Sunday, August 15, 2010

Refugee claimants -- as a legal matter what can the Federal Government do?

The recent Sun Sea incident -- where a boat load of Tamils seeking residence in Canada landed on the coast of British Columbia -- has raised a political fire storm.

I see the incident as something of a tempest in a teapot. The Tamils will, or will not, be granted refugee status and the nature of their arrival will soon be forgotten. Nevertheless, there are dire predictions of a flood of boats washing up on Canadian shores and the government claims to have new legislation in the works.

As a legal matter, what can be done to stop a boat load of people intent on landing in Canada and claiming status?

Surprisingly little.

Canada is obliged to accept refugees as part of international agreements. Those treaty obligations do not, however, mean that refugees have the same rights as Canadians. Other nations, for example, Australia accept refugees but keep them in detention facilities until such time as they are processed. Australia also keeps refugee claimants offshore in centres on Manus Island or Nauru. The effect of such detention has been to limit the number of refugee claimants to Australia.

Such mandatory detention is not an option for Canada as a result of the Supreme Court's application of constitutional rights and freedoms to refugee claimants.

In 1985 the Supreme Court ruled that everyone in Canada is entitled to the protection of the Canadian Charter of Rights and Freedoms. As a result, persons who arrive in Canada, regardless of their actual status, must be given a hearing if they claim to be refugees and are entitled to be at liberty in Canada unless they are a danger to the public or are unlikely to attend at an immigration hearing.

This decision was not inevitable -- the United States Supreme Court approached the issue rather differently -- but once the Charter applied to anyone physically in Canada the resulting right to a hearing and liberty in Canada pending such hearing was inevitable.

More generally, recent Charter decisions, most notably those relating to Omar Khadr, suggest that the Charter would have extra territorial effect if Canadian government officials acted outside the county to implement policies established within the country. Specifically, should Canadian officials intercept boats bound for Canada outside Canadian waters with a view to turning the boats away, it is almost certain that the Supreme Court would rule the Charter applies to passengers on those boats. Those passengers would be entitled to land in Canada and assert refugee claims.
So what can the Federal Government do?

Boats carrying refugees could be seized and kept as Crown property -- but as such boats are usually close to scrap metal and the profits from smuggling are so huge that such seizure will do little -- the Sun Sea, for example, was worth perhaps one million dollars while the profits from the human smuggling were ten to twenty times that. The crew of the boats could be subject to criminal charges -- but if the crew claim to be refugees themselves the criminality would not apply. If someone has a right to seek status, they cannot be held criminally responsible for seeking that right. Crews made up of refugee claimants are hardly a new development -- look to Cuban refugees of the last fifty years.

There could be legislation declaring the Supreme Court's ruling inoperable -- an application of the "notwithstanding" clause of the Constitution. Such a dramatic step would certainly cause an election and the political fallout would be most uncertain.

Unless the "notwithstanding" clause is invoked, perhaps the only practical response is to speed up the refugee claim process. Presently the complete processing of a refugee claim usually takes months, or even years. If the process were made more rapid it might discourage bogus refugee claimants -- and since genuine refugee claimants are entitled to entry a speedier process would not be problematic for them.

17 comments:

Anonymous said...

One good thing about this, tho', is how its making the Cons. squirm and boil since they've got no one to catigate about it (except themselves). Poor Toews -- nothing bothers that fire & brimstone law'n order type more than, er, having to follow the law on this.

Joanne BLY said...

That 'notwithstanding clause' option is looking pretty good right now.

wilson said...

Well anon,
if these 71% on this CBC poll are all planning on voting Conservative,
we will see some changes

http://www.cbc.ca/politics/insidepolitics/2010/08/question-of-the-day-171.html

CanadianSense said...

The Tamils are not citizens of our Charter. Omar is a Canadian.

The Federal Government has appealed the attempts by the courts to make foreign policy.

In the US it is the dry/wet foot thing and many illegal from Cuba have now decided it is best to come through Mexico to avoid being returned?

http://www.usimmigrationsupport.org/wetfoot-dryfoot.html

David Gagnon said...

Very interesting and helpful post. I was wondering about exactly these questions.

I don't think this kind of "cruise" would be especially safe or healthy. This group is different from the steady trickle of "economic refugees" who discard all their ID at the airport and then tell a "refugee story" - just as they were coached before travelling.

Very few Canadians understand how our immigration and refugee systems work so the government takes advantage and "educates" us.

The Rat said...

What I want to know is whether Trudeau and his crew knew this was a likely outcome or were they just incompetent framers? I ask this because Trudeau purposely left rights Canadians take for granted in their right to own property out of the charter. How does a "great mind" like Trudeau write such a worthless rag for Canadians but create a tapestry of unlimited wealth for every third world refugee who somehow gets a toe across the imaginary line?

As for Toews squriming, that's nothing new. Every Canadian with brains enough to foresee the outcome of Trudeau's vanity has been squirming every time the Supreme Court finds some new way to screw individual rights in favour of society. Well, at least as long as the individual isn't a criminal, THEN individual rights trump every goal society might have.

Anonymous said...

@ The Rat: Yawn. Trudeau as the Tasmanian (Rights) Devil incarnate. Meanwhile, the Red Tories have been claiming that there's nothing in the Charter that wasn't already in Dief's Bill of Rights.

Anonymous said...

@ Wilson: so what do you suggest, tough guy? That we constantly patrol outside our legal limits w/ subs & gun boats & torpedo anything coming near? Little problem of mass murder there, no? Plus of course we don't have the navy to do it. I know: Blame the Liberals! That'll solve everything.

Anonymous said...

Why are the Conservatives afraid of invoking the "notwithstanding" clause. 78% of The Toronto Star readers support this decision. If the Liberals open their mouths - they will be immediately pointed at as the enemies of Canada. Roll out the clause, have an election and the Conservatives will finally get the majority they deserve.

The Rat said...

"@ The Rat: Yawn. Trudeau as the Tasmanian (Rights) Devil incarnate. Meanwhile, the Red Tories have been claiming that there's nothing in the Charter that wasn't already in Dief's Bill of Rights."

And yet the courts didn't appear to have the green light to interpret it in any way they like. Extraterritorial rights? That's quite a stretch. Prisoners voting? I guess that's the Liberal way. The Charter has become the weapon "progressives" prefer to use in order to destroy the individual rights of the non-criminal element of Canadian society while bestowing them on criminals and non-Canadians.

Anonymous said...

Extraterritorial rights is "quite a stretch"? What, you've never heard of diplomatic immunity?* And you prefer the Cons' "Midnight Express" approach -- if a Cndn does wrong off-shore, the foreign gov't's are welcome to do whatever they want, & we wash our hands of 'em? That's the "state rights" you're bemoaning the loss of? Some Canadian you are.

* http://en.wikipedia.org/wiki/Extraterritoriality

The Rat said...

Hey Anonymous, did you even read James' post?

"More generally, recent Charter decisions, most notably those relating to Omar Khadr, suggest that the Charter would have extra territorial effect if Canadian government officials acted outside the county to implement policies established within the country."

So if these travelers are even talked to by Canadian officials outside Canada, even if the Canadian officials follow the letter of the law of the nation they are in, James feels the Supreme Court may apply the Canadian Charter to actions in that foreign nation.

And yes, I believe a Canadian who legitimately fall afoul of another nation's laws is responsible for that. I guess you prefer Canadian citizens to yell "you can't do that to me! I'm an Ameri... I mean Canadian!"

I am Canadian and I despise your Canada. That's why I followed Paul Martin's advice and chose MY Canada.

Anonymous said...

yeah, I read it: the point was that Canadian officials would have to abide by the Canadian law when acting in their official capacity offshore -- meaning, in this case, that they'd have to extend Charter rights to those on their way to claiming refugee status in Canada. So, no end-run as the law now exists. That's outrageous to you? Well, you've got a very low boiling point indeed.

And you don't care if Cndns get tortured or executed w/o due process or a fair trial if they happen to be charged with something on foreign soil -- and you can't stand _my_ Canada? THen please leave. Preferably to Turkey, or Somalia, or... Guantanamo. Bye, now.

The Rat said...

"And you don't care if Cndns get tortured or executed w/o due process or a fair trial if they happen to be charged with something on foreign soil --"

Oh, I do, I really do. I just happen to believe that the US provides ample due process before they execute confessed double murderers. I also believe that claims of torture, like those of Maher Arar and Omar Khadr are laughable. Torture is something like what happens to Zahra Kazemi. Lack of due process is something like what happens to Mohamed Kohail.

The difference between you and me is that your Canada is blind, dumb, and retarded. You will fight for every scumbag who kills in a country with the death sentence because you are ideologically against the death penalty. You will believe every loser claiming torture because you just can't believe a non-white person would ever lie.

Me, I would rather fight for those deserving my effort. A Canadian passport doesn't automatically qualify.

Anonymous said...

Hmm - that's the thing about due process: it doesn't mean a thing if you only apply it selectively depending on whether you already think he's guilty or not.

And it's not as though I believe or even sympathize w. Khadr. (I saw the family profiled on W5 or whatever & wish they never became citizens, but, too bad, they did.) It's that I have very little faith in the US State Dept. (WMD's, anybody?) or in the Harper gov't, for that matter.

I do trust & believe L. Gen. Romeo Dallaire, however, who knows a thing or two about ugly wars, and who has clearly condemned this kangaroo trial for 1) trying a child soldier; 2) whose confessions were brought ought under duress.

And add to that either the military court has no jurisdiction, or no case. They've charged him with a war crime for tossing a grenade at the forces that were coming to kill them &/or pull them out of that building. Let's say for the sake of argument that it actually was him who tossed it (even tho' there's no witness). Well, if he was a (child) soldier, then how is it a war crime to throw a grenade at the enemy who's just shot all his comrades & bombed the building they're in? That's self-defense &/or what people do in war: use their weapons to try to kill one another. Oh, but if it's because he _wasn't_ a real (child) soldier but just a rebel / terrorist / civilian who had no right to be shooting or throwing grenades at foreign forces, then, gee, it's not a military matter at all but a civilian crime. So he shouldn't be tried in a military court with a military jury.

But you, like Toews, seem unable to see that: you just blindly believe what the foreign gov't tell you about someone already being guilty, great lover of democracy that you are.

Anonymous said...

What should we do if a boat arrives every week for years with 500 Tamils on board? Do you think Canadians would not be paying for that? Long term thinking is definitely needed here. Besides that boat was headed to Australia until the Captain of the Australia Navy was going to escort it to the island where anyone who wants political asylum in Australia has to wait until they are processed. Here again, Australia's ecological environment can only support a certain number of people which environmentalists say is 20,000,000million people. Canadians who feel sorry for people who live in countries who practice non human rights, ought to be vocal regarding these countries treatment of their own people. Canadians who have not travelled outside Canada are naive regarding people from countries who think they will get everything free when they get here. Example: While working in South Korea, I don't know how many times I heard of someone who knew someone who was heading to Canada to have their child here so that they could have free health care. With these young children on board this boat that just arrived, what do you think is the reason for that. Get one in the country and hundreds will follow. My objection to all of this is the fact we are in a recession, many Canadians are unemployed, we are experiencing reductions in government funding right arcross the country. And don't think for one minute, this would all change if we had a Liberal Government tomorrow. The law on the books at present has to change. Anyong

Anonymous said...

1. They are making a 'congress' in Canada. Law support for refugees!
2. Demand for rights 50% as they claim in Sri Lanka.
3. Start guerrilla war, blasting bombs etc.
4. Canada is a homeland of 'Tamil-eelam' of Canada
5. "Canadians have no option than negotiation" will say Tamil-payed Canadian-Ministers in Praliment.
6. Yeah..! Tamil need there home land from Canadian occupied forcefully in their land!

What has happened in Sri Lanka! will going to repeat in Canada from Tamils.