1. Incorporation of CAT into refugee protection provisions
Canada’s Immigration and Refugee Protection Act, which came into effect in June 2002, provides for the protection against a claimant’s removal to a situation where they would be personally subjected “to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture” (IRPA s. 97(1)(a)). A claimant who meets this definition is a “person in need of protection.” However, s. 115(2) of IRPA explicitly derogates from the non-refoulement norm in certain cases. Moreover, as discussed below there are a number of significant operational and procedural problems as well as statutory barriers to protection. As a result, protection from refoulement to torture is not consistently and universally available to those who require it.
2. Non-implementation of the Refugee Appeal Division
The Immigration and Refugee Protection Act, as enacted by the Canadian legislature in 2001, gives a claimant the right to appeal a negative decision of the Refugee Protection Division to the Refugee Appeal Division (IRPA s. 110-11). However, when the Executive implemented the Act in 2002, it refused to implement the sections that give claimants the right to the appeal on the merits. At the same time, the Act reduced the number of Board members hearing a claim from two to one, with the result that since the implementation of the Immigration and Refugee Protection Act refugee claimants have been heard by a single decision-maker with no right of appeal on the merits. Survivors of torture and others fearing torture have been wrongly rejected and found no recourse within the Canadian system to correct the error. One such claimant was Enrique Falcón Ríos, whose petition was upheld by the Committee against Torture in December 2004 (Communication No. 133/1999). The significance of the absence of a review on the merits is discussed in some detail in the 2000 Report on Canada by the Inter-American Commission on Human Rights, at paras. 104ff. (http://www.cidh.oas.org/countryrep/Canada2000en/table-of-contents.htm)
3. Exclusion clauses
The Act applies the exclusion clauses of section E and F of Article 1 of the Refugee Convention not only to Convention refugees, but also to “persons in need of protection”, that is persons at risk of torture (IRPA s. 98). Thus the Act fails to respect the absolute prohibition on return to torture contained in Article 3 of the Convention against Torture.
4. Extradition
A person who is subject to extradition cannot pursue a refugee claim under the Immigration and Refugee Protection Act and an order to surrender for extradition is a deemed rejection of a refugee claim (s. 105). Nor may a person subject to extradition apply for a Pre-Removal Risk Assessment (s. 112(2)(a)). Those subject to extradition who fear torture must rely on the Extradition Act, which provides no judicial mechanism for assessing the risk of torture, but simply states that the Minister “shall refuse to make a surrender order if the Minister is satisfied that (a) the surrender would be unjust or oppressive having regard to all the relevant circumstances” (Extradition Act, s. 44). No reference is made in the Extradition Act to Canada’s obligations under Article 3 of the Convention against Torture.
5. Ineligibility on security and other grounds
Claimants are ineligible to make a refugee claim if they are found inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality (IRPA s. 101(f)). These categories of inadmissibility are very broad, including potentially large numbers of people who have no personal responsibility for any wrong-doing (for example, members of an organization that has engaged or is engaging in terrorism, even if they were not aware of any engagement in terrorism or were not members of the organization at the time it engaged in terrorism.) Claimants found ineligible, as well as those excluded by the Refugee Protection Division (see above point 3), must rely on the Pre-Removal Risk Assessment (PRRA) to protect them from removal to torture. This mechanism offers them inadequate protection in several important ways:
a) The PRRA applicant is heard not by the Refugee Protection Division of the Immigration and Refugee Board, an independent quasi-judicial tribunal, but by a relatively junior civil servant working in Citizenship and Immigration Canada. There is no automatic oral hearing, but only in very rare circumstances an interview with the officer, where counsel may be present but is allowed only a very limited role.
b) The applicant cannot be granted refugee protection, but only a stay of removal (IRPA, s. 114(1)(b)).
c) The risk to the applicant will be balanced against the danger that the person constitutes to Canada (IRPA, s. 113(d)).
The ineffectiveness of the PRRA remedy may be inferred by the exceedingly low acceptance rate of 1.5% (statistic for 2004).
6. Security certificates
In addition to the security ineligibility provisions mentioned above, the Immigration and Refugee Protection Act provides for a separate process, including mandatory detention and evidence presented in the absence of the person and their counsel, where two Ministers have signed a certificate against the person. There are currently five men subject to security certificates in Canada, four of whom remain in detention, the fifth having been released under extremely restrictive conditions. All five are Muslim Arabs. All five men have argued that they would be subject to torture if deported to their country of origins. In at least two of the cases the Canadian government accepted that the fears of torture are well-founded, but sought to return them anyway. (These cases were sent back for reconsideration on other grounds.) The security certificate procedure has been widely criticized both internationally (see the IACHR’s 2000 Report on Canada, cited above) and in Canada by legal academics and practitioners. A copy of an October 2004 open letter to the Minister of Public Safety and Emergency Preparedness signed by over 40 Canadian law professors and NGO legal networks is attached. The Minister has to date failed to reply to the concerns set out in the letter.
7. Deportation to torture
As noted, the government of Canada maintains that it may deport people to a danger of torture, despite the absolute prohibition contained in Article 3 of the Convention against Torture. They base their position in the Supreme Court of Canada’s failure to recognize the absolute bar to return to torture in Suresh v. Canada ([2002] 1 SCJ 3). In that case, the Court observed that there may be exceptional circumstances which could justify return to torture in certain cases. As a result of the Court’s failure to explicitly uphold the absolute prohibition, Department of Justice lawyers have in a number of cases sought to invoke the generalized “war on terrorism” as exceptional circumstances sufficient to justify refoulement. Further, government lawyers consistently seek to undermine the status of the Convention Against Torture and other human rights treaties to which Canada is a party by arguing that they are not bound to comply with them. (See especially Ahani v. Canada (2002) 208 DLR (4th) 66.)
8. Safe Third Country
On 29 December 2004, the Canadian government designated the US a safe third country for the purposes of refugee claims. As a result, most claims made at the US-Canada border are ineligible, the claimants being instead expected to seek asylum in the US. This may lead to indirect return to torture, since the US does not in all respects comply with Article 3 of the Convention against Torture. Furthermore, according to the Immigration and Refugee Protection Act, the government, when considering whether to designate a safe third country, is required to take into account whether the country’s policies and practices with respect to obligations under the Convention Against Torture (IRPA s. 102(2)(b)). Given the serious allegations of violations by the US of their CAT obligations, the US ought not to have been designated a safe third country.