For those that value the liberal democratic paradigm in Canada, be alarmed. With Bill C-31 in Parliament with a majority government, the principle of equality before the law faces erosion in ways that threaten the rights of refugees and refugee claimants, and by extension, every Canadian. Indiscriminate, mandatory detention and the deliberate removal of the right to a fair hearing for certain classes of people (among other clauses in the Bill’s current form) constitute corrosive elements on our justice system. Any measure that restricts the right of a person – whether the most vulnerable or most powerful – from receiving equitable treatment in the eyes of the law is a threat, not only to those targeted, but to our society as a whole. A slippery slope indeed.
Less a shocker than an extension of a manifestly anti-refugee political trajectory, Bill C-31 is part of a legislative climate that has witnessed more steps backward than forward since Canada became the first (and to date, only) country to receive the UNHCR Nansen Medal in 1986 for ‘outstanding services in supporting refugee causes.’ It was a proud moment, but a fleeting one. Take a minute to mull over the U.S.-Canada Safe Third Country Agreement (STC), one of the more profound regressions. STC allows the U.S. – a country with a rocky past in its outlook on torture and recognition of gender as grounds for refugeehood – to make binding decisions on refugee claimants before they ever arrive in Canada.
Would we force Canadian criminals to be tried in Florida and face the death penalty? Why design a system for our society if we lack the resolve to respect its outcomes?
When one claims they will be the victim of persecution there is a legal and ethical standard to hear their case in a judicially fair manner, and if that process finds their claim legitimate, to provide protection and the most axiomatic of Canadian rights: to pursue life, liberty and security of the person. In the same way STC borrows from the principle of a fair hearing for the sake of expediency, Bill C-31 in its current form markedly detracts from the just treatment of those seeking the right to pursue a life free from persecution.
There are a plethora of reasons to hold Bill C-31 in disdain: Mandatory one-year detainment of refugees that arrive illegally (which many fleeing persecution are forced to do); the exorbitant (estimated) $130k per person per year cost of detention; reneging on the spirit of decades-old international legal commitments (including Section 31(1) of the 1951 Convention on Refugees which states that countries “not impose penalties [on refugees], on account of their illegal entry or presence” and Section 3 that states that countries shall not discriminate against refugees based on their country of origin); new allowances to revoke permanent residency status many years after refugees were granted protection, and many other reasons. These are important and require more discussion, and I hope to address them here later. But there is a particular part of the Bill I need to address today: designated countries of origin.
In previous legislative iterations the Minister responsible for Citizenship and Immigration Canada would be allowed to designate given countries as being ‘safe countries’, from which appeals to the Refugee Appeal Division (not yet established although existing in legislation for almost a decade) could be disallowed, and also from which time limits could be instituted between the filing of their claim and a decision by the Immigration and Refugee Board. The Minister could only make such designations on the advice of a panel of experts that would deliberate and decide case-by-case whether a country could be considered ‘safe’. This is problematic in its own right: any country can experience exceptional circumstances in which it legitimately becomes a refugee-producing country.
But far worse, Bill C-31 strips the requirement on the panel of experts, thereby allowing the Minister to unilaterally designate a country as being safe, with or without certain objective criteria (including the number of abandoned claims from that country). This not only politicizes the system and removes ‘fair’ and ‘process’ from ‘a fair process’, it would also restrict the amount of unbiased fact-based information from which the Minister based his decisions – whether the Minister is well-intentioned or not.
The timeline that has been proposed under this legislation between when a claim is made and the decision made at the IRB for designated countries is 45 days. For anyone to arrive in this country, find a lawyer, retrieve documents from their country to prove they were the victims (or will be the victims) of persecution, and to build an adequate case in 45 days is patently unreasonable by any standard. The unstated but direct purpose of this timeline is less to get ‘undesirables’ out of the country as fast as possible, but to restrict their ability to be subjected to a fair judicial process. It is effectively presumed they do not need refugee protection and that their process need not be consistent with the process observed otherwise.
Foreign nationals from designated countries would not be able to appeal their decisions to the Refugee Appeal Division, slated to come into effect in June of this year. If that isn’t enough, if they appeal their case to the Federal Court (which is important both because judicial review is integral to a fair process and because many IRB members are bumbling political appointees without legal training) they can be deported in the meantime. Do we not respect the decisions made by our Federal Court, the first real court in which issues surrounding a refugee claim is heard? If we would enact such a draconian course of action while the Federal Court is still waiting to judge the appeal, it would seem not.
According to CIC, a safe country would include those that “do not normally produce refugees, have a robust human rights record and offer state protection.” In the case of Hungary, a country Minister Kenney has explicitly stated would be on his list, it is extremely debatable whether it would satisfy even one of those conditions. Between 1996 and 2002, and 2009 to current, it has produced significant numbers of Roma refugees fleeing widespread, systematic discrimination and persecution. It lacks constitutionality. It does not have a robust human rights record in regards to Roma. It does not holistically offer state protection to the Roma. In at least one recent case in which the neo-nazi militant group ‘Magyar Gárda’ arrived to terrorize a Romani village, local police provided refreshments.
Hearing each claim in it’s entirety, providing a fair and equitable process, can sometimes, admittedly, be costly – albeit not in an amount significant vis-à-vis certain other government expenditures. But that is our legal system. If money actually were higher on our list of priorities, we’d do away with the courts; the Attorney General could decide in omnibus which suspected criminals were guilty and innocent and we could be on with it. We don’t do that because our society has placed a higher value on justice than on money. And that’s a good thing.
Someone once told me very directly that nobody would want to be a refugee; it can be one of the most undignifying experiences that a person goes through. We continue to have a bizarre and frankly xenophobic tendency to assume that when someone uproots their lives, leaves their country, renounces their tie to that country, and goes through the difficult process of migration and the unknown that accompanies it, that they are milking our system. Pray tell that to the thousands of immigrants and refugees across the country in poverty, living in squalid rooming houses in the suburbs of Toronto or the Downtown Eastside in Vancouver. Yes, some might exaggerate or lie in their refugee claims. But for the Minister to pronounce that all refugee claimants from a country are ‘bogus’ is nothing short of inflammatory, divisive political rhetoric.
That brings us to what needs to be done, not just on Bill C-31, but this prevailing climate of anti-refugee(ism) in Canada. Enough has been blamed on the politicians. We need to turn an eye towards ourselves, our values as a society, and how we rank them. The fact is that Bill C-11, which originally proposed the designated country list, passed its third reading in 2010, by the consensus of all parties (Liberals, Bloc, NDP, and Conservatives). While it is true the panel of experts is a far cry from unilateral decision-making power by the Minister (as proposed) in Bill C-31, the original legislation that proposed we discriminate against some claimants based on the country they were from was borne by consensus in the House of Commons.
Politicians are pylons, placeholders we elect to do what we inform them to do (although it may not seem that way all the time). So either, based on ill-conceived and ill-articulated fears of the unknown, we are wilfully turning our backs on those that need protection – or, we are failing to convey our values as Canadians to our elected representatives. The lesson I hope you take from this is that refugees matter. Our ethical and humanitarian practices matter. Our justice system matters. Compassion matters. Helping those that need protection matters.
Are we afraid of refugees? Has something changed? I would like to think not. How we treat the most vulnerable is what defines us as a society. And we’re a good society – I have faith. A few bad apples doesn’t ruin the whole bunch. Rather, the issue is we stopped caring – I am more disconcerted in how careless we have become in regards to refugees, than with what Kenney has to say on this day or that. We elected him to say those things.
Please pass this message along to people you know. There was a time when Canadian society cared for, and had an interest in refugee protection. Write your MP. Spread the word, get active. Start caring! Our politicians will only invest themselves in this when we do – which we have before, and we can again. Our refugee system, our justice system, needs our help.
Canadian Council for Refugees: http://ccrweb.ca/en/refugee-reform
Canadian Association of Refugee Lawyers:http://www.refugeelawyersgroup.ca/billc-31
Canadian Civil Liberties Association:http://ccla.org/protectrefugees/