Refugee health cuts: Ottawa has until Nov. 4 to put in place new policy

2014/11/01 Leave a comment

A pretty resounding defeat (again) for the Government for a particularly mean-spirited policy change, one whose policy rationale sharply diminished given the dramatic reduction in the number of refugee claimants following refugee reform:

A spokesman for Immigration Minister Chris Alexander was critical of the decision.

“Our government disagrees with the courts flawed decision and will continue to do whats necessary to protect the interests of Canadian taxpayers and genuine refugees,” Kevin Menard said in an email.

Lawyers for the refugee claimants who brought the case had argued the stay was unnecessary as the government could just revert to the pre-2012 system referred to in Fridays decision as the 1957 program, which granted coverage to everyone.

The Conservatives had implemented a new refugee health-care program in 2012 which drastically cut coverage and meted it out depending on the nature of the refugee claim itself.

They argued that since the old program is no longer operational, the four months given by the Federal Court to create a new one wasnt enough time.

In his decision, Webb said allowing the stay would have meant saddling affected refugees with reduced health-care coverage for an undetermined period while the case continued to churn through the courts.

“It seems to me that the effect of denying the stay which would mean that the changes to the 1957 program … would not be made would be to defer these changes until the final resolution of the appeal, if the appellants are successful,” he wrote.

“The harm that would be caused by reverting to the 1957 program … is outweighed, in this case, by the harm that would be suffered by those who would have reduced health coverage under the 2012 program if the stay is granted and the respondents are ultimately successful.”

We will see if the Government chooses to respond by creating “confusion” or just gets on with implementing the change.

Refugee health cuts: Ottawa has until Nov. 4 to put in place new policy – Politics – CBC News.

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Ex-immigration minister Jason Kenney ‘dictated’ niqab ban at citizenship ceremony, court told

2014/10/18 1 Comment

I’m with the Government and Kenney on this one.

Not for the stated reason that this allows the citizenship judge and officials to ascertain that the oath is being said (one can mouth the words or move one’s lips with different meanings, and impossible, unless blatant, to closely monitor each and every individual in a ceremony with typically 50 people).

But rather, that becoming a citizen means becoming part of the Canadian society and community, and the niqab is essentially a symbol of rejection of broader participation in the community.

Accommodation requires flexibility on both parties and Ishaq was given the opportunity to be seated in a less visible location:

Government lawyer Negar Hashemi said the case is about finding the “right balance” between respecting differences and maintaining Canadian core democratic values.

The niqab ban, she said, is part of a larger scheme to ensure everyone vows loyalty to Canada. Other non-veil-wearing candidates caught not doing so, such as elderly people with language difficulties, can also have their citizenship certificates withheld.

“There is no hidden agenda in this case,” she said.

Hashemi said Ishaq did not seek accommodation prior to her scheduled citizenship ceremony and declined the offer to take her oath at the front or the back of the citizenship court after the legal action was initiated.

She noted that the applicant unveiled herself to have her driver’s licence photo taken, and the brief unveiling at a citizenship ceremony would be no different.

“She had a choice of becoming a citizen or adhering to her religion,” said Hashemi. “Becoming a citizen is a privilege, not a right.”

Lorne Waldman, a co-counsel for Ishaq, said the Citizenship Act does not stipulate that a candidate must be seen or heard taking the oath — something witnesses for the immigration department agreed is hard to enforce and ensure.

“This policy was dictated by the immigration minister Kenney that there had to be a change, and there’s no willingness to provide any accommodation,” said Waldman, adding that officials confirmed there are fewer than 100 cases a year across Canada where someone wears a niqab to the ceremony.

Ex-immigration minister Jason Kenney ‘dictated’ niqab ban at citizenship ceremony, court told | Toronto Star.

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Refugee health-cuts ruling appealed by Ottawa – Politics – CBC News

2014/10/03 Leave a comment

No surprise on the appeal and request for a stay. Will see how it turns out:

Immigration Minister Chris Alexander also filed a motion to stay the judgment of Judge Anne Mactavish, whose ruling meant refugee applicants would once again have access to Canadian health care while they wait for a decision on their cases in Canada.

The government claims 13 grounds for its appeal, including the argument that the judge made several errors of fact. It also says the judge “applied different standards of reliability to the evidence of the applicants and the respondents.”

In an interview with CBC News, the lead lawyer who won the case said the governments months-long delay in filing the appeal, and the motion for a stay of judgment, means his team will have to scramble to prevent serious health problems among refugees from going untreated.

“If the matter is stayed there will be a delay and so there will be thousands of  persons who should be getting coverage as a result of that order who will be denied that coverage for a longer period of time,” said Lorne Waldman, who represents the group Canadian Doctors for Refugee Care.

Refugee health-cuts ruling appealed by Ottawa – Politics – CBC News.

And Erna Paris in a Globe op-ed on a series of related refugee issues:

We did this because we remembered that a meaner Canada had refused entry to a shipload of desperate Jewish refugees from Nazism 40 years before.

That prewar mean-mindedness is back. Canada’s refugee determination system needed updating, but the Harper government has gone much too far. It has been accused of breaching international law, breaching the Constitution, and – just as important – breaching the values Canadians have defined themselves by.

Canadian mean-mindedness is back 

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Plan to revoke passports raises concerns

2014/09/23 Leave a comment

Waldman is correct to highlight that this power could be applied arbitrarily but given that court safeguards exist, and given that there are some Canadians engaged in extremist activities in Syria and Iraq, it seems a prudent measure. See earlier Canadian government revoking passports of citizens trying to join extremist groups for background.

Not the same level as revoking citizenship:

Lorne Waldman, the head of the Canadian Association of Refugee Lawyers, says he’s worried the government might use its powers arbitrarily.

Waldman likened the practice to Canada’s secretive no-fly list, which civil liberties groups have argued violates the right to due process.

In the case of passport revocation, Waldman says there are at least legal avenues available for people to appeal such a decision through the courts.

But he said there should be assurances that power is used fairly by Citizenship and Immigration Minister Chris Alexander.

“The Passport Order gives the minister the right to deny passports if there were issues of national security,” Waldman said Sunday.

“Now, that’s pretty vague and pretty broad, and the minister is going to have to justify it in some way or another.”

Plan to revoke passports raises concerns

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C-24 – Ottawa gives itself new powers to share personal information

2014/07/15 Leave a comment

Funny, I don’t recall this being mentioned in any of the government communications material:

The powers are included in Bill C-24, an overhaul of citizenship law passed last month, though have drawn little attention. The changes amend the Citizenship Act to allow Stephen Harper’s cabinet to draft regulations “providing for the disclosure of information for the purposes of national security, the defence of Canada or the conduct of international affairs,” including under international deals struck by Citizenship and Immigration Minister Chris Alexander.

Cabinet will also now be permitted to allow the “disclosure of information to verify the citizenship status or identity of any person” to enforce any Canadian law “or law of another country.”

Ottawa contends the final regulations are still being developed and will comply with Canadian law. However, critics warn the changes could lead to Canada sharing citizenship and immigration details with foreign countries, whether verified or not, without oversight.

“This language gives them another legal basis for sharing information,” said immigration lawyer Lorne Waldman, who represented Maher Arar at a federal commission of inquiry a decade ago.

Mr. Waldman said the perils of unfettered information sharing are illustrated by that case. Mr. Arar, a Canadian of Syrian heritage, was jailed and tortured in his homeland, after RCMP wrongly flagged him as a terrorism suspect.

“Go back to Maher Arar,” said Mr. Waldman. “Sharing information is fine, but when you share information, make sure that the information sharing is accurate.”

But consistent with the Government’s approach to C-13 (cyber-bullying and surveillance).

Ottawa gives itself new powers to share personal information – The Globe and Mail.

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ICYMI: Immigration experts say Bill C-24 discriminatory and weakens citizenship

2014/07/03 Leave a comment

Star overview on the impact of the changes in C-24 Citizenship Act changes from the perspective of the major critics of C-24. Would have been better to include some of the supporters as well for balance (e.g., Collacott, Saperia, Siddiqui):

He [Alexander] seems to relish the idea of rewriting what it is to be Canadian and to hold citizenship. “If there was a time when new Canadians made the mistake that we only had a peacekeeping tradition or our rights and freedoms began with the Charter, then I’m glad our reforms are broadening their perspective.”

Neither he nor the Conservative Party seem worried about the ongoing debate Bill C-24 has triggered across the nation. “This act reminds us where we come from and why citizenship has value,” said the minister. “When we take on the obligations of citizens we’re following in the footsteps of millions of people who came here and made outstanding contributions over centuries. And we are celebrating that diversity, solidifying the order and rule of law we have here; we’re committing ourselves to participate as citizens in the life of a very vibrant democracy.”

Immigration experts say Bill C-24 discriminatory and weakens citizenship | Toronto Star.

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Case of Mohamed Fahmy shows failing of new citizenship rules | Macklin and Waldman

2014/06/30 Leave a comment

More from Macklin and Waldman on C-24 Citizenship Act revocation provisions and the possible implications for cases like Mohammed Fahmy’s, and the discretion it gives the Minister (Government has indicated they will not revoke Fahmy’s citizenship):

These cases are simply three examples that show why the new citizenship law has been condemned as fundamentally flawed and why several organizations have indicated they will challenge it under the Charter. The law will create two classes of citizens: dual citizens who are vulnerable to revocation and those who are not. But the bill is also problematic in other ways. Naturalized citizens unlike citizens by birth will not be able travel and live abroad for extended periods without fear of jeopardizing their citizenship. Other provisions will make citizenship more inaccessible to those who need it most — refugees.

Instead of listening to the legitimate concerns of those who criticized the legislation, the government attacked the messengers and impugned their motives. Undoubtedly the government thinks that this new law will be well received by its conservative base. We think that when most Canadians come to realize the implications of this new legislation they will reject it. Canada is a big country, but there is no room for second-class citizenship.

Case of Mohamed Fahmy shows failing of new citizenship rules | Toronto Star.

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C-24 Citizenship Act: Senate Hearings Start

2014/06/11 Leave a comment

While overshadowed by the Galati case and related media coverage, Senate hearings on Bill C-24 treaded much of the familiar ground and focussing on mainly the same issues. Given Parlvu was somewhat choppy yesterday, may not have captured all the main points.

Starting with the witnesses supporting the Bill. Richard Kurland, Lawyer and Policy Analyst, and regular media commentator, applauded the government for providing greater clarity and transparency on the requirements and pathway to citizenship from temporary and permanent residency. The greatest benefit will be in more applications processed in a more timely manner at lower cost. He expressed concern, however, over the insecurity created by the intent to reside provision. He emphasized the need for oral hearings, not allowing citizenship officers to rule on revocation for fraud without the person being able to present themselves. As to citizens of convenience, he argued in favour of the US approach of requiring US citizens living abroad to file tax returns.

 Julie Taub, Immigration and Refugee Lawyer, former member of the Immigration and Refugee Board of Canada, was even stronger in her support for the Bill. She had “fought the system for decades” and welcomed the tougher penalties for fraud, the simplification of revocation and the crackdown on citizens of convenience, drawing examples from her legal practice and recalling the evacuation of Lebanese Canadians and their eventual return in 2006. She would have preferred residency of five years as Canada was too short compared to other countries. To further avoid residence fraud, she recommended that Permanent Residents be provided with a “swipe card” required for entry to or exit from Canada, given many Permanent Residents have more two passports.
Opposing the Bill were Canadian Association of Refugee Lawyers, Lorne Waldman, President, and Peter Edelmann, lawyer. They focused on the revocation provisions, noting the differential treatment between various classes of citizens: single national born Canadian; dual national born Canadian and aware of their dual nationality; dual national born Canadian and not aware of their dual nationality; and naturalized Canadians.

Revocation could apply, save in cases of statelessness, to any of the three last categories. The Bill did not say who was a dual national and how dual nationality would be interpreted. Given how citizenship laws vary by countries, some communities would be affected more than others. The reverse onus of proof was not justified. The threshold of 5 years for terrorist offences was too low compared to sentences for murder and sexual assault. Revocation for fraud allowed for no hearing and was a completely paper process without any independent review. The intent to reside provision was not clear on how it would be interpreted and applied, and was another example of differential treatment.

Loly Rico, President and Janet Dench, Executive Director, Canadian Council for Refugees, opposed the increase in residency requirements and removal of credit for pre-PR time, given that refugoees typically spent three to four years of temporary residency before becoming permanent residents. Total time for citizenship could approach eight to ten years with these changes. Extending language and knowledge test requirements made no sense for youth given they would be in Canadian schools; for 55-64 year olds who were refugees, their life circumstances, time in refugee camps etc, may make formal test requirements an unreasonable requirement. CCR opposed revocation as it was discriminatory between Canadian and dual nationals and that punishment was better handled through the criminal system.

Debbie Douglas, Executive Director, of Ontario Council of Agencies Serving Immigrants, noted the anniversaries of the Komagata Maru and the M.S. St. Louis as a caution against promoting “any sort of racist policies.” OCASI opposed increased residency requirements, removal of credit for pre-Permanent Residents time, particularly for live-in caregivers where family separation has social and family costs. The intent to reside did not recognize that circumstances can change for work, study, or care of family members. Good faith of Minister that this would not apply post citizenship did not change ambiguity of law. Douglas echoed CCR on extending language and knowledge testing to 55-64 year olds, questioning the purpose of adding this additional barrier.
Debate as in the Commons Committee revolved around the familiar issues of intent to reside, revocation, language and knowledge testing, and decision-making process and lack of hearing or appeal. Government senators largely focussed on their defence of the Bill, and Opposition senators largely drew out their positions from witnesses opposed to C-24.
Some of the more interesting points:
  • Government Senators were sceptical that many new citizens would be affected by the intent to reside provision, examples cited by witnesses were “exceptions,”  with Sen. Enverga stating that if you “apply to come to Canada, your should live in Canada.”
  • On revocation for terror or treason, Edelmann trotted out the cliché, “one man’s terrorist is another man’s freedom fighter” and how definitions change over time. But more originally, rather than the usual Mandela example, he cited the contemporary example of Greenpeace being charged in Russia (Dench referred to Maher Arar). He also noted other heinous crimes, mentioning Paul Bernardo and Robert Picton, questioning why terrorism or treason should be treated differently;
  • There was a fairly spirited exchange on whether restoring knowledge and language testing to 55-64 year olds was an unreasonable barrier. Taub and Senator Eaton noted that basic language capability was not unreasonable to require. Refugee advocates emphasized for some it was, given what they had gone through. Senator Eaton, as a 70-year old, found their concerns to be “patronizing” to seniors but acknowledged that it may be a “huge struggle” for some. After probing by the Chair whether this was regarding language capability itself or formal testing, Douglas confirmed that it was more the lack of the alternative of an interview with a citizenship judge
  • Israel’s “law of return” was cited by Kurland as an example of dual citizenship. Some citizens, particularly refugees,  will always have a “fear of the state.” We will see how the judiciary “handles it,” acknowledging that this created two classes of citizenship.
  • Senator Eaton and Taub noted recent media reports of young men fighting in foreign conflicts and the risks of returning fighters to Canada. Taub noted there “really is not a choice” between Charter provisions and keeping Canada safe, and 75 percent of Canadians support revocation in these cases.
  • Whether more or less time in Canada increases integration was subject of debate. Douglas was powerful in noting that inclusion and removal of barriers  “goes a longer way than time,” citing the example of Black Canadians who had been here for generations.
  • Indicating the philosophical divide was a short exchange on citizenship as a privilege (Senator Enverga) and as a right (particularly Rico), who emphasized that as a former refugee from El Salvador, the right to be a full citizen, with all the rights and responsibilities that entailed as anyone born in Canada. That was part of the “beauty of Canada,” its inclusiveness and multiculturalism.
Hearings continue today with Martin Collacott, CBA, Asia-Pacific Foundation, Canadian War Brides (shut out from Commons Committee hearings), and PAFSO (foreign service union). Will be interesting to see if Galati case comes up during questions of the CBA witnesses.

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Citizenship Act Revocation: Commentary

2014/02/12 2 Comments

Strong commentary on both sides of the political spectrum on the revocation and related provisions of the proposed changes to the Citizenship Act, starting with Chris Selley of the National Post:

Grown-up countries clean up their own messes. You don’t “strengthen Canadian citizenship,” as Bill C-24 purports to, by making it easier to revoke, by kicking your junk into another country’s closet. You strengthen Canadian citizenship by holding wayward or treasonous citizens to account, and by demanding fair and equal treatment for even the most unpopular, thereby reinforcing the obligations they violated. Mr. Khadr’s case showed us how far Canada has to go. The Conservatives propose to take us even further in the wrong direction.

Chris Selley: Actually, my citizenship is a right | National Post.

Audrey Macklin and Lorne Waldman of the Canadian Association of Refugee Lawyers, in addition to their previous criticism of the revocation provisions, note additional problems with differential treatment of Canadian-born vs naturalized Canadians:

The provision also holds out the implicit threat that if a naturalized Canadian citizen takes up a job somewhere else (as many Canadians do), or leaves Canada to study abroad (as many Canadians do), the government may move to strip the person of citizenship because they misrepresented their intention to reside in Canada when they were granted citizenship. Whether the government acts on the threat is not the issue; it is enough that people will be made insecure and apprehensive by the possibility that the government may arbitrarily decide to launch revocation proceedings against them if they leave Canada too soon, or remain away too long. That’s not a way to foster a citizenship of commitment. That’s how to foster a citizenship of fear.

I had viewed this provision as more symbolic than enforceable, but Macklin and Waldman have a point as this could be deemed fraud should a naturalized citizen leave Canada for professional or personal reasons. CIC may not today be able to enforce such a provision. However, as the government implements its plans for exit controls, this may change. As many Canadians, both naturally-born and naturalized, live abroad, often for reasons that most would consider valid (i.e., not just “citizens of convenience”), this provision bears greater scrutiny.

Citizenship reforms a serious threat to rights of all Canadians

Lastly, a reminder that not all share this concern. Kevin Hampson in the Mayerthorpe Freelancer, strongly supports the revocation measures:

Being Canadian is a privilege, not a right—that’s the message. Those are much better terms on which to welcome newcomers.

Finally, despite the Toronto Star’s alarmism, it is just and proper to strip citizenship from people who engage in terrorism. Thomas Walkom’s characterization of this view as “radical” shows the extent of his esteem for Canadian citizenship.

Walkom suggests that thousands of Canadians could have their citizenship revoked. Here’s a tip: don’t want to lose your citizenship? Don’t become a terrorist.

“Yesterday’s terrorist can be tomorrow’s hero,” Walkom shrugs. To which we reply: If Canada in the future celebrates Islamic terrorists as heroes, Walkom will have worse things to worry about than Bill C-24.

Canada’s new Citizenship Act is long overdue

Still haven’t seen much commentary in French language media. Will also be interesting to see how ethnic press covers this (how I miss the ethnic media press scan at CIC).

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