At a recent fundraiser for the War Resisters Support Campaign, immigration and refugee lawyer Alyssa Manning spoke about the Canadian refugee system in light of the passage of Bill C-11 last year. Alyssa's remarks reminded me that although I blogged about C-11 when it was introduced, I never followed up on the very significant changes it made to Canada's refugee system, or about Jason Kenney's recent remarks at the University of Western Ontario Law School. (Many thanks to Alyssa for her permission to paraphrase some of her remarks for this post.)
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Bill C-11, which will be fully implemented by December of this year, significantly changes Canada's refugee system.
Where previously it would take a few years for someone applying for refugee protection to get a hearing – during which time they could find a lawyer, secure legal funding either from legal aid or through a personal network, gather documents to support their case, prepare emotionally, and so on – now, applicants will be required to present their story eight days after making their claim. After that, they will be given 120 days to prepare themselves for a full hearing.
Keep in mind that many people applying for refugee status arrive in this country penniless, traumatized and in a state of emotional and psychological disarray. Building a case for refugee status often entails getting an official diagnosis of PTSD and finding expert witnesses. There are often language barriers. The person has to find a place to live, possibly enrol their children in school – they have to set up a life in a foreign country – while working with a lawyer to build their case. How can this be adequately accomplished in 120 days? It cannot.
Another change that may superficially appear to be positive is the new refugee appeal division. Instead of appealing a negative decision to federal court, a claimant will now appeal to the IRB itself, something refugee advocates have wanted to see for a long time. But of course there's a catch, and it's a big one: the appeal has to be made within 15 days. In other words, the appeals process is effectively useless. It seems pretty obvious the idea is to rush refugee claimants through the system, out the door, and back to whatever horrors they may face in their previous country.
After receiving a negative decision in a refugee claim, many claimants make an application to remain in Canada on humanitarian and compassionate grounds. I've been told that in the recent past, about half of these applications were approved. Not anymore: it's now rare for an H&C to be approved. A recent article in the Toronto Star showed that IRB members appointed by either Jason Kenney or his Conservative predecessor, Diane Finley, grant asylum in as few as 10% of cases they hear.
Formerly, an H&C application had to demonstrate that a person would experience "unusual, undeserved and disproportionate hardship" if removed from Canada. There was an overall assessment of the claimant's circumstances both in Canada and in his/her home country, which would consider the best interests of any children involved, any hardship the family faced if removed, and so forth.
This may all be gone under the changes to IRPA. It's still unclear exactly what an H&C would cover under the new guidelines, but it appears that the process has been gutted and rendered useless. Alyssa said that the refugee-advocacy community will know more in the next few months, when further guidelines are released.
Meanwhile, CIC has formed a special division to deal with the huge backlog of H&C applications – a backlog CIC created by not filling vacant positions. Hundreds of new officers have been hired to – it appears – rubber stamp REJECTED on a big pile of H&C applications. Canadian Border Services Agency has also hired hundreds of new officers to enforce removal orders and warrants, and to make sure failed refugee claimants are all reporting their whereabouts to the government on a monthly basis. (Remember, before C-11 was amended, it called for refugee claimants to be held in prison immediately upon arrival in Canada, as they are in the US.)
It's in this context that CIC Minister Jason Kenney unleashed his recent rant about Canada's judiciary system. The text of Kenney's speech is here. The speech was both misleading and completely inappropriate.
First of all, Kenney is being dishonest with the facts. For example, he speaks about a man whose refugee case supposedly went on for 15 years. What he doesn't say is the man's case file was lost in the immigration system – sitting on someone’s desk, untouched – for almost a decade. The man was not abusing the system: he was stuck in it. There are other similar distortions or stories with choice (and essential) facts omitted. This reminds me of the urban legend about the McDonald's coffee burn victim. But here a government Minister tells the story; the distortions and omissions don't get corrected, and the stories become common "knowledge", even though they're false.
In a similar vein, Kenney and everyone involved in refugee work knows there is no queue for refugee status. A queue has never existed. People in need of refugee protection don't take a number and line up in their home countries waiting for entry to Canada. They need safe haven immediately, and they often risk their lives or their freedom to find it.
The language Kenney used in his recent attack on the judiciary is purposely misleading – and insidious, and dangerous.
Kenney says: the courts are "indulging" claimants in reviews and hearings. Is due process under the law now to be considered an "indulgence"?
Kenney says: negative decisions are overturned "seemingly on a whim, or perhaps in a fit of misguided magnanimity", when a judge disagrees with the rulings of "multiple levels of diligent, highly trained public servants". Yet those public servants are employed by the Ministry of Citizenship and Immigration. Their boss is Jason Kenney. Can they be expected to make impartial decisions? What's more, some of those "highly trained" public servants are brand-new hires, as I mentioned above, whose implied task is to quickly process a massive, manufactured backlog of claims. Are federal court judges not "highly trained"? Why are they presumed to render decisions "on a whim"?
Kenney says: "I fear that such decisions do serious harm to the overall immigration system and prevent it from doing more good for deserving immigrants". That is, the court sometimes prevents the entire refugee and immigration system from operating the way Jason Kenney and Stephen Harper would like it to. The courts are the last bulwark of defense for the defenseless.
Kenney says: "That is why I believe it's important to engage in a dialogue with the judiciary on these matters." But Jason Kenney knows perfectly well that the judiciary cannot "engage in a dialogue" in public – with anyone – ever! Judges in Canada must be completely free of bias or politicization. They can't express political opinions publicly; they can't even sign a petition. I have a friend whose sister is a judge. The friend was involved in G20 activism, and her sister told her, "Don't talk to me about anything to do the G20. If you do, and a G20 case comes before me, I would have to recuse myself."
So Jason Kenney makes these comments and shapes public opinion with words like "jump the queue," "indulge" in appeals, "seemingly on a whim," and so forth – and the judges cannot respond.
Judicial independence is a bedrock feature of any democracy. Indeed, in non-democratic countries or in very corrupt states or municipalities, the judiciary is a hollow, political body that rubber-stamps governments' wishes. The courts exist to ensure that the the government of the day respects the rule of law, and without an independent judiciary, there really can be no democracy. Jason Kenney's public disapproval of federal court decisions is a flagrant attempt to undermine judicial independence, and to undermine Canadian democracy.
That's why Kenney's comments were excoriated as evidencing "a shocking lack of understanding" by the Refugee Lawyers Association of Ontario and many other lawyers and law professors. Even a former Conservative immigration minister said Kenney went too far, calling the Minister's remarks "a rant". At the Slaw blog, Law Professor Emir Aly Crowne writes:
It is appropriate that the Minister’s initials are j/k, because had I not known better, I would have taken them to be a joke. But his remarks are from it. In fact — and quite ironically — his remarks strike at the very values that we, as Canadians, prize: freedom, democracy and the rule of law. Audrey Macklin and Lorne Waldman have already addressed some of these issues in their op-ed piece in the Globe and Mail, and while I may re-tread on some of their ground, it is for a damn good reason.The Globe and Mail Op-Ed by law professor Audrey Macklin and immigration lawyer Lorne Waldman, referred to in the above blog post, make it very clear just how inappropriate Jason Kenney's comments were.
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So if 1% percent of refugee decisions are overturned — an insignificant number by any statistical measure — then how exactly does this get us to the proposition that the “integrity of the decision made by the decision makers” in the Immigration Department “is being questioned without sufficient justification”?
I close with two very telling sentences from the Minister’s speech:
I believe that, in a free and democratic society such as ours, judicial decisions should encourage debate over where the line is drawn between legitimate legislative objective and constitutionally protected rights and freedoms… But we legislators are not an island, and we don’t act alone. We need the judiciary to understand the spirit of what we are trying to do.These are very troubling statements. The Minister apparently wishes to engage in an actual dialogue with the Federal Courts — a dialogue which he readily knows will just be himself yelling into an empty room — because the very principles of judicial office demand that judges refrain from actual discourse on political matters. He then wants the Federal Court to give him and his Department a "free pass" on that trifling 1% of cases that are indeed overturned.
To suggest that the judges of the Federal Court should somehow be beholden to his Department in the name of “constitutionally protected rights and freedoms” strikes at the heart of all those very rights and freedoms. [Worth reading.]
When cabinet ministers attack judges, they attack democracyWe will finally have the opportunity to get rid of this dangerous, anti-democratic government. Let's make sure we do everything we can.
Audrey Macklin and Lorne Waldman
In a speech to the University of Western Ontario’s law faculty last week, Immigration Minister Jason Kenney launched an attack on Federal Court judges for rendering decisions he didn’t agree with. He suggested the judges were preventing him from properly administering the immigration program.
What's wrong with that? After all, lawyers, academics and the media freely comment on judicial decisions, so why not government ministers? Well, what makes it wrong is that judges are supposed to be independent of government, and government is supposed to respect that independence. The executive appoints our judges. But once they’re appointed, our democracy requires that they render their decisions free from government influence or pressure.
When a government minister criticizes judges for how they’ve decided past cases, they’re sending a messages judges for how they’ve decided past cases, they’re sending a message to judges about how they want future cases to be decided. Indeed, Mr. Kenney was quite explicit about this. After presenting highly selective, incomplete and misleading accounts of a few cases, he complained that judges were deciding these cases “seemingly on a whim,” and declared his belief that “most Canadians share my despair at such decisions.” Whether Canadians would share his despair is an interesting question, but, in any event, his remarks seemed directed at undermining public confidence in the judiciary.
The judges do not work, and should not be seen to work, for Prime Minister Stephen Harper or his immigration minister. And because of their special role in society, they aren’t expected to participate openly in the political process. Indeed, you haven’t heard the Federal Court respond to Mr. Kenney, despite his misrepresentation of cases, jurisprudence and statistical evidence. Judges don’t reply because they understand the importance of not becoming politicized.
When Mr. Kenney publicly criticizes judges for interpreting the law in a manner that diverges from his own preferred outcome, he shows contempt for judicial independence. That’s not to say the minister can’t take action when he disagrees with a court’s decision. As a member of cabinet, he has the power to introduce into Parliament amendments to any federal law. The cabinet may also pass regulations implementing existing law. The government possesses the unique jurisdiction to change the law to conform to his views. But using an address to a law school – of all places – to take potshots at judicial decisions the government doesn’t like is an inappropriate exploitation of political office.
To add further discredit, some of the anecdotes cited by Mr. Kenney were just plain wrong. He mentioned the case of Parminder Singh Saini as an example of a person allowed to remain in Canada for years as a result of judicial interference. What he fails to note is that Mr. Saini was found by a Citizenship and Immigration Canada official in 2003 to be at risk of torture. A ministerial review of his case then took more than six years. Meantime, Mr. Saini, a convicted hijacker, had respected Canada’s laws and received two university degrees. When Mr. Kenney, who became the immigration minister in 2008, decided in 2009 that Mr. Saini should be deported, a request for a stay was summarily dismissed. By suggesting that the delay was the fault of judicial interference, Mr. Kenney misrepresents the facts.
In the same speech in which Mr. Kenney attacked the Federal Court, he mentioned the new cadre of bureaucratic decision makers who will decide refugee claims under the Balanced Refugee Reform Act. These decision makers will be government employees, ultimately answerable to the minister. Yet, Mr. Kenney also referred to them as “independent public servant decision makers.” But those decision makers do work for the minister.
Based on this government’s practices, criticism (or even the threat of criticism) by the minister may well cause these decision makers to reasonably fear for their livelihoods if they make decisions that the minister finds politically unpalatable. All Canadians have reason to be concerned whether these decision makers will be genuinely independent.