11.20.2009

war resister victory in federal court!

From the War Resisters Support Campaign:

Victory! Federal Court rules in favour of lesbian US war resister

Bethany Smith (a.k.a Skyler James) welcomes positive news in her effort to avoid deportation to the US military

OTTAWA — Today a Federal Court in Ottawa ruled that the Refugee Board must re-assess the case from lesbian US war resister Bethany Smith (a.k.a "Skyler James"). Her story was first captured in a feature article by Capital Xtra soon after her arrival in Ottawa over two years ago.

James came to Canada to escape what she describes as "daily humiliations" and "constant threats of physical violence" in the US military. Her lawyer has made a persuasive case against deporting her back to a situation where her very life could be at risk. As of today a Federal Court in Ottawa has compelled the Refugee Board to re-assess James's case based on new criteria. The decision is seen by supporters as major breakthrough in James's efforts to avoid deportation to the US military.

+ + + +

In case it's not clear, the federal court is sending James' case back to the IRB, the same thing that was done for Joshua Key. Thank [something] for an independent judiciary bringing sanity back to this politically tainted IRB process.

Hey CIC, are you still reading?? We are going to win this thing!

6 comments:

L-girl said...

From the decision:

"The Federal Court of Appeal has also recognized that an applicant may qualify as a Convention refugee even if it is ruled that a law is prima facie of general application. This might be the case, for example, if the law is selectively applied, or if the punishment or treatment provided for in a law of general application is out of all proportion to the objective of the law: see Cheung v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 314, at paras. 16-17. The recent decision of this Court in Rivera v. Canada (Minister of Citizenship and Immigration), 2009 FC 814, provides a useful and vivid illustration of this principle. Accordingly, the Board Member could not ignore the evidence suggesting unequal treatment for homosexuals before court-martials, both in the exercise of the discretion to prosecute and in the sentencing. Similarly, there was evidence both in the documentation before the Board Member and in the affidavit submitted by Mr. Rehkopf to the effect that military judges are not independent as they are part of the chain of command and depend upon superior officers for promotions and subsequent assignments, that convening authorities determine whether a member of the military will be prosecuted and select potential jurors, and that there is no uniform or consistent method by which sentences are imposed on military personnel convicted of AWOL or desertion. While these assertions appear to contradict the findings of the Board and of the Federal Court of Appeal in Hinzman, it must be remembered that these findings of fact were made on the basis of the evidence that was submitted by the parties in that case. In fact, the Court of Appeal noted in Hinzman (at para. 49) that there was no evidence before the Board to the effect that the military judges are not independent or that the procedure by which the law would be applied to the applicant is discriminatory. Furthermore, Hinzman was decided in the specific context of a claim based on conscientious objection and not on sexual orientation. It was therefore the duty of the Board Member to assess the fairness of the court martial process in the light of the particular set of facts and of the evidence that was before him."

YES!

Cornelia said...

Very good!

L-girl said...

In case you missed it, there's a great interview with Skyler James here. Very intense.

Boyd M L Reimer said...

The below quote is just oozing with irony:

"…there was evidence ... before the Board Member ... that military judges are not independent as they are part of the chain of command and depend upon superior officers for promotions…"

Wow: The "Board Members" themselves are ALSO "depend upon superior officers for promotions!"

In fact, "Board Member" Brian Goodman, the day after Remembrance Day in 2004 in preliminary procedures in the Hinzman case. ruled that "evidence with respect to the legality of the U.S. embarking on [first strike] military action in Iraq," would not be "admitted"

(Obviously "Remembrance" Day didn't help him "remember" how Nuremberg Principle 4 has a lot to do with first strike wars, and the horrors that go with them.)

Speaking of promotions: This same Brian Goodman was subsequently given a big fat promotion by the Conservative MP Diane Finley on June 4, 2007.

Speaking of promotions: If we carry out the logic of the today's quote from the Federal Court, then the Federal Court should nullify ALL the decisions of the Immigration and Refugee Board. If they don’t nullify them, then is the Federal Court not carrying out a blatant double standard?

Speaking of Remembrance Day ironies:

In 2007 it was only four days after Remembrance Day that the Supreme Court of Canada refused to rehear and rechallenge a lower court's direct contradiction of Nuremberg Principle 4.

I thought "Remembrance" Day was for "Remembering."

Just days ago, Jason Kenney was complaining loudly that no one "Remembers" what a poppy means anymore.

Hello Department of Citizenship and Immigration:

If you are still eavesdropping on this blog: Can you please help your boss Kenney also remember Nuremberg Principle 4 and how it is dying in Canada? Thank you.

I think that might be more important than a poppy.

Especially if we don't want to re-live pre-Nuremberg horrors.

L-girl said...

A Boyd Linkathon! Thanks for all that. I hope the CIC lackey is blushing.

Cornelia said...

Yeah, now the CIC really has something to tell Kenney that might freak him out and spoil his mood for the rest of the day, haha! Cool, thanks for sharing all that great stuff!