Evidence of meeting #33 for Citizenship and Immigration in the 39th Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was safe.
A recording is available from Parliament.
Conservative
Barry Devolin Conservative Haliburton—Kawartha Lakes—Brock, ON
Thanks for being here.
The question I have is on safe third country agreements. I'd like to hear from each of you.
Do you believe in the principle of the safe third country agreements, or do you think there's a fundamental problem with them and that they are inherently unacceptable?
Co-Director, FCJ Refugee Centre, As an Individual
In order to have safe third country agreements you need to have a standard for everybody, and the standard has to be respected, implemented, and enforced. In reality, right now each country decides on the definition and the procedure on detention, removals, and everything, and it's very difficult to compare. You are forced to compare your system to other systems.
The criteria used to define a safe third country are not fundamentally right. It is a country that has signed the refugee convention and has a process for refugees—there is this and there is that. So in a very superficial manner, every single country on earth could be a safe third country for refugees, but in a practical manner we know that every national reality has very clear implications.
Let me give you an example that in our reality would be totally unacceptable. A Cuban touches the shores of the United States and is accepted and protected. In Canada that would be totally against our law, because we don't have that kind of privilege for particular groups of people coming in. In that way there would be mandatory detention, and different things would happen. Issues like violation of international law, etc., would mean that comparing this to countries in a very superficial way wouldn't define a safe third country in reality.
Conservative
Barry Devolin Conservative Haliburton—Kawartha Lakes—Brock, ON
You're saying theoretically they're fine, but practically, in virtually any circumstance I can imagine, they're inappropriate.
Co-Director, FCJ Refugee Centre, As an Individual
Exactly. The convention is implemented nationally; therefore a totally different standard is set up from one country to another. There's no point of comparison.
Conservative
Clinical Professor of Law, Immigration and Refugee Program, Harvard Law School
First of all, I would want to qualify the different standards. Every country that is a signatory to the refugee convention is interpreting the same standards according to an international treaty that is binding. That has been increasingly evident in the jurisprudence of—
Canada again was in the lead on this. The Supreme Court of Canada was in the lead in defining an international framework and leading many countries around the world—the United Kingdom, Australia, and other countries—in following international standards and interpreting the refugee definition. In principle we all have to be answerable to a common framework if we're all signatories to the same convention. I think the fundamental premise of safe third country agreements is false.
Conservative
Barry Devolin Conservative Haliburton—Kawartha Lakes—Brock, ON
Just to clarify, and not to be argumentative, but when you say “leading the world” in the interpretation, I take it that means “being the most generous” in the interpretation. Is that correct?
Clinical Professor of Law, Immigration and Refugee Program, Harvard Law School
No, the most principled.
Conservative
The Chair Conservative Norman Doyle
Thank you, Mr. Devolin.
We have Mr. Siksay, Mr. Telegdi, and Mr. Wilson.
Mr. Siksay.
NDP
Bill Siksay NDP Burnaby—Douglas, BC
Thank you, Chair.
I want to come back to the questions of the U.S. compliance with the international convention against torture. Again, this is something the Canadian Council for Refugees has raised in relation to their very serious concerns about the safe third country agreement.
They point out that one of the key provisions of the Immigration and Refugee Protection Act in Canada is that a safe third country has to comply with article III of the UN convention against torture, which prevents removal to torture. Then they go on to outline a number of cases where the United States hasn't been complying with that prohibition. I think the most famous one for all of us is the Maher Arar case, when he was deported to Syria to face torture.
There's the practice in the United States to seek diplomatic assurances from other countries that people who are deported there won't be tortured, although even apparently U.S. officials have acknowledged their use and their limited value in actually protecting someone.
There's the whole question of renditions to secret detention facilities, which the European Union has strongly condemned. I think there was outrage around the world when we heard about that practice of the United States, and all of the concerns around Guantanamo Bay and what's been happening there as well.
Then there are two specific pieces of legislation in the United States that have rung the alarm bells for the CCR in particular. One is the Detainee Treatment Act of December 2005. Apparently, President Bush added a signing statement to the act saying that he could as, commander-in-chief, waive the prohibition on the use of torture or cruel, inhuman, or degrading treatment, which I think is a very serious concern.
Finally, there's the Military Commissions Act of 2006, which extends a retroactive immunity to military officials and others for past abuses related to torture and the commission of torture.
There are other issues that the CCR has raised, and I know they've raised them in court cases as well.
I wonder if folks could comment on the issue of compliance with the UN agreement against torture and the prohibition against returning someone to face torture.
Clinical Professor of Law, Immigration and Refugee Program, Harvard Law School
I would just say I agree with those concerns that CCR has expressed.
NDP
Bill Siksay NDP Burnaby—Douglas, BC
One other question I had was around the comparative analysis of the protection accorded to women on gender-based claims in Canada and the United States. Can you say anything further about that? I know you said it was difficult to comment on the U.S. process itself. Is there anything further you can tell us about the way that has worked out?
Clinical Professor of Law, Immigration and Refugee Program, Harvard Law School
Canada clearly recognizes violence against women as a form of persecution and gender-based persecution as a ground for protection. U.S. law is up in the air at this point. That's what I would say. In fact, we have a case before the board now that may decide the parameters of this.
In 1995 the United States had followed Canada's lead and promulgated regulations that were protective of women applying for asylum. It then fundamentally backtracked on that in a 1999 decision. Regulations have now been pending for seven years, since 2000, to basically rectify that decision. Those regulations have still not been forthcoming.
So it's very haphazard as to whether a woman will get protection based on those standards and the standards that are commonly practised in a lot of refugee countries.
Conservative
The Chair Conservative Norman Doyle
Okay, thank you.
I have to go back and forth—Mr. Komarnicki and then Mr. Telegdi.
Conservative
Ed Komarnicki Conservative Souris—Moose Mountain, SK
Ms. Anker, on the issue of whether some countries are better or not in their record, obviously, at least in your view, Canada does very well. Isn't the standard in safe third country agreements that it's not whether they are exceptional but whether they meet international standards that would be considered acceptable as a safe third?
In other words, some countries will be better, some will be worse, but there are minimum international standards they would have to meet. Doesn't the United States and Canada meet those international standards?
Clinical Professor of Law, Immigration and Refugee Program, Harvard Law School
I have two comments, and one is very basic. Canada's current assessment that the United States is a safe country is based on a 2002 assessment. I will certainly say this to Canadians: you are obligated to make that assessment again if you are going to continue to be a party to this agreement.
I point you to The New York Times article about the congressional commission that just issued a report, stating there were serious problems with the United States' compliance with the refugee convention. This is in an article that came out today.
Detention of refugees, which is common practice in the U.S., has been found unacceptable and in violation of the 1951 convention by the United Nations High Commissioner for Refugees.
I guess those are the things I would like to—
The United States is far better in its treatment of refugee claimants now than it was 20 years ago, but there has been a marked deterioration in the last five years.
The system that Professor Martin helped to set up has been drastically undermined in the last five years.
February 8th, 2007 / 12:35 p.m.
Conservative
Ed Komarnicki Conservative Souris—Moose Mountain, SK
In fairness, Professor Martin had suggested a number of reforms, and I understand the Attorney General has launched a major departmental study, and—
Clinical Professor of Law, Immigration and Refugee Program, Harvard Law School
We have not seen a single result of that.
I suggest that you look back at this morning's article and report from the U.S. religious freedom commission, expressing its overwhelming sense of frustration that it hadn't gotten a response to their recommendations.
Conservative
Ed Komarnicki Conservative Souris—Moose Mountain, SK
There are recommendations in existence for improvement to the system. Indeed, the American system does have administrative and judicial reviews of administrative decisions made at lower levels. Those exist currently, even without the forms.
Clinical Professor of Law, Immigration and Refugee Program, Harvard Law School
They've been severely undermined since 2001, so there's no effective administrative review in most cases.
Conservative
Ed Komarnicki Conservative Souris—Moose Mountain, SK
Are you saying there isn't judicial review of lower administrative decisions?
Clinical Professor of Law, Immigration and Refugee Program, Harvard Law School
It's not available to most people.
Conservative
Ed Komarnicki Conservative Souris—Moose Mountain, SK
But the process exists and can be availed of, if one chooses?
Clinical Professor of Law, Immigration and Refugee Program, Harvard Law School
It's not a question of choosing to avail oneself of it. One doesn't have access to that protection if one doesn't have a lawyer.
The federal courts are increasingly refusing to take on the job of administering the asylum system. As well they should be refusing, because it's not their job.