Citizenship and Immigration Committee on Dec. 6th, 2007

[Dave Batters, Conservative, Palliser, SK]

Thank you, Mr. Chair.

Mr. Chair, we'll be talking about our help for refugees from Iraq next week. These people are true refugees. Creating a special class would vault these deserters to the front of the line with their very own category. These deserters are no more deserving of special treatment than anyone else. That sort of special, unequal treatment is not right, especially when we have many more legitimate refugees waiting for our help. It's not fair to the people who follow the rules and who apply to come to our country under the normal immigration system. It's not fair or consistent.

It doesn't seem to me that creating these loopholes will maintain the fairness and integrity of our system.

Can either one of you explain to us further why you maintain that we should change our fair standards to create loopholes and special classes for these people?

[The Chair, Conservative, Norman Doyle]

Mr. Linklater or Ms. Aucoin, please answer.

[Les Linklater]

As I mentioned earlier, we do have the provisions for humanitarian and compassionate consideration, which is a class that is available to those who don't fit under any other application type and where the merits of their application are weighed on an individual case-by-case basis.

[The Chair, Conservative, Norman Doyle]

You have three and a half minutes, Mr. Batters.

[Dave Batters, Conservative, Palliser, SK]

Thank you.

These resistors' cases, specifically Mr. Hinzman's and Mr. Hughey's, have gone through four levels of review now. They've been turned down by the IRB; the IRB said they were not convention refugees. These claimants then asked for a judicial review, and the Federal Court reviewed the IRB decision but dismissed their application. The Federal Court of Appeal then dismissed their appeal of the Federal Court decision, and finally, the Supreme Court of Canada dismissed their application for leave to appeal as well. That means that all four of the decisions from our judicial bodies in this country have gone against these individuals. The initial IRB decision has been upheld.

I have a number of questions. I'm going to ask them all together and I'll let you respond at the end. On top of that, these claimants still have other avenues available to them, don't they? Is that not the case? They even still have access to a humanitarian and compassionate grounds application for permanent residency, and they will also have access to a pre-removal risk assessment. They've really lucked out, since our courts found that they didn't even seek to use the protections available in their own country for objectors before they deserted to our country.

Is that not all true? Would you agree that our process has shown a remarkable degree of fairness and consistency on this issue and demonstrated our commitment to due process, justice, and the rule of law? Is that not all factual?

[The Chair, Conservative, Norman Doyle]

You have two minutes to answer.

[Les Linklater]

Mr. Chair, to our understanding, that is factual information.

[The Chair, Conservative, Norman Doyle]

Ms. Aucoin?

[Micheline Aucoin]

Yes.

[The Chair, Conservative, Norman Doyle]

Okay.

You have one minute and forty-eight seconds to pursue your time if you wish.

[Dave Batters, Conservative, Palliser, SK]

Thank you, Mr. Chair.

The Immigration and Refugee Protection Act, or IRPA, provides that refugee protection may be granted in cases where a penalty for desertion is not legally sanctioned or is imposed in disregard of accepted international standards. The U.S. military's uniform code of military justice regulations, for example, recognizes the validity of conscientious objection, offers alternatives and protections to objectors, including hearing and appeal rights, and objectors are usually transferred to noncombat duty. Their punishment, should their claims be denied, is overwhelmingly administrative. It is my understanding that most, almost 95%, receive administrative punishment and less than honourable discharges from their voluntary military service. I also understand that most haven't even been court martialed.

I think it's clear that the U.S. military policy on desertion is fair, it follows due process, and, frankly, I think it is generous, given that most deserters are simply kicked out of the military. Have the courts and the IRB provided an opinion as to whether the United States military, in its desertion policies, follows accepted international standards and due process of law? Have they determined that the protections in the U.S. are fair and that these deserters should have taken advantage of them?

[The Chair, Conservative, Norman Doyle]

Fifteen seconds.

[Micheline Aucoin]

Yes. The IRB, the Federal Court, and the Federal Court of Appeal have looked at these arguments and made a decision that there were options for Mr. Hinzman and Mr. Hughey to pursue in the U.S.

[The Chair, Conservative, Norman Doyle]

Thank you.

I want to thank you for coming to our committee meeting today. I wish we had more time to really get into a full line of questioning. I'm sure other members had questions they wanted to ask, but we have another group coming. So I would say to members, you can save your questions for the next group of people.

Thank you. I appreciate it very much.

We'll give witnesses a moment to get away from the table, and we will call upon the Mennonite Central Committee to come to the table, Mr. William Janzen, director of the Ottawa office, and the War Resisters' Support Campaign, Mr. Phillip McDowell. Also Mr. Jeffry House, if he's here, can come to the table. He's here as an individual, not representing any particular group of people. I would ask him to come to the table as well.

We can get going in a moment, when you're ready.

Please come to the table, Ms. Gay Anne Broughton, program coordinator. I don't have your name here, but welcome.

Welcome to all of you.

I'm sure you know the drill we go through, Mr. Janzen, Mr. McDowell, and Mr. House. Welcome to the committee. You have approximately ten minutes to make some opening statements. If you could shorten it maybe to seven minutes or so, that would give our committee members a little bit more time to ask questions, because we have to get going on new business at 5 o'clock.

Go ahead, Mr. Janzen.

[William Janzen, Director, Ottawa Office, Mennonite Central Committee Canada]

Thank you.

First of all, I did hand out a three-page paper. Unfortunately, it's only in English. I hope it is at your place.

I'd like to make four points in these opening remarks. The first three are very brief.

The first point is simply that our organization represents a majority of the Mennonite churches of Canada, and the reason we feel compelled to speak on this issue is that over the last two centuries, or a little more, Mennonites in Canada have benefited from the conscientious objector provisions in Canada. Out of gratitude for that, we feel we must advocate so that those benefits can be extended to others.

The second is just a very brief word. Something was demonstrated in World War II. There was a conscription law in force for over four years, but it wasn't only a conscription law. The conscription law carried with it exemption provisions, so that there wasn't only an exemption, there was also an alternative service program. Approximately 11,000 young men--two-thirds of the Mennonites who got conscientious objector status--were assigned to this alternative service program and rendered a service over the years, which, by the end, was recognized as being of very considerable national value. The point is that conscientious objection is not only a matter of being exempted from something. It can be--indeed, I would say it should be--accompanied by a willingness to serve in a different capacity.

My third point is that the conscientious objector concept has evolved over the years, and one key development in that evolution is that there are now provisions in the military departments, the defence departments, in Canada, the United States, and Britain, whereby people who are in the military and who develop conscientious objector convictions can apply to be discharged on those grounds. A very key question is whether those provisions and those mechanisms are accessible and whether they are impartial. There are very major questions about whether that was the case in relation to these people from the United States, but I will let other people speak to that more directly.

My last point--and here I would like to read a few paragraphs from the submission I made--deals not so much with American draft dodgers as simply with conscientious objection.

The case of a young Ottawa man we are trying to assist illustrates even more strongly the need for Canada's immigration structures to deal with conscientious objectors in a better way.

This person, a Muslim, came to Canada in 2001 and applied for refugee status. However, the IRB, in a December 2003 decision, rejected his claim, as did the Federal Court some time later. These bodies agreed that this man's conscientious objector convictions were genuine, but they held that the conscription laws in his home country could not be described as persecutory or discriminatory since they were of general application. One judge dismissed his claim by comparing conscientious objector beliefs to a belief that the state does not have a right to levy taxes; since the latter cannot be honoured, neither should the former.

This man's home country has universal military service requirements without any provisions for conscientious objectors or alternative service, and the evidence shows that it has dealt with people who claimed to be conscientious objectors by sentencing them to repeated two-year prison terms, even up to a total of twenty years. To force him home to that situation cannot be reconciled with Canada's very positive history regarding conscientious objection and with the current requirements of international law.

At present this man is being helped by several legal aid lawyers and us. The lawyers have presented well-documented appeals under the pre-removal risk assessment and the humanitarian and compassionate provisions. We hope these will yield a positive result, but we also ask for the creation of better conscientious objector safeguards in the law itself. Protection of this long and well-established right should not have to depend on such limited appeals at the very end of the legal process.

Thank you for your consideration.

[Jim Karygiannis, Liberal, Scarborough—Agincourt, ON]

Would the witness be able to tell us what country he was referring to?

[William Janzen]

It is Turkey.

[The Chair, Conservative, Norman Doyle]

Thank you, Mr. Janzen. I must say, you stayed well within the limits. You only took four minutes.

Mr. McDowell, you have an opening statement. Please don't feel that you have to hurry through it now. Take your time.

[Phillip McDowell, War Resisters' Support Campaign]

Thank you.

My name is Phillip McDowell. I'm a former sergeant in the United States Army. I volunteered for the army the month after September 11 because I felt that my country was under attack and, as did many Americans, I wanted to do something positive for my country in terms of defending it. Being a senior in college, a graduate, I thought I would be a good asset to the military.

Less than a year later, or about a year later, I didn't wind up fighting al-Qaeda anywhere; I wound up in Iraq. At that time, I still believed, as many Americans did, that there were stockpiles of weapons of mass destruction, that they were making chemical weapons, and that they intended to use them against the United States. I believed them when they said there were ties between Saddam Hussein and al-Qaeda. They were saying that Saddam Hussein had UAVs that could possibly attack the east coast of the United States and deliver chemical weapons. I believed this.

Throughout my tour over in Iraq, I figured out, just through reading the news and talking to people, that these claims were false. I joined the military to defend my country. I didn't join or volunteer to take part in an illegal war or a war of aggression. I view the war at that time as unjust. To me, there has to be a threat from the country you're invading, and clearly there wasn't. The injustices you're getting rid of have to be replaced with better justice. However, throughout my tour, I was told to run civilian cars off the road if they got in the way. I saw the mistreatment of Iraqi civilians or detainees who, I found out later, had done nothing wrong at all. I saw more evil being brought to the country that we were supposed to be liberating.

When I came back from Iraq, I was determined not to have any part in this at all. I determined that when my contract was up with the military, when my volunteer service was over, I was going to separate and not be in the military anymore. However, after I did that in June 2006, I was called back into service involuntarily under the army's Stop Loss policy. I was told that I was going to have a 15-month tour in Iraq. I told my chain of command that I disagreed with the war and that I didn't want to go. I said I would be in the military and do something in the States, as long as I didn't go to Iraq. They said I didn't have a choice; I was going to Iraq. I tried to contact my elected officials to explain to them how I felt about that. They said, sorry, there were a lot of people in the same situation, that I didn't have a choice, and that I was going to Iraq.

Now, knowing that Canada did not participate in the Iraq War and that it made that decision because the United Nations didn't approve of it, and knowing, myself, that the UN Secretary-General, Kofi Annan, in 2004, declared the war illegal, I felt it was right for me to move to Canada to take this decision.

There are many other resisters here in Canada. Patrick Hart is an army sergeant with nine years in the service. He served one year in Kuwait and became disillusioned with the war when his subordinates were asking him why they were there.

Chuck Wylie, who was a chief petty officer with 17 years of service, learned that his ship's actions were in contravention of the Geneva Convention and said he couldn't take part anymore.

Dean Walcott was a field marine deployed in the initial invasion of Iraq. He went to Iraq again, served in a military hospital, and learned, through his discussions with wounded soldiers, what was really going on there. Because of his disgust with the war, he also came to Canada.

Kim Rivera, a mother of two, was told by her recruiter that women were rarely deployed to combat zones. Less than a year later, she was in Iraq, unable to cope with the abuse and indiscriminate violence she witnessed.

And of course Jeremy Hinzman applied for conscientious objector status. He asked for non-combat duty and was denied. He is now here in Canada.

There are many other people here who have moved to Canada. We all have unique stories, but through different means and experiences, we have come to the same conclusion. We believe that the invasion of Iraq was unjust and that the resulting humanitarian situation has had a massive impact.

In regard to the Supreme Court decision, I and many resisters didn't come here to have an argument with the Canadian government. We respect the Supreme Court's decision, but we also believe, as do tens of thousands of Canadians, that there can be a political solution to this.

On the issue of volunteers versus draft dodgers, not all the Americans who were accepted in the 1960s and 1970s were draft dodgers. Many of those people were deserters who had volunteered for service, and some of those people are in this room.

Some of the soldiers who have moved here to Canada joined before the Iraq invasion, and as I said before, like me, they volunteered to defend their country, not take part in wars of aggression. Many soldiers who have come here are in the reserves or the National Guard, and they're facing multiple deployments that are beyond the contractual agreement they volunteered for.

In the United States military, if a U.S. soldier develops a conscientious objection to a particular war, there is no avenue for him to seek reassignment or transfer to some other place.

In terms of how deserters are being treated and how they're being prosecuted in the army, many people say there are no deserters doing time. Many people say they receive less than honourable discharges. However, a quick search on the Internet will show you that Sergeant Kevin Benderman deserted and served 15 months, bad conduct discharge; Staff Sergeant Camilo Mejia was sentenced to one year, bad conduct discharge; Stephen Funk was sentenced to six months, bad conduct discharge; Ivan Brobeck was sentenced to eight months, bad conduct discharge; Mark Wilkerson was sentenced to seven months, bad conduct discharge.

The difference between a bad conduct discharge and a less than honourable discharge is that a bad conduct discharge is a felony conviction, on your record for the rest of your life because you didn't want to take part in a war that you believed was illegal.

I'm here today to ask the government to immediately implement a provision to allow conscientious objectors and immediate family members, who have refused or left military service related to the war in Iraq, to apply for permanent residence status and remain in Canada.

Thank you.

[The Chair, Conservative, Norman Doyle]

Thank you, Mr. McDowell. You're right smack on seven minutes.

Mr. House.

[Jeffry A. House, As an Individual]

Thank you very much, Mr. Chair and members, for allowing me to speak to you today.

I want to be brief, but I think Phillip McDowell has been very compelling in what he had to say to you.

I would simply say the fact that the courts have decided that these people are technically not convention refugees doesn't end the matter. The Canadian people have the right to amend their legislation or otherwise change procedures in such a way as to allow conscientious people, conscientious objectors, as most of them were found to be by the courts, to remain in this country.

The war in Iraq was initiated in violation of international law. It was not defensive in nature and it did not have UN Security Council approval. As well, we know that torture is widespread in Iraq, and we know as well that the Military Commissions Act of 2006, the U.S. legislation, essentially made it impossible for anyone to be convicted for applying torture to Iraqi civilians. Applying torture or ordering torture is not illegal pursuant to that act. There are many solid reasons for not wanting to be associated with a policy like this.

Mr. McDowell and other people in this room, ladies and gentlemen, were betrayed. They were betrayed by the President of the United States, who lied to them about the basis for the war, lied to them about what supposedly were the threats to their country, and used them as pawns in an illegal war.

I say to you that you have the opportunity and, with respect, you have the obligation to ensure that for people of good conscience--Phillip McDowell, who went to a Catholic university and is quoting Catholic doctrine of just wars to you, or the Quakers in the room, or others--you not just apply a technical understanding and say since they're not convention refugees, to heck with them.

I say to you that the Canadian public will not accept this. I ask you in all conscience to ensure, to the best of your abilities, that these people are allowed to remain in Canada.

I will add one thing. Section 25 of the Immigration and Refugee Protection Act, IRPA, says that people can make applications on humanitarian and compassionate grounds. It includes the consideration of public policy--for reasons of public policy.

I understand the two witnesses who were here before don't want the law changed in any way, and they don't even want this committee to tell them that as a matter of public policy nobody should be removed while their humanitarian and compassionate applications are being considered. Take into account the fact that these people are conscientious objectors to an illegal war.

Thank you.

[The Chair, Conservative, Norman Doyle]

Thank you, Mr. House.

Ms. Broughton, do you have anything you want to say?

[Gay Anne Broughton, Program Coordinator, Canadian Friends Service Committee]

Thank you. It's a wonderful privilege to address you today.

The general secretary of Canadian Friends Service Committee is the one who looks after this theme within our organization. She is unable to be here today because of illness, so I beg your pardon for having to read word for word what is before me.

I'm a program coordinator for Canadian Friends Service Committee, which is the peace and service arm of the Religious Society of Friends in Canada, commonly called the Quakers.

In addition to the points I'm about to present, we have a written brief that was submitted by email yesterday, and I have hard copies here. That brief includes information on Quakers, textual quotations of international law concerning the rights of conscience, and a proposed definition of conscientious objection based on international standards.

The right to conscientious objection to military service derives from the right to freedom of thought, conscience, and religion. It can be based on religious, ethical, moral, philosophical, humanitarian, or related motives. These rights are captured in the Universal Declaration of Human Rights, article 18, and in the International Covenant on Civil and Political Rights, also article 18. Canada is a signatory to both and includes these rights in its Constitution.

These instruments assert that these rights apply to everyone. Conscientious objection to military service is a legitimate exercise of this right, and a decision by the UN Human Rights Committee in 2006 in favour of two conscientious objectors from the Republic of Korea put to rest any question of that.

Military personnel, whether volunteer or conscript, can develop a conscientious objection. Resolution 1998/77 of the UN human rights commission recognized this. That resolution puts no limits on whether the objection is to all war or to a particular war. Indeed, it is most often through experience itself that many basic human attributes, including conscience, are developed.

Many states clearly recognize that members of the voluntary army may develop conscientious objection, because they have provisions to allow such objectors to seek discharge. Sadly, policy and practice in the United States often do not align. Soldiers who are uninformed of their rights and do not have access to an independent assessment process are left with the choice to desert or to violate their conscience, which is perhaps the most sacred aspect of being human.

The war resistors have unqualified, “non-derogable” rights as conscientious objectors to military service, but are they refugees? We believe they qualify as refugees under the UN High Commission for Refugees handbook, paragraph 170, and I quote:

There are, however, also cases where the necessity to perform military service may be the sole ground for a claim to refugee status, i.e. when a person can show that the performance of military service would have required his participation in military action contrary to his genuine political, religious or moral convictions, or to valid reasons of conscience.

The published record and testimony given in hearings in courts show that these young men and women meet this requirement. That said, according to paragraph 171 of the handbook, their right to asylum hinges on the military action they are objecting to being condemned by the international community. The witness just before me explained how, in this case, the Iraq War has shown to be condemned by the international community.

So are Americans disqualified as refugees on the basis of nationality? Given the outcomes of the military trials related to the abuses at Abu Ghraib prison in Iraq, how can it be asserted that mere foot soldiers are not in need of protection if they squelch conscience and follow orders? We are left questioning the rationale of the court. Given the weight of their case, the rights of conscientious objectors, and Canada's history of accommodating people with a conscientious objection to war, there is a compelling argument for conscientious objectors to the Iraq War to be able to stay in Canada.

An in-Canada application process should be a modification of existing immigration procedures. All applicants should be subject to most of the same requirements applied to other immigrants: police checks; collection of personal information, including information on their family members and places of residence; letters of support regarding their application; medical examination, etc. A caveat would be that any outstanding warrants that are related to their desertion should not pre-empt qualification for permanent residency.

The applications would need to provide a detailed narrative, as spousal sponsorship applications do at the present time. In this case, the narrative would chronicle the development of their conscientious objection, including efforts they made to seek a discharge from the military or a rationale as to why they did not take such action, their decision to go absent without leave, and their decision to come to Canada. Letters of support should provide information to support the credibility and sincerity of the applicant's conscientious objection and their suitability to become permanent residents of Canada.

The point system, which is biased to the very well educated, should not be applied. In addition, the requirements for a particular level of financial means should be waived because they may well have limited financial means, and they would not have a sponsor such as a spouse or other type that a refugee would have.

Accommodations such as these are available through humanitarian and compassionate applications currently, so this should be an acceptable modification.

Some staff within Immigration Canada would need to be trained in rights of conscience pertaining to conscientious objection to military service in order to be able to adjudicate such applications.

These modifications of existing procedures would not seem to be onerous upon the government to implement.

Thank you.

[The Chair, Conservative, Norman Doyle]

Ms. Broughton, thank you very much. I'd like to be able to give you more time, but it's one of those days when we have votes in the House of Commons, so we're going to have to be out of here fairly soon.

Since we have only twenty minutes, I'm going to try to have each of the various parties have at least five minutes to question our witnesses.

Could I first of all go to Mr. Telegdi? He's on the list here for five minutes, and then we'll go to Madam Faille.

[Andrew Telegdi, Liberal, Kitchener—Waterloo, ON]

Thank you very much, Mr. Chair. I think in some ways, as we've had debate here or questions here, it really underlines how proud I was to be with Jean Chrétien when we debated this whole issue on the war in Iraq, and it really was one of my proudest moments as a member of Parliament when the Prime Minister said no to joining the war in Iraq. When I listened to Mr. Batters' rationale or presentation, it really reinforced that whole timeframe in which we made the decision.

I said the last time we dealt with this issue that I had lived through the Vietnam War experience in Canada, with many war resisters coming to Canada. I met many--not the 50,000 all told--on the west coast, in Vancouver and British Columbia, and when I was at the University of Waterloo I had many instructors and teachers who had fled the war in Vietnam. The poster child for that was Kim Phuc. If you remember, she was the young girl, nine years old, running from Napalm with her clothes burned off. Clearly that was an unjust war.

Mr. McDowell, I took your testimony...and that's what I was concerned about: people joining up for what they believed to be a just cause and finding out that it isn't a just cause. When one looks at what's happening at the International Criminal Court in The Hague, there are many people who are now being tried for war crimes who wish they had deserted or had said no, they weren't going to fight anymore.