What’s bogus?

The government is keeping us busy this week. Two days after tabling the “lawful access” bill, government tabled Bill C-31, the so-called “Protecting Canada’s Immigration System Act”, a draconian overhaul of the immigration laws aimed at “getting tough” on “bogus” refugees.

The Canadian Association of Refugee Lawyers (CARL) has put out a very helpful overview of the major problems with Bill C-31. We’re excerpting it in its entirety (primarily because we really couldn’t put any of this better ourselves, but also because it’s not up on their website):

1)      The omnibus nature of the bill hides key initiatives and detracts from proper scrutiny

  • This huge omnibus bill rolls together proposed anti-smuggling Bill C-4, the current refugee system, and the future refugee system, as well as additional new elements, including the use of biometrics.
  • Like Bill C-10 (the omnibus crime bill), this is a complicated omnibus bill whose bulk is designed to inhibit careful scrutiny and precise analysis of several controversial issues.

2)      The draconian measures of C-4 are rolled into this new bill

  • C-4’s proposed mandatory, unreviewable, warrantless, year-long detention is patently unconstitutional. The Supreme Court of Canada decided this issue in the clearest of terms.
  • Family separation for at least 5, and up to 8 or more years, will have disastrous consequences for refugees.

3)      Hasty timelines deny refugees a fair chance to prove their claims

  • Bill C-31 significantly changes our current refugee system, making it hasty and unfair. It imposes unrealistic deadlines on refugee claimants, and uses a failure to meet deadlines as a means to disqualifying refugee claimants without ever having a fair and reasonable opportunity to tell their story.
  • Refugees will only have 15 days to deliver a written version of their history, and 15 days to present an appeal.  This is not enough time to seek legal advice and respond to complicated legal requirements.

 4)      The designated “safe” country list, and the Minister’s unilateral power to list countries, dangerously politicizes the refugee system

  • Refugee claimants who are put on a designated safe country list are subjected to even shorter deadlines to submit a written claim, and will not have access to an appeal.
  • The Minister need not justify why he deems a country safe, nor does he have to take account of the differential risk faced by certain minorities in a country that is ‘safe’ for others. Refugees will be vulnerable to the political whims of the Minister and the government.

 5)      The Minister’s constant reference to “bogus” claims is an egregious misrepresentation

  • The refugee definition is very technical.  Many claimants come with a genuine fear of harm but may not meet the definition of a refugee.  That does not make them ‘frauds’ or ‘bogus’, or abusers of the system.  Their search for protection is genuine.

6)      Canada’s humanitarian safety net is gravely weakened

  • Bill C-31 forces people, upon arrival, to make an impossible choice between making a refugee claim or an application for humanitarian consideration.  Each of these processes is complicated and making an informed decision is simply not possible for persons who have just arrived.
  • Canada has long recognized that a broad humanitarian consideration process is necessary to preserve the flexibility of our protection system. Barring access to this is contrary to our humanitarian tradition.

Readers of these pages will know that we have long quarrelled with the proposed measures of C-4 (and its predecessor Bill C-49). We have also been concerned about the government’s rhetoric surrounding discussions of refugees, asylum seekers, and immigrants.

Bill C-31 reiterates, encompasses, and compounds these various mischiefs — and that’s what’s bogus.

Anti-smuggling, or anti-Charter?

The Canadian Association of Refugee Lawyers (CARL) may be only a little over a month old, but they’ve already published a terrific paper on the unconstitutionality of Bill C-4, the so-called “anti-smuggling” bill.

Readers of these pages will know that C-4 (and its predecessor C-49) has been of significant concern to the BCCLA, and the subject of criticism from many quarters. CARL’s paper lays out in detail the various ways the proposed legislation in Bill C-4 is unconstitutional. It’s worth reading in its entirety, but here’s a teaser:

In presenting Bill C-4 to Parliament, the Government of Canada has expressed its confidence that the bill is Charter-compliant and constitutional. The Government has chosen not to articulate any basis for its confidence. Since recent judicial pronouncements from the Supreme Court of Canada directly contradict the Government’s position, it is our opinion that this confidence is misplaced. The drafters of the bill have paid insufficient attention to the carefully worded doctrines that the Supreme Court of Canada has developed to express the basic principles of our Constitution. The government has haphazardly cast an unconstitutionally harsh, wide and arbitrary net in order to deter and punish human smuggling. The consequences inflicted on these individuals will be dramatic, painful and undeserved. It is our hope that the unconstitutionality of the Bill will be recognized before it is enacted as law. If this hope is dashed, it is our hope that it will be recognized by judicial authorities. However, it is our worry that, should we need to rely on the Courts to provide the needed remedy, much hardship will be endured in the interim.

Download the paper here.

Meaning what you say, saying what you mean

Last Thursday, the Conservative government reintroduced its so-called anti-smuggling bill. The bill seeks to penalize asylum seekers who attempt to enter Canada through purportedly “irregular” means by creating two classes of refugee seekers based purely on their mode of arrival into Canada. Bill C-4 is more or less substantively identical to its predecessor bill, and suffers from the same serious deficiencies. (For all the talk about how this is an “anti-smuggler” bill, there is no mention of smugglers until at least ten pages into it.)

As the BCCLA discusses in its recent position paper, this legislation on its face violates key provisions of the UN Refugee Conventions and would likely be unable to withstand constitutional scrutiny, as well. Our concerns about this legislation are detailed at length in the position paper, so we won’t repeat them here. What we do want to talk about is the continuing use of misleading rhetoric in the public discourse around this bill, because, as Erika Feller, Assistant High Commissioner for Protection at the UNHCR, recently put it:

It is an increasing fight to prevent refugees being mischaracterised as illegal immigrants, common criminals or, worse, potential terrorists in the minds of peoples and governments.

In what appears to be an attempt to drum up support for this deeply problematic and discriminatory piece of legislation, Immigration Minister Jason Kenney and Public Safety Minister Vic Toews have been making the rounds with the press. Their remarks, as reported by the CBC and The Globe and Mail, are troubling.

For example, according to the CBC, Minister Toews claims that the bill does not target “legitimate refugees.” But what is a “legitimate refugee”? The UN Refugee Conventions — to which Canada and virtually every other nation in the world are signatories — make plain that the legitimacy of a refugee claim is based on whether an individual has a “well-founded fear” of persecution should she be returned to her country of origin. Whether a refugee is “legitimate” has nothing to do with whether she arrived via boat or plane, singly or in a group. It has nothing to do with whether she was able to obtain a visa before entering the country of refuge, or if she illegally entered that country, or had to rely on a smuggler to get her to safety. And all this is enshrined in Article 31 of the Refugee Conventions. To characterize a refugee claimant as “illegitimate” simply based on the manner of arrival into the country of refuge violates one of the core principles of international protection.

Likewise, the concept of “queue-jumping” — which made a reappearance in the G&M‘s coverage — is misleading, because when it comes to fleeing persecution, there is no such thing as a “queue”. Seeking asylum is a very different thing from ordinary immigration. Again, per Erika Feller:

A refugee is someone who is unable to continue to live in safety where he or she is, due to the dangers of war, generalized violence or serious civil disturbance, whether this is targeted or indiscriminate. Fleeing and seeking asylum is the only realistic option for these people and their families.

In such circumstances, there is no such thing as waiting in line. Asylees must remove themselves from life-threatening situations to places of safety, and from there, await adjudication on the legitimacy of their claims for asylum.

The accuracy of terminology is important, because despite Minister Kenney’s assertion in the G&M that “We have this phenomenal situation where Canada is the only Western liberal democracy with virtually no xenophobic or anti-immigrant voices in our public discourse,” one need only look at the reader comments on that same article to see the inaccuracy of his claim. Characterizing individuals seeking refuge and protection as illegal immigrants or lawbreakers is misleading and counter-factual, and does nothing to advance reasoned discourse on matters relating to immigration, national security, or humanitarian protection. Something to think about on this World Refugee Day.


In May, Erika Feller, Assistant High Commissioner for Protection at the Office of the High Commissioner for Refugees (UNHCR), addressed the UN Security Council’s Counter-Terrorism Committee to discuss the increasing criminalization of asylum seekers and the impact that fears of terrorism have had on refugee protection.

Ms. Feller’s address to the Committee, available here, should be required reading for those members of the Canadian government, media and public who would try to justify derogation from core principles of humanitarian protection in the name of countering terrorism. An excerpt (long-ish, because we really can’t put it any better than she did):

The refugee problem is, very centrally, an issue of rights – of rights which have been violated and of rights, as set out in international law, which are to be respected. A refugee, classically defined, is someone who is persecuted, denied security of person or freedom from discrimination on account of race or ethnicity, or is unable to exercise fundamental human rights like freedom of expression, association, political opinion or belief. A refugee is someone who is unable to continue to live in safety where he or she is, due to the dangers of war, generalized violence or serious civil disturbance, whether this is targeted or indiscriminate. Fleeing and seeking asylum is the only realistic option for these people and their families. This may seem self evident, but it is not so to everyone. It is an increasing fight to prevent refugees being mischaracterised as illegal immigrants, common criminals or, worse, potential terrorists in the minds of peoples and governments.

Refugees have been fleeing persecution and violence for centuries. What has altered dramatically over recent times, however, is the environment in which they are fleeing. From a perspective indelibly marked by the attacks of 11 September 2001, a prevailing belief is that irregular or unregulated asylum movements carry with them terror exported, transnational crime proliferating, national borders abused with impunity and host community ways of life under serious threat. These concerns have been magnified by a number of other high profile events, from the Bali bombings [in October 2002] or the Madrid train explosions [in March 2004] to the attacks on the London public transport system [in July 2005] or the Mumbai attacks. With increasing frequency, links have been made in the public mind between international terrorism and asylum systems. The belief that the latter may be used as channels by terrorists persists, even though, for example, none of the 11 September hijackers or the Bali, Madrid, London or Mumbai bombers was a refugee or an asylum seeker.

Another prevailing belief, which also does not stand up to detailed analysis, is that global criminal and terrorist networks are intensively involved in the smuggling of asylum seekers. In fact, there is very little evidence to support such an assertion. Most human smuggling seems to be undertaken by relatively localized networks that may be linked to each other but which are not global in their reach or using smuggling of asylum seekers to export terror or to raise funds for terrorist activities. If these are more perception than reality, perception is nevertheless important. The result has been increasingly restrictive, control-oriented and indiscriminate migration policies. We see rejections at the border, denial of admission into asylum procedures, harsh detention policies as a deterrent, and extradition or expulsion without minimum procedural guarantees or judicial review, often in breach of the principle of nonrefoulement. UNHCR is concerned about restrictive approaches to applying refugee protection principles, and a lowering threshold when it comes to exceptions to the principle of non-refoulement. Such practices and developments risk tilting the balance away from core protection principles in ways which are not consistent with international refugee law.

There is a need for a better balance to be struck between protecting national security and combating terrorism on the one hand, and international refugee protection principles on the other. Finding this balance remains a challenge. Here the legal framework is not really the problem. Sixty years ago the drafters of the 1951 Convention were acutely aware of States’ national security concerns, as well as the need to ensure that the refugee protection regime would not provide a cover for fugitives from justice. Accordingly, specific provisions in the 1951 Convention [Article 1(F)] provide a system of checks and balances which in effect demand the identification of persons engaged in terrorist activities, which foresee their exclusion from refugee status and which do not shield them against either criminal prosecution or expulsion. Article 2 of the 1951 Convention stipulates that refugees are bound to abide by the laws of their host country. They are not immune from prosecution for any crimes committed on its territory. Moreover, Article 32 permits the expulsion of a refugee on grounds of national security or public order. In exceptional circumstances, Article 33(2) even permits the return to the country of origin of a refugee who poses a serious danger to the security of the host country or to its community.

In spite of all this, the tendency persists to view asylum systems as porous processes enabling terrorists and individuals who are security threats to access countries undetected. This is also exaggerated. In fact, asylum processes are among the most closely regulated entry channels and therefore among the channels those wishing to enter a country without attracting undue attention would be less likely to choose. Asylum seekers are routinely finger-printed, checked on security databases, detained and monitored upon release, making them among the most closely scrutinized migrants.

In short, properly functioning asylum systems assist States to comply with their obligations to deny a “safe haven” to persons responsible for terrorist acts, and to ensure that refugee status is not granted to asylum-seekers who were involved in such acts, as required under Security Council resolutions 1373 (2001) and 1624 (2005).

Put another way, compliance with international refugee law can well serve States’ security and law enforcement concerns.

Erika Feller’s Speech

“A machine of shame” (updated)

MS St. Louis Memorial / Globe and Mail

Today, in Halifax, a memorial to the MS St. Louis was unveiled, in memory of the hundreds of Jewish refugees turned away from North American shores on the eve of the Holocaust. The MS St. Louis carried over 930 German Jews, seeking asylum and sanctuary from Nazi persecution. After being turned away from Cuba, the United States, and finally, Canada, the ship was forced to return to Europe, where about 250 of its passengers eventually died in concentration camps.

Today, in Vancouver, Public Safety Minister Vic Toews held a news conference to promote the Government’s Bill C-49, a piece of anti-refugee legislation seeking to penalize asylum seekers who attempt to enter Canada through so-called “irregular arrivals”. (By “irregular arrival”, the Government means “by boat”.) We here at the BCCLA National Security Blog don’t think it’s too much of a stretch to say that this Bill was proposed (in October 2010) as a direct response to the August 2010 arrival of the MV Sun Sea off the coast of British Columbia. The boat carried about 490 Tamil asylum seekers — men, women and children — from Sri Lanka, but to hear Minister Toews describe it, the boat carried 490 terrorists getting ready to set up shop in Canada, and was paving the way for hundreds more.

The juxtaposition of these two events begs obvious comparisons. The Halifax memorial is not simply about the refugees turned away by Canada in 1939. It is a reminder of the terrible consequences of a society’s failure to offer asylum and sanctuary to those fleeing persecution. It is a reminder of why, in the wake of the atrocities of World War II, the contemporary human rights regime was developed, and why the Convention Relating to the Status of Refugees and its Optional Protocol have been adopted by over 140 nations. Refugee protection is often spoken of in terms of “international protection”, and for good reason. Refugees facing persecution in their countries of origin can only be safe from harm if the international community is willing to offer sanctuary and asylum.

Canada is a signatory to both the Convention and Optional Protocol. As such, it’s legally obligated to provide refuge to persons fleeing persecution. Legislation such as Bill C-49 and rhetoric suggesting that Canada needs to be less receptive to refugee claims in order to protect national security runs afoul of our international obligations and betrays Canada’s historical commitment to human rights.

(For further thoughts on Bill C-49, keep a lookout for the BCCLA’s upcoming position paper. We’ll post a link to it here when it becomes available.) Here’s our position paper.