Are we all smugglers now?

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Published in the Globe and Mail, October 9, 2007 – Page A21

By ANDREW BROUWER, MITCHELL GOLDBERG, JANET DENCH

On Sept. 27, Canadian border officials laid people-smuggling charges against Janet Hinshaw-Thomas. She is alleged to have aided and abetted the entry to Canada of 12 non-Canadians.

People smugglers are a mixed bunch, but many of them are truly among the lowest of the criminal low - pimps, abusers, exploiters who prey on the most vulnerable members of some of the most downtrodden societies on Earth. So one might have expected advocates to cheer at the arrest. Instead, human-rights, church, lawyers' organizations are crying foul. Why?

The answer is pretty straightforward: The border officials went after the wrong person. Ms. Hinshaw-Thomas is a human-rights advocate who has for the past 24 years provided humanitarian assistance to refugees. When she was arrested, she was in the process of handing over to Canadian border officials a group of 12 Haitian asylum seekers who were at risk of deportation from the United States to Haiti, where they feared they would be persecuted or killed.

They wanted to ask Canada to protect them - a request they are entitled to make under international law as well as the Immigration and Refugee Protection Act. All Ms. Hinshaw-Thomas did was advise them of their right to make a claim under Canadian law, and drive them up to (not across!) the border, where they could be interviewed by Canadian officials to determine whether they qualified for consideration (they did).

Back when the current legislation was being debated, the all-party House of Commons committee reviewing the bill expressed concerns: MP John McCallum worried the provision might be used against "reverends and saintly people ... the last people in the world that we would want to prosecute." The committee received assurances from then-immigration minister Elinor Caplan, and senior immigration officials, that no such absurdity could come to pass. They kept their word - until now. Ms. Hinshaw-Thomas is the first humanitarian aid worker to be charged under the provision since the law was implemented in 2002.

Given the charges clearly violate the legislators' intention, we should expect that Attorney-General Rob Nicholson will move quickly to drop the charges against Ms. Hinshaw-Thomas. It is a misuse of the legislation. Everyone who assists refugees could be subject to prosecution for "aiding and abetting" under the interpretation being applied to Ms. Hinshaw-Thomas. Advocates and lawyers are insisting the government issue policy guidelines or amend the law to ensure this kind of charge never happens again.

But the fact the charges were even laid raises a disturbing question: Has our government turned its back on refugees?

The arrest is part of a larger pattern of government action undermining the asylum program. Canada has closed the door on thousands of refugees through the Safe Third Country Agreement with the U.S., the interdiction of refugees overseas and restrictive visa policies that target refugee-producing countries. Even refugees who overcome those obstacles find the determination system weakened by the failure to implement the refugee appeal division.

During the Holocaust, Swedish diplomat Raoul Wallenberg saved the lives of thousands of Jews by providing them with false documents. By a unanimous act of Parliament in 1985, he was made an honorary Canadian citizen for his heroism. The Canadian people followed in his footsteps when we took thousands of Vietnamese boat people into our homes during the 1970s. Canadians were awarded the Nansen Medal by the UN for our generosity in "aiding and abetting" refugees. Are we all smugglers now?

Andrew Brouwer is a member of the Refugee Lawyers' Association of Ontario. Mitchell Goldberg is co-counsel for Janet Hinshaw-Thomas. Janet Dench is executive director of the Canadian Council for Refugees.

Oct 2007
Summary: 

Globe and Mail op ed