6 November 2007
Hon. Stockwell Day, P.C., M.P., Minister of Public Safety and Emergency Preparedness
Hon. Diane Finley, P.C., M.P., Minister of Citizenship and Immigration
Hon. Rob Nicholson, P.C., Q.C., M.P., Attorney General of Canada
House of Commons
Ottawa, ON, K1A 0A6
We, the undersigned former Ministers of Immigration and Attorneys General, are writing to express our grave concern about the arrest of US humanitarian worker Janet Hinshaw-Thomas on charges of human smuggling.
Section 117 of the Immigration and Refugee Protection Act, like its predecessor provision, section 94 of the 1976 Immigration Act, was intended to target people-smugglers – the criminals and criminal organizations that profit from aiding or abetting people to cross the border into Canada illegally. While the language of both the current and the previous provisions has always been broad, this was understood as necessary to ensure sufficient flexibility to enable the prosecution of those who cruelly exploit the desperation of others for financial gain, no matter what methods they used. However, as individuals who were once responsible for the application and enforcement of these provisions, we can attest to the fact that they were never designed or intended to allow for the prosecution of humanitarian aid workers.
There is a crucial distinction to be made between the criminal organizations that derive enormous profits from smuggling human beings across borders illegally, and the numerous refugee assistance organizations and dedicated individuals who assist those fleeing persecution and torture to seek protection from Canada via our refugee determination process. The smugglers are the legitimate and intended targets of s. 117; the latter are not.
Section 117(4) of IRPA, like section 94.3 of the previous legislation, requires the consent of the Attorney General prior to the initiation of proceedings against any person under the relevant provisions. We have always understood the purpose of this requirement as a safeguard against the inappropriate and improper targeting of individuals who, like Ms. Hinshaw-Thomas, merely assist refugee claimants to access the system that Canadian law has created specifically for the adjudication of claims for refugee protection.
The arrest of Janet Hinshaw-Thomas suggests that this safeguard has now proven inadequate. Whatever the merits of Ms. Hinshaw-Thomas’ particular case, the fact of her arrest telegraphs the deeply disturbing message that it is now illegal to assist asylum seekers to ask Canada for protection from persecution. This message is inimical to the achievement of the IRPA’s objectives of fulfilling “Canada’s international legal obligations with respect to refugees” and granting “as a fundamental expression of Canada’s humanitarian ideals, fair consideration to those who come to Canada claiming persecution”. Individuals like Ms. Hinshaw-Thomas play a vital role in helping ensure that Canada does in fact comply with its international human rights obligations, including those dealing with refugee protection.
To ensure that asylum seekers continue to receive the assistance they need and which is their legal right, we urge the Government of Canada to ensure that those with humanitarian motives who assist asylum-seekers to access Canadian refugee determination procedures will not be charged with aiding, abetting, or otherwise ‘smuggling’ within the meaning of s. 117 of IRPA. Appropriate regulatory and legislative changes should be adopted.
As former Ministers of Immigration and Attorneys General we are proud of Canada’s long-standing commitment to upholding our international legal obligations and our hard-earned reputation for protecting refugees. It is our utmost hope that the present government will act quickly to expunge this stain on our reputation before it sets.
The Hon. Lloyd Axworthy, P.C., O.C., O.M., B.A., M.A., Ph.D.
Minister of Employment and Immigration, 1980.03.03 - 1983.08.11 and 1993.11.04 - 1996.01.24
The Hon. Elinor Caplan, P.C.
Minister of Citizenship and Immigration, 1999.08.03 - 2002.01.14
The Right Hon. Charles Joseph (Joe) Clark, P.C., C.C., A.O.E., B.A., M.A., LL.D.
Minister of Justice and Attorney General of Canada (Acting), 1988.12.08 - 1989.01.29
The Hon. Irwin Cotler, P.C., O.C., B.A., B.C.L., LL.M., LL.D., Ph.D.
Minister of Justice and Attorney General of Canada, 2003.12.12 – 2006.02.06
The Hon. Flora Isabel MacDonald, P.C., C.C., O.Ont.
Minister of Employment and Immigration, 1984.09.17 - 1986.06.29
The Hon. Allan Rock, P.C., LL.B.
Minister of Justice and Attorney General of Canada, 1993.11.04 - 1997.06.10