Canada’s Culture of Mean: Beating up on
Refugees
By Matthew Behrens
Toronto’s
legendary refugee rights lawyer Barb Jackman has a unique way of framing issues
at their most human level, an art often lost by those who spend their lives in courts
and immigration tribunals fighting for their clients’ right not to be deported
to torture and other cruelties. Testifying recently before a Senate committee on
a repressive piece of deportation legislation, Jackman aptly summed up the mean
political culture that increasingly grips the land.
Bill
C-43 (aka, most inappropriately, the Faster Removal of Foreign Criminals Act)
could be called the double punishment bill, because that’s essentially what it
does: individuals without full citizenship status in Canada not only face a
sentence if criminally convicted, but automatic deportation following that,
without ministerial discretion to examine the context of the conviction and the
severe consequences of forced removal on individuals, families, and communities.
“Taking
away humanitarian discretion, which we have never not had, is a fundamental
change in the way we look at non-citizens,” Jackman told the Senate. “I believe
there should have been a national debate about whether or not we want to go
there in terms of being a mean, petty, disgusting country.”
C-43
removes from a whole class of people access to the immigration appeal division and,
in a masterstroke of fundamental unfairness, also applies retroactively to
permanent residents who’ve served sentences of over six months that predate the
new legislation. Hence, someone who has a criminal conviction from 15 years ago
may now be uprooted from their family and deported without access to any kind
of appeal. Pre C-43, if the sentence was 2 years less a day, one could appeal for
discretionary relief from a deportation order. But if the sentence was 2 years
or over, even by a day, that appeal disappeared. Under C-43, the benchmark is
reduced to a six month sentence, and applies retroactively to someone who, when
they negotiated a sentence, thought they would have access to an appeal if
facing deportation.
The
issue was explored in the Supreme Court’s Pham
decision earlier this year, in which an individual who seems to have been
caught up in circumstances beyond his control was sentenced to two years behind
bars, removing the possibility that he could appeal to the Minister to consider
the context of his case and humanitarian reasons for allowing him to stay. The
Supreme Court reduced his sentence by one day so that Pham could have access to
a deportation appeal; C-43 removes that possibility.
The
Canadian Bar Association’s Gordon Maynard provided numerous examples to
Senators of folks whose lives will be destroyed under the news legislation. For
example, “a permanent resident in Canada since 11 years of age, here for 20
years, with parents here and siblings, married with children but suffering from
alcoholism and mental illness, loses his employment, falls into substance abuse
and engages in petty frauds and credit card thefts. He is convicted of his
first criminal offences in Alberta; he is given a six-month sentence. By Bill
C-43, there is no review of his circumstances upon issuance of a deportation
order. His time in Canada, his illnesses, his family and his lack of any prior
record will not be considered. There is no appeal to the appeal division.”
A
Canadian citizen facing the same circumstances would only be punished once and,
perhaps, be directed towards help for mental illness and the addiction issues. Not
so for the permanent resident or refugee. Maynard posed another possibility,
whereby a “Mr. Singh, a permanent
resident in Canada, is vacationing in Hawaii. While socializing in a bar, there
is a racial insult, an argument and a fight. He punches someone in the nose; it
is a good punch. He is arrested and appears before a judge the next day.
Mr. Singh does not want to spend his time in Hawaii fighting a charge that
he does not believe he is guilty of, but he pleads guilty to go home. He pleads
guilty to assault causing bodily harm and pays a $200 fine. He is released and
allowed to return to Canada…. It is a conviction outside of Canada for an
offence in Canada that is classified as serious. It does not matter what
penalty he got. Under Bill C-43, when he is issued a deportation order, there
is no review in the appeal division.”
Criminal
lawyers point out that the new legislation will likely cram the already
overcrowded prison systems with permanent residents who are fearful that taking
a conditional sentence in the community will harm their chances of staying in
Canada. Indeed, conditional sentences for minor offences tend to be longer than
those behind bars, but if a conditional sentence is over six months, that is a
ticket to deportation; a four-month jail term may be sought instead, increasing
the cost of punishment and also blocking the individual from community programs.
While
Immigration Minister Jason Kenney crows from atop his deportation perch that
this legislation is necessary, those most affected are not “foreign” criminals
but rather long-time residents who have made mistakes but, because of their
status in Canada, face far greater consequences than those born here, with no
right of appeal. They are not alone. The legislation stretches into the
Twilight Zone by nailing individuals who are only suspected of having committed an offence outside of Canada – no
actual proof of conviction required – with no chance to review the CBSA
officer’s decision.
In a
shout-out to CSIS, Canada’s scandal-ridden spy agency, C-43 also requires that individuals applying for citizenship attend
a mandatory interrogation, in which they must answer all questions “for the
purposes of an investigation,” a significant change from the current
requirement, which limits the need of the interviewee to answer questions to
those that are “reasonably required.” Canadian citizens can refuse to answer
questions from CSIS; but refugees and permanent residents are losing any wiggle
room, exposing them to a grilling that, should they fail to cooperate in a
broad-ranging questioning that may have nothing to do with their application (a
common enough practice as it is), will result in a failure to pass security
screening.
In
yet another example of officially legalizing what has been a standard practice of
Mr. Kenney’s (such as in the high profile case rejecting entry of British MP
George Galloway), the Minister under C-43 can deny entry to Canada to anyone for
a period of three years based on undefined “public policy grounds.” The
Canadian Bar Association condemns this as an unprecedented
Ministerial power that “invites arbitrary application and abuse. It is
repugnant to the fundamental principles of Canadian democracy and the freedoms
protected in the Canadian Charter of Rights and Freedoms. The lack of
accountability and the vague criteria would allow Ministers who may so choose,
to deny entry to persons whose views are unpopular or simply objectionable to
the government of the day.”
While
the new law – which passed the Senate committee last week without amendment and
is up for third reading later this month – will likely be the subject of
litigation, another exercise of this government’s culture of mean-ness ran into
rough waters earlier this year when a grass roots campaign was brilliantly
organized to end the exploitation of some very vulnerable souls.
Readers
may recall the high-profile arrest of a group of B.C. workers that was filmed
by the reality TV program Border Security,
a Force Four “entertainment” enterprise airing on National Geographic TV. While
in detention, the arrestees had waivers placed in front of them, demanding they
sign away their right to privacy so the show could air their arrests,
interrogations, and deportations.
Based
on a highly rated Australian show that, according to unclassified memos sent to
the Canadian Border services Agency (CBSA) minister, “reinforces main
compliance messages,” Border Security
was recommended as a good investment for the federal government, especially
since the U.S. Customs and Border Protection also pursues “a robust program to
engage the film and television industry.” That’s how the CBSA became a
television producer.
Like
the 1976 satire on news media, Network,
whose corporate executives hire armed groups to film themselves while engaging
in bank robberies and other headline-grabbing events in order to boost ratings,
Border Security has a built-in
incentive to produce dramatic events that will draw viewers. Indeed, the CBSA calls itself “de facto executive production
authorities and, as such, would identify scenarios, sites and storylines, as
well as provide active engagement in, as well as oversight and control of, all
film shoots.”
This
is not the first time CBSA has used migrants as fodder for attention. Its
notorious “Wanted by the CBSA” website maligned dozens of individuals by posting
their pictures and describing them as war criminals, among other disparaging
terms. Follow-up to that campaign resulted in a September 11, 2012 CBSA memo
from agency Vice President Pierre Sabourin, who advised that his website would
“feature a minimum of 35 individuals who will be continuously refreshed and
updated with cases from the CBSA immigration warrant inventory.”
Notably
missing in that memo was the human element of wrongly named individuals whose
privacy is obliterated, and whose safety is put in serious jeopardy if they are
in fact arrested and deported with the “national security” label strapped
across their CBSA mug shot. No, they are merely part of the CBSA’s collateral
damage inventory, people whose lives have no meaning other than as tools for carrying
out their propaganda campaign either on websites or TV programs.
Like CBC or
NBC executives considering their fall lineup of comedies and police dramas, the
CBSA was faced with a conundrum, concluding there just aren’t enough alleged threats
out there to keep the most-wanted program continually refreshed. As a result, “a
proposal for the expansion” of the program’s criteria was said to be
forthcoming. Shortly afterward, CBSA decided to both expand the criteria for
inclusion on the Most Wanted list while dropping the inventory from 35 to 20. The
briefing note does acknowledge, in one of those bureaucratic sops to that
archaic notion of presuming innocence, that including the wider net of cases on
the website may “be perceived negatively by the public as these individuals
have not yet been determined to be inadmissable to Canada.”
The
solution to this lack of inventory likely feeds into Border Security, where CBSA control of story lines could contribute
to a greater public involvement in the Most Wanted program, noting
“Communications is exploring additional avenues to generate additional public
interest and exposure to the ‘Wanted by the CBSA’ program, including pro-active
media releases.”
While
the CBSA’s most-wanted program is facing lawsuits and privacy complaints
(forcing the agency to perhaps reconsider the use of such inflammatory labels
as war criminal), its biggest
concession to public pressure was the response to the Deportation is Not
Entertainment campaign, which rallied thousands to decry the abuse of migrants
for entertainment purposes. The agency will not air footage from the original immigration
enforcement raid (though numerous of the detainees have since been deported),
and CBSA seems slightly humbled. But the offensive program remains on the air,
and efforts to derail it continue.
Meantime,
it is never too late for Canadians to ask themselves just how mean, petty, and
disgusting they are prepared to let things get. There’s plenty of opportunities
to get involved in grass roots efforts to reverse the tide.
