CIMM Committee Report
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CANADIAN ALLIANCE SUPPLEMENTARY OPINION:
SAFE THIRD COUNTRY REGULATIONS
Diane Ablonczy, M.P., Grant McNally, M.P., Lynne Yelich, M.P.
Official Opposition Critics for Citizenship & Immigration
The Canadian Alliance affirms Canada’s international humanitarian obligation to receive our share of United Nations Convention refugees and our responsibility to ensure that we fulfill our commitment. The Canadian Alliance supports the Safe Third Agreement between Canada and the United States, as initialled on August 20, 2002. We support designating in Canadian law the United States as a safe third country. We agree that refugees should seek a safe haven in the first safe country they enter.
However, the Canadian Alliance disputes the central claim of the committee report that all major issues have been addressed.
Protecting victims of domestic violence
The Canadian Alliance believes there must be a commitment to deal with the safety of women refugees. The recommendations call for an exception to the provisions of the Agreement in the case of women making a claim on the basis of domestic violence. However the regulations do not clearly prohibit the abusing partner from making a refugee claim on the basis of family connection. If a woman has fled an abusive domestic arrangement, Canadian law should not be exploited to recreate that same dangerous environment in Canada.
Ill-defined exceptions undermine the purpose of the agreement
We disagree with the inconsistent, overly broad set of exceptions contained in the regulations. The exceptions contained in the regulations may lead to a situation where a fundamental breach of international law could occur. International law clearly states that no country will pass domestic measures that violate the intent of an international agreement. The exceptions outlined and the arbitrary determination process for future exceptions undermine the purpose of the Safe Third Country Agreement.
The regulations in undermining the agreed text also run contrary to the standards of the United Nations High Commission on Refugees. The UNHCR has made the Safe Third Country principle a critical part of the international refugee determination process.
Also, too many additional exceptions are recommended whose scope is excessively broad. For instance, by extending an exception to "de facto" family, the scenario exists, particularly with individuals who lack proper identity documents, that any acquaintance resident in Canada can be called upon to serve as "de facto" family. In a similar recommendation, the granting of the "benefit of doubt" to the claimant is too vague. Doubt may often be present in refugee claims. Doubt ought to be reasonably satisfied and not ignored unless to serve Canada’s interests. Overly broad and ill-defined exceptions could lead to irregular refugee flows that could undermine the resources available to genuine refugees.
There is also fundamental incoherency in section 159.6. (The objections to that section will be dealt with separately.) The recommendation gives the Minister arbitrary latitude to make exceptions in the "public interest." However, in committee testimony, the Minister implied that the specific exceptions in section 159.6 were based in Supreme Court jurisprudence. Recommendation 9 would potentially give the minister the right to override through some "public interest" claim the "rule of law" in Canada. Either the Minister by right of "public interest" has the final say in determining an exception or the relevant jurisprudence of the Supreme Court has the final say.
Sovereignty and security compromised by exception for capital crime felons
The Canadian Alliance disagrees with the three exceptions added to the regulations that were not in the Agreement’s final text. They are all contained in paragraph 159.6. The exceptions are for claimants either charged with or convicted of an offence punishable by the death penalty in another country or claimants who are either a national or a stateless former resident of a country to which the Minister has imposed a stay on removal orders.
The minister in committee stated that recent Supreme Court decisions mandated the exceptions in question. His argument fundamentally misrepresents the most recent Supreme Court decision on the related issue of extradition is the 2001 case, United States vs. Burns, or more commonly known as Burns-Rafay. In that case, the court stated that Section 7 of the Charter requires the Attorney General to secure assurances that the death penalty would not be applied before extraditing Canadian residents to another jurisdiction. The Court also stated "Nevertheless, we do not foreclose the possibility that there may be situations where the Minister’s objectives are so pressing, and where there is no other way to achieve those objectives other than through extradition without assurances, that a violation might be justified."
What is important to realize is that the court intended their decision only to apply to Canadian residents for whom Charter protection exists. Furthermore entry into Canada differs significantly from extradition out of Canada. They are not equivalent. The law on extradition does not compel the law on entry into Canada.
The justices discussed at length the possibility of Canada’s becoming a "safe haven." They concluded that, "Elimination of a ‘safe haven’ depends on vigorous law enforcement rather than on the infliction of the death penalty once the fugitive has been removed from the country." "Vigorous law enforcement" should involve by any measure of common sense not allowing fugitives from justice into the country in the first place.
A more fundamental legal argument against the proposed exceptions lies in the extraterritorial application of Charter guarantees. In earlier cases Kindler (1991) and the Ng reference case (1991), the now Chief Justice Beverly McLachlin warned against casting "the net of the Charter broadly in extraterritorial waters."
The critical point is that the new Immigration and Refugee Protection Act, which came into effect on June 28, 2002, does not consider a potential refugee claimant at the border to possess Charter rights. The new exceptions in Safe Third Country Agreement regulations essentially propose to give Charter protections to non-residents and thus represent the extraterritorial application of the Charter.
The Immigration and Refugee Protection Act states that a refugee claim can be denied to an individual convicted of an offence punishable by a maximum term of imprisonment of at least 10 years. The proposed death penalty exception would allow individuals, charged or convicted of a crime serious enough to warrant the death penalty, to make a refugee claim. Under the existing law, the refugee claimant would almost certainly be deemed as ineligible. Why burden the system with litigation doomed to fail?
The concept of sovereignty includes the ability to control who enters or does not enter the country. The 159.6 regulations remove the right of the minister to not allow entry into the country of individuals potentially harmful to the public. The application of the exceptions would in essence allow individuals entry into Canada who would not have any legal status either as residents or refugee claimants. As convicted felons they could not apply for refugee status but would still be allowed to remain in Canada. It is remarkable that these regulations would create a new status of residency in Canada based solely on the conviction for a capital offence.
Treaty Partner not Consulted?
The exceptions laid out in the section 159.6 will have a strong impact on law enforcement in the United States. The U.S. agreed to the Safe Third Agreement in order to advance its security. The exceptions created weaken the security envisioned in the agreement. Canada’s no denial of entry policy will attract individual in flight from charges or convictions carrying the death penalty. U.S. criminal justice and security bodies should be notified and consulted. If consultations with U.S. officials have taken place on section 159.6, the details of those conversations should be released.
Recommendation: Ensure protection of victims of domestic violence from abusive partners and remove Section 159.6.