Police can’t pull over a driver without cause, Quebec Superior Court rules in racial profiling case

2022/10/28 Leave a comment

Of note. Significant:

Police motor vehicle stops without cause are a violation of the Canadian Charter of Rights and Freedoms, Quebec Superior Court ruled Tuesday.

The decision won’t put an end to racial profiling overnight, Judge Michel Yergeau wrote in his ruling, but the court is allowing a six-month delay until the rules allowing random stops are officially invalid.

“Racial profiling does exist. It is not a laboratory-constructed abstraction. It is not a view of the mind. It is a reality that weighs heavily on Black communities. It manifests itself in particular among Black drivers of motor vehicles,” Yergeau said.

“Charter rights can no longer be left in thrall to an unlikely moment of epiphany by the police. Ethics and justice must go hand in hand to turn this page.”

The time has come for the judicial system to recognize and declare that this “unbounded power” violates some right guaranteed to the community, the court said.

Montrealer leads charge for change

This decision comes after Montrealer Joseph-Christopher Luamba, a 22-year-old Black man, told the court he gets ready to pull over whenever he sees a police cruiser.

In the 18 months after he got his driver’s licence in March 2018, Luamba said he was stopped by police around 10 times for no specific reason. He said he was driving a car during about half the stops and was a passenger in another person’s car during the other police stops.

Those traffic stops were at the heart of the lawsuit that he filed against the Canadian and Quebec governments. The case began in May of this year.

Luamba said he believes he was racially profiled during the traffic stops — none of which resulted in a ticket. Common law has long allowed Canadian police to stop people for no reason, but Luamba has been fighting for the practice to be declared unconstitutional.

“I was frustrated,” he told the court. “Why was I stopped? I followed the rules. I didn’t commit any infractions.”

Lawyers for Luamba and the Canadian Civil Liberties Association, which has intervener status in the case, told the court that the power of police to randomly stop drivers, outside of drunk driving checkpoints, is unconstitutional and enables racial profiling.

The court ruled on Tuesday that this practice violates the rights guaranteed by Sections 7 and 9 and paragraph 15 of the Canadian Charter of Rights and Freedoms.

“The preponderant evidence shows that over time, the arbitrary power granted to the police to carry out roadside stops without cause has become for some of them a vector, even a safe conduit for racial profiling against the Black community,” wrote Yergeau in his ruling.

Challenging Supreme Court ruling

Yergeau’s ruling challenges the rules established by a 1990 Supreme Court decision, R. v. Ladouceur, where the high court ruled that police were justified when they issued a summons to an Ontario driver who had been stopped randomly and who had been driving with a suspended licence.

The high court ruled that random stops were the only way to determine whether drivers are properly licensed, whether a vehicle’s seatbelts work and whether a driver is impaired.

But Yergeau wrote it was time for the justice system to declare this power, which violates certain constitutional rights, obsolete and inoperable, as well as the article of Quebec’s provincial Highway Safety Code that allows it.

Still, Yergeau wrote that the ruling applies specifically to the random stops. He said the ruling is not meant to be an inquiry report on systemic racism involving racialized or Indigenous peoples.

The judge also said the ruling is not about racism within police forces, saying the court heard no evidence in this regard, nor did it draw a conclusion.

But he noted that “racial profiling can sneakily creep into police practice without police officers in general being driven by racist values.”

Lawyers for the Canadian and Quebec governments argued that the Supreme Court was right to uphold the rule allowing random stops, which they say is an important tool for fighting drunk driving.

Police forces testified about the different efforts made to curb racial profiling and diversify their rank and file.

There was no immediate word on a possible appeal.

At the federal level, a spokesperson for Minister of Justice David Lametti said in an email that the ministry is aware of the decision and “will take the time to study it before commenting further.”

Source: Police can’t pull over a driver without cause, Quebec Superior Court rules in racial profiling case

Filed under Multiculturalism, Racism Tagged with , ,

Mother loses appeal in custody case, Ontario court sends her three children to Nigeria

2022/09/22 Leave a comment

Of interest and an illustration of some of the complexities of international custody issues:

An Ontario appeal court has sent three children back to Nigeria and the custody of their father, rejecting their mother’s arguments that she could not get a fair shake in that country because of patriarchal attitudes and anti-gay prejudice.

The case of Olubukola Ajayi and Eyitope Ajayi is one of a growing number of disputes in Canada that set concerns about international child abduction against arguments about unfairness and discrimination in foreign jurisdictions.

Ms. Ajayi argued in court that she was justified in bringing their three young children to Canada without the father’s consent last November, because of discrimination, abuse (which Mr. Ajayi denies committing), patriarchal attitudes and the influence of her ex-husband’s family in Nigeria.

She asked the Ontario Superior Court to assume jurisdiction for the couple’s parenting issues and grant her sole decision-making authority over the children.

On the same day, Mr. Ajayi asked a Nigerian court to dissolve the marriage.

In Nigeria, homosexual acts may be punished with jail sentences. Mr. Ajayi made reference in a court document filed in Nigeria to Ms. Ajayi being linked to the LGBTQ community. That forced Ontario judges, in an initial ruling and an appeal, to grapple with how Nigeria’s legal system operates, and determine whether its courts would put the children first.

“I ran here just for a fair shot at protecting my rights as their mom,” Ms. Ajayi, who trained as a lawyer in Nigeria, said in an interview. Both she and her ex-husband are dual citizens of Canada and Nigeria, as are the children; Ms. Ajayi travelled to Canada to give birth to the children here.

But the courts here, she said, “did not understand how being a man in Nigeria gives all this extra privilege and power. I had never planned to alienate my children from their father and his family. But I knew that that’s what they wanted to do to me in Nigeria.”

Paul Riley, a lawyer for the father, said the decision showed that Ontario courts will stand up to child abduction.

“I think what the decision shows this week is that Canada is not going to embrace those who involve themselves in child abduction. You are not going to leave your country and then wrap yourselves in the warm embrace of the Ontario judicial system.”

Canada is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, which sets out the legal rules for returning children to their home jurisdiction. But Nigeria is not a member of the convention, and Ontario law provides that the province’s courts may take jurisdiction in such a case where it is satisfied that the foreign country does not put children’s best interests first.

A two-woman, one-male panel of Ontario’s Divisional Court released a written ruling this week explaining why they had upheld Family Court Justice Tracy Engelking’s decision to reject jurisdiction in the case. Having taken the children without consent, Ms. Ajayi needed to show they would suffer serious harm if returned to Nigeria, Justice Elizabeth Sheard, Justice Katherine Swinton and Justice David Aston said.

The judges said they accepted Justice Engelking’s ruling from May that Ms. Ajayi had failed to do so. Justice Engelking found that Ms. Ajayi had only ever said she might be asexual, and that Mr. Ajayi himself had testified in Ontario that he supports gay rights. An expert in Nigerian law testified that none of this would be a factor in determining the children’s best interests in a Nigerian court.

Justice Engelking also ruled the children were not at risk of harm with their father, noting that Ms. Ajayi had left the two older children in their father’s care for an extended period when she came to Canada to give birth. As for the father’s family’s influence, Justice Engelking pointed out that Ms. Ajayi’s mother is a superior court judge in Nigeria.

The children are now back in Nigeria. Ms. Ajayi said she will not return to Nigeria but her lawyers will fight in that country for primary custody for her, “and to have them returned back to me.” If they do not succeed, they will ask for video call access and holidays with Ms. Ajayi in Ottawa.

Nicholas Bala, a professor specializing in family law at Queen’s University, said that more mobile societies have produced growing numbers of international family law disputes.

“In the absence of persuasive evidence of abuse or discrimination, it’s appropriate to send these cases back to the country of origin – which also has the effect of telling people that Canada is not going to become a haven for child abduction,” he said.

He said it is also a “question of balance.” In some countries, politics may wrongly enter family-law disputes. “I think the court was satisfied that Nigeria in 2022 is not one of those countries.”

Ms. Ajayi’s lawyer Valerie Akujobi said it’s a challenge when Canadian courts have to make determinations based in part on attitudes and sentiments in a foreign jurisdiction.

“The court does try to strike the right balance; in this case, we just felt that certain aspects had been perhaps lost in translation.”

Source: Mother loses appeal in custody case, Ontario court sends her three children to Nigeria

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Australia: Man suspected of joining Islamic State wins High Court challenge against government decision to strip him of his citizenship

2022/06/09 Leave a comment

Of note, significant curb on Ministerial discretion:

A key plank of the federal government’s foreign fighter laws has been struck down by the High Court, with the nation’s top judges ruling that suspected terrorists cannot be stripped of their citizenship by the Home Affairs Minister.

The case before the court involved Delil Alexander, who was jailed in Syria after allegedly joining Islamic State.

He claimed he could not be released from jail because he had nowhere to go, after the Australian government stripped him of his citizenship in July 2021.

Mr Alexander left Australia for Turkey, where he also holds citizenship, in 2013.

He told his family he was going to arrange a marriage and would return, but travelled to Syria where he is thought to have joined Islamic State.

The High Court noted an assessment by intelligence agency ASIO at the time found he was reported to have travelled to Syria with a group being helped by a known Australian Islamic State member.

In November 2017, Mr Alexander was arrested by a Kurdish militia and in 2019 was jailed for 15 years by a Syrian court.

He has since been pardoned by the Syrian government but has remained in jail because he cannot go back to Turkey, and Australia cancelled his citizenship.

No one, including Mr Alexander’s family and his lawyers, has heard from him since July last year.

Only judges can decide to strip citizenship if person hasn’t faced trial in Australia, court rules

The main issue in the case was whether the law allowing the Home Affairs Minister to strip him of his citizenship was valid under the Constitution.

“That sanction by the parliament may be imposed only upon satisfaction of the minister that Mr Alexander engaged in conduct that is so reprehensible as to be deserving of the dire consequence of deprivation of citizenship and the rights, privileges, immunities and duties associated with it,” the lead judgement in the decision said.

“The power to determine the facts which enliven the power to impose such a punishment is one which, in accordance with [Chapter 3] of the Constitution, is exercisable exclusively by a court that is a part of the federal judicature.”

Effectively the High Court ruled that while the government of the day could pass laws relating to citizenship, the consequence of stripping someone’s legislation without them facing trial on Australian soil was so serious it should only be handled by a judge.

Six of the seven justices agreed, with only Justice Simon Steward dissenting.

The new federal Attorney-General Mark Dreyfus and Home Affairs Minister Clare O’Neil said they were still assessing the impact of the ruling.

But the pair played down the significance it may have for other foreign fighters who may pose a risk to Australia if they returned, arguing other measures, including Temporary Exclusion Orders, could prohibit people from returning to Australia for up to two years.

Government sources have told the ABC there are only two people who have had their Australian citizenship cancelled under the specific part of the Citizenship Act, which has now been struck down.

Mr Alexander, and the other individual, are both in jail.

It does not affect people such as Abdul Nacer Benbrika, who had his citizenship cancelled after being convicted of terrorism offences by an Australian court.

Mr Alexander’s lawyer disputes he had been involved with Islamic State

Mr Alexander’s lawyer, Osman Samin, said his client should never have had his citizenship stripped by the government and disputed the assessment by intelligence agencies that Mr Alexander had been involved with Islamic State.

He argued the evidence Syrian authorities relied upon to initially convict him was deeply flawed.

“We potentially have a person who was arrested in a part of Syria, which is not a declared area,” he told the ABC.

“Other than these purported admissions made by Mr Alexander under extreme torture, there is no other evidence that suggests he in any way participated in any terrorism-type conduct.

Mr Samin said there could have been far-reaching consequences if the legislation had not been struck out by the High Court.

“The concept in the legislation was that citizenship may be repudiated by disloyal conduct,” he said.

“Now, importantly, what constitutes disloyal conduct amounting to repudiation can be defined by parliament — so, therefore, while the laws were initially limited predominantly to terrorism-type conduct, if the law was deemed valid there is really no limitation on what the government in future could define as ‘disloyal conduct’.

Mr Samin said Mr Alexander’s sister, who was running the case on his behalf, was “extraordinarily relieved” but “equally anxious” about the circumstances her brother found himself in, languishing in a jail in Damascus.

“There are so many stories of foreign prisoners being killed in this particular prison that, of course, the family at the moment are only concerned with his welfare, and simply want to know whether he’s still alive essentially.”

Source: Man suspected of joining Islamic State wins High Court challenge against government decision to strip him of his citizenship

Filed under Citizenship, Revocation Tagged with , ,

India court upholds a ban on hijab in schools and colleges

2022/03/16 Leave a comment

Of note:

An Indian court Tuesday upheld a ban on wearing hijab in class in the southern state of Karnataka, saying the Muslim headscarf is not an essential religious practice of Islam.

The high court in Karnataka state delivered the verdict after considering petitions filed by Muslim students challenging a government ban on hijabs that some schools and colleges have implemented in the last two months.

The dispute began in January when a government-run school in Karnataka’s Udupi district barred students wearing hijabs from entering classrooms, triggering protests by Muslims who said they were being deprived of their fundamental rights to education and religion. That led to counterprotests by Hindu students wearing saffron shawls, a color closely associated with that religion and favored by Hindu nationalists.

More schools in the state followed with similar bans and the state’s top court disallowed students from wearing hijab and any religious clothing pending a verdict.

Ahead of the verdict, the Karnataka government banned large gatherings for a week in state capital Bengaluru “to maintain public peace and order” and declared a holiday Tuesday in schools and colleges in Udupi.

The hijab is worn by many Muslim women to maintain modesty or as a religious symbol, often seen as not just a bit of clothing but something mandated by their faith.

Hijab restrictions have surfaced elsewhere, including France, which in 2004 banned them in schools. But in India, where Muslims make up 14% of the country’s 1.4 billion people, the hijab has historically been neither prohibited nor limited in public spheres. Women donning the headscarf is common across the country, which has religious freedom enshrined in its national charter with the secular state as a cornerstone.

Some rights activists have voiced concerns that the ban could increase Islamophobia. Violence and hate speech against Muslims have increased under Prime Minister Narendra Modi’s governing Hindu nationalist party, which also governs Karnataka state.

Source: India court upholds a ban on hijab in schools and colleges

Filed under Multiculturalism, Religion Tagged with , , ,

‘Lost Canadians’ case challenges ‘discriminatory’ citizenship law | CTV News

2022/03/15 Leave a comment

Inevitable that the first generation limit would be eventually challenged (there was considerable and careful legal analysis when it was introduced more than 10 years ago).

And of course, citizenship and immigration legislation and policy, in setting the criteria and conditions for becoming a citizen or resident, have inherent elements of discrimination, with the issue being whether the discrimination is reasonable from a policy, program and societal perspective:

Patrick Chandler is Canadian, but he can’t pass his citizenship on to his children.

While working in China in 2008, Chandler fell in love with a Chinese woman named Fiona. The pair got married and had two kids. Then, in 2017, Chandler landed a job in British Columbia. The young family planned to move to Canada together, until they learned their children didn’t qualify for Canadian citizenship.

Chandler was born in Libya to Canadian parents. Although he’s Canadian and has spent most of his life in Ontario, his kids don’t qualify for citizenship. It’s due to a citizenship law enacted by the federal Conservatives in 2009, which prevents Canadians born abroad from passing citizenship to their children, if they too were born outside of Canada.

“The rules – the way they are set up – creates two tiers of citizens,” said Chandler. “A tier that can pass on citizenship and a tier that cannot pass on citizenship.”

The intent of the 2009 law was to prevent citizenship from being continually passed down in families with no legitimate connection to Canada. For Chandler, who grew up, studied, and works full-time in Canada, the law makes him feel like a second-class Canadian.

“(The law) devalues citizenship because it shows Canadian citizenship does not mean equality,” said Chandler. “Unless we get that fixed, it’s going to hang over Canada’s head, and I don’t want that. And at the same time, I don’t want other people to have to go through this.”

Now, he and several other Canadian families have launched a Charter challenge, and are calling on the current federal Liberal government to change the rules.

“The law is discriminatory,” said Sujit Choudhry, a Toronto-based constitutional lawyer representing the families in the Charter challenge.

According to Choudhry’s research, there are 173,000 Canadian citizens living in Canada who were born abroad to other Canadian citizens. He said those people should have the right to start families abroad and give their children Canadian citizenship just as Canadians born in the country can. Choudhry said the current citizenship law is far too broad, causing families to fall through the cracks of bureaucracy.

“There are many other ways for the government to reinforce the value of Canadian citizenship and address the problem of indefinite generations of Canadians passing on citizenship abroad, without using such a blunt instrument,” said Choudhry.

When Chandler moved back to Canada in 2017, his wife and kids stayed behind in China. They were reunited in B.C. more than a year later, after the sponsorship process was approved and his children arrived in Canada as immigrants. In that year, all Chandler could do was keep in touch through video calls.

“It was absolutely difficult. As a parent, you want to be there for your kids. You want to be there to guide them, to educate them, to play with them,” Chandler said.

Just over three years since his kids arrived in Canada, one of them has been granted citizenship. Still, Chandler says, government red tape should never have got in the way of his role as a father. He hopes the Charter challenge will be successful, so no other Canadian families abroad find themselves in the same predicament.

Source: ‘Lost Canadians’ case challenges ‘discriminatory’ citizenship law | CTV News

Filed under Citizenship Tagged with , ,

Khan: In Quebec, an act of injustice receives no accountability

2021/04/23 Leave a comment

More good commentary:

Apr. 20 was a day marked by sharp contrasts in judicial verdicts relating to harm.

In Quebec Superior Court, Justice Marc-Andre Blanchard issued a ruling regarding Bill 21, Quebec’s “secularism” law, which bans the wearing of religious symbols for government employees deemed to be in a position of authority, such as judges, government lawyers, teachers and police officers. New hires must remove religious symbols, while those already employed with the government can keep their symbols and jobs; they cannot, however, get promoted or transferred.

And so systemic discrimination have been enshrined in law, in a province whose premier repeatedly denies the existence of systemic racism.

In contrast, we witnessed accountability for cruel behaviour in a Minnesota courtroom. There, a 12-member jury found former police officer Derek Chauvin guilty on three counts in the death of George Floyd. The sheer inhumanity of Mr. Chauvin’s actions – namely, kneeling on the neck of Mr. Floyd while he was prone, handcuffed and pleading for his life – was broadcast for all to see. Mr. Chauvin was held accountable for his actions, and now awaits sentencing for the three charges of which he has been found guilty. Elation was tempered with the knowledge that the fight against police brutality and systemic racism is far from over. U.S. President Joe Biden acknowledged as much, calling systemic racism “a stain on our nation’s soul.”

A life, to be sure, has not been snuffed out by Bill 21. But livelihoods are being waylaid all the same by systemic discrimination.

While Justice Blanchard affirmed the bulk of Quebec’s law, he struck down portions that applied to English school boards and the wearing of face coverings in the National Assembly. He also had harsh words for the bill: “There is no doubt that in this case the denial by Bill 21 of the rights guaranteed by the Charter has severe consequences for the persons concerned. Not only do these people feel ostracized and partially excluded from the Quebec public service, but in addition, some see their dreams become impossible while others find themselves stuck in their positions with no possibility of advancement or mobility. In addition, Bill 21 also sends the message to minority students wearing religious symbols that they must occupy a different place in society and that obviously the way of public education – at the level of preschool, primary and secondary – does not exist for them. On the other hand, the beneficial effects appear at least tenuous.”

Quebecers aspiring to one of these jobs now face a dilemma, Justice Blanchard added: “Either they act according to their soul and conscience – in this case their beliefs – or they work in the profession of their choice. It is easy to understand that this is a cruel consequence which dehumanizes those targeted.”

Nonetheless, such cruel dehumanization is legal because of the province’s deployment of the Charter’s notwithstanding clause.

Meanwhile, Quebec Justice Minister Simon Jolin-Barrette, the law’s architect, will appeal the ruling, stating, “There are not two Quebecs – there is only one.” This is rich coming from a man who has himself created two Quebecs: One where opportunity is available for all, and another where opportunities are limited because of a person’s religious belief and expression.

Let’s not forget that the majority of Quebeckers approve of Bill 21 – cruelty, dehumanization and systemic discrimination be damned. Is it any wonder that Quebec has been facing a shortage of teachers? Lost is the irony that today everyone must cover their face in government institutions, including in the National Assembly.

Federal leaders, conscious of the significant number of seats in Quebec, have reacted along differing lines. Green Party Leader Annamie Paul and NDP Leader Jagmeet Singh have each unequivocally opposed the law, while the Conservatives have thrown Quebec’s religious minorities under the bus, stating they will not challenge the law but assuring Canadians that they would never introduce a federal version of Bill 21. Prime Minister Justin Trudeau has been non-committal about intervening.

We must now take inspiration from the U.S., where activists have pushed for justice for Black lives and are now opposing new laws in Georgia that will affect voters of colour. We must publicize the systemic discrimination, dehumanization and cruelty of Bill 21 far and wide, and confer with activists about the best way forward to address discrimination enshrined in law.

Let Quebec explain Bill 21 to the world. After all, those who aspire to a more just society should remember the words of Martin Luther King Jr.: “The arc of the moral universe is long, but it bends toward justice.” It does not bend on its own.

Source: https://www.theglobeandmail.com/opinion/article-in-quebec-an-act-of-injustice-receives-no-accountability/

Filed under Islamophobia, Multiculturalism Tagged with , , ,

Polish court rebukes Canadian historian for defaming alleged Nazi collaborator

2021/02/11 Leave a comment

Sigh….

A Polish court order that an eminent Canadian historian and his co-editor apologize for suggesting a man helped kill Jews during the Second World World has angered Jewish human rights activists in Canada and abroad.

They say the ruling against Jan Grabowski and Barbara Engelking is part of an ongoing effort to obscure Polish complicity in the genocide of Jews during the Holocaust.

Michael Levitt, head of Toronto-based Friends of Simon Wiesenthal Center for Holocaust Studies, called the ruling shocking and shameful.

“Poland cannot continue to bury the facts and silence Holocaust scholars,” Levitt said. “Its actions must be roundly rejected by Canada and the rest of the international community.”

The group said it was reaching out to senior government leaders urging them to speak out against “Holocaust distortion in Poland.”

At issue was a short passage in a 1,600-page book “Night Without End: The Fate of Jews in Selected Counties of Occupied Poland,” co-edited by Grabowski, a professor at the University of Ottawa, and Engelking, director of the Polish Center for Holocaust Research in Warsaw.

According to the passage, which Engelking wrote, Edward Malinowski robbed a Jewish woman during the war and contributed to the deaths of 22 other Jews hiding in a forest in Malinowo in Nazi-occupied Poland in 1943.

Malinowski’s niece, Filomena Leszczynska, 81, argued her uncle was a Polish hero who had saved Jews, and that the scholars had defamed her and her family. She demanded a retraction and 100,000 zlotys – about C$34,000 – in compensation.

Judge Ewa Jonczyk, of the District Court in Warsaw, ordered the authors to make a written apology for “providing inaccurate information” and “violating his honour.” The judge, however, stopped short of imposing monetary compensation, saying it could hinder academic research.

Nevertheless, Mark Weitzman, with the Los Angeles-based Simon Wiesenthal Center, said the ruling opened the door to further intimidation of Holocaust scholars and researchers.

“By ordering the scholars to ‘apologize,’ it puts both historians and victims on trial, and offers protection to the reputations of Poles and others who collaborated in the murder of Jews,” Weitzman said

Grabowski could not be reached for comment, although Engelking said they planned an appeal.

Grabowski, whose work on the Holocaust has attracted death threats, told The Canadian Press in 2017 that he would not allow fierce criticism of his research in Poland to deter him.

“I feel personally attacked but this is for me a much more dangerous and general problem that has to be dealt with,” Grabowski said. “It’s a pure and simple attack on basic academic freedoms, which we take for granted here in Canada. I’m dismayed.”

The Nazis slaughtered about three million Jews and another two million Christians in Poland during the war. While many Poles resisted the invaders, others collaborated with the Nazis.

Leszczynska was backed by the Polish League Against Defamation, a group that fights harmful and untruthful depictions of Poland. The league, which has previously attacked Grabowski’s work, is ideologically aligned with the ruling nationalist Law and Justice Party.

The researchers, however, viewed the case as an attempt to discredit their overall findings and discourage other researchers from investigating the truth about Polish involvement in the German mass murder of Jews.

Source: Polish court rebukes Canadian historian for defaming alleged Nazi collaborator

Filed under Holocaust, Multiculturalism Tagged with , , , ,

Federal government asks court to keep Canada-U.S. pact to prevent ‘influx of refugee claimants’

2020/10/20 Leave a comment

Expected:

Canada would face “an influx of refugee claimants” and other “ripple effects” in the absence of a bilateral pact that stops would-be asylum seekers from making a claim here via the U.S., the federal government is warning.

This country will suffer “irreparable harm,” especially amid a global pandemic, if the Federal Court of Appeal does not suspend an earlier lower-court order that struck down the Safe Third Country Agreement, Ottawa argues.

In July, the Federal Court ruled the accord unconstitutional because the United States routinely detained asylum seekers in poor conditions. It gave Ottawa six months — until Jan. 22 — to fix the policy and make sure it complies with the Canadian Charter of Rights and Freedoms before the pact becomes invalid.

On Friday, the appeal court will hear a motion by the federal government to extend the deadline until a full appeal can be heard on a later date.

“An influx of refugee claimants will impair the sustainability of the systems that support refugee claimants while their claims are pending. Provincial and municipal governments are struggling to provide housing and social services,” the government says in its submissions.

“This unpredictability is significantly heightened by the global pandemic. Should the reopening of the border between Canada and the USA coincide with the end of the suspension period, a surge of asylum claims at the border is anticipated.”

Critics have argued the U.S. asylum system is cruel and inhumane, especially since President Donald Trump came into power in 2016 on an anti-immigrant agenda, building a wall to shut out illegal immigrants from the south and separating migrant children from their families. These critics said the Canadian government’s request should be dismissed because infringements of refugees’ rights outweigh any alleged public interest in maintaining the status quo.

“While the court gave Parliament six months to remedy the law, the government has squandered that opportunity in favour of an appeal,” said Justin Mohammed of Amnesty International Canada, one of three litigants who launched and won the constitutional challenge.

“We are hopeful that the Federal Court of Appeal will affirm the deadline, so that no refugee protection claimant will be handed over by Canada to face the horrors of U.S. immigration detention past January 2021.”

Under the bilateral agreement, Canada and the U.S. each recognize the other country as a safe place to seek protection. It lets Canada turn back potential refugees who arrive at land ports of entry along the Canada-U.S. border, on the basis that they should pursue their claims in U.S., the country where they first arrived.

In its submissions, the federal government says the agreement, in place since 2004, is in line with international refugee law to ensure claimants have access to a fair asylum process in an “orderly and efficient manner.” There are exemptions and mechanisms in place to avoid returning would-be asylum seekers to risks and danger.

While the U.S. asylum detention system may be unacceptable, it says the Canadian charter does not apply to foreign laws and processes.

“Failure to grant this stay will result in irreparable harm to the public interest, the functioning of the border, the sustainability of the Canadian asylum system and the services and resources that support claimants in Canada,” the government says.

According to Ottawa, all levels of governments are already struggling to provide services to the 56,515 asylum seekers who skirted the safe third country restrictions by crossing “irregularly” into Canada between official land ports of entry from 2017 to 2019.

“An additional influx would further strain those already stretched systems and resources,” the government cautions, adding that the surge will create further “negative ripple effects and backlogs” in the overall immigration and refugee protection scheme.

“There is a strong public interest in affording Canada control of its borders to regulate the flow of persons and goods and to ensure the orderly processing of claims between Canada and the USA.”

However, the respondents, also including the Canadian Council for Refugees and the Canadian Council of Churches, argued that the lower court’s finding is already “tantamount” to a determination that the Canada-U.S. agreement is not in the public interest.

They said the government’s assertions of irreparable harm to the asylum system and services for claimants in Canada are based not on evidence but on a series of speculative claims by officials at the immigration department and Public Safety Canada.

The pandemic has actually made the conditions worse for asylum seekers, they argue. As of Oct. 6, the U.S. Immigration and Customs Enforcement reported 6,387 confirmed COVID-19 cases in custody, including eight COVID-19-related deaths of detainees.

“The appellants’ suggestion that COVID-19 makes it more difficult to predict ‘asylum intake volumes’ is misleading. While the pandemic is unprecedented, its effect on ‘asylum intake volumes’ is clear: it is dramatically suppressing the number of new refugee claims,” said the respondents in their submissions.

“It is simply harder and more dangerous to travel during the pandemic, and travel to Canada is far more restricted.”

The NDP’s immigration critic Jenny Kwan agrees.

“By appealing the court ruling, the federal Liberals are saying they’d rather let people seeking the safety of asylum here in Canada suffer under Donald Trump’s rules, than stand up for human rights and Canadian values,” said Kwan, who is also the MP for Vancouver East.

“Instead of accepting the court’s ruling and terminating the agreement, they have chosen to double down on turning back asylum seekers to a country that has a policy of separating children from their parents without any way of reuniting them,” she added. “It’s a heartless and shameful act. It’s un-Canadian.”

Source: Federal government asks court to keep Canada-U.S. pact to prevent ‘influx of refugee claimants’

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Ninth Circuit ruling could allow Trump to deport 400,000 immigrants next year

2020/09/16 Leave a comment

Of note. Potential significant impact on Canadian refugee claimants should decision not be successfully appealed and Trump re-elected, as we saw in 2017:

A federal appeals court has upheld President Donald Trump’s decision to take away legal protections for 400,000 immigrants, who could be deported next year if he wins reelection — despite having put down roots in the US over years or even decades.

Citizens of El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan have been able to stay in the US through Temporary Protected Status (TPS), a protection typically offered to citizens of countries experiencing natural disasters or armed conflict that allows them to legally live and work in the US. Against the advice of senior State Department officials, Trump tried to end TPS for those countries starting in November 2017, arguing that conditions have improved enough that their citizens can now safely return.

A federal court decision had prevented Trump from proceeding to roll back those protections temporarily. But on Monday, a divided panel of judges at the Ninth Circuit lifted the lower court’s block, meaning that the administration could terminate TPS status for all countries but El Salvador on March 5, 2021 (Salvadorans would lose their status on November 5, 2021). After those dates, TPS recipients’ work permits will expire and they will lose their legal status, making them eligible for deportation.

Those affected could include roughly 130,000 essential workers, more than 10,000 of whom are in medical professions, and roughly 279,000 US-citizen children under age 18 who are living with TPS recipients and could be separated from their families if their relatives were deported.

Wilna Destin, a TPS recipient from Haiti who has lived in Florida for two decades and recently contracted Covid-19, said in a press call that the Ninth Circuit ruling represented just one in a series of challenges she has recently had to face.

“We have coronavirus, we have hurricane, and now this. For me, it’s another disaster,” she said.

The presidential election could decide what becomes of TPS holders

The fate of TPS holders hinges on the outcome of the presidential election this fall.

If former Vice President Joe Biden is elected, he has vowed to prevent TPS recipients from being sent back to countries that are unsafe and would pursue legislation providing a path to citizenship to those who have lived in the US for an “extended period of time and built lives in the US.” He would also try to expand TPS protections to Venezuelans fleeing their country’s present socioeconomic and political crisis.

If Trump wins, his administration could also decide not to move forward with ending TPS protections at any time. But what’s more likely is that Congress will face pressure to pass legislation offering permanent protections to TPS holders who have put down roots in the US, shielding them from deportation.

The Dream and Promise Act, which passed the House last year, would have made TPS holders who have lived in the US for three or more years eligible to apply for a green card and, eventually, US citizenship. It could serve as a template for further negotiations, though whether it will get any traction depends on the makeup of the next Congress.

In a second term, Trump could also move forward with his plan to terminate the Deferred Action for Childhood Arrivals program, which has allowed more than 700,000 young immigrants who came to the US as children to live and work in the US legally. (The Supreme Court has temporarily prevented him from doing so, but his administration is laying the groundwork for him to try again and has refused to fully reinstate the program.)

“Temporary Protected Status is on the ballot in November,” Frank Sharry, the executive director of the immigrant advocacy group America’s Voice, said in a statement. “And if we do not remove Trump … we could see one of the largest mass deportations and family separation crises in American history.”

The Ninth Circuit ruled that no court has the authority to review the administration’s decision to terminate TPS, which it said is a matter of agency discretion. It also dismissed the ACLU’s argument that Trump’s decision to terminate TPS was motivated by racial animus toward nonwhite, non-European immigrants in violation of the Constitution’s guarantee that everyone receive equal protection under the law, regardless of race or national origin.

The ACLU’s Ahilan Arulanantham, who represented TPS holders at the Ninth Circuit, said in a press call that the organization will ask the full appeals court to review the case and, failing that, would seek review at the Supreme Court, potentially setting up another high-profile case challenging Trump’s immigration policy.

In the meantime, immigration advocates are waiting on the result of another lawsuit now before the Second Circuit concerning some 40,000 Haitian TPS recipients. If that court decides that the administration can’t terminate their TPS status, they could be spared termination of their status before next March.

Source: Ninth Circuit ruling could allow Trump to deport 400,000 immigrants next year

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Federal government appeals court ruling recognising man born in pre-independence PNG as Australian

2020/05/20 Leave a comment

Hard to understand the rationale for appealing the particular case unless there is a general point they wishy to make:

The federal government has lodged an appeal to overturn a Federal Court decision recognising the Australian citizenship of a man born in pre-independence Papua New Guinea (PNG).

Troyrone Zen Lee won a four-year battle with the federal government last month after being told in 2016 he was not an Australian citizen.

Mr Lee, who has lived in Brisbane since the early 1980s, was born in May 1975 in Port Moresby in the Australian external territory of Papua – four months before PNG became an independent country.

In his April judgment, Federal Court judge Darryl Rangiah ruled that at the time PNG became independent, Mr Lee fell within s65(4)(a) of the PNG Constitution “as a person who had the right to permanent residence in Australia and that therefore did not make him a PNG citizen”.

“I make the declaration that the applicant is an ‘Australian citizen’.”

Court documents filed on Friday show the Department of Home Affairs is appealing on the grounds that Justice Rangiah erred in finding Mr Lee was not an “immigrant” under the then Australian Migration Act after PNG independence in September 1975.

The appeal rejects the Federal Court ruling that Mr Lee had the right to Australian permanent residence, did not become a PNG citizen, and had never ceased to be an Australian citizen after independence, and remains an Australian citizen.

Both Mr Lee’s parents are Australian citizens, as are his father’s parents and his younger siblings, who were born in post-independence PNG and obtained Australian citizenship by descent.

“I am indeed deeply disappointed that Home Affairs has decided to make an appeal, but we will keep motoring on until this is finished,” Mr Lee told SBS News.

“Having done nothing wrong and confirmed in the Federal Court that I am an Australia citizen, it would seem there is no error with my status under the Australian Citizenship Act, yet Home Affairs continue to be unfair in dragging out this issue.”

Many PNG-born Australians have been caught out by Australian legislative changes that have resulted in the cancellation of their passports and citizenship certificates, rendering some technically stateless.

The federal government has argued the documents had been incorrectly issued for up to four decades and told those affected to apply for Australian citizenship.

Mr Lee travelled with his mother repeatedly to Australia after PNG independence on her passport and was issued with an Australian passport in 1979 before the family settled permanently in Brisbane in 1982.

Four years ago when he tried to renew his passport, his application was refused.

In the Federal Court hearing, a submission by the acting immigration minister Alan Tudge argued Mr Lee lost his Australian citizenship when PNG became independent in 1975.

“As the matter is before the court it would be inappropriate to comment,” the Department of Home Affairs said in a statement to SBS News on Tuesday.

Filed under Citizenship Tagged with , ,

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