Forum of the International Civil Liberties Monitoring Group (ICLMG)
17 February 2004
Presentation on Consequences on citizenship, immigration and refugee policies in Canada
Janet Dench, Canadian Council for Refugees
Situation existing before anti-terrorism came to the top of the government agenda
Since September 2001, governments have given priority to the security agenda. A number of factors that existed prior to September 11, 2001 affected how this agenda incluenced policies relating to immigrants and refugees.
- There has historically been a low regard for the basic rights of non-citizens in the immigration process. For example, immigration detention is not treated as a serious breach of the right to liberty. Lawyers familiar with the rules relating to the detention of persons accused under criminal law are often shocked to see how few protections the law offers to those facing immigration detention. The principle that non-citizens have rights is in itself controversial: consider the persistent criticism of the Supreme Court decision in Singh, rendered in 1985, recognizing that non-citizens are protected by the Charter and thus have the right to life, liberty and security of the person.
- There have long been frequent attacks on the refugee determination system, usually based on distorted information which by repetition creates tenacious myths: that the system is too long, too expensive, too generous, ineffective and easy to abuse. Facts don't have much to do with the attacks, or at most changes in fact simply alter the nature of the argument against the system. For example, when the acceptance rate was high, it was argued that Canada was absurdly generous. When the acceptance rate goes down, we are told that obviously most claimants don't need protection.
- The Canadian government has for several years pursued a policy of deporting "undesirables" rather than bringing them to justice. Part of the reason for this policy lies in the difficulties that the government encountered in prosecuting Nazi-era war criminals, and for these individuals, deportation may be the best that the government can do. However, in the case of modern war criminals or others responsible for mass violence, the policy often will do little to achieve any measure of justice. It also shows a failure to engage with global issues: the government is basically saying that it doesn't care what happens - to the suspected perpetrator or the victims - as long as the person is out of Canada.
- Refugees and immigrants enjoyed particularly limited rights when security issues were raised. Some people were held on security certificates, although little attention was paid to their situation. Many more people were labelled a security concern, but without a security certificate. The CCR has been particularly interested in the plight of refugees denied permanent residence on security grounds. Among these are Palestinians, Kurds, Iranians with an association with the MEK and a Chilean (for being part of anti-Pinochet group). The law does not require that they represent any kind of a security threat to be found inadmissible on security grounds.(1)
- Canadian society is afflicted with racism and xenophobia, which affect how immigrants and refugees are perceived and treated.
After September 11, 2001:
The impact of the attacks on refugees and immigrants in Canada was affected by a number of factors:
- In the days following September 11, 2001, accusations were made in the US against Canada. It was reported that some of the terrorists might have come from Canada. The fact that it quickly because clear that they hadn't did not stop the continuing allegations that Canada's immigration policies make US vulnerable to terrorism. Memories were re-awakened of the case of Ahmed Ressam, caught crossing the border in December 1999 with the intention of making an attack.
- Anti-refugee lobbyists quickly retooled their arguments against the refugee system into security related arguments. Many of the arguments presented had nothing to do with enhancing security, but this didn't prevent them from being given a lot of airtime in the media.
- There was debate over whether to re-open Bill C-11 (the Immigration and Refugee Protection Bill) in order to introduce tougher security-related measures. The bill had already passed the House of Commons in June 2001. The government decided not to re-open the bill, no doubt largely because it had been sold as a "get tough" bill.
Concretely, the following changes were experienced by refugees and immigrants:
- Front-end security reviews
In October 2001, Citizenship and Immigration Canada introduced "front-end" security reviews for refugee claimants. This change in procedures had in fact been in the pipeline for years, but its introduction was delayed until after September 11, because money wasn't approved. Front-end security reviews mean that basic data about all refugee claimants are transferred to the Canadian Security Intelligence Service (CSIS) immediately after they make their claims. If in reviewing the data, CSIS has any concerns about an individual, they will do further investigation.(2) The change in procedures does not appear to have resulted in the detection of an increased number of people representing a threat to security. In 2003, 31,837 claims were made. During the same year, only two claims were found ineligible on the basis of security. Claimants found ineligible on security grounds don't necessarily represent a threat to security, since, as mentioned above, it is possible to be inadmissible on security grounds without representing any kind of threat.
2. Increased budget for immigration detention.
New budget allocations made by the federal government in December 2001 as part of the security response included increased amounts for immigration detention. Most of the money, however, is not being used to detain security-related cases. The big increase is in detention on identity grounds. From June to December 2003, 56% of detentions were on grounds of flight risk, 10% because of a lack of satisfactory identity documents, and only 1% on security grounds (or an average of 9 people). This does represent an increase: in 2002 there were on average 5 people detained on security grounds.(3)
3. Safe Third Country agreement.
In December 2001 the US and Canadian governments signed the Smart Border Declaration. One of the 30 action items committed to was the negotiation of a safe third country agreement. A year later in December 2002 the agreement was signed.(4) It is not about security: it got put on the agenda because Canada wanted it there. A similar agreement was being negotiated in the mid-1990s, but was dropped because the US didn't see that it offered them any advantage. It is hotly contested by refugee advocates on both sides of the border, because its main effect would be to prevent claimants at the US-Canada border from making a claim in Canada (with some exceptions). The implementation of the agreement, which has not yet occurred, is in fact likely to increase insecurity at the border with a rise in irregular crossing of the border by claimants who are seeking Canada's protection and who are forced to use the back door, because the front door has been closed to them.(5)
4. Direct backs.
On 27 January 2003 Citizenship and Immigration Canada introduced a new policy on "direct backs" at the US-Canada border. The signing of the safe third country agreement was used as a rationale. The precipating factor was the arrival at the border of hundreds of Pakistani and others fleeing the Special Registration Program.(6) The "direct back" policy allows Canadian officials to send claimants back into the US with an appointment to return at a later date that is more convenient to the Canadian government. This is done without Canada seeking any assurance from the US that the claimants will in fact be able to return for the appointment. Many claimants directed back were detained by the US authorities. This was especially the case for men and, at the beginning at least, Muslim men (later it seemed that the US, in the interests of non-discrimination, detained virtually all men without status). The border point south of Montreal (Lacolle-Champlain) was the worst affected.(7) Most of those detained were able to get released, but only after paying huge sums in bonds, much of it not recoverable.(8) The operation can be seen as a kind of program of extorsion from the Pakistani community. Some were not successful in getting released and were instead deported from the US. Direct backs are still continuing, although the numbers are down, partly because the pressures of people fleeing Special Registration have subsided and partly because people have been warned off going to the border without an appointment.(9)
5. Security certificates.
Security certificates are a rarely used provision of the immigration legislation, but there have been increased numbers of certificates issued in the last three years.(10) The provision allows the government to deport a permanent resident or other non-citizen without showing them (or their lawyer) the evidence against them. The certificate must be signed by two Ministers, although changes introduced by Prime Minister Paul Martin on 12 December 2003 combined the two so that a single signature is required. The certificate is referred to a Federal Court judge, who prepares a summary of the evidence for the person to see. There are of course provisions for detention of the person; in fact, detention is mandatory in the case of a person who is not a permanent resident. At least six people are currently being held on security certificates, all men, five of them Muslim and Arab.(11)
6. Proposed new citizenship bill C-18
Bill C-18 was introduced in October 2002. This was the third time the government tried to get this piece of legislation through Parliament, but C-18 had an important new element compared to the two previous versions: a security certificate provision was included. The bill would have given the government the power to use secret evidence to strip a Canadian of citizenship and deport them. This caused quite a controversy (although it was not widely discussed in the media) and several Liberal MPs were known to be opposed to this and other elements of the bill. The bill died on the order paper in the fallof 2003. One may imagine that the bill is likely to be re-introduced, in one form or another, in the next Parliament.
7. Operation Thread.
In August 2003, Canadian newspapers were full of the stories of a group of Muslim men who had been arrested and detained as suspected terrorists under Operation Thread. Eventually there was a total of 23: 22 Pakistani and 1 Indian. They were supposedly a cell of Al Qaeda. Incriminating details included a student pilot with a flight course over a nuclear plant, several young men living together in sparsely furnished apartments, the setting off of the smoke alarm in the kitchen (supposedly a sign of baking bombs) and one man who knew someone who had an Al Qaeda connection. It soon became clear that the suspicions were unfounded, with the RCMP backing away from the accusations first and immigration officials later acknowledging that there was nothing to it. But by then the damage was done: the detainees had been publicly labelled "terrorist suspects." A Toronto Star article of 8 February 2004, entitled "Our dreams are now dust", reported on the fate of some of those deported back to Pakistan: they faced harassment and unemployment as terrorist suspects.
8. Creation of the Canada Border Services Agency.
On 12 December 2003, Prime Minister Paul Martin split Citizenship and Immigration Canada, sending enforcement functions over to the newly-created Canada Border Services Agency, which reports to the Minister of Public Safety and Emergency Preparedness. Among the functions transferred is the Pre-Removal Risk Assessment, which, far from being an enforcement function, is actually a mechanism to protect individuals who may face death, torture or other forms of persecution if removed. Final decisions have not yet been announced about other transfers, but port of entry functions, which include the initial interview and eligibility decision for refugee claimants, are also likely to be moved to the Canada Border Services Agency. The CCR has raised serious concerns about having refugee claimants processed by an enforcement agency, since protecting refugees will likely not be a priority within such a structure. In addition, it sends the damaging message to the public that the government considers refugee claimants a threat to public safety.
2. Prior to the introduction of front-end security reviews, CIC officials did their own assessment of potential security risks and alerted CSIS if they felt that an individual raised any concerns, but there was no systematic transfer of all cases.
3. The CCR has only had access to statistics on detention specifying the ground of detention since November 2001. However, at that date there were 3 detainees who had been in detention on security grounds since before September 11, 2001.
4. The full name of the agreement is the Agreement between the Government of Canada and the Government of the United States of America Regarding Asylum Claims Made at Land Borders. Reference to the signing of the agreement is included in the Smart Border Action Plan: Status Report, October 3, 2003, available on the DFAIT website.
5. In its report on the safe third country regulations in December 2002, the House of Commons Standing Committee on Citizenship and Immigration raised a number of serious concerns about the border insecurity that might be caused by the agreement.
6. 3,943 Pakistanis made claims in 2003, representing 12% of total claims. By no means were all of these people who had been living in the US. However, 77% of the claims were made at the US-Canada border.
7. This was because the other major border points used by claimants already had in place an appointment system, meaning that fewer claimants presented themselves spontaneously.
8. The CCR calculated that by early March 2003 (i.e. in just over one month), the US authorities had seized over $100,000 in bonds from claimants, many of them Pakistani, directed back by Canada.
9. One of the effects has been to funnel claimants to Ontario, where an appointment system exists. This contributes to a serious imbalance in the geographic distribution of claimants, which the refugee determination system is not equipped to respond to. 70% of claimants are now referred to the Toronto office of the Immigration and Refugee Board, which does not have an equivalent proportion of Board members. As a result, some refugee claimants in Toronto are forced to have their refugee hearings by videoconference, with a Board member in another city, a practice the CCR opposes as unfair and insensitive.
10. The provisions relating to security certificates are found in sections 76-84 of the Immigration and Refugee Protection Act.
11. As of February 2004, the following people were detained under a security certificate, as reported in the media: Mohammad Mahjoub, detained since June 2000, from Egypt; Mahmoud Jaballah, detained since August 2001, from Egypt; Hassan Almrei, detained since October 2001, from Syria; Mohamed Harkat, detained since December 2002, from Algeria; Adil Charkoui, detained since May 2003, from Morocco; Ernst Zündel, detained since May 2003, from Germany.