly, and it made the application process more onerous for state wards who, like him, were not adopted. The Citizenship Act also prohibited crossover youth from obtaining citizenship because of their record of youth offences. These barriers were magnified by the provincial child welfare agency’s failure to have any internal policy on securing citizenship for migrant children in its care and its efforts to prevent Mr Abdi’s family from applying for citizenship on his behalf on the basis that he was a state ward. On judicial review, the Federal Court found that immigration officials had completely ignored these submissions:

As a result, the Court held that the decision to refer Mr Abdi to a deportation hearing – a pro forma process that resulted in an automatic deportation order in the circumstances – was unreasonable and set it aside.Footnote ⁹⁸

Had immigration officials or the Court engaged with the constitutional arguments, there are strong reasons to believe that the test for discrimination would have been met in this context of a former crossover youth facing deportation. The Citizenship Act makes a distinction between state wards who are adopted and state wards who are not adopted. The former are entitled to citizenship on application regardless of the amount of time they have been in Canada and even if they have certain involvement with the youth criminal justice system, whereas the latter require three years of residence before applying and are prohibited from taking the oath of citizenship if similarly involved with the youth criminal justice system.Footnote ⁹⁹ The Citizenship Act makes a distinction for applications by minors, including state wards, by requiring such applications to be made by ‘a person who has custody of the minor or who is empowered to act on their behalf … unless otherwise ordered by a court’.Footnote ¹⁰⁰ These distinctions make it more difficult for migrant children in care to obtain citizenship – difficulties that are compounded where provincial child welfare agencies lack policies and expertise for migrant children in care. By making it more difficult for migrant children in care to obtain Canadian citizenship, the law reinforces, perpetuates, and exacerbates the disadvantage of an already vulnerable group, imposing an insecure status upon them. Rather than provide for them, as children in need of protection, the law makes it more likely that they will be deportable should they become involved in the criminal justice system as young adults. This is discriminatory and contrary to section 15 of the Charter.

The strength of the constitutional avenue for transforming social legality into formal legality is that it transforms emplacement into a rights violation, one that can capture the multi-scalar nature of the state conduct that makes former crossover youth vulnerable to deportation. Placement of non-citizen children in care, even for bona fide child protection reasons, imposes discriminatory disadvantage on those children because of Canada’s multi-scalar deportation practices. Those practices make non-citizen children in care more likely to be involved in the criminal justice system and less likely to acquire the protections of citizenship, resulting in a non-trivial risk of deportation. Understood as a rights violation, this imposition of discriminatory disadvantage requires an appropriate remedy. Section 24(1) of the CharterFootnote ¹⁰¹ provides that ‘[a]nyone whose rights or freedoms … have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances’. This is a broad remedial power that could include remedies akin to those provided for breach of a fiduciary duty, including a grant of citizenship or a stay of deportation. Importantly, this type of remedy can be provided by the Federal Court in the context of an immigration proceeding.

The weakness of the constitutional avenue is its complexity and increased cost. Constitutional cases turn on having an adequate evidentiary record to explain the relevant social facts that shape the underlying rights claim.Footnote ¹⁰² For example, a claimant would need to present evidence on the vulnerable nature of children in care and the phenomenon of crossover youth since this is beyond the scope of ordinary judicial knowledge. In Mr Abdi’s case, such evidence was provided by two university professors with expertise in child protection and youth justice.Footnote ¹⁰³ But this evidence is costly to obtain and likely beyond the capacity of most former crossover youth on account of their marginalization.