‘They are just buying time’: Lawyers weigh feds’ appeal of judgment suspending Canada-U.S. asylum agreement

From the legal critics:

The Liberal government’s appeal of a recent “damning” Federal Court decision striking down Canada’s 16-year asylum agreement with the United States is disappointing and will likely end up before the Supreme Court, say lawyers and a Senator who once practiced refugee law.

Justice Ann Marie McDonald was “bang-on,” said Independent Senator Mobina Jaffer, when she found the Safe Third Country Agreement (STCA) violates Section 7 of the Canadian Charter of Rights, which guarantees everyone “the right to life, liberty and security of the person.” In July, Justice McDonald ruled the agreement, which halts people entering Canada at official border crossings because they must instead claim asylum in the U.S., is “over-broad” and the risks of detention and loss of security of the person is “grossly disproportionate” to the administrative benefit of the agreement.

The B.C. Senator said during her 20 years practicing refugee law—before the 16-year-old agreement was brought into force—she worked on many cases where refugees crossed the U.S. border seeking asylum. None in government can be “blind or deaf to what is happening in the United States,” she said, where reports continue of parents being separated from their children and placed in cages, according to Human Rights Watch, which has called the practice a human rights violation.

Sen. Jaffer took issue with the government’s argument that ending the agreement would cause an uptick in claims and put Canada’s refugee system at risk, saying that fear was likely pushing its appeal.

“This is a fairly new thing we are doing [with the agreement]. I find it almost insulting to say we will be overwhelmed with applications… so we don’t need to follow Section 7, that’s how I see it,” she said, highlighting the contradiction in Canada’s experience compared to other nations. Before the pandemic, she travelled to Lebanon and Turkey, which each house millions of refugees, while Canada has seen 58,255 irregular crossings from the U.S. since the beginning of 2017.

“I just think they are buying time to continue the same system because they know they don’t have a strong case,” Sen. Jaffer said.

The evidence presented to Justice McDonald was “damning,” said Jamie Liew, an associate professor at the University of Ottawa, and it was the most evidence presented that Sharry Aiken, an associate law professor at Queen’s University, had seen in 30 years practicing and teaching immigration and refugee law.

“It is curious to me that the government has chosen to ignore all this evidence and instead find that there is still grounds in this agreement to operate as usual… to operate as if the U.S. is acting as an honest partner in meeting its obligations under the Refugee Convention, which it clearly isn’t,” said Prof. Liew.

The appeal means that the STCA is in effect indefinitely now, and a decision is likely years off. The Federal Court of Appeal doesn’t have “a great track record in recognizing the rights of refugees,” explained Prof. Liew, and the applicants would likely appeal an unfavourable ruling.

She and her University of Ottawa colleague Errol Mendes, a professor of constitutional law, both said they think the case is destined for the Supreme Court.

“The issues at stake are so complex, it may require a final court determining some critical issues not only relevant to this case but many other cases that involve the Charter and in particular Section 7,” Prof. Mendes said by email.

Errors in judge’s findings, feds say

The government took a month to appeal the July 22 ruling, and Public Safety Minister Bill Blair (Scarborough Southwest, Ont.) explained in a statement Aug. 21 it was because there are “important legal principles to be determined in this case” and it’s necessary to appeal ”to ensure clarity on the legal framework governing asylum law.”

Asked for more clarity on the legal groundings of that appeal, Mr. Blair’s spokesperson, Craig MacBride, said by email that the government is appealing the ruling because it believes there are errors in some of the key findings of fact and law.

“The decision suggests all asylum claimants who are ineligible under the Safe Third Country Agreement and turned back to the U.S. are automatically detained as a penalty,” he said. “This is not the case. The U.S. remains a party to the UN Refugee Convention.”

Prof. Mendes said he expects the government to attack a “crucial” part of the court decision, in which Justice McDonald said that with the agreement, the risks of detention and loss of security of the person “are grossly disproportional to the administrative benefits of the STCA,” and that the impact on a refugee of being found ineligible is “out of sync” with the objective of the legislation, and responsibility sharing between the countries “cannot be positively balanced against imprisonment or the deleterious effects of cruel and unusual detention conditions,” including solitary confinement.

The federal government may attack Justice McDonald’s assessment that the STCA’s main objective is in fact an administrative benefit of sharing responsibility for refugees, he suggested.

“Instead, they will claim that getting rid of it will destabilize the entire present refugee system in Canada, given that the present system with the STCA is already backlogged with those that are not caught by the STCA,” said Prof. Mendes, though he thinks this defence likely would not succeed. “The Court has said on the many cases that it would be undermining the Charter if all that [the] government had to do to violate Charter rights is to proclaim the administrative burdens that come from living up to them.”

Prof. Liew said she hopes the Supreme Court takes up the issue, especially the question of an “alternative remedy,” which she said is often a legal argument the government invokes when it comes to Charter challenges. In this case, she said the government argues there are other avenues open to refugee claimants, when in reality most aren’t aware of their rights and when turned back to the U.S. are immediately detained.

“Once a Charter right is infringed… can it be affected by what the government calls alternative remedies? I think that’s where I anticipate their argument will rest,” she said. “If you want to look at taking Charter right infringements seriously, we should be really looking at how it operates on the ground.”

The only Charter argument Prof. Mendes could imagine the government using is a point the government has already asserted: that the U.S. has a fair detention review system, which can allow for due process and release from detention.

The experience of one of the applicants in the case, Nedira Mustefa, directly challenged that claim. She was detained in the U.S. after trying to enter Canada and spent a week in solitary confinement, which Justice McDonald said meets the test that a foreign law would “shock the conscience.”

“So the government will argue theoretical fair detention review possibilities [versus] the ‘Trumpian era’ reality of harsh treatment of refugees and increased risk of deportation to countries where life, liberty, and security of the person is endangered,” said Prof. Mendes

“Here, the appeals court will have to factor into what I call real-time realities of the life of refugees in Trump’s America versus the theoretical due process safeguards under the STCA.”

That Justice McDonald declared the STCA invalid based on the treatment of a couple refugees could also be contested by the government, he added, but the Supreme Court has said in the past—in rulings on assisted dying or anti-prostitution laws—that if a process violates the Section 7 rights of even a few people, or a small number disproportionately, the law can still be struck down, he noted.

Political issues likely at play

Prof. Aiken called Mr. Blair’s rationale that legal principles are in play a “specious” argument, seeing the choice to appeal instead as a “very transparent commitment” to a Liberal political agenda to not only maintain, but extend, the STCA.

“It is a highly charged political issue and in my view it’s almost been served up as a kind of marker or proxy for a wider political discourse on refugees and border security in a way that completely distorts the impact and implications of this agreement,” she said.

“Every day it continues in effect is another day of refugee rights being violated.”

When the agreement was brought in following 9/11, Prof. Liew said it was in part to address backlogs at the Immigration and Refugee Board of Canada. There are more innovative ways to expedite that process and address policy problems than putting people at risk of returning to places where they could endure persecution or death, she said.

“I’m very perplexed, if we’re concerned about that policy rationale, why it has to be done with a heavy-handed manner in a way that’s totally ignorant to the dire situations that refugee claimants face in the U.S.,” she said, who stressed this is not a “temporary problem” unique to Trump’s America.

The Conservative Party supports the government’s decision to appeal, said immigration critic and MP Peter Kent (Thornhill, Ont.), but he expressed surprise it took so long. He said there are a number of “inconsistencies” in the ruling, which he also expects will ultimately make its way to the Supreme Court.

There are clearly issues with the agreement, said Mr. Kent, but those mainly lie in the “loophole” that those who don’t cross at official ports of entry don’t fall under the agreement.

Justice McDonald’s ruling is based on the specific experiences of three claimants, that he said are “exceptions to the broader context” of the agreement, which he called part of a “fair and compassionate and orderly” immigration system.

“There is the issue of those in the United States who fear and may have legitimate concerns that if they’re discovered in the United States, they will experience improper treatment, but the broader intent of the Safe Third Country Agreement addresses those like the overwhelming majority of illegal border crossers,” who he said had the economic means and visas to pass through the U.S. and enter the border improperly.

NDP MP Jenny Kwan (Vancouver East, B.C.), her party’s immigration critic, called the government’s decision “horrendous” and its rationale for appeal “nonsense.”

She said she sees it as the Liberals catering to a Conservative-leaning perspective on borders and a “backdoor way” to close them.

“Has our federal government completely set aside the need for Canada to do the right thing, abide by our international obligations, and to be on the right side of history? Is their politics and the gamesmanship in politics more important than the lives of people facing persecution?”

Source: ‘They are just buying time’: Lawyers weigh feds’ appeal of judgment suspending Canada-U.S. asylum agreement

Improve, then use, name-blind recruitment to boost Senate staff diversity: committee – The Hill Times

Ironically, the Senate staffer numbers are not too bad — out of 354 employees, there were 54 people who identify as visible minorities (15.3 per cent, about the same percentage who are also Canadian citizens), 20 people with disabilities (5.6 per cent), 12 Aboriginal people (3.4 per cent), and 209 women (59 per cent) as of March 31, 2016. However, the point on under-representation of Indigenous staff at more senior levels is of note:

A name-blind recruitment project could help improve Senate staff diversity, but only if done properly, according to the head of a Senate group studying employment equity in the Upper Chamber’s administration.

In a report tabled June 21 with the Senate’s Internal Economy, Budgets, and Administration Committee—a powerful group of Senators that handles the Chamber’s legal and financial matters—its Subcommittee on Diversity said the administration should “consider implementing a name-blind recruitment pilot project and evaluate whether name-blind recruitment could be expanded for hiring by the Senate administration and potentially by individual Senators’ offices.”

The recommendation was one of 10 made by the subcommittee chaired by Liberal Senator Mobina Jaffer (British Columbia) following a study of a 2016 report on diversity among the 354 members of the Senate administrative staff—authored by high-ranking officials in the Senate bureaucracy—and diversity in the Senate workforce more generally, including in Senators’ offices.

The subcommittee—which also includes Conservative Senator Elizabeth Marshall (Newfoundland and Labrador) and Independent Senator Raymonde Saint-Germain (De la Vallière, Que.)—was struck in late 2016and began its study the following spring, holding five meetings between March 1, 2017 and May 8, 2018.

But there should be major improvements to the name-blind recruitment project tried out in the federal public service before it gets used in the Senate, said Sen. Jaffer, who told The Hill Times she first wants Senate staff to study where the public service pilot project went wrong.

Run between April and October 2017, the goal of the name-blind recruitment pilot run by the Public Service Commission and Treasury Board Secretariat was to “determine whether concealing personal information…which could lead to the identification of a candidate’s origin from job applications, had an impact on the screening decisions made by reviewers when compared to the traditional assessment method where all personal information was presented.” The idea was to see if a hiring manager is biased by the name they see on the resume, or other such personal information about the potential new recruit.

The analysis, limited to those who self-declared as visible minorities, ultimately concluded that there was “no net benefit or disadvantage with the NBR assessment method for visible minorities,” though there were some problems identified with the method itself.

During a March 20 appearance by Treasury Board President Scott Brison (Kings-Hants, N.S.) at the Senate’s Question Period, Independent Senator Ratna Omidvar (Ontario) raised the methodology issues with him.

“First, the hiring managers who were recruited for this project volunteered. I would suggest that creates a certain lack of purity, if I can use that word. The second is that the hiring managers made their decisions knowing that their decisions and the comparative results would be subject to review,” she said.

Mr. Brison acknowledged there were problems with the pilot project’s method, and said he has told Treasury Board, a central agency that acts as the employer of the public service, that he wants “to actually continue to apply the name-blind hiring pilot and to potentially apply it in departments or agencies wherein there is less diversity, to apply it in certain departments and agencies and in regions, to actually continue to work to this.”

Of the results themselves, Mr. Brison said: “The good news is that the pilot came back and said that they did not find, necessarily, a bias or discriminatory hiring practices within the government of Canada.”

Sen. Jaffer said Mr. Brison’s response was disappointing.

“So to say there is no bias, he was happy to see there is no bias, that’s stretching it. There is,” she said, pointing to her years as chair of the Senate’s Human Rights Committee where she used to hear about people not wanting to voluntarily self-identify as belonging to a minority or marginalized group because they didn’t want to be seen as different.

“I am concerned that the public service has not done a good job [with the project], and I’m hoping that the Senate will show the way.”

Setting the tone and setting the example is a key tenet for Sen. Jaffer in her work to improve diversity in the Senate, after experiences in the halls of Parliament that she describes as “soul destroying.”

Sen. Jaffer is the first South Asian woman to be appointed to the Senate and, among other incidents, said she has been stopped from using entrances to Parliamentary Precinct buildings, even while wearing her Senate pin showing that she is a Senator.

And if these things can happen to her, as a Senator, she said it worries her what those lower in the pecking order experience.

“If it happens to me, what is happening to people who work here? I represent them too. If I don’t speak up, then I let them down, too, [and] they have much more to lose.”

Despite it not being in her nature to rock the boat, she said it’s important that she speak out and do things to make changes, drawing on experiences dating back to being the first South Asian woman to practise law in Canada.

“It’s not because I think that’s my role in life. I don’t go looking for it, because I don’t have time for it. It destroys you, it kills a part of me every time,” she said. “Anyone working in the Senate or in the House who feels that they have not been treated fairly, they should know they’re no longer alone. There are services, there are structures that can help and they shouldn’t suffer in silence.”

Senate needs to reflect Canada, says Sen. Jaffer

Sen. Jaffer said the Senate administration has been putting in a genuine effort to improve the diversity of its staff over the years.

Back in 2005, then-Conservative Senator Donald Oliver called the Senate out for “glaring” and  “problematic” systemic racism after a report foundthat there had been no visible minorities appointed to senior and middle management positions between 2000 and 2004 and that visible minorities made up only 6.8 per cent of the Senate’s 425 employees.

Throughout years of upheaval and change in the Senate, it’s remained an administrative priority to act on recommendations Senators have made in response to subsequent diversity reports, Sen. Jaffer said.

In 2014, the Senate’s Internal Economy Committee adopted a two-year Diversity and Accessibility Action Plan for the administration to act on, which included measures to ensure that representation of designated group members was monitored, along with the Senate’s “employment systems to identify systemic barriers and eliminate adverse impacts on the designated groups.”

According to the fifth report of the Senate’s Advisory Committee on Diversity and Accessibility, as of March 31, 2016, among the Senate’s 354 employees (which doesn’t include staff in Senators’ individual offices) there were 54 people who identify as visible minorities (15.3 per cent), 20 people with disabilities (5.6 per cent), 12 Aboriginal people (3.4 per cent), and 209 women (59 per cent).

“We had the auditors here, we had huge changeover, we had independent Senators—those all cause issues for the staff, the administration. Even then they were loyal in implementing, so I have lots of gratitude for that,” she said.

In the House of Commons, as of June 2017, 48 per cent of the House administration’s 2,234 employees were women, two per cent were Aboriginal persons, 10 per cent were visible minorities, and four per cent were people with disabilities.

The most recent report on employment equity in the core public service, covering the 2016-17 fiscal year, said that of the 181,674 employees tallied in March 2016, 54.4 per cent were women (compared to an estimated workforce availability of 52.5 per cent), 5.2 per cent were Aboriginal persons (against an estimated workforce availability of 3.4 per cent), 5.6 per cent were people with disabilities (compared to 4.4 per cent workforce availability), and 14.5 per cent were visible minorities (compared to 13 per cent).

But more work needs to be done, especially in encouraging and emphasizing the hiring of Aboriginal Canadians and veterans, the Senate subcommittee said.

It recommended that the Senate create an Aboriginal Young Interns program, expand its efforts to recruit staff from outside of the National Capital Region, and explore ways to target veterans in its recruitment efforts.

As of March 31, 2016, there were no Aboriginal people in the Senate’s manager occupational category and their representation in the professionals occupational category was below their national workforce availability.

The Senate, and all of the country’s institutions, need to reflect Canada, Sen. Jaffer said, or risk becoming irrelevant, and hitting the benchmark of workforce availability—the estimated availability in designated groups as a percentage of the entire workforce population—is not good enough.

“We’ve got to have people from different groups in management,” she said. “And until people get into management, we will not arrive at a proper goal because it’s the management that makes the decisions for hiring; it’s the management that sets the tone.”

The Senate administration has until June 13, 2019 to report back to the Senate Internal Economy Committee on steps it has taken to put in place the subcommittee’s recommendations.

via Improve, then use, name-blind recruitment to boost Senate staff diversity: committee – The Hill Times

Senate passes bill to remove mention of ‘barbaric cultural practices’ from Harper-era law

Good.

For all the right reasons: keeping the substance while removing the identity politics bumper sticker title (Senator Salma Ataullahjan characterization of the short title as “incendiary and deeply harmful, as it targets a cultural group as a whole rather than individuals who commit the specific acts” worthy of note.

Assume the Liberal government may be considering the same approach with FGM and the upcoming citizenship guide (Conservative MP Rempel’s high profile efforts to press the issue with Minister Hussen ups the stakes):

The Senate has approved a bill that would remove mention of “barbaric cultural practices” from a law that outlaws forced marriage.

Liberal Sen. Mobina Jaffer introduced the bill in December 2015, shortly after the Liberals won the federal election and less than six months after the previous Conservative government passed the so-called “Zero Tolerance for Barbaric Cultural Practices Act” into law.

In a speech introducing her bill — which does nothing more than remove the title of that law — Jaffer said the use of the term “barbaric” is “insulting to cultures in Canada.”

“Can we reasonably call terrorists barbaric? Yes. Are certain acts against humanity barbaric? Yes. Would any reasonable person agree with these points? Yes. Do I agree with these points? Yes,” she said at the time.

“The issue here, frankly, is the pairing of the words ‘barbaric’ and ‘cultural.’ By pairing these two words, we are instead removing the agency from the individual committing an action that is clearly wrong and associating it instead with a cultural group at large. We are implying that these practices are part of cultures and that these cultures are barbaric.”

The Conservative law, called Bill S-7 when it went through parliament, sought to address the issue of forced marriage in a few ways, including by adding polygamy as a reason to deny someone’s admission to Canada, by setting 16 as the minimum age for marriage and by creating new offences related to forced and underage marriage.

It also removed provocation by “wrongful act or insult” as a partial defence in murder cases. The legislative summary for the bill cites a 2006 case at the Ontario Court of Appeal in which a man accused of killing an allegedly unfaithful wife cited “family honour” in arguing the defence of provocation was relevant. The court disagreed and said the premise that violence against women is sometimes accepted is “antithetical” to fundamental Canadian values.

The law itself remains subject to criticism from some quarters. Just this week, during a debate on archaic elements of the Criminal Code, Green Party leader Elizabeth May noted in the Commons that Bill S-7 had made illegal, or recategorized, some things that were already illegal. “I believe that the Zero Tolerance for Barbaric Cultural Practices Act belongs in the same category as banning witchcraft,” she said. (A bill going through parliament now removes pretending to practise witchcraft as a criminal offence.)

However, there is some cross-partisan consensus on the law’s title. Conservative Sen. Salma Ataullahjan agrees with Jaffer that “barbaric” is a problematic word.

The short title, “in my view, is incendiary and deeply harmful, as it targets a cultural group as a whole rather than individuals who commit the specific acts,” Ataullahjan said Monday evening in the Senate.

“Through conversations with my community, I heard from most that they felt the short title was directed solely at them and that from their perspective it served only to further stigmatize and alienate them from the community at large.”

This isn’t the first time a politician has taken issue with such language. When he was a backbench MP in 2011, now-prime minister Justin Trudeau made headlines for challenging the Conservative government’s use of the term in Canada’s citizenship guide, arguing the use of the term “barbaric” to describe “cultural practices” was not neutral enough.

“My problem with the use of the word barbaric is that it was chosen to reassure Canadians rather than actually change unacceptable behaviours,” he said on Twitter at the time, later clarifying that, yes, he did think that “all violence against women is barbaric.”

Trudeau repeated the word again last week as he responded to a question from Conservative immigration critic Michelle Rempel, taking issue with the government’s decision to remove a line about the illegality of female genital mutilation from the citizenship guide.

“We will continue to lead the way, pushing for an end to these barbaric practices of female genital mutilation, everywhere around the world and here in Canada,” he said.

Jaffer’s bill awaits first reading in the House of Commons.

via Senate passes bill to remove mention of ‘barbaric cultural practices’ from Harper-era law | National Post

C-6: Senate bill would let children become citizens separately from parents

The Senate continues to play a larger role in legislation. In this particular case, the comparison countries used are not the usual ones (Australia, NZ, UK, USA) but rather Norway and Denmark.

Interesting, given that overall their citizenship regime is much more restrictive than in Canada, save in this instance:

Tens of thousands of children could benefit from a proposed amendment to the Citizenship Act to allow Canadian residents under the age of 18 to apply on their own for Canadian citizenship, say advocates.

Ontario Senator Victor Oh proposed legislation on Thursday that asks Canada to follow the lead of Norway and make it possible for minors to apply for citizenship separately from their parents.

The proposal would apply to a cross-section of youths in Canada — including asylum seekers, children estranged from their parents, young people with criminal convictions, and minors who don’t want to follow their parents back to nations such as India and China that don’t allow dual passports.

Canadian law currently requires permanent residents who want to apply for citizenship to be at least 18 years of age or to be included in a parent or guardian’s immigration application.

That “places some highly vulnerable minors at risk of removal once they become adults,” says a brief prepared by the senators.

A change in the citizenship law could have significant consequences for thousands of young people in Ontario and B.C., where three out of 10 residents are foreign-born.

In addition, the senators’ amendment is a response to the growing number of unaccompanied minors seeking asylum in Canada, which rose by more than 50 per cent to 3,400 in 2016.

Senator Ho’s motion, which has been supported by B.C. Senator Mobina Jaffer, echoes similar recommendations made last year to an Ottawa citizenship committee by Vancouver East NDP MP Jenny Kwan and Winnipeg Conservative MP Michelle Rempel.

“This would be the biggest push forward for children’s rights in Canada in decades,” said Vancouver immigration lawyer Richard Kurland, who helped the senators draft the proposal.

Currently, the only way that a Canadian resident under 18 can apply for citizenship on their own is on “compassionate” grounds. But that avenue is rarely used.

In contrast, Norway allows citizenship applications from youth who have been in the country for five of the previous seven years. Denmark is open to youths becoming immigrants on their own if they have gone to school in the country for four years.

The background paper accompanying the complex legislative proposal said it would make it possible for the following kinds of young people to become Canadian citizens through their own application process:

• “Unaccompanied minors,” that is young people who arrive in Canada unaccompanied by an adult. The brief argues many are at risk of exploitation and abuse by traffickers.

• Children who have gone into “protective custody” because of physical or sexual abuse by their parents or guardians.

• Children who are orphans, or who have run away from their parents or guardians.

• Children of parents who are permanent residents but who do not meet language requirements to become citizens.

• Children who as young adults become convicted of a criminal offence.

Kurland said the revised application process would also be open to minors whose parents have applied for immigration status but who have worked outside of Canada for so long that the parents fail to meet requirements for citizenship.

In addition, the immigration lawyer said new legislation would allow a youth in Canada to follow a different route from their Canadian-resident parents — who might decide against becoming citizens of Canada because they don’t want to give up the passport of their homeland.

Unlike Canada, China and India, which are two of the largest sources of immigrants to Canada, do not allow dual citizenship.

Source: Senate bill would let children become citizens separately from parents | Vancouver Sun