Irwin Cotler on Refugee Reforms

by Les Morley|December 1, 2010| Human Trafficking, Immigration, Refugees,
IRWIN COTLER is the Liberal Member of Parliament for the Quebec riding of Mount Royal, and a former federal Justice Minister and Attorney General. An expert on international and human rights law, Cotler was counsel to former prisoners of conscience Nelson Mandela, Jacobo Timmerman, and Natan Sharansky. Also, it was Cotler who introduced Bill C-554, known as “An Act to Protect Canadian Citizens Abroad”.
On November 29, 2010 Cotler addressed the House of Commons upon the deficiencies of the government’s proposed refugee reforms. His statements, which follow, highlight the problems with the proposals:

Mr. Speaker, I rise to speak in the matter of Bill C-49, whose formal title is “An act to amend the Immigration and Refugee Protection Act, the Balanced Refugee Reform Act and the Marine Transportation Security Act”. Indeed the stated intent of the legislation can perhaps best be found in the short title of the act, “Preventing Human Smugglers from Abusing Canada’s Immigration System Act”.

In particular, the bill reflects the government’s response to two ships full of Tamil migrants who landed on Canada’s shores in the past year. It reflects also the larger public concern over illegal immigration and false refugee claims and indeed the need, as the government and our colleagues on the opposite side have put it, to maintain public faith in the immigration and refugee system.

Accordingly, the bill includes harsh penalties for smugglers, which have garnered a good deal of media attention, and not surprisingly, because who can object to legislation that purports to get tough with human smuggling and to deal with such smuggling in the manner required for that purpose? However what is being ignored here is that the government, with co-operative consultation with and indeed the support of the opposition, just five months ago enacted a comprehensive reform of our immigration and refugee law precisely for the purposes of, among other things, combating illegal immigration, false refugee claims and declining, as it put it even then, public faith in the immigration and refugee law system.

This bill, however, while purporting to be the same in its purpose and effect, ends up undermining the very integrity and effectiveness of the legislation that the government itself enacted some five months ago, while inviting, on closer appreciation of the legislation, the very loss of credibility and public faith in our system that Bill C-49 purports to decry, but which Bill C-49 will in fact invite.

Indeed an appreciation of the pith and substance of this legislation, its essential character and effect, invites the characterization of the bill, as a group of refugee scholars has put it, as “the punishing refugees and evading our constitutional and international obligations act”. In a word, the bill does not so much punish smugglers as indeed it punishes asylum claimers.

What follows is a summary of concerns respecting this bill, concerns that, for example, are reflected in the commentaries of experts in refugee law, such as Peter Showler, a former chair of the Immigration and Refugee Board, who last week characterized the bill as “littered with charter violations”. Immigration and refugee law and human rights experts have decried the lack of balance between the sanctions against the smugglers and, in particular, the manner in which the asylum-seekers end up being targeted. The critique of a group of law professors from different law schools across this country characterized it as not only being in breach of our charter rights but also in breach of our standing obligations under international law, such as under the international refugee convention.

In effect, this bill amounts to gratuitous punishment of those seeking our protection, in effect a double victimization of those who have been initially victimized by smugglers exploiting them and then end up being victimized when they seek protection on our shores.

As well, the legislation reflects a lack of understanding of what it means to be a refugee escaping civil strife. The legislation says detention is necessary until the identity of the refugee can be confirmed, but for people who understand what it means to be refugees fleeing civil strife, with all that attends it, it ends up being a legislation that punishes people who are illegal arrivals. As one editorial put it, Albert Einstein would have been punished under this legislation.

This brings me now to a summary of the specific concerns and I will do so in an abbreviated fashion for reasons of time.

First, the bill would authorize detention with no independent review for a minimum of 12 months, in clear breach of both charter rights and related Supreme Court jurisprudence that such detention without review is patently illegal. Moreover, the government has the power to detain persons until their identity is established, as I mentioned, or, irrespective of time, under present legislation, be it legislation with respect to the protection of public security or legislation with respect to enforcement of our anti-terrorist laws and, as such, this particular and prospectively illegal provision is as well a gratuitous and unnecessary given our present laws.

Second, those who are granted refugee status are nonetheless denied the right to bring their family members to Canada for a period of five years. Again, arguably that is in breach of our international human rights and humanitarian obligations under the Convention on the Rights of the Child or international provisions respecting family unification.

Third, there is no right of appeal from the initial rejecting refugee decision, which would not only immunize error in our refugee system, but prejudice the rights of prospective asylum seekers.

Fourth, it would reduce medical benefits. Refugee claims already receive only the most basic of medical coverage, but this type of legislation would reduce that even further in respect of matters pertaining to the use of wheelchairs, canes, walkers and the like.

Fifth, the bill mandates that those coming to Canada as part of a smuggling event, as it is called, will not be permitted to apply for permanent residence for five years. This provides for different rules and standards for migrants smuggled on a ship compared to those who arrive illegally with forged documents by way of an airplane.

Finally, with respect to the overall purpose and effect of the bill, it might in this regard create two classes of refugees based on the means of arrival in Canada. The distinction and its drastic consequences offend foundational principles of international law, the Canadian Charter of Rights and Freedoms, as well as common sense and decency.

The majority of refugees and those involved in refugee law know only too well. As Peter Showler himself wrote just a short time ago:

The majority of refugees must resort to smuggling networks to escape the country of persecution and cross borders. Canadian and international laws have recognized this necessity and prohibit the prosecution of refugees for the violation of immigration regulations. Boat arrival, as opposed to individual arrival by land or air, does not mean that the refugee claims are more or less valid or that the passengers are a greater security threat: If anything, it is the opposite, since arrival by boat entails far closer scrutiny by the authorities. Boat arrival simply means that it was the only practical avenue of escape for refugees with no good options.

In summary, he says:

Government ministers have justified the punitive aspects of the bill by accusing boat refugees of “jumping the refugee queue” as opposed to “law abiding refugees” who wait their turn for resettlement. There is no refugee queue. There are approximately 13 million refugees scattered throughout the world, over half of them in godforsaken camps with few resources and less hope. Their average time of camp residence is 17 years;…

We should not be enacting legislation that ends up punishing the asylum seekers while not effectively sanctioning the smugglers themselves who exploit them.

Well said, Mr. Cotler!


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