By Noa Mendelsohn Aviv
on July 9, 2014
CCLA welcomes the decision of the Federal Court, reinstating healthcare that had been provided for more than 50 years to refugee claimants and others seeking Canada’s protection. 2012 cuts to this coverage, according to today’s ruling, had the effect of denying these individuals funding for life-saving medications such as insulin and cardiac drugs, for basic pre-natal, post-natal and obstetric care, or in certain instances, for any medical care at all.
As to the impact on children, the court described the 2012 changes as cruel, and described, for example, what the cuts would mean for a child “screaming in pain because of an ear infection,” who would not be entitled to see a doctor or receive antibiotics. The impact would be far more severe for others. Indeed, the court concluded, the 2012 cuts would potentially jeopardize the health, safety and the very lives of “innocent and vulnerable children in a manner that shocks the conscience and outrages our standards of decency.”
In addition, the court rejected stereotypical rationalizations for the healthcare cuts and discriminatory depictions of refugees as “bogus” or cheats. The court explained that children are innocent victims of family circumstances, and that individuals whose refugee claims ultimately fail may do so simply because of changing country circumstances or differing standards with respect to country conditions and safety.
In conclusion, the court held, the 2012 changes were discriminatory, and constituted “intentional targeting of an admittedly poor, vulnerable and disadvantaged group for adverse treatment,” thus violating sections 15 and 12 of the Charter of Rights and Freedoms.
CCLA welcomes the thoughtful and detailed decision of the Federal Court, that will restore healthcare for refugee claimants and others who are vulnerable and in need of protection.
To read CCLA’s 2012 letter to Minister Jason Kenney calling for him to rescind the cuts, see: http://ccla.org/2012/06/29/refugee-healthcare/ .
By Peter Goffin
on May 23, 2014
The past has much to teach us if we choose to learn. Specifically, history shows us the dangers of vilifying and/or discriminating against migrants. The story of the Komagata Maru is one such story.
One hundred years ago today the ship Komagata Maru arrived in Canada carrying immigrants ready to start a new life in this country. This was not the first boat carrying people with similar hopes, dreams and ambitions. Indeed, it is fair to say that apart from First Nations peoples, almost every person living in Canada today has a family history of migration – parents, grandparents, great-grandparents and beyond, who came here to make a new beginning – whether to escape persecution, to find economic opportunity, to avoid war – and to seek out the freedom and peace that was to be found in Canada.
The Komagata Maru arrived on May 23rd, 1914 carrying passengers from India, mostly Sikh, who were Indian citizens and subject to British colonial rule. These individuals were not as fortunate as other would-be Canadians who arrived around that time. Though the ability of the Komagata Maru passengers to enter Canada was not restricted through quotas or explicit taxes – like the Chinese Head Tax of 1885 – it was clear that they were not welcome. The “continuous journey” rule blocked immigration for persons who did not come by continuous journey from their country of origin. This subtly named policy had a direct and deliberate point. Given the mode of travel at the time, it allowed immigration to Canada from the U.S. and Europe, while effectively blocking immigrants from such places as India and Japan. In addition, Indian immigrants were required to pay the enormous sum of $200 as “landing money” – a sum that passengers of the Komagata Maru did not have. In the result, after two months of legal challenges, all but 20 of the passengers were denied admission, escorted out of Canadian waters, and forced to return to India. Upon their arrival, many were imprisoned by British authorities, and 19 people were killed in a riot.
In Canada, changes to these and other discriminatory policies took many years, but a move towards compassion and humanitarianism did emerge. The head tax was gone by 1923, and the continuous journey rule was repealed in 1947. An awareness of the plight of refugees – individuals fleeing persecution – also emerged, which was significant given that Canada had also turned away a boat of Jews fleeing Europe during World War II. In the years following World War II, 250,000 displaced persons from Europe were admitted to Canada. And the international Refugee Convention of 1951 was signed by Canada in 1969. Beginning in the 1970s, Canada repeatedly demonstrated its commitment to protecting refugees by admitting individuals who had escaped dictatorships and crises in Uganda, Chile, and Southeast Asia, to name a few. The people of Canada, it appeared, recalled their own history of migration, their own experiences of persecution, or simply wished to honour a national identity that promoted human rights and recognized the important role of diversity in nation-building.
But in the past three years, Canada’s identity and values have been called into question by new legislation and policies. These new rules are seriously problematic for many reasons including that they: discriminate against refugees from certain countries, making it hard for them to gain status; deny healthcare to refugee claimants – including children; pressure migrant women to remain with their spouses; keep other family members apart; and migrant worker rules effectively enable thousands of people into the country each year to work in situations that are exploitative and prone to abuse, and then require that they leave Canada with no opportunity to migrate as so many workers before them could do; makes citizenship harder to achieve, and deportation easier to accomplish, contrary to humanitarian considerations; and seems to deliberately conflate immigrants and refugees who are worthy of inclusion and protection, with criminals.
In 2008, the province of British Columbia issued a formal apology for its part in the Komagata Maru incident. Prime Minister Stephen Harper has also made a speech in which he conveyed an apology.
If we are truly sorry for discriminatory exclusions and unfair treatment of immigrants one hundred years ago, we cannot today create rules that similarly exclude, vilify, and discriminate. There is a better way to make amends: we must seriously examine the immigration laws and policies of the past three years, with a view to removing discriminatory and obstructive provisions that are incompatible with Canada’s humanitarian traditions.
By Noa Mendelsohn Aviv
on May 1, 2014
The British Columbia Court of Appeal (BCCA) ruled that s. 117 – the “human smuggling” provision of the Immigration and Refugee Protection Act – was constitutional, in contrast to an earlier court’s finding in this case. The lower court in R v Appulonappa had found that the provision was overbroad and unconstitutional, as it could criminalize the conduct not only of human smugglers who sought to take advantage of individuals’ desperate situations for profit, or in connection with organized crime; it could also target individuals who are helping family or providing humanitarian assistance.
CCLA had intervened in the case to argue that the provision is both arbitrary and overbroad: It could criminalize a refugee mother who arrives in Canada with her baby, and a humanitarian aid worker. In addition, it could create the absurd situation in which a refugee protected under international law, could be rendered inadmissible to Canada for having engaged in the protected act of entering Canada, if he or she arrived with other refugees who were helping each other. CCLA was represented by Andrew I. Nathanson and Gavin Cameron (Fasken Martineau).
To read CCLA’s factum in this case click here.
To read the BC Court of Appeal decision click here.
By Peter Goffin
on April 1, 2014
On March 31, 2014, the CCLA’s General Counsel Sukanya Pillay appeared before the Senate Standing Committee on National Security and Defence to participate in the Senate’s study on the policies and practices of the Canada Border Services Agency (CBSA). The CCLA focused on five areas of concern:
(1) the need for an independent review mechanism;
(2) the note-taking practices of CBSA officers while conducting interviews;
(3) the treatment of individuals detained in Immigration Holding Centres and in Correctional Facilities;
(4) the barriers to access to justice for detained individuals; and
(5) the broad discretion afforded to CBSA officers in initiating inadmissibility applications and release conditions.
The CBSA enjoys sweeping law enforcement powers and engages in information and intelligence sharing with the RCMP, CSIS and foreign agencies. These powers can be highly intrusive and have the potential to seriously affect the lives of individuals. However, unlike the RCMP, CSIS and other law enforcement agencies, the CBSA currently has no independent external review of its practices. CCLA argued that the CBSA must be subject to the same independent review mechanism recommended by Justice O’Connor in the second Arar Commission Report, for the RCMP. Such a mechanism would include both independent complaints investigation and self-initiated review, in order to ensure compliance with Canadian constitutional safeguards and international law. CCLA appeared on the panel, along with a witness from the BCCLA, Josh Paterson who is executive director.
To read CCLA’s submissions, click here. To watch a webcast of the Senate Committee Hearing, click here.
The CCLA submitted to the Committee that CBSA officers conducting interviews must take careful notes, which are free of bias and provide context, because these notes can form the basis for IRB hearings and other proceedings down the road. Refugees and asylum-seekers are among the most vulnerable people on the planet and CBSA officials also need to ensure they do not intimidate refugee claimants during interviews. Given the serious repercussions for the individual emanating from CBSA interviews, the CCLA recommended that all CBSA interviews be videotaped.
The CCLA expressed its serious concern to the Committee regarding the treatment of individuals held in Immigration Holding Centres and in Correctional facilities, in particular those individuals with mental health issues. The CCLA recommended that the Committee consider detention conditions in its study.
The CCLA is also deeply concerned about prolonged and indefinite detention under the authority of the Immigration and Refugee Protection Act (IRPA), as well as the practical implications of detention, such as transferring individuals away from family and legal counsel. Geographic separation from a person’s lawyer can lead to significant barriers to access to justice.
Finally, the IRPA grants broad discretion to CBSA officers to refer potentially inadmissible persons to the Minister . The CCLA expressed concern for this broad discretion and its potential abuse, especially given that there is no appropriate oversight mechanism in place.
By Noa Mendelsohn Aviv
on December 13, 2013
According to recent reports, a large number of migrant workers were approached by police and asked to provide DNA samples as part of an investigation into a sexual assault. Although police reportedly had a description of the suspect, the group of individuals asked to give a DNA sample was diverse, ranging in age “from 21 to 61, with heights from five feet to six-foot-five, weighing between 130 pounds and 310 pounds.” The individuals’ only common feature, according to reports, is the colour of their skin.
CCLA is concerned about policing on the basis of racial characteristics and the use of random DNA tests, which are a highly invasive measure – and is looking into this matter.
To read more about CCLA’s work on racial profiling, click here.
To read more about CCLA’s work concerning random DNA testing, click here.
By Peter Goffin
on December 10, 2013
Today – December 10th – is International Human Rights Day.
One important way we can support and promote the protection of individuals who have suffered or may suffer international human rights abuses, is to make sure that persons who make it safely to Canada arrive to open doors, a proper and fair refugee determination process, and assistance for those who need it, including healthcare.
Today, the Canadian Civil Liberties Association joins a number of prominent Canadians and organizations in recognizing the importance of refugee rights, and calling for a return to Canada’s humanitarian traditions. Please find the signed statement below.
In honour of international human rights, we invite you to share this message widely – through posts, blogs, phone, email, facebook, twitter, and otherwise. And please invite your family, friends and colleagues to share it further.
December 10th celebrates international human rights and the inherent dignity and equal rights of all members of the human family. Refugees are part of the human family and entitled to the same rights.
These rights include the rights to asylum, to liberty, to protection from torture, to an adequate standard of living, to healthcare, to be reunited with family and to the protection of the best interests of children.
Sadly, respect for the rights of refugees is waning. At a time when serious human rights abuses are taking place in every region of the world and displacing millions of people, countries are building administrative walls, closing doors, denying protection.
Canada is failing to respect refugees’ human rights too. Once a world leader in refugee protection, Canada is closing its doors. Fewer refugees are being resettled to Canada. The federal government recently made dramatic cuts to basic healthcare for refugees. Refugee claimants race an unbeatable clock to gather evidence. Some refugees now face mandatory detention and a five-year bar on being reunited with their family in Canada. Others have even less time to present their cases and are denied the right to an appeal because their countries of origin have been arbitrarily deemed “safe”. We live in a climate of fear and negative rhetoric. Canada is now a less welcoming country.
Canada can and must do better. As Canadians we are at our best when we treat refugees fairly and with respect and compassion. We must return to the better parts of our tradition of welcoming refugees. Our country has been strengthened by the contributions of the many refugees who have come here from around the world – by boat, by plane and on foot. We have learned to appreciate the beauty and values of different cultures. We have been inspired by the ideals of brave men, women and children escaping brutal dictatorships and injustices. In return for safety and a warm welcome, refugees have become active members of our communities. They have helped sensitize Canadians about the countries from which they have fled. All of these gifts have made us richer.
As Canadians we are proud of our history of welcoming strangers. We are proud to keep our doors open to those fleeing grave human rights abuses, and we pledge that we will strive to keep those doors open now and into the future. As we celebrate universal human rights on December 10th, we call on Canada to renew its role as a leader for refugee rights. Canada must be fair to refugees, respect their basic rights and open doors that have closed.
Sukanya Pillay, Acting Executive Director and Interim General Counsel of the Canadian Civil Liberties Association
Warren Allmand, Former Solicitor General
Sara Angel, visual arts journalist
Lloyd Axworthy, President, University of Winnipeg, former Foreign Affairs Minister
Dr. Philip Berger, Chief, Department of Family & Community Medicine, St. Michael’s Hospital, Toronto
Rabbi Arthur Bielfeld, Founder and Board Member of Jewish Refugee Action Network (JRAN)
Jean-Marc Biron, SJ, Jesuits in French Canada Provincial Superior
Peter Bisson, SJ, Jesuits in English Canada Provincial Superior
Hélène-Andrée Bizier, historian and essayist
Alan Broadbent, Chairman and Founder of the Maytree Foundation
Iona V. Campagnolo, former Lieutenant Governor of British Columbia
Jim Cuddy, musician
Bernie Farber, former CEO Canadian Jewish Congress, human rights advocate, Senior VP Gemini Power Corp
Charles Foran, author and Past President PEN Canada
Zsuzsi Gartner, author
Julius H. Grey, lawyer and human rights advocate
John Greyson, filmmaker, associate professor York University
Rawi Hage, novelist
Lawrence Hill, author
Miranda Hill, author
The Most Rev. Fred Hiltz, Primate, Anglican Church of Canada
The Rev. Susan C. Johnson, National Bishop, Evangelical Lutheran Church in Canada
Peter Krausz, artist
Michele Landsberg, journalist and author
Peter Leuprecht, former Special Representative of the Secretary-General of the UN for human rights in Cambodia
Dr. Tarek Loubani, refugee and emergency physician
Annabel Lyon, author
Guy Maddin, Distinguished Filmmaker in Residence, University of Manitoba
Dow Marmur, Rabbi Emeritus, Holy Blossom Temple, Toronto
Dr. Ryan Meili, Director, Upstream: Institute for a Healthy Society
Susan Musgrave, poet and novelist
Alex Neve, Secretary General, Amnesty International Canada
Maya Ombasic, author
Ratna Omidvar, President of the Maytree Foundation
The Right Rev. Gary Paterson, Moderator, United Church of Canada
Sarah Polley, actress and film director
Anna Porter, author and publisher
Vivienne Poy, retired Senator & Chancellor Emerita of the University of Toronto
Bill Richardson, author, broadcaster, librettist
Andreas Schroeder, author and broadcaster
The Rev. Dr. David Sutherland, Moderator of the Presbyterian Church of Canada
Linda Svendsen, author and producer
Timothy Taylor, novelist and journalist
Madeleine Thien, novelist, Simon Fraser University writer-in-residence
Béatrice Vaugrante, Secretary General, Amnesty International Canada – francophone section
Wesli (Wesley Louissaint), musician
The Very Rev. the Hon. Lois M. Wilson, former Moderator of the United Church of Canada, former President of the World Council of Churches
Hassan Yussuff, Secretary-Treasurer of the Canadian Labour Congress
By Sukanya Pillay
on July 19, 2013
Today the Supreme Court of Canada released its judgment in Ezokola v Canada, available here http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/13184/index.do The decision is a victory for refugee protection and international criminal responsibility as well as for Canadian principles of asylum, criminal law, and fundamental justice.
CCLA applauds the decision for correctly recognizing, as CCLA argued in its intervention, that any decision to exclude an individual from asylum must be based upon “serious reasons for considering” that the individual did commit the crimes which permit exclusion pursuant to Article 1F(a) of the Convention Relating to the Status of Refugees (“Refugee Convention”). It is not justifiable in Canadian law or in international law to exclude an individual merely because he or she was a member of a group guilty of war crimes — ‘guilt by association’ violates fundamental criminal law principles.
In this case, Rachidi Ezokola was an employee of the Government of the Democratic Republic of Congo, during a time when the DRC had committed crimes against humanity. The issue before the Court was whether Mr Ezokola was also guilty of crimes against humanity and therefore whether he should be excluded from refugee status in Canada. The Supreme Court today recognized in its decision that an individualized assessment of Mr. Ezokola’s actual actions is required to determine whether in fact there are serious reasons for considering he is culpable, as opposed to tainting him “guilty by association”. CCLA had argued for this, and is very pleased with the well-reasoned decision of the Court which considered Canadian and international legal commitments to protecting legitimate refugees, prosecuting and denying asylum to those who have committed heinous crimes, and upholding fundamental criminal law principles.
The Court also denounced the “personal and knowing participation test” previously used in Canada, as casting too broad a net and capturing individuals who may not have actually committed any culpable acts, and in doing so, the Court has directed that Canadian assessments of Article 1F(a) exclusion clause are brought in line with international legal approaches.
The Court wisely called for a strict reading of Article 1F(a) of the Refugee Convention which would ensure that bona fide refugees are not unjustly excluded, while ensuring that refugees who have committed war crimes or crimes against humanity do not enjoy impunity behind a veil of asylum. The CCLA had argued that Article 1F(a) must be interpreted in this manner to ensure that legitimate refugees are not excluded — a result as unjust in refugee law as would be a wrongful conviction of an innocent person in criminal law — that the standard of proof for determining that there are “serious reasons for considering” any individual criminally responsibly must be “sufficiently high”, and that section 7 of the Charter would require that a proper legal analysis be conducted to determine whether an individual had engaged in culpable complicity of crimes and whether there were any defences prior to any decision to exclude pursuant to Article 1F(a).
The Court has ordered that Mr Ezokola’s claim be considered before a new panel of the Refugee Protection Division, who will decide his case in line with the Courts reasons and the factors set out to determine whether the individual’s conduct meets the mens rea and actus reus for complicity, in line with factors that CCLA also submitted to the court including (i) the size and nature of the organization; (ii) the part of the organization with which the individual was most directly concerned; (iii) the claimant’s duties and activities within the organization; (iv) the claimant’s position and rank within the organization; (v) the length of time the individual was within the organization; (vi) the method by which the claimant was recruited and the claimant’s opportunity to leave the organization. The Court recognized that these factors are not exhaustive.
To read CCLA’s factum in Ezokola click here http://ccla.org/wordpress/wp-content/uploads/2013/01/Interveners-Factum.pdf
By Noa Mendelsohn Aviv
on June 20, 2013
World Refugee Day was established by the UN General Assembly in late 2000 and is marked each year on 20 June.
The following statement was made by António Guterres, UN High Commissioner for Refugees in honour of World Refugee Day 2013
“I have come to Jordan on this World Refugee Day to stand by the people of Syria in their time of acute need. I also want to salute Jordan, Lebanon, Turkey and all the countries in the region for being generous havens that have saved hundreds of thousands of lives.
In all the years I have worked on behalf of refugees, this is the most worrying I have ever witnessed. The needs of these people are overwhelming; their anguish is unbearable. Today, there are over 1.6 million registered Syrian refugees. More than one million of them arrived just in the last six months, and thousands more come every day, seeking places to stay, sustenance, someone who will listen and help them heal.
Inside Syria, the scale of human suffering is beyond comprehension. The Syria we once knew is no more. In the heart of a turbulent region, the country was host to over one million Iraqi and half a million Palestinian refugees. I think of the Syrians I met over the years during many visits to see Iraqi refugees. Never could they have imagined that such violence would overtake them – that they would become refugees themselves – desperate, destitute and forsaken.
I worry that an entire nation is being left to self-destruct as it empties itself of its people. I am dismayed to hear of the trauma children face. Nightmares define their waking lives as much as they haunt their sleep. School is a distant memory.
Here in Jordan, over 500,000 registered Syrian refugees live in safety now. The Zaatari Refugee Camp has become Jordan’s fifth largest city and the second largest refugee camp in the world. There is hardly a town or a city in Jordan that is not host to Syrians. It is much the same in Lebanon, Turkey, Iraq and Egypt. This hospitality is a remarkable demonstration of humanity against a backdrop of depravity.
With no clear political resolution in sight, this civil war is in real danger of sliding into a regional conflict. It is no longer fantasy to foresee an explosion in the Middle East that the world would not be able to cope with.
We will continue to do everything we can to aid and alleviate the suffering of Syrians. But the cascade of death and destruction is spreading fast, and I repeat my call on those with political responsibilities to overcome their divisions and come together to do everything in their power to stop this war.”
By Sukanya Pillay
on March 25, 2013
This morning in Geneva, CCLA addressed State Delegations at a pre-session of the Universal Periodic Review (“UPR”), organized by the organization UPR-Info. CCLA’s intervention was to update States on our concerns about Canada’s ongoing human rights record, in anticipation of Canada’s Second Universal Periodic Review. Canada, like all member States of the United Nations, participates in the Universal Periodic Review process, in which States make recommendations to each other on steps to further adherence to international law commitments, and the State Under Review (in this case, Canada) has the option to “accept” or “reject” recommendations, and to undertake “voluntary commitments”. The purpose of the 2nd UPR of Canada incorporates examining progress on Canada’s commitments made during the first UPR in 2009.
Nathalie Des Rosiers, CCLA General Counsel and Executive Director, addressed the State delegations this morning on behalf of CCLA. She was part of a delegation of Canadian NGOs who took the floor during the Pre-Session this morning.
Later in the day, CCLA participated in a “working lunch” at the Canadian Permanent Mission to the UN, with other Canadian NGOs.
To read CCLA’s statement to the UPR Pre-Session click here: STATEMENT OF CCLA – UPR 2013 Pre-Session
For background information on the upcoming Second UPR of Canada click here: http://ccla.org/2012/10/09/ccla-submits-ngo-report-regarding-2nd-universal-periodic-review-of-canada/. To read a copy of CCLA’s WRITTEN SUBMISSIONS to the UPR Process please click here: click here.
By Noa Mendelsohn Aviv
on March 18, 2013
CCLA welcomes the decision released today by the Supreme Court of Canada in R. v. Pham, affirming the central role that the principle of individualized sentencing should play: that the personal circumstances of an offender are relevant in determining their sentence. The central question on appeal was whether a judge should exercise his or her discretion to take collateral immigration consequences into account in the sentencing process, namely the loss of a right to appeal a deportation order. Under the Immigration and Refugee Protection Act, a permanent resident sentenced to a term of imprisonment of two years or more loses the right to appeal a removal order issued against him or her.
Mr. Pham, a Vietnamese citizen and permanent resident of Canada, was charged and convicted with unlawfully producing marijuana and possessing it for the purposes of trafficking. At his sentencing hearing, he was sentenced to two years’ imprisonment triggering a loss of appeal rights against a removal order issued against him. Neither the Crown nor Mr. Pham’s counsel had raised this issue before the sentencing judge. On appeal, however, the Crown conceded that it would have agreed to a sentence of two years less one day. Despite this, the majority of the Alberta Court of Appeal denied Mr. Pham’s appeal to have his sentence reduced by one day. The Supreme Court reversed this decision, allowing the appeal and reducing Mr. Pham’s sentence from two years to two years less a day. The Court noted that collateral immigration consequences may be just as relevant in sentencing as the collateral consequences of other legislation or of circumstances specific to the offender.
CCLA appeared before the Court to argue that the collateral immigration consequences of a sentence should be considered at sentencing and that the criminal law should be flexible enough to allow the judiciary to fashion appropriate and individualized responses to criminal conduct on a case-by-case basis. CCLA also argued that the failure to consider the collateral immigration consequences of a sentence for a non-citizen could be a violation of the right to equality under the Charter. The Supreme Court affirmed, similarly, that “if the personal circumstances of the offender are different, different sentences will be justified.”
CCLA thanks Matthew S. Estabrooks and D. Lynne Watt of Gowlings Ottawa for their excellent work in this case.
For the Supreme Court’s decision, click here.
For CCLA’s factum in the case, click here.