Op-ed: Immigration Policies Must Not Undermine Human Rights – Refugee Determination and Due Process

Last summer, when a boat accosted in British Columbia with a large group of Tamil people allegedly fleeing persecution, accusations of “jumping the queue” and of “terrorists coming to shore” flared. These accusations may be true, they may be false, we just do not know until the evidence is assessed and the issue arises as to how a democratic society must deal with the mass arrivals of people claiming refugee status. What is the right thing to do?

We ought not to forget that we have already very strong prohibitions against fraud  and human trafficking in our Criminal Code that can and should be used when there is evidence of such crimes.   However, governments are at times tempted to go beyond the criminal prosecution of the people who fraudulently sell transport to Canada to desperate individuals, they want to reduce the demand for it. They think that punishing the victims will deter people, that it will stop them from paying large sums of money to get on a boat to come to Canada. Proposals include jailing refugee claimants for months upon arrival or  denying or delaying their access to citizenship or permanent resident status.  However,  we know that punishing the victims won’t work.  History shows that desperate people will try anything to escape their dire circumstances. At times, refusing asylum to people may condemn them to death or torture and Canadian history is tarred by its refusals to accept the landing of the Ms St-Louis carrying Jewish refugees or the Komagata Maru which had on board Punjabi Indians wanting to immigrate to Canada despite its exclusionary rules.  Certainly the way in which Canada treats the human tragedies of people around the world who seek refuge here will be scrutinized and judged by the world and future generations.   Furthermore, arbitrary and coercive rules that violate basic procedural safeguards are an affront to human rights and they diminish us all.

Human rights and fair treatment should not depend on one’s immigration status: they are at the core of commitments to human dignity.  It should not matter whether someone is a citizen, a permanent resident, a refugee claimant or an illegal immigrant to obtain faire treatment: everyone deserves the protection of long standing principles, such as the presumption of innocence and the prohibition against arbitrary detention.  It is not to say that the integrity of the immigration process must not be maintained and that measures should not be taken to ensure that it is not defrauded and exploited.  People who have waited in line for many years for their turn to immigrate to Canada understandably resent the queue jumpers, we all do. However, just as in the line in the emergency at the hospital, at times, it is the right thing to do to allow queue jumping to save lives.

The failure to observe and obey fundamental justice principles in the treatment of foreigners is an undermining of justice for all residents of Canada. Accepting that certain people are less deserving of protection begs the question of whether others should not be put in the same category of ‘ less deserving’.  If refugee queue jumpers are to be incarcerated, why not incarcerate all queue jumpers? If we can detain people suspected of coming to Canada illegally, why not detain all persons suspected of illegal activity? If we deny procedural fairness to people because they have been manipulated into paying large sums of money to an unscrupulous individual who promised them big rewards, why not do the same for others naive victims of devious fraudsters?

It is expected that the flow of refugees will continue to increase and that war, devastation and dire poverty will force large groups of people to search asylum somewhere else.  The issue of how we respond as a democracy to these pressures will be a test, a test of our reputation but also a test of our commitment to human dignity and fairness.

- Nathalie Des Rosiers, CCLA General Counsel