In response, here is an excellent piece written by James' lawyer, Jamie Liew. The Herald gave it good placement with photos. (Skyler James' given name is Bethany Smith.)
Even soldiers have rights
by Jamie Liew
The Calgary Herald Nov. 26 editorial, Not a refugee, is no different than the Immigration and Refugee Board's initial decision on Bethany Smith's case. The Federal Court rightly called the refugee board's decision "skewed."
Your editorial incorrectly states that Bethany did not ask army brass for help. She did ask for help and testified to the same at the refugee board. The Federal Court not only agreed that she did ask for help, but also found that the refugee board must be "sensitive to this special context" Bethany was in an "atmosphere of unconditional obedience to the (military) hierarchy."
Your editorial also wrongly ignores the plethora of evidence not only put forward in Bethany's case, but in the media, about how discharges of gays and lesbians in the U.S. military as per the "Don't ask, don't tell" policy have significantly decreased due to the need to have more bodies for the wars in which the U.S. is involved.
You call for Bethany to face a court martial, but the Federal Court has stated that evidence shows the U.S. court martial system could be discriminatory. For example, Bethany has provided evidence that military laws are not applied to gays and lesbians in the same manner as to those who are not perceived to be homosexuals.
Additionally, there is evidence that the way U.S. military laws are applied is contrary to the objective of the laws.
Canada used to have a military judicial system similar to the one south of the border.
However, in 1991 the Supreme Court in R. vs. Genereux held that the system violated a soldier's charter right to a fair and public hearing on the grounds that the tribunal was not independent; that the normal checks and balances in a democracy were not present.
Our Supreme Court found that the military judicial system did not give its judges security through tenure, that the executive branch of government and superiors had the power to affect the pay of judges and juries, and that the same executive branch, responsible for appointing prosecutors, also had the authority to appoint the judges and juries in courts martial. In other words, the opportunity was there for abuse.
Though the system was reformed in Canada, unfortunately the same reforms did not take place where Bethany will be tried if our government deports her.
Canada has found one system that violates human rights not good enough for our own sons and daughters on the front lines, so why should we treat those fleeing a similar system differently?
There's more at stake than Bethany being court-martialed for desertion. She could be punished for simply being gay because homosexual conduct is still considered a crime by the American military.
The U.S. military could also choose to deploy her instead of prosecuting her, sending her to the front lines to fear for her life not only from enemy fire, but from those within her unit who posted threatening messages on her door.
This is a real fear, considering the fact that a soldier from the same unit as Bethany was beaten to death for allegedly being gay.
Canadians understand that not all refugees are from wartorn countries or fleeing natural disasters. As the Federal Court stated in Bethany's decision, "each case must be decided on its own facts."
For our refugee law to be worth the paper its written on, this should be true regardless of where Bethany is from and despite any bias the minister of citizenship and immigration may have about U.S. soldiers who make refugee claims.
The majority of Canadians support allowing U.S. war resisters to stay in this country.
This support was reflected by the majority of members of Parliament in two votes in the House of Commons. Canadians are fair and compassionate people and we need our government to show the leadership we expect by protecting Bethany and those like her who face persecution if sent home.
Jamie Liew Is A Lawyer In Ottawa. She Represents Bethany Smith, Who Recently Appealed Successfully Before The Federal Court To Have A Second Chance At Claiming Refugee Status