Sunday, May 26, 2013
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.
Wednesday, May 1, 2013
(MuslimLink, May, 2013)
By Matthew Behrens
In what some critics called an opportunistic move, the Harper government swiftly scheduled debate on, and passed, new anti-terrorism provisions (Bill S-7) in the wake of the Boston marathon bombing and the subsequent Canadian arrests of two men alleged to be involved in a plot against VIA Rail. The most controversial of the provisions – involving preventive arrests (detention without charge for up to 3 days, followed by release under draconian bail conditions) and secretive investigative hearings, both part of the original Anti-Terrorism Act in 2001 – expired after five years due to a sunset clause. The federal Liberals, who joined with other opposition parties to reject an attempt to revive the provisions in 2007, voted in favour of S-7 under leader Justin Trudeau.
The Harper government – whose four previous attempts to bring back the measures had ended because of prorogations and elections – claimed the events in Boston proved Canada needed the new law. But even the National Post’s Matt Gurney editorialized that “it’s hard to see how the Boston attacks say anything about the state of Canada’s anti-terror laws.”
A range of civil rights groups, including the International Civil Liberties Monitoring Group (ICLMG) and CAIR-CAN, declared in a public statement, “Individuals subject to these provisions do not necessarily have to be suspected of committing any crime. It is enough that they are alleged to have information relating to a terrorism offence, or that they are alleged to be associated with another individual suspected of committing (or about to commit) a terrorism offence, or that they are otherwise suspected of potential future involvement in a terrorism offence.”
Under an investigative hearing, they pointed out, the independence of the judiciary is undermined as it moves from an adversarial to an inquisitorial model, and the judge “becomes an actor at the service of police investigations.” In addition, continued reliance on foreign intelligence could continue the use of information gleaned from torture. Ultimately, they fear that individuals will be forced to testify in court, face detention, or be subject to draconian bail conditions without charges being laid based on secret allegations they will have no access to, an eerie replication of the security certificate process used against refugees and permanent residents.
While Canada has been rapped on the knuckles by the UN and human rights bodies for its practice of torture by proxy of Canadian citizens – sending information to Syrian and Egyptian intelligence with the knowledge that such questioning of Canadians would result in torture, as in the cases of Maher Arar, Ahmad El Maati, Abdullah Almalki, and Muayyed Nureddin – the one-year detention clause serves, essentially, as a similar form of judicially sanctioned punishment for failure to answer certain questions.
Although such provisions were not directly used in their first five years, the threat of their use by Canadian authorities, as documented in the 2003 ICLMG report In the Shadow of the Law, proved an effective means of instilling fear and compliance in targeted communities. Given the commonplace CSIS practice in Arabic Muslim communities of pressuring individuals to act in the uncomfortable role of spies, refusal to do so could bring about the potential use of an investigative hearing and a year-long detention.
While the legislation states such individuals have the right to a lawyer, the NDP’s Deputy Justice Critic Craig Scott proposed that “anybody who’s not actually under suspicion and is brought in for an investigative hearing really should not have to pay for the costs of their legal representation.” That safety measure was deemed beyond the scope of the bill.
Also of concern are efforts to further regulate the travel of community members already subject to restrictive measures such as the no-fly list. S-7 appears to open the door to an exit-control system that would monitor the movements of anyone leaving the country. It may prove intimidating for travellers planning to visit family in Lebanon or Pakistan when they learn that they could be jailed for up to 10 years if the person “leaves or attempts to leave Canada, or goes or attempts to go on board a conveyance with the intent to leave Canada, for the purpose of committing an act or omission outside Canada” that would be considered a terrorism offence. Given the overly-broad manner in which Canadian agencies cast suspicion – based on the mosque at which they pray, humanitarian organizations to which they have given charitable donations, or their assumed knowledge of the alleged activities of a mere acquaintance – concerns have been raised about language that borders on the realm of thought-crime, allowing the state to determine why one intends to take a trip or concluding that someone is hiding something from authorities for nefarious reasons. (Notably, the Canadian Border Services Agency is, according to an April, 2013 Canadian Press report, currently looking out for Iranians in Canada who may hold “sinister motives.”)
During December, 2012 Parliamentary questioning, the NDP’s Craig Scott listed a litany of problems with the legislation, including: failure to incorporate comprehensive oversight for all Canadian agencies involved in national security activities, a long-ignored recommendation of the Arar Inquiry; overly broad language with respect to what it means to “harbour” someone alleged to be involved in terrorism; and rejection of the idea that immunity from criminal prosecution based on evidence coerced in an investigative hearing should extend to extradition and deportation hearings. Scott was particularly incensed to discover that someone could be placed on restrictive bail conditions “with respect to terrorist activity that is not their own terrorist activity.” All his concerns were dismissed as beyond the scope of the bill.
Groups such as CAIR-CAN and ICLMG will continue monitoring the effects of the new law.