Refugee lawyers form group to fight laws they say violate Charter
BY KRISTEN SHANEHuman smuggling bill was ‘a wake-up call’ for lawyers and academics who started the Canadian Association of Refugee Lawyers.
After the government’s human smuggling bill gave them "a wake-up call," refugee lawyers and academics have started the Canadian Association of Refugee Lawyers to fight what they say are bad bills.
And with a majority government, that fight will shift from the House of Commons to the courts, where they anticipate Charter challenges.
More than 150 refugee lawyers and academics who study refugee law gathered in Toronto and via webcast from cities across Canada Sept. 9 to launch the group.
As of Sept. 26, more than 100 had registered as members of the new group, which is in the process of being incorporated. It plans to intervene before the courts on national refugee issues, make submissions to parliamentary committees, and do other public outreach and education on refugee law and policy.
The group wants to act "as a strong counter balance" to "current policy trends seeking to limit refugee rights in Canada," said a Sept. 20 news release announcing the group’s creation.
"More than ever, lawyers and academics across Canada must coordinate their efforts to protect human rights, preserve the Charter, and defend asylum seekers," said Lorne Waldman in the release. The Toronto immigration lawyer is the group’s elected president.
“I think it is fair to say that the political landscape for both refugees and migrants more generally has been changed by the election of a majority Conservative government,” University of Toronto law professor Audrey Macklin, one of three chairs of the group’s legal research committee, told Embassy.
Groups such as the Canadian Bar Association and Canadian Council for Refugees have long spoken out on refugee policy, said Ms. Macklin, but the game has changed.
"I think C-49 was a bit of a wake-up call," she said.
Bill C-49 died on the Order Paper at last spring’s election call, and the government has since retabled one that is largely the same, called C-4, the Preventing Human Smugglers from Abusing Canada’s Immigration System Act.
It is currently being debated at second reading in the House, but is expected to easily pass now that the Conservatives have majorities in both the House and Senate. Immigration Minister Jason Kenney has said he hopes it will be law by Christmas.
The bill defines human smuggling as an offence and sets out tough penalties. But the bill also lets the immigration minister designate an "irregular arrival" of a group of people to Canada, whose members may be arrested without a warrant and detained for at least a year, unless their claim has been resolved or they get special permission from the minister.
Some refugee lawyers have said this clearly violates the Canadian Charter of Rights and Freedoms, which, in Section 7 guarantees the right not to be deprived of life, liberty and security of the person except "in accordance with the principles of fundamental justice."
They also take issue with other parts of the proposed law that prevent people whose asylum claims have been accepted the ability to sponsor their family to come to Canada, or for the refugee to travel outside Canada for five years.
"If you have a majority government that doesn’t feel politically constrained, because they have the majority of seats in government, and they don’t feel any self restraint in introducing legislation that appears on its face to be unlawful, then that raises the stakes and in a sense requires an even greater emphasis on legal mechanisms for contesting it," said Ms. Macklin.
"We expect that there are going to be more fights that have to be fought in the court room than there were in the past," she added.
"Obviously, it’s always our hope...that the government will reconsider some of the proposals before Parliament, like C-4. But we are also aware that the Conservatives now have a majority. And if they pass the legislation in its current form, we certainly expect there will be constitutional challenges and we want to be as ready for them as we can be," said Mr. Waldman.
The government says otherwise. Candice Malcolm, a spokesperson for Mr. Kenney, noted in an email the section of the House of Commons procedural manual that says the minister of justice must review every bill the government introduces to see whether it's consistent with the Canadian Bill of Rights and the Charter.
When the bill was reintroduced in June, Public Safety Minister Vic Toews, who has been championing the bill alongside Mr. Kenney, told CBC News "I'm confident that the measures are Charter-compliant."
But C-4 isn't the only piece of legislation worrying refugee lawyers. They are also seeing problems with the implementation of Bill C-11 that became law in June 2010, which is set to reform Canada’s refugee system by, for instance, adding an appeals division and speeding up the process for claimants coming from so-called 'safe' countries.
Peter Showler, a former Immigration and Refugee Board chairman and current director of the University of Ottawa’s Refugee Forum, said he anticipates court challenges. For example, the bill allows 15 days to file and complete an appeal, which he said is virtually impossible.
Mr. Showler is one of the founders of the new group.
Refugee lawyers' concerns about potential constitutional challenges come amid a climate of fear that the government this summer had delayed implementing C-11 to June 2012 in order to use its majority status to claw back concessions it had made to opposition parties to get it passed with only a minority government last year.
In an interview with Embassy last week, Mr. Kenney said the bill that was passed "was not the bill that we introduced," and even that "was I think very deliberately calibrated to get support in a minority Parliament."
He said his government's commitment is the implementation of C-11, but didn’t close the door completely on any potential changes, saying "look, I'm not going to rule anything in or out."
He said the delay was due to the nature of the complexity of the changes to be made, and because the government is grappling with how to implement costly changes in a time of government-wide budget cutbacks.
The first version of the bill did not allow access to appeals by people from the so-called 'safe' countries, under the notion that they are generally known to be democratic and respecting of human rights.
"Obviously, we’re extremely concerned if C-11 is re-opened to restrict even further the rights of refugees," said Janet Dench, executive director of the Canadian Council for Refugees.
Mr. Showler said that if Mr. Kenney isn’t going to change the bill, he should have just said that clearly, rather than leaving the door open. Various federal departments and agencies, not to mention legal aid groups and bar associations, have spent two years and put a lot of energy into preparing for the new system, he said.
"This is not something that you can turn on a dime or a policy whim."
kshane@embassymag.ca
http://embassymag.ca/dailyupdate/printpage/refugee_lawyers_form_group_to_fight_laws_they_say_violate_charter_09-29-2011