Subcommittee on International Human Rights Committee on Feb. 17th, 2011

[The Chair, Conservative, Scott Reid]

Order, please. Welcome to the 46^th meeting of the Subcommittee on International Human Rights of the Standing Committee on Foreign Affairs and International Development. Today is February 17, 2011.

We are televised, so I'll just encourage all members to remember that, and among other things to keep any side conversations to a minimum for audio reasons.

Today we have, pursuant to our ongoing discussion and study of the treatment of sexual minorities in Uganda, Professor LaViolette from the University of Ottawa faculty of law. We've been looking forward to hearing from her.

Professor LaViolette, I encourage you to begin your comments. Normally we take about 10 minutes for witness comments, and we then go to questions from the panel members. The length of your comments dictates how much time we can give to each person, but we leave that to your discretion. I invite you to begin, please.

[Prof. Nicole LaViolette, Associate Professor at the University of Ottawa, Faculty of Law, As an Individual]

Thank you.

I would like to start by thanking you for inviting me to testify today. I understand that I have about 10 minutes. I'll probably need 15.

Since this is the first time I'm testifying before you, I think it's a good idea to tell you a little bit about my professional background in relation to the matter we are looking at today.

As you know, I am an associate professor with the Faculty of Law at the University of Ottawa. For over 20 years, I have worked or dedicated a part of my professional and scholarly activities to the protection of sexual minorities, particularly in the area of refugee rights.

I have published many papers on the claims of sexual minorities. I designed a training session for the commissioner of the Immigration and Refugee Board of Canada, and I have given it a number of times since 1995. I also recently acted as an expert witness in a consultation convened in Geneva by the Office of the United Nations High Commissioner for Refugees on protecting sexual minorities.

My work has focused particularly on the process of determining the status of refugees here, in Canada, in other words, on claims made in Canada. For some time, I have been interested in the issue of gay, lesbian, bisexual and transgender refugees who are overseas and who are eligible for resettlement in Canada.

Actually, I'm currently working with a group of individuals who are planning to sponsor a refugee, gay or lesbian, as part of the program for sponsoring refugees through the group-of-five process.

In anticipation of my testimony, I obviously looked into the meetings that you have already held with a number of other witnesses. I am going to try to focus my remarks on issues that have perhaps not been discussed in depth and that could, I hope, be of added value to your study.

I think it is unnecessary to spend much time reviewing the situation of sexual minorities in Uganda. The first witnesses you had before the committee presented the situation very eloquently, but it is important to maybe mention that since your last meeting, one of the most outspoken gay rights advocates in Uganda, David Kato, was beaten to death with a hammer in his own home.

While we can't be completely sure of the circumstances of this murder, David Kato certainly knew that he was a marked man. In October 2010 the Ugandan newspaper Rolling Stone published an article that included photos and whereabouts of gay men and lesbians, including Mr. Kato and other well-known activists. Recently a lesbian activist, Julian Onziema, did an interview with the BBC in which she indicated she feared she could be the next victim.

Until significant political, legal, and social changes occur in Uganda, I think all LGBT individuals have reason to fear for their lives, so the committee's decision to study this issue is very timely and important.

It is my understanding that you're most interested in exploring the ways Canada may come to the assistance of individuals who urgently need to flee homophobic persecution in Uganda. A previous witness suggested that there are several hundred members of the Ugandan LGBT communities who are in desperate circumstances.

I don't doubt that there are certainly individuals in Uganda who have a well-founded fear of persecution because of their sexual orientation or their sexual identity. A Canadian intervention would certainly be beneficial for these people and would mesh very well with our humanitarian values. But I think that there are a number of obstacles to accomplishing that objective, although I would hope they aren't insurmountable.

I'm going to address three issues that I think are the most important.

The first issue I wanted to raise was the issue of the immigration mission in Kenya. As you've been told by previous witnesses, any program set up to assist Ugandan LGBT will come up against the significant delays experienced by all applicants who must proceed through the Canadian immigration mission in Nairobi. A 2009 report by the Canadian Council for Refugees states that the Nairobi office stands out for its extraordinarily long processing times. It serves a huge area and processes a large number of applications, and many believe it is under-resourced for the task it faces.

I mentioned that I'm working currently with a group that intends to apply to privately sponsor an LGBT refugee to Canada under the group-of-five process. We're currently working with an established refugee organization to identify a specific individual who needs urgent resettlement.

While we would consider a Ugandan LGBT individual a likely candidate, given the terrible circumstances in the country, we have been told by credible refugee organizations working in Uganda and Kenya that they will not, under any circumstance, refer an LGBT individual for resettlement in Canada because of the unacceptable delay in processing private sponsorship at the Nairobi mission, so Ugandan refugees fleeing homophobic persecution are currently being referred for resettlement only to the United States and some European countries, instead of Canada, a country with one of the best records on LGBT rights. Unless a Ugandan LGBT refugee finds himself or herself in another region with faster processing times, the efforts of Canadians to sponsor such refugees are likely fated to fail or at least to raise serious disappointment.

I noted in a previous meeting that the possibility was raised of departmental representatives offering an information session in Toronto to members of the Canadian LGBT communities about private sponsorship so that they could assist Pride Uganda Alliance International in efforts to resettle refugees. I would caution, however, that any such session should offer realistic information about private refugee sponsorship applications to be processed through Nairobi.

I can tell you that the group I am working with right now has, sadly, decided to exclude any refugees, many of them from Uganda, who have to pass through the mission in Kenya.

In my view, the best way to assess LGBT refugees in Uganda is to address the reasons for the delays in the processing times in Nairobi, primarily the fact that targets for private sponsorships are too low in relation to the demand and the need in the region.

I would urge the committee that in recommending any action in support of LGBT Ugandans, whether it involves a refugee resettlement program or a special in-country process, you ensure that current resources in the Nairobi office are not reallocated towards such measures but that additional resources are drawn upon; otherwise, we will penalize other deserving and needy refugees, who will see their processing times increase, and even their chances at resettlement decline, as resources are redirected to another group, no matter how deserving LGBT refugees may be.

In my view, the only equitable and just way to assist LGBT Ugandans is to ensure that any allocation of private sponsorships of LGBT be added to the current number of private sponsorships allowed to file in Nairobi; that the number of permanent resident visas for LGBT be added to the already too-small target established for Nairobi; and if any in-country resettlement program is created, that any satellite office established in Uganda be supported by additional resources, rather than by transfers from the existing insufficient human resources in the Nairobi office.

I want to raise a second issue. I think that you have spoken with other witnesses about the source country class. This is a category or an option that could serve the needs of LGBT individuals who cannot leave the country to escape the persecution.

I share the concerns of other witnesses. This program does not seem to have met the objectives that were established when it was created. The program has not evolved since it was implemented, in part because the executive regulatory process is onerous and not very flexible, the list of countries doesn't reflect the current situation, and the resettlement criteria is geographic, in other words, it relies on a list of countries. In the case we are interested in, the selection should instead be based on a social group and not on a geographic region.

Although this is precisely the program that could meet the needs of LGBT Ugandans, the regulatory reform that is required is so large in scope and could not be completed in time to respond to the humanitarian emergency that you are currently studying.

But I would like to point out a program that was recently put in place by the Canadian government that establishes special measures for a specific group, the group of Afghans who are exposed to a risk because of their work in support of the Canadian mission in Kandahar. It's basically a special program that aims to resettle Afghans who worked for Canada and who are now facing a particular risk. I might be wrong, but I think that this special program was based on section 25.2 of the Immigration and Refugee Protection Act.

I'll read what this subsection of the Immigration Act provides:

The Minister may, in examining the circumstances concerning a foreign national who is inadmissible or who does not meet the requirements of this Act, grant that person permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by public policy considerations.

So I presume that the minister could consider that some members of the LGBT community in Uganda are facing a risk that justifies, in the public interest, the creation of a special program for their resettlement in Canada that would be similar to the program for Afghan interpreters.

I encourage you to evaluate this option by keeping in mind my previous comments, namely, that all new resettlement programs should be accompanied by additional resources and not use the existing resources in Nairobi.

The last point I want to make is that since this is a subcommittee of the Standing Committee on Foreign Affairs and International Development, I would like to suggest that the situation of sexual minorities in Uganda is likely to improve if pressure is brought to bear on the government of Uganda.

While your current examination has rightly focused on the urgent need to help specific individuals through resettlement programs, I would like to encourage you to expand your inquiry to examine the extent to which Canada has used all available foreign policy tools to urge Uganda to protect sexual minorities. It may be useful to invite representatives of the Department of Foreign Affairs to discuss the various measures available to Canada through foreign and international development policies to encourage Uganda to meet its human rights obligations. At the very least, we should be convinced that we have responded in the strongest possible way to the legislative proposal to extend the death penalty to sexual minorities.

Ultimately, I'm convinced that gay, lesbian, bisexual, and transgendered Ugandans wish to live peacefully and safely in Uganda rather than be forced to flee as refugees. Anything Canada can do to move Uganda towards this goal is surely to be encouraged.

I am willing to take your questions. Thank you.

[The Chair, Conservative, Scott Reid]

Thank you, Professor.

Just before we go to questions from the other members, I'm going to do something I don't do very often, which is just to ask you a question myself, because you've raised something that hasn't come up from our previous witnesses. That is the record of other countries vis-à-vis the sexual minorities in Uganda. Certainly there's no doubt, based on what we've heard elsewhere, that there's a very severe problem with Canada's consulate in Nairobi.

You mentioned people can go and seek protection from the Americans or from the European Union. What is the record of those countries? Do you know? Is it possible to find refuge relatively easily, or are they suffering from delays, which I assume are not as bad as Canada's, but which are still very bad? Give us an idea of whether there is any respite for folks who are in that situation.

[Prof. Nicole LaViolette]

I'm not sure that I'd describe the ability to be resettled in another country as easy, but it's certainly easier than Canada. My understanding right now is that the refugee organizations that are working closely with sexual minorities are not considering Canada as any kind of viable option, but they have been working with the United States. There have been some groups in the United States that are trying to do private sponsorships and have been successful. I know of certainly one Ugandan who was resettled in San Francisco through a community organization that has private sponsorships, and I know that the UNHCR has been able to approach some European countries with urgent files, and they've been willing to take on some individuals, but that is not at all being considered for Canada. They have ruled it out completely in terms of those who are working on the ground. They will not even approach Canada in these cases.

[The Chair, Conservative, Scott Reid]

Okay. Thank you very much.

Now we have enough time, I think, to allow us to have eight-minute question-and-answer rounds. I'm afraid that's eight minutes including the answer.

Let's start with Mr. Silva.

[Mario Silva, Liberal, Davenport, ON]

Thank you very much, professor, for your testimony. We have approached this issue with grave concern, and it's a very critical one, because we're talking about life and death. We know that gays and lesbians are targeted not just in Uganda but in other countries throughout the world. Another country that very much has targeted gays and lesbians is Iran. In fact, we had a late show last night speaking on Iran, but we are concerned about the situation in Uganda presently and what we can do about it.

Not too long ago I just spoke in Parliament about David Kato, who was killed. Like other members of the LGBT community, he has always had a target stuck to his head because he was one of the ones listed in the Rolling Stone magazine, which is the magazine that has been calling for the killing of gays and lesbians in Uganda. They are constantly discriminated against, so I think we need innovative ways to approach the situation.

We know of individuals, who I have spoken with, who do know of people who want to leave the country. They've had their names, but they can't put them forward, and they won't leave unless they know they can get full assistance from the government in terms of processing their documentations. It's a big risk for these people to leave their country as well, to go to another country to seek refugee status in order to bring them here, and then not knowing what's going to happen once they get to Nairobi. They don't know whether the mission is going to process their documents or not. What they've been asking for is assistance, knowing that these people are targeted. We all know, and it's a known fact, that we're talking about life-and-death situations for these individuals, and we're trying to figure out if there is a way.

Now, there are different categories the government can use to put people through the refugee system, whether it's the country source or the asylum class. What is the best way in terms of getting this facilitated? Does it require a political will, along with the department as well, in moving forward on this? Does it require maybe having people on the ground in Nairobi who specifically can look at this issue? That might be another suggestion.

I'm looking for some concrete things that we may be able to, as a committee, put forward to the government, and even possibly write as well—and I might say that would require support of the committee—to the mission in Nairobi, asking them to take this matter very seriously and to do whatever they can to facilitate the speeding up of the process of the refugees so that they can come here.

[Prof. Nicole LaViolette]

I'm not sure I can design the best way, but I'll give you a few suggestions.

It seems to me that one of the real challenges here is that most of the Ugandans who are facing serious persecution and threats to their lives are still in Uganda, so that's challenge number one. These are not individuals who will meet the convention refugee definition, because they are not outside of their country of nationality.

We need some kind of program that will be willing to resettle individuals who have not been able to leave their country. In any case, I would hesitate to encourage Ugandans to leave. One of their biggest fears is to find themselves in some refugee camp or detention place where their lives will continue to be in danger, because they will not be able to live openly and may be there for years. That's just not an option, and many of them are well aware that leaving Uganda could actually make things worse for them.

The first thing is to find a way for Canada to set up an in-country resettlement process. The current process, the one that lists countries and that has been used in the past, is not flexible enough to create a program for this particular need. It would be based on the country, and I'm not sure that Canada is willing to designate the whole of Uganda as an in-country class. We would have to change the regulations. The regulatory process would need to be modified, and that option would not be an effective response to this urgent situation.

However, there is a provision in the Immigration Act that might allow a more flexible program. It's the one that I think was used to create the program for the Afghan interpreters. Once given their permanent resident status, they were given access to the same services refugees have once they're settled here, with up to one year of financial support and interim health benefits. If we were able to do it for that class of individuals, I wonder if it's not a possibility in this case. It's not clear to me what the legislative basis for that program is, but I would encourage you to pursue it.

There are also credible and reputable refugee organizations that are working with sexual minorities in Uganda and Kenya. I can mention a couple. There is the HIAS Refugee Trust of Kenya, which is the Hebrew Immigrant Aid Society. They have been working with this vulnerable population in both Kenya and Uganda. There is a refugee law project that represents refugee claimants in Uganda at the Makerere University. It is a credible organization that could assist Canada in identifying individuals who need immediate assistance.

I think there are resources on the ground that have been quite aware of the situation. They are working with the individuals we want to help, and they're the ones who are probably sending those individuals to knock on the door at the U.S. embassy as opposed to the Canadian embassy.

I think there are possibilities, but they probably need to be investigated further.

[Mario Silva, Liberal, Davenport, ON]

Thank you.

[The Chair, Conservative, Scott Reid]

You have 90 seconds.

[Mario Silva, Liberal, Davenport, ON]

There are government tools such as CIDA and public forums. I have to thank the Prime Minister, because I know he has raised this at gatherings where the President of Uganda was present, so I think there are opportunities for Canada to play on the national stage.

I think I've probably run out of time.

[The Chair, Conservative, Scott Reid]

You have one minute.

[Mario Silva, Liberal, Davenport, ON]

My question has to deal with the tools that we have. There are things we can do beyond immigration. We can also use international forums to raise the issue.

[Prof. Nicole LaViolette]

I think it would be good to do a survey of what we've done to date to put pressure on the Ugandan government. I think a more durable solution would be to improve the conditions for LGBT in Uganda, as opposed to trying to get all of them out of the country. That's just not a realistic option, and probably not what most of those individuals want. They probably want to live a peaceful life in Uganda.

I'm wondering if there are not additional measures the department could take to pressure the Ugandan government—maybe through the Commonwealth—to ensure that the situation on the ground can be changed.

[The Chair, Conservative, Scott Reid]

Ms. Deschamps, please.

[Johanne Deschamps, Bloc, Laurentides—Labelle, QC]

Thank you, Mr. Chair.

Good afternoon, Ms. Laviolette. Welcome to our committee meeting.

I have a question that the analysts might perhaps answer. I want some back up.

Ms. Radford, is Uganda still on the list of countries that CIDA gives priority to?

[Melissa Radford, Committee Researcher]

I think so. I'll check.

[Johanne Deschamps, Bloc, Laurentides—Labelle, QC]

You said in your presentation that one significant problem stemmed from the fact that immigration applications are processed in Kenya.

I checked what other witnesses told us in previous meetings. Ms. Desloges said that there aren't enough human resources in the mission to process claims for refugee protection. Additional training was also requested for the employees who process the claims for refugee protection.

One agency went even further, saying that it would like only Canadian officers to process the claims for refugee protection there, at all stages, including the administrative ones, probably to avoid discrimination. We know that our missions and embassies sometimes employ people from the countries where they are located. That, among other things, is an important aspect.

Personally, I'm interested in the issue because, in the past few years, the government has retreated from Africa significantly. Embassies have been closed in some places.

Given the current political situation in Africa, if we want to act rapidly, have a better assessment on the ground and make efforts to improve various aspects of the process, we need to have greater representation, both diplomatically and in terms of the staff who represent Canada in African countries.

Even if we modify programs or add to them, it's still difficult to help the Ugandans who are turning to Canada and toward this mission in Kenya. It's difficult to help them come here. There's a big problem from the start.

I would like to know what should be done as quickly as possible. As for this mission directly, should resources be added and training given? Should there be someone to take care of the documentation and help with filling out the forms? What quick and concrete action can be taken?

If we change an immigration law or add a program, you know that we could still be here two years from now discussing the issue, what with the decrees and how long the process takes.

[Prof. Nicole LaViolette]

I think that the most important action we could take fairly quickly is increasing the number of private sponsorships that can go through Nairobi.

Other witnesses told the committee that there was an enormous waiting list. Unless I'm mistaken, we think that about 1,000 sponsorship files should be able to go through Nairobi and, in fact, the demand is three to four times that.

Adding a category like gays and lesbians from Uganda will quite simply increase the number of applications that are not currently being assessed by the Canadian mission in Nairobi.

So, you absolutely must focus on this vulnerable group. The target for the number of files in Kenya must be increased and additional resources given to the mission so that it can assess these files.

This may also require that a satellite mission be set up in Uganda to assess the files there. Once again, this requires a special program to allow the resettlement of persons who have not yet left the country of persecution.

[Johanne Deschamps, Bloc, Laurentides—Labelle, QC]

I don't have any other questions, Mr. Chair.

[The Chair, Conservative, Scott Reid]

Okay, merci.

Go ahead, Mr. Marston, please.

[Wayne Marston, NDP, Hamilton East—Stoney Creek, ON]

Thank you, Mr. Chair, and Ms. LaViolette.

We are all shocked and saddened by the murder of David Kato. I think one of the things that we need to do here in this committee is to make sure the viewing public understands that Rolling Stone is not the Rolling Stone music magazine of North America. There are times that a statement in this place can be misconstrued, so I thought it was worth saying that.

Many of the persons identified in this article are now internally displaced persons. As you know, they don't qualify now; they have to get out of the country. I think much of our law was based on the idea of some kind of internal conflict, such as a war, or something that people are running from in order to get the protection of Canada.

You've also expressed concern about the Nairobi mission and the very slow processing time. I can vouch for that. In my office, we see a lot of people trying to reunify their families. It's one of the hardest places to deal with among any that my staff get to work with.

However, I have graver concerns that come from previous testimony. There is a grave fear that in the mission there are people who are homophobic, and that even going there is putting people at risk. I gather from your testimony that you're actually suggesting something we more or less thought about as a committee, which is to put in place some kind of special system--a short-term ministerial prerogative, I would suggest--that in a case like this would apply when we have identified people. We're not clear, though, on how many actually want to leave the country. There are some brave souls who want to stay there and try to change their country, so we have to be careful of that.

We have a crisis now at two levels. We have the immediate crisis that we have to respond to, in my opinion. I'm embarrassed to find out that they're turning away from Canada because it's just too hard to get here, when we're one of the leading countries on the face of this earth on these particular rights. It's very troubling. Also, the long-term change.... I've heard no evidence so far that Canada has intervened politically in any fashion on the situation. I don't know whether you have any indication of that.

I want to thank you for your testimony and the suggestions you made. They're very helpful to us.

I'll turn it back to you.

[Prof. Nicole LaViolette]

You raised the issue of the concern some witnesses have that even approaching an immigration mission may in fact imperil them or at least raise a lot of concerns because of the reception they may get from either locally engaged staff, Canadian visa officers, or even staff at the UNHCR. I think this is a really valuable point, though I think it's a longer-term goal in terms of ensuring that over time we offer some kind of training to both Canadian and locally engaged staff who are dealing with these types of refugee claims.

When I was in Geneva in the fall with the UNHCR, they had finally recognized that this is an issue with their own staff. They deal with refugees in large numbers. They realize that they have done insufficient work to ensure that all of their staff are welcoming, or at least attuned to the possibility that some of the refugees they work with are in fact sexual minorities. For many it is a tremendously difficult thing to self-identify in the process of a refugee claim, so the UNHCR is only starting now to even think about how they may train their own staff to be attuned to that possibility, to listen to people, and to understand that there may be another story here that's not being told. I think we're very far behind on that.

I would flag to you that in terms of our inland process, there's been training for the decision-makers at the Immigration and Refugee Board since 1995. I was part of setting that into place and offering it. The immigration board in Canada has been doing this consistently every few years with the turnover in decision-makers and with their staff, so I think it can be done. I think a lot of Canadian visa officers are brought together in Ottawa maybe once a year to do some training. It certainly would be worthwhile to consider whether there could be some training offered on issues of sexual orientation and gender identity. I think it's very new for some of these refugee organizations to even be considering that.

[Wayne Marston, NDP, Hamilton East—Stoney Creek, ON]

I'm quite shocked to hear that UNHCR and some Canadian staff actually need training in this area. I suppose I'm naive when it comes to this. I watched the acceptance level for my gay friends in our country improve since the 1960s, and you can see a wonderful change within our country. I guess I was presuming a little bit too much in assuming that change has spread through our external service, and that saddens me.

The commentary here talked about the locally engaged workers as opposed to our staff. I suppose we have some new news to wrestle with here now.

I want to thank you for your testimony. I really have no more questions, Mr. Chair.

[Prof. Nicole LaViolette]

If I can just add a point, I don't want to leave the impression that Canadian visa officers necessarily approach this in any homophobic way. There is the reality that their knowledge of gay and lesbian communities may be very Canadian-based. Their ability to then cross those cultural differences and boundaries may not be there. I think that kind of training would be required so that people would understand that the situation of sexual minorities in many other countries has nothing do with sexual minorities in Canada.

That's the kind of training I'm thinking of.

[Wayne Marston, NDP, Hamilton East—Stoney Creek, ON]

That's a good point. The reality is that coming out in Canada and being out in one of these countries are hugely different situations.

Thank you.