Canada’s Reformed Refugee System Plays Russian Roulette with the Lives of Claimants

By Nazareth Yirgalem*

 Canada’s Reformed Refugee System Plays Russian Roulette with the Lives of Claimants

The federal Designated Countries of Origin (DCO) program places refugees fleeing gender-based violence at an increased risk of persecution, and perhaps death.  By categorically identifying certain countries as “safe” without engaging in a contextual analysis of how such countries treat all citizens, the DCO program obscures the persecution experienced by battered women, queer folks and trans people within these nations.  The harrowing result will likely be that sexual and gender minorities from DCO countries will be denied status and sent back to confront violence, cruel and usual punishment and possibly, death. 
The DCO structure was implemented by the Conservative government in December 2012.  To date, the program has inducted 35 countries, mostly nations from the European Union in addition to the United States and Mexico.  The Harper government introduced the program as part of a larger legislative scheme designed to reduce “bogus” refugee claims.

Admittedly, there are illegitimate claims made by refugees in Canada.  Also, it is understandable that the federal government would want to implement a legislative scheme to weed out dishonest claims.  The use of indiscriminate mechanisms to identify who is a “legitimate” refugee however is like playing Russian roulette with the lives of claimants:  the system may be successful in excising some fraudulent claims, but it may also send a claimant back to their persecutor. 

Of particular concern is the exclusive power given to the Minister of Citizenship and Immigration (“Minister”) to ascertain which countries should be given DCO status.  Under the reformed Immigration and Refugee Protection Act, the Minister is empowered to designate a nation as “safe” without consulting with human rights experts.  Instead, the federal government has communicated that Minister Jason Kenney can unilaterally make this decision in one of two ways.  He can either use general benchmarks relating to the rate of acceptance from a given nation or he can conclude that a country is “safe” based on his opinion of its human rights and democratic record.[1]

The flaw with both approaches is that they ignore the possibility that a country may demonstrate a low acceptance rate and/or have democratic laws, but still fail to provide adequate protection for all of their citizens.  Consider Mexico, a democratic nation on the DCO list, which has made strides in recognizing the legal rights of the queer community including legalizing same-sex marriages in 2009.  However, Inter Pres Service notes that there is still a "culture of homophobia within the Federal District government apparatus."[2] 

This climate of homophobia is reflected in society and serves to endanger the safety and lives of sexual minorities.  The US Country Reports on Human Rights Practices 2011 reports that the organizer of Mexico City’s LGBT Pride Parade who was also a member of the Revolutionary Democratic Party's Coordinating Group for Sexual Diversity was stabbed to death in Mexico City.[3]  Furthermore, a federal human rights commission in Mexico counted 57 human rights violations from sexual minorities from January 2011 to July 2012.[4]  Based on this research, Mexico’s status as a “safe” country for sexual minorities is certainly questionable.

The procedural consequences of this legislative reform are also causing practitioners and community workers tremendous concern.  All persons who claim refugee status at the port-of-entry now have 15 days to submit required and supporting documentation instead of 28.  Moreover, Claimants from DCO nations now have 30 days to prepare before their hearing if they make a claim at an immigration office and 45 if they claim at port-of-entry compared to 90 days under the old system.[5]

It is true that assembling the documentation and oral testimony of refugee claimants
is difficult under most time frames.  The timelines for claimants from DCO countries though, is impractical and bordering on unconscionable.   Specifically, the time frames do not allow claimants to sufficient time to exercise their right to counsel.  This reality may be exacerbated if Legal Aid Ontario’s proposal to cut free legal representation at Immigration and Refugee Board (IRB) hearings for DCO claimants is accepted by the Ontario government. 

However, even if a claimant is able to retain a lawyer, under the new timelines lawyers do not have enough time to build the trust required to extract relevant evidence from a traumatized claimant.  A Vancouver-based refugee law practitioner has said the following about how the issue of trust is likely to be affected under the expedited refugee system:

No matter how friendly or well-trained officials from the IRB are in asking questions of claimants, trust is something that takes time to build.  I have never been able to get an accurate picture of the narrative of a refugee claim in one sitting with a claimant. This is particularly the case with women who have experienced violence. In many cases that I have worked on I only learn about some of the most horrific acts of violence in my third or fourth time speaking to the claimant...[6]

A hopeful repercussion of the erosion of the procedural rights of claimants from DCO nations is that it has inspired a generation of law students like me to politically engage with the legal issues affecting refugees.  Learning from fierce refugee law advocates like Professor Showler at the University of Ottawa, we are sure to make a rebellious and progressive difference in the realm of refugee law.

* A recent graduate of the Faculty of Law, University of Ottawa.

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[1]Immigration and Refugee Protection Act (IRPA), RSC 2001, c 27 (as amended) s 102.

[2]Daniela Pastrana, "Mexico: Institutionalised Homophobia Encourages Hate Crimes" Inter Pres Service (12 April 2012) online:  Ref World <http://www.refworld.org/cgi-bin/texis/vtx/rwmain?page=search&docid=50753f172&skip=0&query=LGBT&coi=MEX>.

[3]US, Department of State, Mexico:  Country Reports on Human Rights Practices for 2011: Mexico (24 May 2012) online:  US Department of State <http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/#wrapper>.

[4]Immigration and Refugee Board of Canada, Mexico: Situation of sexual minorities in Mexico City, Guadalajara (Jalisco) and Puerto Vallarta (Jalisco); whether there are support or advocacy groups acting on their behalf (2009 - August 2012), 17 September 2012, MEX104173.E, online:  http://www.refworld.org/docid/50753f172.html.

[5]IRPA (as amended) s 159.9(1)(a).

[6]Lobat Sadrehashemi, “Gender Persecution and Refugee Law in Canada:  In Response to the Balanced Refugee Reform Act (Bill C-11)” (April 2011) online:  Battered Women’s Support Services http://www.bwss.org/wp-content/uploads/2011/04/GENDER-PERSECUTION-and-REFUGEE-LAW-REFORM-IN-CANADA_2.pdf.

Family Law Reform

By: Liz Majic*

 

 

An as-yet unreleased report to the Chief Justice of the Supreme Court of Canada is urging an overhaul of the family law system.

 

The Globe and Mail has reported that it recently obtained a copy of the report, which is authored by a committee headed by Supreme Court Justice Thomas Cromwell, and is set for release very soon. According to the Globe, the report proposes several structural changes to the family legal system. The recommendations seek to minimize the personal and financial costs of resolving family disputes. Indeed, long and drawn out battles over custody, spousal support, and property can exacerbate tension between former spouses, and increase expense.

 

The report recommends strategies such as streamlining the family law process, designating more judges with expertise in family law, and empowering court personnel to help self-represented litigants. Additionally, the report recommends that estranged spouses attend one session with a qualified mediator before they are permitted to trial, and that “painful” cost awards be imposed against litigants who behave badly or impede the settlement process.

 

There is no doubt that these recommendations, if implemented, would go a long way towards improving the family legal system. However, like many other reports pertaining to access to justice, this report leaves one to wonder whether its recommendations will address the needs of those who are most vulnerable in family legal disputes: women survivors of violence.

 

Abused women are at greater risk of experiencing serious physical and psychological impacts as a result of their legal problems. Despite the severity of their situations and the fact that they tend to be disproportionately lower income – even more so following separation – many abused women still do not qualify for legal aid services. Consequently, many are left with no choice but to navigate the legal system unrepresented. Those who opt to retain legal counsel must endure the financial burden of exorbitant legal fees.

 

The repercussions of being unrepresented are great. It is not uncommon for an unrepresented abused woman to capitulate to her partner’s demands - no matter how unreasonable they may be. For instance, she may decide to make concessions that are not in her best interests or those of her children, such as accepting a joint custody or relaxed access arrangement.

 

Conceding to or being granted a joint custody order, or a liberal access order, creates years of difficulty for a woman whose abusive partner is intent on maintaining control over her. Abusive men can use such arrangements as an opportunity to harass, intimidate, and physically assault their ex-partner. As a result, children may continue to be exposed to violence either by witnessing it, or by being involved directly in the conflict.[1]

 

A number of factors contribute to a woman’s inability to assert her interests in legal proceedings. She may be intimidated by her partner and his lawyer, or worried about the perceived threat of her partner’s retaliation. The financial impact of pursuing legal action can also be a deterrent, along with the potential risk of harm to her children. Furthermore, the phenomenon of legal bullying is prevalent in domestic violence cases. The abusive male partner can simply opt to pursue the matter through the courts until the woman’s resources are exhausted.

 

Although mediation, expert judges, and additional court support for self-represented litigants are undoubtedly useful resources for family law litigants, such solutions may not reach women who are fleeing domestic abuse. Rather, literature on domestic violence consistently shows that women survivors of violence must have a fundamental right to accessible and readily available legal representation.

 

Domestic violence cases raise complex issues that cannot be dealt with in the absence of counsel if a fair hearing is to take place. As a report by Luke’s Place Support and Resource Centre notes, 

Woman abuse survivors and their children are severely disadvantaged when they do not have adequate legal representation, especially in the current climate that emphasizes mediation and shared parenting. Women who are unrepresented must complete complex paperwork and negotiations without a foundation of legal knowledge, often in the presence of the abuser and while dealing with fear, change and transition for themselves and their children.[2]

 

Ensuring that women survivors of violence have access to legal support will require a financial commitment from government. As reported by the Globe, the report calls for a drastic increase in funding for legal aid in the area of family law. But it remains to be seen whether the provincial and federal governments respond. If they fail to act, then Charter-based claims for publicly funded legal representation where domestic violence has been alleged should be considered by members of the legal community.

 

On a final note, the report apparently also calls on lawyers and law schools to embrace a culture of mediation, and encourages law schools to stop minimizing the importance of family law in their curricula. I wholeheartedly agree that family law is as essential as other foundational law courses like torts and criminal law. However, I believe that educating and training future lawyers on domestic violence, in particular, is equally crucial. Women survivors of violence should be entitled not only to legal representation, but to effective legal representation. By this, I mean a lawyer who understands the complex dynamics of domestic violence, is sensitive to the needs of their clients, and ideally provides legal services from an anti-racist and anti-oppressive framework.

 

As far as I am aware, domestic violence and the law is not an integral component of the curriculum at most Canadian law schools. The topic is usually given a cursory nod and then brushed away in family law classes. Law schools’ inattention to domestic violence does a disservice to women survivors of violence and to future family law lawyers, who will have very minimal, if any, training in dealing with a client who has experienced abuse.

 

A failure to address the experiences of those who are most vulnerable in family legal disputes exposes women survivors of violence to the risk of continued abuse in domestic relationships; impairs their equality and dignity; and threatens their physical and psychological security and that of their children. As we anticipate the release of the report to the Chief Justice, I encourage you to consider whether its recommendations provide for effective and accessible legal representation for women survivors of violence. Anything less is unjust and unacceptable.

 

*Liz Majic is in her final year of law school at the University of Ottawa Faculty of Law. She is currently participating in a student-run seminar on gender-based violence and the law.

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[1] For a comprehensive analysis of the challenges abused women encounter in the family legal system, please see: Ontario Victim Services Secretariat, Needs Assessment and Gap Analysis for Abused Women Unrepresented in the Family Law System, online: Luke’s Place < http://www.lukesplace.ca/research.htm>.

[2] Ibid at 2.

 

Uottawa Law's OutLaws oppose TWU law school

The ever amazing OutLaws have crafted a letter opposing the proposed law school at Trinity Western University.

For more background see this earlier post on our very own blog.

Our Very Own Prof. Joanne St. Lewis

Recently our colleague, Prof. Joanne St. Lewis, won an important legal victory against racism. Congratulations!

HUMAN RIGHTS AND HATE SPEECH: THE SUPREME COURT’S DECISION IN WHATCOTT

 

 

 

 

 

 

 

 

Prof. Michelle Flaherty*

 

In its recent decision in Saskatchewan (Human Rights Commission) v. Whatcott. 2013 SCC 11, the Supreme Court of Canada contended with a series of competing rights: freedom expression and freedom of religion, on the one hand, and the potential hateful and discriminatory effects of the exercise of those freedoms on the equality rights of others. Ultimately, the Supreme Court tried to strike a balance, one that offered some level of protection for equality rights and allowed for the restriction of only very extreme forms of expression. 

 Mr. Whatcott, the respondent in the case, had disseminated flyers in Saskatoon and Regina.  The flyers prothelesized against homosexuality, particularly among educators in public schools.   They also included disparaging remarks about homosexuality.

 Some of the individuals who received Mr. Whatcott’s flyers filed complaints against him under the Saskatchewan Human Rights Code, S.S. 1979, c. S 24.1 (“Code”).  Section 14 of the Code states that no person shall publish or display any representation “that exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity of any person or class of persons on the basis of a prohibited ground.”  The complainants argued that Mr. Whatcott’s flyers were discriminatory and violated the s. 14 of the Code because they exposed persons to hatred and ridicule on the basis of a prohibited ground, their sexual orientation.  Mr. Whatcott, however, argued that s. 14 of the Code was unconstitutional and invalid because it interfered with his freedom of expression and freedom of religion. 

 Squarely at issue before the Court, as it tried to balance these competing rights, was whether and to what extent expression and religious freedoms can be restricted. More specifically, the Court had to consider whether and how to distinguish between hate speech and less extreme forms of expression, which may fall short of “hate”, although they ridicule, belittle or affront the dignity of the targeted group or individuals.   

 Of course, Whatcott is not the first time the Supreme Court has balanced freedom of expression with other rights:  see, for example, R. v. Keegstra, [1990] 3 S.C.R. 697 and Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892. The Whatcott case is significant, though, because the Court modifies its approach to balancing freedom of expression with other rights, clarifying what amounts to “hate speech” and the narrow circumstances in which expression and religious freedoms may be limited in the interests of equality.

In Whatcott, the Court held that, even where the expression in question is hateful and although it might incite discrimination, it is protected under s. 2(b) of the Charter.  Thus, the provision of the Code that seeks to restrict this type of expression breaches s. 2(b) of the Charter.  In this case, however, the Court found that the Code was largely constitutional because the breach was justified in part at s. 1 of the Charter. 

 The Supreme Court faced the difficult task of distinguishing between forms of expression and the level of constitutional protection they warrant.  The Court sought to create an objective test for differentiating between expression that fosters hate (and whose restriction is justified under the Charter) and other forms of expression, which although offensive and perhaps repugnant, cannot reasonably be limited under the Charter. 

 According to the Court, where equality rights compete with and lead to limits on freedom of expression and religion, the Charter requires that those limits be interpreted restrictively.  Thus, only where the expression in question is “hateful” will it justify placing limits on freedoms of expression and religion.  The Court creates a high threshold for what will constitute “hate” speech, restricting it to those “extreme manifestations of the emotion described by the words “detestation” and “vilification””. 

 To distinguish between hate and other less extreme forms of expression, the Court proposes the objective standard of the reasonable person and it focuses on the effect of the expression, rather than the intent of the speaker.  In sum, restrictions on expression and the freedom of religion will be constitutional if a reasonable person would conclude that the expression is likely to expose the targeted person or group to hatred by others. 

 Applying this standard, the Court rejected s. 14’s broader definition of prohibited expression.  It held that the words “ridicules, belittles or otherwise affronts the dignity of” in s. 14 are constitutionally invalid and must be read out of the legislation.  These words extend beyond hate speech and include less extreme forms of expression, forms that cannot justifiably infringe other Charter rights. 

 In essence, the distinction between these forms of speech and the constitutionality of the limitations placed upon them becomes a matter of degrees.  It can be difficult to make out some of the nuances between what is “hateful” and what is merely “repugnant”. In my view, it is difficult to make this distinction on a purely objective basis.  In most cases, deciding whether or not a behaviour or omission amounts to discrimination under human rights legislation will include some consideration of its subjective impact on the complainant. 

 I think it is also problematic that the Court ultimately strikes down portions of s. 14 because they are not rationally connected to the Code’s legislative purpose.  This seems an odd conclusion.  After all, the legislation at issue is the Saskatchewan Human Rights Code, whose purpose is to limit discrimination against protected individuals and groups.  It seems unreasonable to conclude that the Code’s legislative objective is not rationally connected to the prevention of expression that disparages individuals because of a protected ground. 

 While it may be appropriate to distinguish between the effects of particular forms expression on vulnerable groups, striking down portions of s. 14 because they are not rationally connected to the legislative purpose of the Code is not a principled way of doing so.  Ultimately, the Court appears to be differentiating between expression that is, itself, discriminatory and expression that is discriminatory and likely to incite discriminatory behavior.   This can be a difficult distinction to make and one that I believe does not flow from the legislative objectives of the Code.  Arguably, limiting both of these forms of expression is not inconsistent with the Code’s legislative objectives of preventing discrimination. Under many human rights statutes across the country, some forms of expression can amount to discrimination, either because they are harassing or because they constitute an announced intention to discriminate. These restrictions on expression need to be considered in terms of Charter rights and, in balancing these rights, it may be appropriate to limit only the most extreme forms of expression.  However, it would have been helpful to see a more principled approach to the issue, one that does not rely on a flawed interpretation of the objectives of human rights legislation.

 

*Appointed to the University of Ottawa’s faculty of law in July 2012, Professor Flaherty teaches labour law, administrative law and human rights.

 

Happy International Women's Day

Canada falls to 21st place in the bid to be the best place in the world to be a woman.

Muslim Law Students of the University of Ottawa Event

The Little Things III

 

 I often think about the role of reconciliation in the Idle No More movement, how both non-Aboriginal and Aboriginal peoples play important roles in the quest to achieve equality.  With images of protests, railway blockades, and highway slowdowns that run through my mind when I hear the words "Idle No More", I force myself to shift my thinking beyond the large scale exhibitions and consider the actions that occur at the most fundamental level.  Much less obvious, and not widely displayed to the average Canadian, simple acts of respect and inclusion are occurring across this country and their effects are of a quiet strength.

 

Let’s look to the party of 25 who decided to take Mr. Dressup’s tickle trunk to a whole new level in late January.  I am referring to the “Cowboys and Indians” party that started at a private Toronto residence and moved to The Rhino, a hipster hangout in Toronto’s Parkdale neighbourhood.  Perhaps you’ve heard about it?  The event was a small blip on the media’s radar. 

 A party of approximately 25 people proudly sporting feathers, tomahawks, headdresses, braids, and plaid shirts, cowboy hats and leather vests arrived at the Parkdale hotspot to celebrate two birthdays.  They grew comfortable in the bar scene, dancing, ordering drinks, making war calls and mimicking face scalpings.  They were having a great ol’ time.

They were having so much fun, in fact, that they didn’t notice the looks of utter disgust on the faces of the other patrons in the bar.  Frankie, a Rhino regular, was also trying to enjoy his evening with his group of friends but this proved to be challenging.  He couldn’t relax while being surrounded by a large group of non-Aboriginal people inappropriately dressed in traditional Aboriginal attire who were acting out in such a disrespectful way.  Frankie and his friends were also non-Aboriginal, but that didn’t matter.  They knew inherently that what they were seeing was just not right.  They took action. 

Frankie and his pals took to Twitter.  One tweet read, “There are people actually dressed as cowboys and Indians.  Face paint and feathers.”  Their tweets were pushed forward by several Tweeters, and soon thereafter The Rhino twitter and Facebook accounts were soon inundated with pressing messages accusing The Rhino of promoting and supporting racist behaviours. 

 Julie, a female friend of Frankie’s, approached Rhino management and was told, “It’s just a costume.  Get over it.”

Another individual from the group approached another Rhino staffer and was told not to worry, that the group seemed to be on a pub crawl and would surely be moving on to another destination shortly.

 Clearly, the Rhino staff members were none too concerned.

Meanwhile in “TwitterWorld,” activists, Aboriginal and non-Aboriginal alike, from various areas of the City of Toronto, began to flock to the Rhino to express their concerns and show solidarity. 

One small group arrived at the bar with flyers for distribution entitled, “Our Culture Is Not A Costume”. 

 Another small group took to conversing peacefully with members of the offending group in attempts to educate the ignorance. 

 Mister G, who tweeted an update, provided that he was successful in convincing the male offenders to remove their headdresses.  “Here at the @TheRhinoBar got the guys to remove their headdress.  There are people from the First Nations here, calm I don’t know how!!”

 Following the incident, The Rhino was quiet. Comments on the bar’s Facebook and Twitter accounts, whereby writers were calling out the staff for lack of action on the matter, were promptly deleted.  On January 29, approximately one week following the incident, The Rhino issued a statement on their website acknowledging the incident and clarifying that they had no part in organizing the costume party.  They also issued an apology stating, “Please accept our deepest apologies to anyone who has been offended by this incident and our assurances that we will not permit it to happen again.”

 We can thank the small yet significant actions of Frankie and his pals who so admirably spoke up that night of the “Big White ‘Rhino’ that was in the room.”

 It’s the little things…

 
Karen Restoule is Ojibway and a member of Dokis First Nation. She is a recent graduate of the French Common Law Program at the University of Ottawa. Currently, Karen is completing her articles in the area of social justice. Prior to attending law school, she worked in provincial corrections and legal fields. She graduated from the University of Toronto in 2005, in Aboriginal Studies and Linguistics. In her free time, Karen enjoys visiting with family and friends, cooking, film, and working towards the advancement of the rights of First Nations communities and peoples.

 

One Billion Rising

Check out One Billion Rising's Valentine's Day action to end violence against women.

Maybe it is time uOttawa had a little rising of our own?

What about International Women's Day?

It’s the little things...II

It’s the little things...

 

by Karen R. Restoule*

I often think about the role of reconciliation in the Idle No More movement, how both non-Aboriginal and Aboriginal peoples play important roles in the quest to achieve equality. With images of protests, railway blockades, and highway slowdowns that run through my mind when I hear the words "Idle No More", I force myself to shift my thinking beyond the large scale exhibitions and consider the actions that occur at the most fundamental level. Much less obvious, and not widely displayed to the average Canadian, simple acts of respect and inclusion are occurring across this country and their effects are of a quiet strength. Read on...

 

Thomas, a popular hairstylist in northeastern Ontario, loves his job and can’t imagine doing anything else.  What other job would allow him to meet and chat with such a wide diversity of people while expressing his creative artistic side in the styling of hair. He was enjoying a pleasant Tuesday evening styling primping Connie and Suzette, who had been clients of his for over a decade. The three of them were enjoying a conversation about their travels, when Connie and Suzette began to share their opinions on the more recent Idle No More movement and its effects on their daily lives.

 

At one point, the exchange went something like this:

 

Connie: “I really wish them Indians would stop whining and crying about their rights. The government gives them enough money as it is, they should just shut up and be happy with it.”

Suzette: “Oh yes, I know. I was trying to get into town for some shopping at Costco the other day and some of them had blocked the road! They were only letting a few cars by at a time, and were handing out flyers to each car that drove by. I was curious to see what it was they were complaining about this time, so I took one and it was just another complaint about their “rights”. I just don’t understand what more they want – the government gives them so much already!”

 

And so the conversation continued.

 

Thomas grew quiet. He is not Aboriginal, but he has grown tired of hearing the complaints about Aboriginal peoples and their rights. He found himself wondering how it was that two non-Aboriginal privileged women could have such strong opinions on a group of peoples that they clearly knew nothing about. Thomas admits to having a limited understanding of the issues himself, but before forming opinions he had reached out to few Aboriginal friends and clients to whom he would ask questions from time to time. He was slowly learning, and the more he learned, the more he was able to recognize the injustice and inequality that is a reality for Aboriginal peoples in Canada and across the world.

 

He felt that what he was hearing was wrong, so he decided to speak up.

 

Thomas: “You know ladies, I don’t understand why you’re so upset and speak so poorly of Aboriginal peoples.  Just last year, you were outraged because one of our local mining companies had been bought out and your husband’s jobs and workers’ rights were affected. You both spoke so passionately about how important it was to strike and advocate about the labour rights that your fathers, grandfathers and great grandfathers had fought so hard to have recognized and protected. Why is it that you believe it to be okay for the mining workers to advocate to have their rights protected and respected, but it’s not okay for Aboriginal peoples to advocate to have theirs protected and respected?”

 

Connie and Suzette sat in silence as their perms set. 

 

It’s the little things.

*Karen is Ojibway and a member of Dokis First Nation. She is a recent graduate of the French Common Law Program at the University of Ottawa. Currently, Karen is completing her articles in the area of social justice. Prior to attending law school, she worked in provincial corrections and legal fields. She graduated from the University of Toronto in 2005, in Aboriginal Studies and Linguistics. In her free time, Karen enjoys visiting with family and friends, cooking, film, and working towards the advancement of the rights of First Nations communities and peoples.