Immigration and Refugees

The vast majority of immigrants to Canada want nothing more than to make new lives in a new country of freedom and security. Many of us or our forebears fled persecution not very different from that experienced by today’s refugees. Indeed our current Governor General came to Canada as a refugee. Although measures intended to control abuse of the immigration system are warranted, we cannot forget that immigration has vastly enriched our land and made us an example to other nations on how people of many faiths and cultures can live together in harmony and peace.

In last year’s Annual Report, the Commission stated that the proposed legislation on immigration and refugees, Bill C-11, might represent a retreat from Canada’s enviable record as a welcome home for new immigrants and a refuge for those fleeing persecution. Despite concerns put forth by the Commission and others, such as the Canadian Bar Association, the new law — the Immigration and Refugee Protection Act — was approved with few changes.

As noted elsewhere in this report, the Commission hopes to examine how Canada’s domestic laws live up to international norms. In this respect, the new legislation seems to miss the mark. For example, under the United Nations Convention Against Torture, Canada is obliged never to return someone to a country where there are substantial grounds for believing that they would be in danger of being subjected to torture. While the new law recognizes Canada’s obligations under the Torture Convention, it also provides that the right not to be returned to face torture can be waived on the grounds of serious criminality or security. The Minister of Immigration justified this provision by referring to the need to prevent Canada from becoming a “haven” for criminals or people who would threaten Canada’s security.

Early in January 2002, the Supreme Court of Canada rendered a decision in the Suresh case that focused on this issue. Mr. Suresh came to Canada as a refugee and was later granted permanent resident status. According to security officials, while in Canada, he was a fundraiser and organizer for an overseas terrorist organization. The Minister of Immigration sought his deportation under provisions of the previous Immigration Act. Mr. Suresh objected, claiming that he would face torture if he was returned to his country of origin.

In its decision, the Supreme Court of Canada ruled that the need for security, especially in the post-September 11 world, must be carefully balanced with the unacceptability of Canada having any involvement in torture. The Court ruled that while deportation in circumstances such as Mr. Suresh’s was not absolutely forbidden under Canadian law, it could happen only in the most extraordinary circumstances.

The decision stated in the strongest of terms how greatly Canadians and the international community abhor the use of torture. It also established useful guidelines on how to determine who is a real risk to Canada’s security and whether a deported person faces a substantial risk of torture. The Commission welcomes this part of the Court’s ruling.

Unfortunately, the Court left for another day the determination of exactly what circumstances might justify returning someone to possibly face torture. The Commission firmly believes that torture or ill treatment of prisoners is not acceptable under any circumstances. As the Supreme Court of Canada itself noted, “states must find some other way of ensuring national security.”

Another issue of concern in the immigration and refugee legislation is the matter of detention. The right to liberty and freedom from arbitrary arrest and detention are fundamental human rights to which Canada has subscribed under the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and in our Charter of Rights and Freedoms. Section 31 of the United Nations Refugee Convention prohibits the punishment of asylum seekers who have illegally entered a country to seek asylum.

Under the old Immigration Act, detention was used relatively rarely in Canada, especially compared with the United States, Australia, and certain European countries. However, this new legislation significantly broadens grounds for detention to include matters such as lack of identity documents and suspicion of being a security risk. Certainly there are some instances where detention may be warranted, and this is clearly provided for in international law. However, detention should not be used as a shortcut to solve administrative or security screening problems.

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