Nov 20, 2011

Can our government’s ‘tough’ approach fit Canada’s internationally recognized humanitarian tradition?

by Maristela Carrara

Bill C-4: Preventing Human Smugglers from Abusing Canada’s Immigration System Act, was introduced by the Minister of Public Safety in June, 2011 and will likely soon be approved. Similar to the Omnibus Crime Bill that is being pushed through Parliament this fall, this legislation is an example of a “tough” approach which ignores evidence and undermines our country’s humanitarian traditions.

Bill C-4 is a re-introduction of Bill C-49 which was unsuccessfully proposed in the previous Parliamentary session as a response to the irregular mass arrival of Tamil immigrants who landed in British Columbia in the summer of 2010. While the title of the bill suggests it targets criminal behaviour that is harmful to refugees, there is widespread concern from legal professionals, health care providers and field experts who claim that in practice it will not only fail to prevent smuggling, it will target and re-victimize refugees and their children and create an anti-refugee system based on punitive measures that go against Canadian and International laws.

According to the proposed legislation, foreign nationals who arrive in Canada seeking asylum in a group as small as two people can be elected to undergo a “different” claim process if

1) the examination of the person cannot be conducted in a timely manner, or
2) there is suspicion that the person was assisted by smugglers.

Such individuals would be categorized as “designated foreign nationals” and would be subject to a minimum detention period of one year without the right to appeal. If the claim of a “designated foreign national” is found to be legitimate, the claimant will then be prohibited from applying for a permanent resident status in Canada for a period of five years. Finally, claimants may have their refugee status removed at any time at the Minister’s discretion.

Re-victimization of refugees and children
The proposed legislation prescribes a minimum of one year detention to individuals whose claims cannot be processed “in a timely manner” regardless of whether the experienced delays are due to the inefficiencies of our own bureaucracy or the claimant’s legitimate incapacity to offer official documentation. The same punishment will apply even to refugees who sought the assistance of a smuggler in order to flee a life threatening situations. As a result, victims in vulnerable situations in their own country, who have likely been re-victimized by smugglers, would be punished in the hands of our government officials.

With the current system, asylum seekers and their children are already subjected to incarceration when there are doubts about their identity or when they are considered to be at flight risk. Unfortunately, this practice is common in Canada. In 2008, an average of 77 refugee children were held in detention each month. Claimants selected for detention are usually held in immigration holding centers which resemble medium security prisons. Some of the Tamil families and children that arrived in British Columbia last summer were detained for up to seven months.

Health care professionals have expressed serious concerns about the effects of incarceration on refugee children. According to studies conducted in Australia and the UK, child detention seriously compromises their physical and mental health, even when detained for short periods. Researchers noted a high rate of post-traumatic stress disorder and depression accompanied by suicidal ideation in children as young as 7 years-old. A preliminary study being conducted in Montreal and Toronto corroborates these results for refugees in Canadian facilities. Yet despite the growing evidence, Bill C-4 makes no exceptions for children and vulnerable persons in detention.

The United Nations Convention on the Rights of the Child, ratified by Canada in 1991, determines that detention of a child shall be used only as a measure of last resort and for the shortest appropriate period of time. It also highlights that children have the right to prompt access to legal assistance and to challenge the legality of the deprivation of their liberty before a court. Already our system fails to consider the best interests of the child in determining detention. This proposal to impose a mandatory minimum sentence will only exacerbate this problem.

In addition to subjecting refugees and their children to lengthy and arbitrary detention, the Bill subjects them to adverse conditions in order to stay in Canada. For example, without being able to apply for permanent resident status for five years, they have no possibility of sponsoring family members from abroad.

Measures are counter to Canadian and International laws
As a signatory to the United Nations Convention on the Status of Refugees, Canada cannot impose penalties on refugees but must facilitate refugee assimilation and naturalization. Our government has also reported to the UN Committee on Human Rights that its efforts to enable refugees to sponsor family members into Canada are evidence of compliance with the International Covenant on Civil and Political Rights (ICCPR), which calls states to protect the family unit. Bill C-4 threatens Canada’s compliance with these International laws.

Refugees will receive the same treatment given to individuals convicted of a crime; except that they will not have access to a fair trial. Additionally, none of these Bill’s measures would be subject to independent review at any stage of the process. This type of procedure violates several legal instruments, including the ICCPR ratified by Canada in 1976, for it denies detained individuals access to review before a court.

Indeed, the spirit of the Bill is at odds with its alleged goals. Its broad scope seems to be an attempt to deter any person who is unable to process their claim for refugee status prior to entering Canada. It imposes endless obstacles to those whose difficult conditions prevent them from regularizing their arrival in advance. In the meantime, the mission of Citizenship and Immigration Canada is stated as facilitating immigrant’s integration into Canada “in a way that maximizes their contribution to the country” and maintaining Canada’s “humanitarian tradition by protecting refugees and people in need of protection”. If Bill C-4 is promulgated, this mission will need to be revisited to reflect Canada’s new “tough” approach.

Experience in Australia and the United Kingdom has shown that measures being proposed in Bill C-4 will subject refugees to further inhumane treatment while failing to deter mass irregular arrivals. It will stop claimants from reuniting with their family, leading productive lives, and contributing to our society in a meaningful way. Unfortunately, asylum seekers are rarely knowledgeable of legislation in other countries and it will be too late before they realize that Canada has become a very bad choice. Is “tough” the best humanitarian response Canada has to offer asylum seekers and their children?

As their escape options from oppressive situations are limited and made under duress we would better serve humanity and be the safe land we can be, by helping refugees to sort out the traumas they have already endured rather than add to them with Bill C-4’s broad brushstroke of suspicion.

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