Submission to UN Committee on Human Rights in preparation for the examination of Canada on its compliance with the International Covenant on Civil and Political Rights



Submission to UN Committee on Human Rights in preparation for the examination of Canada on its compliance with the International Covenant on Civil and Political Rights

March 1999



Introductory comments

The Canadian Council for Refugees and the Inter-Church Committee for Refugees draw to the attention of the Human Rights Committee the decline in due process and non-discrimination standards increasingly impairing the rights of asylum seekers and other non-citizens in countries of the West, including Canada.

Canada plays an important role internationally in refugee and immigration affairs. Canada is an immigration country which leads in some areas of refugee law. Canada promotes international causes and supports the international promotion of human rights. Consequently, Canada is viewed by many as a model. Improvements which can be achieved for refugees and migrants by discussions with Canada will have effects across Western States and beyond. Also, as a general principle for the examination of States, we suggest that more should be expected from those to whom much has been given. Canada has every opportunity to respect the human rights of all those within its territory or under its jurisdiction.

At the same time, thousands of Somali and Afghani refugees in Canada have been denied basic rights, including the right to travel and reunion with their children overseas for over 8 years, hundreds of Roma refugees in August 1997 were denied work, social assistance, normal health care and education and were subjected to racist parades and antagonistic media headlines, babies born to non-citizens in some parts of Canada have been denied health coverage and there have been deportations and efforts to deport non-citizens in the face of requests by international human rights bodies not to do so. Refugees have been threatened with deportation in circumstances which fall outside the international standards. Long-term permanent residents have been deported without due process from established families, spouse and children, after having been convicted of and served a sentence for crimes committed. There are reliable accounts of persons afraid of deportation being subjected to gags, cuffs, shackles and strait jackets.

The brief reviews concerns article by article, taking special care to address issues relating to non-discrimination with respect to non-citizens, freedom of movement and expulsion of non-citizens.

Article 2 Respect of CCPR Rights

There is widespread lack of public awareness about international human rights obligations in Canada. There is no independent mechanism to promote awareness of international commitments before parliament, before judges, before lawyers, before officials and before the public. The Inter-Church Committee for Refugees is concerned that the Canadian Human Rights Commission plays little or no role. It does not qualify under the UN "Paris Principles" and does not systematically report on UN committee examinations, initiate impartial investigations, promote nor advise on international rights.

Article 2 Ensuring rights by government measures and legislation

Incorporation of instruments into domestic law
Human rights instruments are not consistently incorporated into domestic law. Instead, there is a highly selective approach. For example, some parts of the refugee definition in article 1 of the 1951 Convention relating to the status of refugees, 1951 CSR, are incorporated but other parts of article 1 are not. The Convention as a whole is not incorporated. Surprisingly, the government provides no content for refugee status, arguing that refugees get their rights when they obtain permanent resident status, despite significant barriers to getting that status shown below. In response to the article 4 Convention against Torture (CAT) obligation to legislate to prosecute those who torture, selected parts of article 5 of the Convention are incorporated in the Criminal Code at section 245.4 without reference to the CAT.

The courts and international instruments
The courts make reference to international human rights and corresponding case law but not in a systematic, consistent and predictable way. The Federal Court, legislated for immigration decision making in the Immigration Act, makes less reference to international rights. The federal government consistently argues these rights have no force in Canadian law unless they are expressly incorporated - as it did recently before the Supreme Court in Mavis Baker v. MCI.

Governmental proposals for immigration reform
The government document "Building on a Strong Foundation for the 21st Century: New Directions for Immigration and Refugee Policy and Legislation" (White Paper) released January 1999, largely avoids references to human rights, even in the section dealing with refugees and others in need of "protection". There is only one reference to "Canada's obligations under other conventions which relate to life and security of the person, such as the United Nations Convention against Torture" in the context of the proposed expansion of the mandate of the Immigration and Refugee Board.

Article 2 (and article 26) Ensuring Rights without Discrimination
Changes to the Immigration Act since 1988 have in the main restricted the rights of non-citizens. As we shall show, Canada has legislated different treatments for non-citizens on its territory on the basis of their immigration classifications. Those who are neither citizens nor permanent residents receive a lower quality of legal remedy when the same rights are at issue. Some have no effective legal remedy against expulsion or status decisions.

Chiarelli
Rights which have arisen in expulsion by Canada include life, liberty, protection from torture, family life and freedom of movement. The form of effective remedy varies depending not on the rights at issue, but on the classification of the person. Citizens in general are treated differently from non-citizens. For example, in Chiarelli v. Canada the Supreme Court found that a permanent resident remained on a contract basis, that committing a crime breached the contract, that deportation could follow, that constitutional rights were not at issue, and that the fundamental principles of justice did not apply. Non-citizens receive different treatments depending on whether they are classified as a permanent resident or asylum seeker or sub-classified as resident or asylum seeker into, for example, "danger to the public" or "security risk" groupings.

Convention refugee rights
A Convention Refugee recognized by Canada does not enjoy rights under that Convention until granted permanent resident status. The 1951 Convention "travel document" and identity document need not be granted and family unity is not protected.

Targeting of refugee groups
In 1990 the Human Rights Committee had concerns about the "targeting" of certain groups of refugees for special treatment. They were English speaking asylum seekers from the Caribbean. Similar practices still go on. Roma from the Czech Republic were initially subjected by immigration officials to special and unusual treatment in August 1997. They were systematically subjected to the more detailed criminality checks generally only made on individuals for whom there is reason to suspect criminality. As a consequence, overflows at shelters for the homeless occurred with anti-refugee headlines in the media and racist street protests.

Federal Court
The legislated role of the Federal Court as a remedy for non-citizens may be discriminatory: 1) the court appointment process is inferior; 2) judges are predominantly former politicians or officials; 3) there are no judges at the Federal Court with a background in immigration litigation, despite the fact that the largest part of the Court's caseload is immigration-related; 4) the Federal Court lacks independence, as is shown by the fact that it rarely disagrees with the government on systemic issues and will even continue to follow the government lead when the government changes its legal position; 5) the jurisprudence of the Federal Court applies a standard of "patent unreasonableness" to review of decision-making (Sivasamboo (1994), 87 F.T.R. 46); 6) the "leave" provision is not used to ensure protection of rights but to control the case load and to identify novel legal issues, no reasons are given when leave is refused, refusal of leave is not appealable, and studies have shown that individual judges vary widely in the rates at which they grant leave; 7) access to the Federal Court of Appeal from the Trial Division is restricted for non-citizens to issues identified ("certified") by the Trial Division judge; 8) the scope of court review is limited for classes of non-citizen certified "danger to the public" or "security risk"; 9) the remedy is only judicial review, whereas citizens, seeking review of many other types of court and quasi-judicial decisions (and certainly any decisions with consequences as potentially serious as in refugee claims) have access to a full appeal.

Lack of consistency in decision-making
Persons with substantially similar fact situations facing administrative decision-making for status or for detention or for expulsion may receive widely different decisions. This is not consistent with the international doctrine under CCPR article 26 which includes the notion of equal treatment before the law. The Federal Court of Appeal has established doctrines of administrative discretion and fairness. Clear criteria are not required. Reasons for a decision need not be given. All the material submitted must be considered. There is no requirement that the decision making must be consistent. This lack of consistent decision-making for non-citizens extends to all levels - administrative, the Immigration and Refugee Board (IRB), the Federal Court itself. One finds opposing decisions based on substantially similar fact situations. Yet consistency and predictability are central to the rule of law.

Article 2 Effective remedy without discrimination
The Covenant promises an effective remedy by competent judicial, administrative or legislative authorities. Legislation fails to ensure such a right. The Supreme Court ruled in Singh et al 1985 that the Charter of Rights and Freedoms applies to everyone in Canada, and that a refugee must have an oral hearing conforming with the fundamental principles of justice. However, the case of Chiarelli above casts some doubt on this. In saying rights and related due process are not at issue in the expulsion of a long term resident non-citizen who has committed a serious crime, the court essentially removed the possibility of legal remedy for at least this group of non-citizens. There are other structural problems:

1) The remedy for a refused refugee claimant does not include the "full re-examination of the request" which is the international standard developed under the auspices of the UNHCR with Canada's participation and approval. The UNHCR has repeatedly urged Canada to adopt this standard, most recently in a formal submission March 1998. Instead, refused refugee claimants must request judicial review by "leave" from the Federal Court Trial Division. This compares unfavourably with the remedies offered in almost every other field of Canadian law where a rights determination is involved. For example, even a parking ticket can be appealed as of right in Ontario.

2) A legal remedy offered persons with a real risk of torture or cruel treatment after deportation is the post-claim paper risk review carried out by relatively junior immigration officials (PDRCC), followed by judicial review by leave of the Federal Court. This process did not provide a remedy for several cases subsequently found to be of international concern. (See also below under Article 7).

3) Canadian law does not recognize family or children's rights to be at issue in deportation and does not provide a means to protect these rights (Mavis Baker v. MCI). On the other hand Canada said in the case Joseph v. Canada 1993 (1993 Annual Report of the Inter-American Commission on Human Rights) inter alia that the application to remain in Canada on Humanitarian and Compassionate grounds, together with the opportunity to request leave of the Federal Court for review of that decision, constitute a legal remedy for the threat of disruption by deportation of family life for Mrs Joseph. There are several factors which make this illusory in practice for most refugee claimants: lawyers with little training in international rights, limited legal aid or no legal aid in some provinces, no automatic suspension of deportation pending this process, Federal Court leave denied without reasons and without further recourse as a docket control rather than a rights protection instrument. Finally, there is the problem of the lack of equal treatment for substantially similar fact situations which we discussed above.

Provincial court jurisdiction
In positive moves during 1998, the Ontario Court, a constitutionally recognized court, took jurisdiction in two notable cases and ruled against expulsion after the Federal Court had allowed expulsion to proceed. In the case of Francis the Ontario Court General Division ruled against the expulsion of a child and mother on the basis of constitutional rights. In the case of Suresh, the Ontario Court prevented the expulsion back to Sri Lanka a refugee who had been determined by the Federal Court to be a member of an organisation which had committed acts of terrorism, the LTTE. However, Suresh alleged risk of torture or cruel treatment. Unfortunately, in accordance with the Supreme Court of Canada decision Reza such interventions by a Provincial court are discretionary. Thus for example, in a case comparable with Francis, John, the Ontario court did not take jurisdiction. Hence there is no consistency or predictability in access to the provincial court as would be required for a rule of law. At this stage, this possibility cannot be regarded as an effective legal remedy.

Canadian Human Rights Act
The Canadian Human Rights Act provides that any individual or group of individuals can file a complaint with the Canadian Human Rights Commission in cases of discrimination. However, the Act excludes from the Commission's jurisdiction any discriminatory practices that occur outside of Canada unless the victim is a Canadian citizen or an individually lawfully admitted to Canada for permanent residence. This insulates from review by the Canadian Human Rights Committee most of the actions taken abroad by Citizenship and Immigration Canada.

Judicial training
There is no automatic training of judges on international human rights. In exchanges with ICCR on judicial training, the judge responsible for the National Judicial Institute said that a major shift such as incorporation of international human rights into the Immigration Act would be needed to cause judges to receive automatic training in international rights and their case law.

Article 5 benefit of other rights and treaties
According to the 1969 Vienna Convention on the Law of Treaties, the Covenant and the 1951 CSR must be applied in a compatible manner. For this reason we have included references to concerns raised by the UN High Commissioner for Refugees, especially with the agreed international standards relating to granting of refugee status and the consequential effect which this has on access to lawful residence and expulsion.

We argue that the standards relating to "exclusion" from refugee status and the standard for "appeal" after a negative refugee status decision are relevant to the application of provisions of the Covenant.

We interpret the obligations of Canada to be twofold: 1) meeting the minimum international standards for refugees as promulgated by the UNHCR, but 2) ensuring standards conform with normal provisions for comparable rights and benefits in Canada so as to ensure non-discrimination.

Article 7 prohibition of torture and cruel treatment

Protection from return to torture
There is no explicit reference in the Immigration Act to the Convention Against Torture (CAT) and the particularly relevant article 3. There are no direct provisions in law to prevent the deportation of persons to situations where they risk torture. The Post-Determination Refugee Claimant in Canada Class, which could serve this function [para. 64 of Canada's report] does not. Moreover, people at risk of torture are not eligible to apply if they never made a refugee claim, if they were found ineligible to make a refugee claim, if their refugee claim was found to have "no credible basis", if they meet certain criminality and security definitions, or if they fail to apply within 15 days of a negative refugee decision. For those who are eligible to apply, the complex definition is not consistent with CAT article 3, requiring, for example, that the risk apply in every part of the country of deportation destination. Decisions are made on paper submissions, without any oral hearing, by a relatively junior immigration official. As for all administrative decision making, equal treatment for substantially similar fact situations is not required.

Those not eligible for a PDRCC review can make arguments about risk of torture through an application for humanitarian and compassionate consideration (H&C). However, there is an application fee of $500 per adult and $100 per minor, and deportation is not stayed pending consideration of such an application.

According to proposed legislative changes announced by the government in January 1999, the government may include consideration of risk of torture together with the refugee determination made by the Immigration and Refugee Board. However, according to their proposals, significant numbers of people would continue to be ineligible for this consideration: those currently ineligible to make a refugee claim as well as new categories of ineligibility; those who failed to make a refugee claim within 30 days of arrival in Canada and those who had previously had a refugee claim rejected (no matter how long ago).

After either PDRCC or H&C, the rejected applicant may seek judicial review by leave of the Federal Court. Problems with this legal remedy are discussed elsewhere in this submission.

Several cases were protected from deportation only by the intervention of the Special Rapporteur against Torture, the UN Committee against Torture and the Inter-American Commission on Human Rights. Ng in the case of Ng v. Canada was extradited before HRC concerns were received.

Information, education and training
It is relevant to note that other relevant articles of the CAT such as article 10 information and education and training and article 12 requiring impartial investigations have not be assigned to any independent body in Canada for implementation.

Family separation and retraumatization
In 1990, ICCR reported its survey which showed that refugee claimants held in uncertain and unpredictable status procedures and separated from family showed enhanced symptoms of post traumatic stress disorder - the symptoms which victims of torture present. This was confirmed in a more formal study by Cecile Rousseau, a psychiatric doctor with RIVO, the agency to support survivors of torture in Montreal. The Canadian Centre for Victims of Torture estimates a significant fraction of refugee claimants are survivors of torture. Consequently, it is highly likely that many refugee claimants in uncertain status proceedings separated from their families for long periods are subjected to a form of retraumatization.

Article 9 right to liberty and security of person, protection from arbitrary detention

Immigration detention
Detention is in practice arbitrary for most non-citizens. Immigration officers have significant powers of arrest on the basis of suspicion that the person would not appear for proceedings. This leads to "pre-emptive" arbitrary arrest and detention of people under removal orders who have always complied with all requirements. Refugees who cannot afford high cost bonds for release ($5,000 - $10,000) languish. Some are known to have remained for one to three years. For some non-citizens certified "danger to the public" or "security risk" in arbitrary procedures, detention is mandatory and indefinite.

The Immigration Act is far less precise than the Criminal Code about what evidence is required of officials to maintain detention. The Code is applied by a judge. The less precise Immigration Act provisions are applied by an Adjudicator. In addition, there is great regional variation in the use of detention. Detention is used with the greatest frequency in Toronto. In Vancouver, on the other hand, the number of detainees became so low that the immigration detention centre was recently closed down.

Use of force in removals
There is evidence of excessive use of force not only in deportation but in the application of search and seizure provisions and in the apprehension and detention of non-citizens when their documentation is not in order and, for example, they are pulled over on the highway for a minor speeding infraction. In one instance, parents were taken to immigration detention leaving the car running beside the highway and with children left alone in the apartment wondering what had happened.

Article 10 persons deprived of their liberty to be treated with humanity

Immigration detention centre conditions
The conditions in immigration detention centres, particularly in the "Celebrity Inn", an isolated wing of a low cost motel near the airport in Toronto (Mississauga), have been a longstanding concern of NGOs. In 1998 the Parliamentary Standing Committee on Citizenship and Immigration published a report entitled Immigration Detention and Removals. The committee stated that it was dissatisfied with the conditions at the Celebrity Inn, noting the lack of adequate common space, the "dreary, small outdoor area" and the lack of adequate facilities where children could play. They recommended that if it is impossible to upgrade it, a new facility should be sought. In theory, immigration intends a facility to be for short term detention. Yet some persons remain for months or even years.

Immigration detainees in jails
Some immigration detainees are housed in provincial jails along with criminals. Refugee claimants who provoke the displeasure of detention centre staff can be transferred. Other immigration detainees are persons who have served a criminal sentence, but who remain while immigration officials explore the possibility of deportation. The Standing Committee recommended that refugees claimants about whom there is no suggestion of criminality not be detained with criminals. The Inter-American Commission on Human Rights included a visit to the Toronto West Detention Centre as part of its site visit to Canada, October 1997, but its report has yet to appear.

Article 12 liberty of movement, right to leave and to return to one's country

Interdiction
Article 14 of the Universal Declaration of Human Rights proclaims the right to seek and to enjoy in other countries asylum from persecution. This right to movement for persecuted persons is threatened by interdiction practices.

The Canadian government has a highly developed program of interdiction aimed at preventing "improperly documented travellers" from reaching Canadian territory. The interdiction measures, which include sanctions against carriers, a network of immigration control officers operating internationally and a comprehensive visa policy, make no exceptions for refugees attempting to exercise their fundamental right to seek asylum in other countries. We discuss under family rights the problem of interdiction of spouses and children of persons already granted refugee or residence in Canada.

The Maersk Dubai case is a possible indication of one of the negative impacts of the interdiction measures. Three Romanian stowaways were allegedly thrown overboard the ship which was headed to Canada. One plausible motive for these alleged murders is that the ship's officers wished to avoid the sanctions that would be imposed for bringing stowaways into Canada. In March 1997 a Nova Scotia judge ruled that he did not have jurisdiction to order the extradition of the accused officers.

During 1998, a group of Sri Lankans in West Africa apparently attempting to sail to North America were returned on a chartered Senegalese airplane to Sri Lanka. The operation was reportedly financed by the US and Canadian governments. Amnesty International subsequently reported that one of the people thus returned was arrested and tortured.

Freedom of movement for Convention Refugees
Convention Refugees are not free to leave and return to Canada until they have become permanent residents. Canada does not respect Article 28 of the 1951 Convention relating to the Status of Refugees which calls on states to issue travel documents to refugees. Although travel documents can in theory be applied for, the requests made for a minister's permit (a necessary preliminary step) are routinely rejected. There are thousands of refugees (according to latest government figures more than 13,000) who are unable to become permanent residents for periods of many years. The inability to travel outside Canada therefore constitutes a very serious hardship. For example, in June 1995 a Convention Refugee, Ali, received a letter which informed him that he was refused permanent residence and went on to state: "We wish to inform you that you may remain in Canada as a Convention Refugee with no other immigration status. If you comply with the requirements of the Regulations, you may apply for and receive an employment and/or student authorization. Should you leave Canada, you have no right to return to Canada..." The same person received notification from Citizenship and Immigration Canada on 8 January 1999 that his request for the "minister's permit" needed to allow him to leave and return was denied. The letter states "votre statut de réfugié de la convention ne vous autorise qu'à demeurer au Canada" ["your refugee status authorizes you only to stay in Canada"]. He was thus prevented from the travelling to and from the US which is necessary to practise his profession related to computer systems, seriously impairing his right to work.

Stateless persons
Canada has no basis or mechanism to protect a stateless person from expulsion. Canada deported a person designated by the IRB as likely stateless in the case documented by ICCR under the name "Yuri Gobulov". We have been told that there are others threatened with deportation. This is likely a violation of CCPR article 12.4

Article 13 Expulsion

Canadian NGOs were involved in a general hearing before the Inter-American Commission on Human Rights, October 1996, arguing inter alia that there was no simple effective court remedy in expulsion, especially for people classified as "refugee claimants". The Commission held a subsequent Site Visit in October 1997. The Human Rights Committee may wish to invite the Commission to provide information.

Non-discriminatory hearings related to expulsion
The Human Rights Committee has expressed the view in General Comment 15 that there is to be no discrimination in the hearing relating to expulsion, that article 13 applies in entry situations in which expulsion can be a consequence and that there must be an effective remedy which is supposed to apply. It is not clear how in Canada General Comment 15 is applied given the variety of streams and related procedures which relate to expulsion. We assume that disadvantaged groups such as refugees are nevertheless able to benefit from special measures such as those set out in the 1951 CSR and its related internationally agreed standards.

Access to refugee determination
Persons against whom a removal order (expulsion order) has been made cannot claim refugee status. NGOs have heard allegations that immigration officers at border points have used intimidation and misinformation or have simply refused to hear that a claim was being made in order to issue a removal order and so deprive some people of their right to make a refugee claim and expel them. Because there is no right to counsel at this stage in the process and access is difficult if not impossible for NGOs, clear information about these issues is not available.

Ineligible refugee claims
Persons falling into certain categories can be denied access to an IRB refugee status hearing because an immigration official applying broad criteria deems them "ineligible". This is inconsistent with the internationally agreed minimum standard the UNHCR asked Canada to apply.

Lack of appeal
As noted above, there is no full re-examination of a claim to refugee status contrary to the internationally agreed minimum standards refugee and despite repeated requests by the UNHCR.

Immigration and Refugee Board
The IRB has been established as an independent, quasi-judicial administrative tribunal. It provides a hearing on refugee status for those found eligible. However, the political nature of the appointments and the lack of rigorous screening of candidates for appointment and reappointment, together with the absence of any clear criteria for evaluating competence, seriously undermine the appearance of independence. The appointment process is widely viewed as being political patronage. There is no independent complaints mechanism.

Expulsion of permanent residents
Permanent residents, who are threatened with expulsion after having been convicted of a crime, normally have access to a hearing before the Immigration Appeal Division of the Immigration and Refugee Board. At the IAD the person has an opportunity to present all relevant factors, including length of time in Canada, family ties and steps towards rehabilitation taken, to the decision-maker. However, since 1995, the law denies persons designated as a "danger to the public" access to the IAD. The process by which people are designated "danger to the public" has been heavily criticized as lacking in due process. Some unlikely persons are chosen and others who appear more likely candidates are not. Persons being considered for this designation have an opportunity to submit written comments. However, experience shows that these rarely make any difference. Once a case is put into the "danger to the public" process by an immigration official, a "danger to the public" certificate almost invariably results. There are allegations of racism in the system because a high proportion of the people found to be "dangers to the public" are black.

Since 1995, many persons have been removed from Canada, sometimes after having been in Canada since very early childhood and despite the fact that they have no connections in their country of origin and may not speak the language. We think a State should assume responsibility for a person who becomes criminalized as a consequence of conditions of long term residence. If the person is truly rehabilitated, as should be the case following a crime and sentence under international law, the legitimacy and necessity for expulsion are unclear.

Loss of permanent residence due to misrepresentation
There are also concerns about the loss of permanent residence because of misrepresentation. The government is currently arguing in the courts that permanent residents who allegedly misrepresented themselves in their immigration application are not in fact permanent residents (because the status was illegitimately obtained) and should not have access to the Immigration Appeal Division. For example, a refugee woman who failed to declare to the government that she married between her original application and departure for Canada could thus lose her permanent residence without any opportunity to be heard (with expulsion as a likely consequence). The government is considering amending the Immigration Act in order to bar access to the IAD in cases of misrepresentation.

National security/public order grounds for expelling Convention refugees
Canada has attempted to deport recognized refugees on grounds which go beyond the two permitted by 1951 CSR article 32.1 - national security or public order. In one case documented by ICCR, a former ambassador of Afghanistan was ordered deported on the ground that he would not qualify for permanent resident status because he was a member of a government declared by the Canadian Minister to be a government which had committed acts of torture. Furthermore, the "due process of law" in 1951 CSR article 32.2 was not followed. This is another area where international standards relevant to expulsion are not incorporated or applied - possibly because Canada interprets the 1951 CSR in its own way so that a refugee which it recognizes is not "lawfully in their territory" until he or she satisfies Canadian criteria for permanent resident status.

Extradition
Bill C-40, currently before Parliament, will, if adopted become Canada's Extradition Act. Bill C-40 recognizes that persons facing extradition may be at risk of persecution "by reason of their race, religion, nationality, ethnic origin, political opinions, sex or status" and that surrender might be "unjust or oppressive" (Art. 44 (1)). It is clear that extradition might in some circumstances interfere with a person's fundamental right to life, liberty or personal security. Despite this, Bill C-40 deprives a refugee claimant facing extradition of the right to an oral hearing before an independent decision-maker. The decision is instead placed in the hands of the Minister of Justice, without any of the protections of due process, and without any possibility of meaningful judicial review, because the standard set is merely that the Minister be "satisfied". There is no reference in Bill C-40 to the Convention Against Torture and its Article 3 prohibition against extradition to risk of torture.

Articles 17, 23 Family rights

Family reunification for refugees
The government continues to refuse to recognize the right to family life or the child's right to family as at issue in expulsion proceedings. The rights to family are not incorporated in the Constitution nor in the Immigration Act. The courts have not recognized the right for non-citizens. The Federal Court of Appeal has held that a child has no legal interest in the expulsion of her parents and that the Convention on the Rights of the Child is just another factor to be considered by an immigration officials in applying "administrative discretion". The Supreme Court has recognized a "liberty interest" for citizens in their family rights, but has not done so for non-citizens.

There are practical barriers to family reunification for refugees and others whose family members are overseas. Refugees have no right to family unity until they obtain permanent resident status. They can sponsor or include in their application for permanent residence their spouse and dependent children. Processing typically takes over a year. Some refugees face specific barriers that delay or prevent family reunification. These are arbitrary obstacles to permanent resident status which predictably impact most severely on disadvantaged groups - the poor, refugees, single women with children. They include significant fees for applying for the status ($500 per adult, $100 per child for processing fees, plus $975 per adult "Right of Landing Fee"), proof of relationship in which the government is increasingly but arbitrarily requiring DNA tests for certain nationalities at a cost to the individual of another $1000 or more. Another barrier is the requirement of particular identity documents even though the identity of the person has been established to the satisfaction of the IRB. The unnecessary requirement has the effect of blocking family reunion and permanent resident status for over 6 years - or indefinitely for some 13,000 persons - many Somali refugees. Another barrier to family reunification can be the security check. Some Convention Refugees experience long delays in the processing of their application for permanent residence because of security checks. The government explains the delays as in part due to a shortage of human resources. There is no obligation on the government to process a permanent residence application within a certain period of time.

Family unity in deportations
As noted above, there is no consistent protection for family rights in deportation. There is no legal provision or policy requiring that the principle of family unity be respected when deportations are being prepared. A refused refugee claimant, for example, may be deported even though her spouse and/or children are still in Canada awaiting a refugee determination.

Family visits
There is no protection of family unity in decisions allowing or declining entry into Canada. Thus, for example, elderly parents or spouse or child of refugees in Canada are not given travel visas to visit the refugee in Canada. The ongoing interdiction policy has the effect of preventing visits by aged parents of persons in Canada who come from countries falling under the visa policy. Parents of Canadians of European or US origin can freely visit their grown up children in Canada. Parents living in other parts of the world cannot visit. At the same time, Convention Refugees in Canada awaiting permanent residence status who wish to visit family members outside Canada are routinely refused the Minister's permit they would need to allow them to travel abroad and return to Canada.

Article 24 Children

Please note our concerns and the suggestion and recommendation expressed in 1995 by the Committee on the Rights of the Child. No effective action has been taken to address these concerns suggestions and recommendations. Concerns were expressed in submissions to the UN Committee on Economic, Social and Cultural Rights in November 1998. Of particular relevance is the problem of new born children to non-citizens who do not enjoy normal health coverage. It is constructive that Canada allows these children a right to Canadian citizenship and hence a nationality as required under the Covenant. However, these children are put at risk in some hospitals which insist on waiting for the birth certificate to arrive three months later before allowing health coverage.

The Convention on the Rights of the Child has not been incorporated into the Immigration Act by reference or by key articles and there appear to be no plans to do so. We noted above the Ontario court recognition of children's rights in an expulsion situation in the case of Francis and of the case of Mavis Baker now awaiting a Supreme Court decision. However, it is disappointing to note that the Supreme Court of Canada did not allow the children of Mavis Baker to intervene before the court so as to give their own perspective on the proposed deportation. This appears to violate CRC article 12.

Conclusion

Canada has many problems but also has a good base through which human rights could be ensured for all non-citizens under its jurisdiction. International standards have been confirmed in a number of areas. It is puzzling why Canada and its allies continue to turn a blind eye to human rights standards, why they subject non-citizens to a future at least clouded with uncertainty if not a daily risk of expulsion, and why they continue to legislate against refugees in the name of greater flexibility and administrative convenience in migration control. There are legitimate immigration control concerns. However, as Madam Justice Wilson put it in the 1985 Supreme Court decision on Singh et al :

"Certainly, the guarantees of the Charter [of rights and freedoms] would be illusory if they could be ignored because it was administratively convenient to do so. No doubt considerable time and money can be saved by adopting administrative procedures which ignore the principles of fundamental justice but such an argument, in my view, misses the point ... The principles of natural justice and procedural fairness which have long been espoused by our courts ... implicitly recognize that a balance of administrative convenience does not override the need to adhere to these principles".

Unfortunately, Canadian courts have not always followed this principled position in decisions made subsequently. International rights, too, are illusory if they can be ignored because it is administratively convenient to do so.

 


Mar 1999