Reducing fairness for refugees and permanent residents

October 2012

Bill C-43 contains a number of provisions of concern to the CCR because they will lead to less fairness, do not honour Canada’s international legal obligations and deny some people the right to appear before an independent decision-maker.

Less fairness for people inadmissible on grounds of security, human or international rights violations or organized criminality

These inadmissibility sections are extremely broad and catch people who have committed no crime and represent no danger to safety or security. Among those affected are people who are inadmissible simply because they worked against undemocratic or brutal regimes.

Bill C-43 would deprive such people of fair consideration of their situation, by:

• Limiting the scope of the exemption from inadmissibility (known as ministerial relief) to national security and public safety considerations.
• Denying access to humanitarian and compassionate (H&C) considerations
• Imposing mandatory conditions when released from detention.

These changes are inconsistent with the Canadian Charter of Rights and Freedoms and Canada’s international legal obligations:

• The limiting of ministerial relief will prevent some refugees from making a refugee claim, leading to Canada returning them to face persecution, in violation of our international legal obligations under the Refugee Convention.
• The proposed new wording for ministerial relief will prevent the Minister from considering whether Charter rights would be violated if a person was denied ministerial relief. The Supreme Court has already said that Charter rights must be considered.
• Elimination of access to H&C will prevent consideration of the best interests of any affected child, contrary to Canada’s obligations under the Convention on the Rights of the Child.

Less fairness for permanent residents facing loss of status because of serious criminality

Bill C-43 denies permanent residents the right of appeal to the Immigration and Refugee Board if they are sentenced to imprisonment for six months or more (currently it is 2 years). This means that these permanent residents will be removed without an independent decision-maker considering all the relevant circumstances of the case, which might include:

• The fact that they came to Canada as a child and have lived effectively all their life in this country. They may have no family or connections in the country of their birth, and not even speak the language.
• They are suffering from mental health problems, which contributed to the commission of the crime.

For details on these and other concerns, see the CCR submission.

In July 2011, the Canadian government published a list of 30 individuals described as “suspected war criminals”, asking the public for help in tracking them down so that they can be deported.

The government is of course responsible for enforcing the laws and must constantly seek the most effective and fair ways to do so. The “most-wanted list” is a novel approach. While it appears to have some early success, we believe that it also has a number of serious disadvantages that Canadians will want to consider carefully. Underlying the lists are many complex and challenging issues that cannot necessarily be addressed by simple solutions.

The following are our main concerns:

1. Canada has legal and moral obligations to assist in bringing to justice perpetrators of war crimes and crimes against humanity. If they are deported to countries that lack the capacity or will to prosecute them in a fair trial, they may never answer for their crimes. Canada rarely looks beyond the “deport them” solution for people in Canada who may have committed war crimes or crimes against humanity. A variety of options for justice may exist in any of these cases, and Canada should help ensure that justice is served, either in another country, before an international court or tribunal, or here in Canada. Upholding this obligation allows Canada to contribute to addressing human rights abuses internationally, and making our own country and the rest of the world safer.  
2. Canada is bound by important international obligations not to deport individuals to situations where they face a serious risk of being tortured or other serious human rights violations. Publishing the list of names with the label “suspected war criminals” could potentially put people at increased risk if deported to their home country. It is not clear whether the government has taken this possibility into account. 
3. The label “suspected war criminals” is wrong and unfair. The cases of the people included in this list vary greatly and some are not necessarily suspected of any crime. They are caught up in the very broad inadmissibility provisions in the Immigration and Refugee Protection Act, which go far beyond people who have actually committed crimes to people who only have an indirect association with crimes (for example, a driver or a computer technician working for a government that committed gross human rights abuses).
4. The principle of the presumption of innocence is undermined by the publication of this list. Most, if not all, of the “suspected war criminals” have not been convicted of a crime and Canada is not proposing a trial in which they could seek to clear their name. A finding of inadmissibility under the Immigration and Refugee Protection Act requires significantly lower standards of proof than a criminal conviction. It is therefore unfair to publicly identify people as “suspected war criminals”.
5. The publication of the names of “suspected war criminals” may violate the individuals’ right to privacy. Under law the government is entitled to disclose personal information when it is in the public interest, but only if necessary, and it is not clear that the government had exhausted other options (such as actively enlisting the support of local police forces).  Even if it were necessary to make the names public, it has not been explained why the “war criminal” label had to be attached to them.
6. The publication of the “war criminal” list, as well as of a second list of “serious criminals”, contributes to a negative perception of non-citizens as dangerous criminals. The number of individuals on the lists represents only a tiny percentage of newcomers to Canada – the government’s intensive focus, picked up by the media, is out of all proportion. Unfortunately this is likely to reinforce existing xenophobia, hurting all newcomers, particularly in the context of repeated recent government messaging associating refugees and immigrants with criminality, fraud and abuse.  We believe that the government needs to take a more balanced approach, and guard against feeding into existing xenophobic prejudices that exist in Canada as in all societies.

Canadian Council for Refugees
Canadian Centre for International Justice
Canadian Civil Liberties Association
Amnesty International Canadian Section (English branch)
Amnistie internationale Canada francophone
BC Civil Liberties Association
Réseau d’intervention auprès des personnes ayant subi la violence organisée (RIVO)
Criminal Lawyers’ Association
Canadian Association of Refugee Lawyers (CARL)
World Federalist Movement-Canada
Law Union of Ontario
Refugee Lawyers Association
Association québécoise des avocats et avocates en droit de l'immigration
Canadian Centre for Victims of Torture
Manitoba Interfaith Immigration Council
Table de concertation des organismes au service des personnes réfugiées et immigrantes (TCRI)