Sometime I am very proud of being Canadian, especially when we claim the moral high ground while blatantly disregarding basic international law norms. Do as I say, not as I do. For those who didn’t catch the sarcasm, this post does not talk about nationalistic pride. Instead it will explore briefly a major failure of our refugee and immigration system. This failure, I fear, is far from being the only one; it just so happens that we were made aware of it unlike most removed refugee claimants’ cases. The case I am referring to is the one of Adel Benhmuda and his family. Originally from Libya, he claimed refugee status in Canada in 2000, an application that was rejected by the Immigration and Refugee Board (IRB) in 2003. The government began removal procedure in 2008. Adel applied for a Pre-removal risk assessment, a procedure supposed to ensure that the removee will not be at risk of torture, cruel or unusual treatment, or death. The application was dismissed by an immigration officer and he was removed to Libya where he was detained upon arrival. He was subsequently tortured. He managed to smuggle his family out and claimed refugee status in Malta. Status was granted and Adel is now trying to come back to Canada.
L’actualité juridique québécoise m’offre gracieusement la chance d’écrire un billet en français. Bien que j’aurais aimé écrire quelque chose de positif, les récentes bourdes du gouvernement provincial et fédéral me poussent vers la critique (et la déception). Ces bourdes sont évidemment la charte des « valeurs » du Québec et la nomination du juge Nadon à la Cour suprême. Bien que ces deux évènements ne soient pas liés, ils ont en commun une forme d’amateurisme gouvernemental et une absence de réflexion poussée. J’aborde chaque bévue séparément.
Carter and the right to end one’s life
Last week the British Columbia Court of Appeal decided to allow the Attorney General’s appeal to the constitutional challenge of the assisted suicide prohibition: the Carter case. This case featured two persons named Gloria Taylor and Lee Carter. Both suffered from intractable and progressive diseases, and wished to have the option of physician assisted suicide when their life would become intolerable (they both passed away before the appeal was rendered). However, s 241(b) of the Criminal Code makes aiding or abetting a person to commit suicide a crime. Ms. Carter and Taylor challenged the constitutionality of the section alleging a violation of their right to life, liberty and security of the person, and of their right to equality. One of the major hurdles they faced was that a similar issue involving the same section of the Code was challenged on similar grounds and had been decided by the Supreme Court of Canada in the past. In Rodriguez, the plaintiff lost her appeal to the Supreme Court by a close 5 to 4 vote. Nevertheless, the trial judge, Justice Smith, found that she was not bound by the Supreme Court ruling because this case raised three new grounds: (1) the right to life was not at stake in Rodriguez; (2) two principle of fundamental justice did not exist at the time of Rodriguez, overbroadness and gross disproportionality; (3) the majority did not consider s 15 (equality) in its entirety in addition to the fact that recent Supreme Court decisions changed the applicable test. She found in the plaintiffs’ favour and declared the section unconstitutional with a grace period of one year for the government.
3. Reforming Aboriginal Sentencing
This section outlines possible course of actions to remedy the over incarceration of Aboriginal people through a reform of Aboriginal sentencing. In all circumstances, it is suggested that the government should at least enact an exception to mandatory minimum sentences for Aboriginal people if the circumstances warrants it in order to fully allow sentencing judge to implement s 718.2(2) of the Criminal Code. It is also suggested that a reform of Aboriginal sentencing should be accompanied with other socio-economic measures to properly deal with the over incarceration of Aboriginal people. More importantly, I acknowledge the fact that I am not Aboriginal and do not speak in Aboriginal people’s name. In the end effective and long-lasting solution will have to emanate and/or receive the accent of Aboriginal people in order to be legitimate and to further decolonisation goals.
This is a three part series based on a paper I wrote not long ago. The style is more academic and the citation less user friendly, but I thought it was a nice follow up on last week post and it gives me a break during my vacation. Here is Part I:
Canada’s relationship with its Aboriginal population is bleak to say the least. Allies to the colonial powers at first, the Aboriginal Peoples of Canada quickly became outcasts as they were progressively pushed into reserves and their land “acquired” through a series of treaties. As they lost their military usefulness, the British government followed by the Canadian federal government started a policy of assimilation of Aboriginal peoples mainly through the Indian Act by effectively making them “wards of the crown”. The prohibition of Aboriginal ceremonies, diminished legal rights, and forcing children to attend residential schools were only a few of the “tools” of Canada’s assimilation policy. Since the 1970s, Aboriginal Peoples have started militating in order to obtain self-government, recognition of their ancestral and human rights, compensation for past wrongs and international recognition amongst other things. Nevertheless, Canada’s assimilationist policy had and continues to have an enduring effect on Aboriginal peoples who now have high level of poverty, alcoholism, unemployment, and low level of sanitation, education, housing, etc.
We are all aware (hopefully) that the human rights situation, especially for LGBTQ people, is highly variable around the world. Many means of advocating for changes in countries with less enviable situations than ours (and by ours I mean Canada specifically but the global west generally) make me uneasy as they are often tainted with imperialism and colonialism, even if unconsciously (homonationalism). Beside direct interventions and other saviour type interventions, one thing that can help and does not require forcing western values on developing countries is welcoming and protecting refugees. It is the 1951 Refugee Convention and its 1967 Protocol, adopted in the aftermath of the Second World War as a reaction to States who turned back Jewish and other refugees, that establish the prohibition to return refugees to their country of origin (the obligation is called non-refoulement). Crucial to this obligation on State is the determination of refugee status which is done mainly by the State of refuge in accordance with the Convention or by the Office of the United Nations High Commissioner for Refugees (UNHCR). In Canada it is the Immigration and Refugee Protection Act that governs refugee status. This post looks at recent problems encountered by Mexican queer refugees within the refugee determination system of Canada. Mainly it looks at the impact of perceived state protection, as exemplified by X (Re), 2012 CanLII 91398, and of Designated countries of origin.