Building Bridges Between Canada’s Indigenous and Newcomer Groups by Shauna Labman

On May 12-13 a gathering “Building Bridges Between Canada’s Indigenous and Newcomer Groups” took place at Circle of Life Thunderbird House in Winnipeg that brought together individuals, community workers, artists, advocates, and academics keen to build relations and understandings in the city. A small CBC piece on the event has generated almost 400 shares.  I want to use this forum to offer further clarity on the origins of the meeting, a summary of discussions, and possibilities moving forward. 

The event was originally conceived out of the Social Sciences and Humanities Research Council’s funding call for grant proposals “Connecting for Canada’s 150^th”.  As Canada approaches this grand birthday, discussion has swirled around what precisely this marker celebrates, what it blurs, and what it ignores at a time when reconciliation is both an ambition and a challenge.  In the same moment, Canada is welcoming refugees with targeted resettlement programs for Syrian and now Yazidi refugees and struggling with its reaction to asylum seekers entering irregularly from the United States. 

The Truth and Reconciliation Commission of Canada made specific Calls to Action concerning Newcomers to Canada:

93. We call upon the federal government, in collaboration with the national Aboriginal    organizations, to revise the information kit for newcomers to Canada and its citizenship test to reflect a more inclusive history of the diverse Aboriginal peoples of Canada, including information about the Treaties and the history of residential schools.

94. We call upon the Government of Canada to replace the Oath of Citizenship with the following: I swear (or affirm) that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth II, Queen of Canada, Her Heirs and Successors, and that I will faithfully observe the laws of Canada including Treaties with Indigenous Peoples, and fulfill my duties as a Canadian citizen.

It is also important for all Canadians to understand Canada’s international obligations and domestic commitments to refugees.  Thus with Canada’s 150^th on the horizon, it made sense to focus on the oldest and newest inhabitants of the land that now makes up Canada and their relationships with each other.  For me, thinking about these issues side by side raised questions on the meaning of home. What does it mean to be home, to fight for your home, to lose your home, to create a new home?

In a city like Winnipeg, the physical homes of indigenous and newcomer groups are often side by side in core neighbourhoods.  I am on the Board of Directors at the Immigrant and Refugee Community Organization of Manitoba (IRCOM).  IRCOM has operated an apartment building on Ellen Street since 1991 that offers transitional housing to newcomers to Winnipeg in their first year of residence and extending up to 3 years. The grand opening for IRCOM’s second location, on Isabel Street, will take place next week on June 5, 2017.  IRCOM has sought to nurture strong indigenous – newcomer relations as a strategic priority since 2015.  As a practical matter, hosting this gathering struck me as a way to support this effort.

Participants came to the conference with a wealth of knowledge, working relationships, and insight.  The goal of the event was to strengthen these connections, fill in gaps, and broaden the reach of collaborations.  We commenced the first day with an opening prayer and the Kairos Blanket Exercise as an active experience of the historical and contemporary relationship between indigenous and non-indigenous peoples in Canada and ended the day with a facilitated refugee myth-busting exercise.  On the second day we invited speakers from across Canada working on similar bridge building and closed with art, music and dance as a celebration. Robson Hall law students served as attentive note-takers throughout the two days and a full report that hopes to capture the diverse perspectives shared, the commonalities, misconceptions, and points of conflict or contention in the panels will follow shortly.  

It proved unnecessary to pursue funding through the SSHRC grant as the University of Manitoba generously funded the event through the Legal Research Institute, the Dean of Law, and the Conference Sponsorship Program.  While I served as the lead organizer on behalf of the Migration Law Research Cluster, the two days were planned through collaboration with the National Research Centre for Truth and Reconciliation (Aimée Craft), the Faculty of Social Work (Regine King) and IRCOM (Shereen Denetto).  Law students Madison Pearlman and Danielle Morrison were hired to turn a proposal into a reality and worked closely with Jessica Praznik from the Immigrant Centre Manitoba to navigate the logistical details.

It is important to recognize the university’s role in the event as an opportunity for outreach and relationship building as well.  Rather than holding the event on campus, we hosted the event at Thunderbird House to both bring the university to the community and allow conference participants to familiarize themselves with the space as well as the vision and principles tied to its construction. During the conference we facilitated a “Skills and Knowledge Exchange Bank” where in the listing of resources it was noted that academics are physical resources able to provide information and insight.  When the Migration Law Research Cluster hosted an event focussed on “Building Connections: Refugee Research and Community Outreach” in 2014, issues were raised with respect to demands sometimes put on NGOs to facilitate academic research and the lack of post research advocacy or assistance.  It has been an objective of the MLRC from the outset to build knowledge and understanding and to foster interdisciplinary collaboration and community engagement through monthly noon hour speakers, social media, and larger community conferences. The Building Bridges conference was both an outgrowth of earlier events and itself a means to extend our own reach and connection into the community.  On behalf of the MLRC, I invite you to keep the conversation going  and be in touch with us.  I look forward to what comes next!

A ‘Catch-All’ Provision with Extreme Overreactions? The Legalistic Snares within Section 34 of Canada’s Immigration and Refugee Protection Act by James Gacek

No sooner was the United States presidential election called in favour of Donald J. Trump had the infamous ‘Move-to-Canada’ memes, tweets and photos begin circulating social media (c.f. Austen & Levin, 2016). Worries and concerns spread in earnest shortly after President-Elect Trump’s win, with the Internet working itself into a fury and following with a barrage of opinions about leaving ‘The Land of the Free’ and heading north past the 49^th parallel. Various media sources had even been reporting that the website of Canada’s immigration department had crashed, overloaded by Americans looking for a new country to call home (Austen & Levin, 2016).

  

Since the election, a desire to flee the United States and its election decision has routinely been expressed. Yet on the other side of the border, Canadians, while having worries and concerns of their own about the future of Canada-U.S. relations, also retained whiffs of pride and smugness. ‘At least Trump isn’t our leader,’ ‘Canada is a diverse country,’ ‘at least Canada accepts all people from all backgrounds’ were just a few of the thoughts floating in the minds of Canadians, of whom were nervously laughing to each other while they glued themselves to each minute of the presidential election coverage. We pride ourselves on the belief that, in Canada, we would never close our borders to immigrants and refugees, and that such authoritarian and neo-fascist notions of migrants and refugees heard from the American presidential campaign would never be accepted north of the border. Canadian values of multiculturalism and diversity, we believe, trump vitriolic hate speech (and in effect, would trump Trump-like characters hoping to lead our country one day).

However, in terms of Canadian immigration laws, it is perhaps the case that Canadians reconsider such beliefs. While examining Canada’s Immigration and Refugee Protection Act (S.C. 2001, c.27), federal legislation which deals with the protection of immigrants and refugees, our main immigration law is anything but clear and definitive for immigrant and refugee admissibility (Ross, 2014). Arguably, one of the most contentious provisions in the IRPA is section 34. In force since 2001, section 34 deals with the inadmissibility of permanent residents or foreign nationals into Canada on the reasonable grounds of security issues. It reads as follows:

34(1) A permanent resident or a foreign national is inadmissible on security grounds for

(a)   engaging in an act of espionage that is against Canada or that is contrary to Canada’s interests;

(b)  engaging in or instigating the subversion by force of any government;

(b.1) engaging in an act of subversion against a democratic government, institution or process as they are understood in Canada;

(c) engaging in terrorism;

(d) being a danger to the security of Canada;

(e) engaging in acts of violence that would or might endanger the lives or safety of persons in Canada; or

(f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b), (b.1) or (c). (S.C. 2001, c.27)

Notwithstanding the broad (and arguably, vague) interpretation of ‘danger’ and ‘terrorism’ (of which the latter has yet to reach a universal definition), of interest to many Canadian immigration and legal-aid lawyers is the last statute, section 34 (1)(f). This statute is seen by many legal professionals and academics as “an unjust statute being manipulated by high-handed federal bureaucrats to punish law-abiding people who ought to qualify for refuge or residence in Canada” (Ross, 2014). Indeed, people attempting to make Canada their new home have seen an increased difficulty in the post-9/11 era. Such immigrants or refugees who perhaps at one time in their life, for instance, informally engaged in political acts, gave a one-time donation to opposition groups in their countries of origin, or who acted as “informal contact[s] for foreign journalists who were seeking interviews with anti-government guerrillas,” face the threat of deportation on the grounds that they pose as security risk to the people of Canada (Ross, 2014).

Under section 34, it makes no difference to Canadian immigration officials whether the person seeking refuge or residence has engaged in violence or subversion themselves. The broad terminology used within the section itself is enough for immigration officials to reason that the applicant once supported an organization at some point in the past, to which the organization either “possibly did engage in subversive activities[,] or that at some time in the future[,] [the organization] possibly will” (Ross, 2014).

Indeed, Canadian immigration law is consistently faced with determining how to define such acts as ‘subversive’ or ‘terrorist,’ as unfortunately, section 34 could easily apply to anyone in our conflict-ridden world. Therefore, while some applicants have never directly engaged in political violence themselves, the broad language of the section continues to widen the scope of inadmissibility, of which increases the quantity of people facing the threat of deportation from Canada, and the outright rejection of foreign nationals’ applications for residence or refuge.

Furthermore, as the Canadian Immigration Blog (2015) indicates, several court judgements have succinctly concluded that the definition of membership within section 34 (1)(f) does not require direct complicity with the wrongful conduct of the organization itself, nor is it a requirement for the member to direct comply with the actual participation of wrongful behaviour and conduct in the future (c.f. Ezokola v. Canada, 2013; Joseph v. Canada, 2013; Posteh v. Canada, 2005). In effect, the broad interpretation of membership parallels the interpretation of ‘an act of subversion,’ ‘an act of violence,’ ‘terrorism’ and ‘Canada’s interests,’ all of which are open to the Canadian government’s intentions to further securitize the Canadian population for its own ‘safety.’ However, such increases in security have been justified on the basis of an “indeterminate danger,” in which case one could argue that such securitizing discourses have become contingent upon suspicion rather than reasonable grounds (Bell, 2006, p. 149; see also Walby et al., 2016).

In short, Canadians should reconsider their whiffs of pride as their American counterparts’ transition into a Trump administration. It may be the case that Canadian ‘values’ (however we appear to define them) differ from the Americans, and it is my hope that Canadian culture will continue to be welcoming and inclusive for people from all walks of life. However, section 34 of the IRPA, as it currently stands, is a strong reminder that Canadian immigration law must reflect such changes for inclusivity, rather than broadening the scope of deportation and securitization from ill-perceived threats. Bridges, not walls, must be built so that we may reach out and support those in need in these desperate and hostile times. As Bauman contends, “the sole way out of the present discomforts and future woes leads through rejecting the treacherous temptations of separation” (2016, p. 18). Indeed, let us work together in solidarity towards an immigration law which rejects such treachery, and combat the political speech of separation that is based upon extant suspicions, animosities and overarching indifference towards an-Other.

References:

Austen, I. & Levin, D. (2016). “As Americans Look North to Flee Donald Trump, Canada Peers Back in Worry.” The New York Times: November 9.

Bauman, Z. (2016). Strangers at Our Door. Cambridge: Polity Press.

Bell, C. (2006). Surveillance strategies and populations of risk: biopolitical governance in Canada’s National Security Policy. Security Dialogue 37(2): 147-165.

Canadian Immigration Blog (2015). ‘Section 34(1)(f) of the IRPA – membership does not require complicity.’ Belissimo Law Group: April 13.

Ross, O. (2014). “In Canada’s immigration law, anyone can be a terrorist.” The Star: April 27.

Walby, K., Lippert, R., & Gacek, J. (2016). “Securitizing ‘National Interests’: Canadian Federal Government Departments, Corporate Security Creep, and Security Regimes.” In National Security, Surveillance, and Terror: Canada and Australia in Comparative Perspective. R. Lippert, K. Walby, I. Warren, and D. Palmer (eds.). London: Palgrave. Pp. 155-176. 

Legislation cited:

Ezokola v. Canada (M.C.I.), 2013 SCC 40.

Immigration and Refugee Protection Act (S.C. 2001, c.27).

Joseph v. Canada (M.C.I.), 2013 FC 1101.

Poshteh v. Canada (M.C.I.), 2005 FCA 85.

© 2016 James Gacek

James Gacek is a PhD candidate at the University of Edinburgh, Edinburgh Law School. While his research interests are many, his work can be generally categorized within the realms of socio-spatiality, socio-legality and socio-sexuality. He has begun to publish in the areas of incarceration, genocide carcerality, film and media studies, cultural and visual criminology, exploitative relationships between human and animals, and emerging Canadian state surveillance. James is an American Sociological Association Student paper award recipient (2014).

This blog post is cross-posted at Robson Crim.

Diplomatic Resistance and the Saving of Lives

In the normal course of things, diplomats and consular officials are agents of the state they represent. They get their marching orders from the government in power. Sometimes however, diplomats rightly disobey the orders that they are given. These moments of resistance can be crucial, particularly when it is in service of saving lives. A crucial form of resistance performed by various diplomats, for example, took place during World War Two with the granting of thousands of visas to those fleeing the Nazis or their collaborators' persecution (Holbrooke, 2007). The numbers of people saved were substantial (totalling over a hundred thousand). 

The significance of diplomats saving lives through the granting of visas was recently highlighted in an NPR story written by Eleanor Beardsley about Portuguese diplomat Aristides de Sousa Mendes do Amaral e Abranches. Through Beardsley's reporting (and other academic writing) we learn several things about Sousa Mendes. Stationed in Bordeaux, France, as the Nazi victory over France was nearing rapidly, Sousa Mendes granted visas to some 30,000 Jewish and other stateless refugees during the early years of World War Two. He worked tirelessly and to the point of exhaustion, particularly in June 1940. The decision to grant visas was not only a humanitarian act but also in flagrant violation of official state policy. Though Portugal was formally neutral, its fascist dictator, Antonio de Oliveira Salazar decreed that Jews, Russians and others were to be denied entry into Portugal. Sousa Mendes defied Salazar's exclusionary directives. His defiance was not without a personal cost. As Rui Afonso and Fabio Koifman (2015, 28) assert: "For a man with twelve children and debts, such an act of open disobedience to Portuguese dictator Salazar spelled professional and financial suicide."[2] According to Afonso and Koifman, after Sousa Mendes was recalled to Lisbon (presumably in 1940 itself), he was subjected to a disciplinary hearing, and permanently suspended from active service. He was forced to live his remaining years in poverty until his death in 1954.  

 

 

Beardsley's reporting also highlights the legacy of such brave acts and the lives that were able to be saved and continue because of his decision to resist his government's orders. As noted on the Sousa Mendes Foundation website, Holocaust historian Yehuda Bauer observed that by granting some 30,000 visas, Sousa Mendes' acts constituted “the largest rescue action by a single individual during the Holocaust.”

Though disgraced in the years following his disciplinary hearing and removal from his position, his conduct was legitimized many years later. In 1966, the government of Israel recognized him as a "Righteous Among the Nations" while the United States Congress issued a proclamation in 1986 to honour his acts. In 1988, the Portuguese government formally apologized for its treatment of Sousa Mendes. 

It is worth noting as well that while Sousa Mendes' acts of resistance were political (in that they were in defiance of his own government's orders and its policies), it was also combined with a firm religious belief. As reported on the Foundation's website, Sousa Mendes asserted: “I would rather stand with God against Man than with Man against God.” Afonso and Koifman (2015, 28) posit: "Sousa Mendes was a devout Catholic, and he felt that he had a duty to try and save these people from falling into the hands of the Nazis." Accordingly, one might rightly say that Sousa Mendes' resistance was both political and religious.

 

Sousa Mendes' resistance was not solely based on his sense of Christian morality. As someone trained in the law, as Sousa Mendes was, it was based on a legal determination of the legality of the order not to grant visas to Jews on the basis of religion or other considerations. It is said that Mendes Sousa asserted to a crowd outside his residence in Bordeaux (Wheeler, 1989, 129):

My government has denied all applications for visas to any refugee. But I cannot allow these people to die. Many are Jews and our Constitution says that the religion or the politics of a foreigner shall not be used to deny him refuge in Portugal. I have decided to follow this principle. I am going to issue a visa to anyone who asks for it--regardless of whether or not he can pay ... .

Drawing from the legal scholarship of the late Professor Rod Macdonald as well my co-contributor to this blog site, Dr. Frédéric Mégret, resistance may be intimately connected to law. Macdonald (1998, 79) observed: "non-conforming behaviour in any particular regime is not simply a failure of enforcement or civil disobedience. It may be the reflexion of an alternative conception of legal normativity." Mégret (2010, 212) similarly argues that resistance (particularly in the context of confronting genocidal law) is "often inspired by an alternative vision of what law is or should be." 

Linking back to Sousa Mendes, his decision to defy his government's orders to deny visas was not an a-legal act. It sprang from an alternative idea that the Portuguese constitution (as positive law) prohibited the denial of refuge on the basis of religion or ethnicity. As such, the Salazar government’s order to deny visas on the basis of religion and/or ethnicity was in violation of the constitution.

For many, the notion of resistance can often take the form of a rather public confrontation against some formal power, whether such defiance involves violence or not. But resistance does not stop being resistance because it may be more hidden from the public view (see James C. Scott's work on this) (or waged against some non-state power). Though an official act, the signing and granting of visas takes place outside the public’s view. While the granting and signing of visas is typically uncontroversial and tends to be less dramatic in most circumstances, it takes on an immense significance as we see here.

Sousa Mendes' conduct and the acts of many other diplomatic and consular officials saved thousands of lives. It is important to recognize their efforts and their legacy. However, it is also useful to remember that the models they provide are not obsolete today. Many others are seeking protection and, at least in some cases, diplomats may be able to provide assistance even if their governments refuse to or show limited willingness to help.

More information about Sousa Mendes, his activities and legacy can be found on the Sousa Mendes Foundation's website and some of the sources listed below.

 

Sources

Rui Afonso & Fabio Koifman, "Sousa Mendes, Souza Dantas, and the Flight of Polish Refugees from France" (2015) 60:3 The Polish Review 21. 

Eleanor Beardsley, "'Portugal's Schindler' Is Remembered, Decades After His Lifesaving Deeds" National Public Radio (4 August 2016), online: http://www.npr.org/sections/parallels/2016/08/04/486735086/remembering-portugals-schindler

Richard Holbrooke, "Defying Orders, Saving Lives: Heroic Diplomats of the Holocaust" Foreign Affairs (May/June 2007), online: https://www.foreignaffairs.com/reviews/review-essay/2007-05-01/defying-orders-saving-lives-heroic-diplomats-holocaust

Roderick A MacDonald, "Metaphors of Multiplicity: Civil Society, Regimes and Legal Pluralism" (1998) 15 Ariz J Intl & Comp L 69 at 79. 

Frédéric Mégret, “Not ‘Lambs to the Slaughter’: A Program for Resistance to ‘Genocidal Law’”, in René Provost & Payam Akhavan, eds, Confronting Genocide (New York: Springer, 2010) at 212. 

Mark Pygas, "10 Valiant Diplomats Of World War II" Listverse (7 October 2013), online: http://listverse.com/2013/10/07/10-valiant-diplomats-of-world-war-ii/

James C Scott, Domination and the Arts of Resistance: Hidden Transcripts (New Haven: Yale University Press, 1990).

Sousa Mendes Foundation website, online: http://sousamendesfoundation.org/

JT, "10 People Who Saved Jews During World War Two" Listverse (6 November 2008), online: http://listverse.com/2008/11/06/10-people-who-saved-jews-during-world-war-two/

Douglas Wheeler, "And Who Is My Neighbor? A World War II Hero of Conscience for Portugal" (1989) 26:1 Luso-Brazilian Review 119. 

Cross-posted at the Resistance and the Law blog site - http://resistanceandthelaw.blogspot.ca/2016/08/diplomatic-resistance-and-saving-of.html

Can Human/People Smuggling Be Qualified As A Humanitarian Act? - A Question Revisited

Roughly two years ago, I published a post entitled "Can Human/People Smuggling Be Qualified As A Humanitarian Act" Close to a year and a half later, in November 2015, the Supreme Court rendered a decision concerning whether those engaged in people smuggling for humanitarian reasons were inadmissible for refugee status under Canadian law.  In B010 v Canada (Citizenship and Immigration), the Court flatly rejected the notion that asylum-seekers who provided humanitarian and mutual assistance to others seeking refuge were deemed inadmissible under the Immigration and Refugee Protection Act (IRPA).

In B010, the Court was called upon to interpret Section 37(1)(b) of the IRPA and specifically "people smuggling". The provision states: "A permanent resident or a foreign national is inadmissible on grounds of organized criminality for...engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or money laundering." 

Before continuing, it's worth addressing the factual context of the judgment. Although indexed as B010 v Canada (Citizenship and Immigration), the decision concerned four separate appeals. One applicant (Jesus Rodriguez Hernandez) was a Cuban asylum-seeker who previously co-purchased a boat to smuggle 48 other Cubans into the United States. He was subsequently convicted of alien smuggling by the United States Government and served time before having fled to Canada to seek asylum. The majority of the other applicants (B010, J.P., G.J., and B306)  discussed in the B010 decision were Tamil asylum-seekers fleeing Sri Lanka and who landed in Canada aboard the Sun Sea, a cargo ship. Shortly after departing Thailand, the Sun Sea's crew members abandoned ship. The passengers were left to their own devices in reaching Canada over a period of 3 months with limited food supplies. In helping to bring the ship to Canada, the applicants were deemed inadmissible by the Immigration and Refugee Board (IRB) for having engaged in "people smuggling" in connection with the other passengers who were asylum-seekers too. 

The IRB's rather capacious interpretation of "people smuggling" was supported by the federal court of appeal, but ultimately rejected, and unanimously so by a 7-justice panel of the Supreme Court of Canada.

Written by the Chief Justice, the Court first undertook a textual analysis. It determined that the words "people smuggling" read alone could include conduct motivated by humanitarian concerns. However, when "people smuggling" intersects with transnational organized criminality under s.37(1)(b) of the IRPA, the Court asserted that "people smuggling" cannot be read to include non-organized individual criminality. 

A substantial portion of the Court's attention was devoted to a contextual analysis of s.37(1)(b) within the framework of the overall statutory scheme. First, the Court observed that the overall focus of s.37 concerns organized criminal activity. Second, in interpreting what constituted organized criminal activity, the Court examined the concept of "criminal organization" as defined in the Criminal Code. With respect to a "criminal organization", the Code expressly requires that those involved in such entities pursue a financial or other material benefit. While acknowledging that "organized criminality" in the IRPA and "criminal organization" in the Criminal Code are not identical terms, the Court concluded, nevertheless, that there was a sufficient nexus to justify a consistent interpretation between the two statutory terms. 

The Court then turned its attention to the legislative history which indicated that "organized criminality" (in the IRPA) and "criminal organization" (in the Criminal Code) were both framed to account for international agreements regarding transnational organized crime to which Canada was a party. These international instruments included the United Nations Convention against Transnational Organized Crime and the Protocol against the Smuggling of Migrants by Land, Sea and Air [Smuggling Protocol]. Of particular significance to s.37(1)(b) is the portion of article 6 of the Smuggling Protocol which is directed at the prohibition of smuggling “in order to obtain, directly or indirectly, a financial or other material benefit”. 

The Court also assessed that an interpretation of "people smuggling" that was limited to instances motivated by securing financial gain or other material benefit was consistent with article 31 of the 1951 Refugee Convention which expressly prohibits the imposition of penalties on refugees on account of their illegal entry or presence.

As part of the final stage of the Court's analysis, it examined Parliament's purpose in passing the provision. Drawing from the various sources mentioned above and in other portions of the decision, the Court concluded that it was not Parliament's intent to "render refugees inadmissible under s. 37(1)(b) solely for providing mutual assistance to others in the course of their own illegal entry."

In summarizing its analysis, the Court stated at paragraph 72:

The wording of s. 37(1)(b), its statutory and international contexts, and external indications of the intention of Parliament all lead to the conclusion that this provision targets procuring illegal entry in order to obtain, directly or indirectly, a financial or other material benefit in the context of transnational organized crime. To justify a finding of inadmissibility against the appellants on the grounds of people smuggling under s. 37(1)(b), the Ministers must establish before the Board that the appellants are people smugglers in this sense. The appellants can escape inadmissibility under s. 37(1)(b) if they merely aided in the illegal entry of other refugees or asylum-seekers in the course of their collective flight to safety.

This was undoubtedly an important development in the interpretation of s.37(1)(b). Yet, there are two aspects left unclear following this decision. First, while people smuggling requires that the smuggler be motivated by financial or other material gain, much of the focus appears to be on the circumstances of the Sun Sea applicants where they "merely aided in the illegal entry of other refugees or asylum-seekers in the course of their collective flight to safety." Later, the Court states: "I conclude that a migrant who aids in his own illegal entry or the illegal entry of other refugees or asylum-seekers in their collective flight to safety is not inadmissible under s. 37(1)(b)" (emphasis added). 

Yet what of the individual who is not a fellow passenger rendering mutual assistance, but rather someone who actively assists others - for humanitarian reasons - to illegally enter foreign territory and seek refugee status (as was the case with Hernandez mentioned above)? Furthermore, let us assume that such an individual does so more than once with goal of aiding others as opposed to doing so on one occasion. Should such conduct be captured within the term "people smuggling" and lead to inadmissibility? Drawing from the Court's analysis, one can reasonably argue that persons who engage in people smuggling for purely humanitarian reasons (but not for mutual assistance to other asylum-seekers) should be protected.

It is possible that the Court's focus on fellow asylum-seekers providing mutual assistance to unlawfully enter Canada arises from the particular factual circumstances of the Tamil applicants discussed in the decision. As part of the Court's analysis, it stated that "the words “transnational crime” cannot be read as including non-organized individual criminality." Furthermore, in drawing from the Criminal Code, a criminal organization consists of three or more persons engaged in criminal activity and "has as one of its main purposes or main activities the facilitation or commission of one or more serious offences that, if committed, would likely result in the direct or indirect receipt of a material benefit, including a financial benefit, by the group or by any of the persons who constitute the group."

Drawing from these passages, it stands to reason that the individual or individuals who engage in "humanitarian" smuggling on perhaps more than one occasion might still be able to elude inadmissibility under s.37(1)(b). Yet, it would have been helpful had the Court been more explicit on this point. Hernandez's case could have provided a good illustration of such humanitarian-based people smuggling. However, the Court observed that Hernandez was otherwise inadmissible under s.36 of the IRPA and as such did not address this larger point about strictly humanitarian but not mutual assistance in his case.    

A second and arguably persistent problem that the Court failed to address, as pointed out by Dr. Paul Daly, was the issue of the appropriate standard of review. The Court simply indicated that by virtue of the decision not falling within a reasonable range of outcomes, there was no need to undertake a standard of review analysis. In recent years, much of the analysis has focused on the nature of the question - here a question of law. On the face of it, the provision is contained within the IRB's home statute - the IRPA - and would typically fall within the Board's expertise to interpret it in accordance with the Court's jurisprudence. Furthermore, unlike the Refugee Convention which is expressly referred to in the IRPA, s.37(1) does not explicitly refer to the international instruments upon which it is based. This being said, it is clear from the B010 decision that s.37(1)(b) and other inadmissibility provisions apply to refugee applicants and thus impact on their right to protection under the Refugee Convention as implemented through s.96 of the IRPA. An argument could be made that an interpretation of s.37(1)(b) calls for consistency, and thus a correctness standard is warranted.

As I have expressed in an earlier post, issues concerning the standard of review in the context of refugee cases have remained unresolved. This is even where the provisions of Refugee Convention itself are in play. Though the Court has interpreted portions of articles 1F(a) and (b) in recent years (see here and here), it was reluctant to undertake a standard of review analysis let alone clearly state what standard of review it was applying. In those cases, it looked, arguably, as if the Court were applying a correctness standard. Ultimately, the Court is holding its cards close to its chest on this matter. Hopefully, the "right" case will come along where the Court will provide some illumination on this matter. 

The B010 decision was an important step in the right direction. But as argued above, there is room for greater clarity and hopefully subsequent decisions will provide this.  

"On Narco-coyotaje: Illicit Regimes and Their Impacts on the US–Mexico Border" by Jeremy Slack and Howard Campbell

Jeremy Slack and Howard Campbell have written an interesting article entitled: "On Narco-coyotaje: Illicit Regimes and Their Impacts on the US–Mexico Border". The article will appear in a forthcoming issue of Antipode but is available here.  The following is an abstract:

Many have debated whether or not human smugglers, known as coyotes, are involved with drug trafficking organizations. Scholars have largely rejected so-called “narcocoyotaje”, however; we hope to problematize this narrative by adding a new theoretical layer to the discussion. Namely, we explore the ways in which different criminal activities produce hierarchies and control illicit activities within the clandestine geography of the US–Mexico border. These “illicit regimes” operate against the State, creating a hierarchy that dominates other illicit activities in order to maximize profit, avoid detection and consolidate power. While other studies have explored the relationships between the State and illicit practices this article takes the relationship between two illicit industries as its object of study. Doing so will help us move past the simply binary question about whether or not coyotes are involved with drug cartels, and allows us to understand what is being produced by this relationship, and its consequences for everyone involved.

 

Targeting the Habitual Drunkard - The Case of Ledezma-Cosino v Lynch (9th Cir. 2016)

Does being a “habitual drunkard” mean that one lacks good moral character? You may be wondering how this question relates to migration or the law? After all, being a habitual drunkard, in and of itself, does not typically give rise to a violation of the law. 

The issue recently arose in a decision released on March 24, 2016 by the United States Court of Appeals for the 9th Circuit (“the court” or “the 9th Circuit”). In Ledezma-Cosino v Lynch, the non-citizen applicant was subject to possible removal (i.e. deportation) proceedings. Although conceding his eligibility for removal, Ledezma-Cosino sought two forms of discretionary relief to escape such fate - (1) cancellation of removal; or (2) in the alternative, voluntary departure. The former allows an individual to remain in the United States while the latter would permit, among other benefits, the possibility of re-admission. However, there's a catch. Such discretionary relief is unavailable for those lacking good moral character. Congress dutifully provided a list of examples where someone lacked such character under 8 USC §1101(f). The first among that list is someone who is a habitual drunkard. 

The Immigration Judge who heard the matter in the first instance concluded, among other reasons, that Ledezma-Cosino was ineligible for the requested relief on account of his being a habitual drunkard. Focusing solely on this reason, the Board of Immigration Appeal affirmed the Immigration Judge's decision. Ledezma-Cosino appealed to the 9th Circuit. 

Before the court, Ledezma-Cosino argued that the statutory bar against habitual drunkards violated both the due process and the equal protection clauses of the 14th Amendment of the United States Constitution. Though the court quickly dispensed with the due process argument, it held that the provision in question violated Ledezma-Cosino's right to equal protection. Specifically, the court determined that the impugned classification (“habitual drunkard”) failed to have a rational connection to a legitimate state interest. It asserted: “The absence of a rational relationship between a medical disease and bad moral character therefore renders any classification based on that relationship a violation of the Equal Protection Clause.” Phrased another way, it was irrational for the government to contend that people suffering from chronic alcoholism were morally blameworthy persons solely because of this disease.

The government sought to escape this connection by mounting several questionable positions, which the court rejected at each turn. First, the government argued that the legislation does not exclude a person based on any status but rather on manifested symptoms (habitual and excessive drinking). The court quickly rejected this distinction articulating that: “A statute targeting people who habitually and excessively drink alcohol is, in effect, targeting individuals with chronic alcoholism.” This is like arguing that anti-sodomy laws did not target gay people for being gay but only sexual behaviour they engaged in with someone of the same sex.

 

Second, the government claimed that people suffering from alcoholism were morally blameworthy because they simply lacked the motivation to overcome their disease, thus justifying the denial of relief. In rejecting this argument, the court articulated that this inability to overcome their illness was an old trope refuted by medical literature - namely that the inability to stop drinking was a function of the underlying ailment. The court didn't stop there but characterized the government's opposition to the medical evidence as having “deplorable, troubling, and wholly unacceptable implications.” If one were to take the government's arguments to their logical conclusion, the court stated that many veterans suffering from post-traumatic stress disorder and chronic alcoholism would be deemed to be of bad moral character. 

Third, the government argued that bad moral character flowed from alcoholism by virtue of the increased risk of violent crime and self-harm. The court rejected the argument by first addressing that those who harm themselves or commit suicide do not show poor moral character. In addition, any links between alcoholism and violence the court determined similarly failed to demonstrate bad moral character. By analogy, the court observed that while there is a recognized higher risk of incidence of violence as well as self-harm by those who had bi-polar disorder, no one would argue that people with that disorder would be deemed as being of bad moral character because of the risks associated with that condition. 

Lastly, the government made one last ditch effort to maintain the legitimacy of the law by turning to history. Namely, it argued that habitual drunkards have been targeted through legislation as a way of protecting society since the country's infancy. The court dismantled this position noting that what history demonstrates is a clear animus against chronic alcoholics and those suffering from mental illnesses. Drawing from precedent, the court observed that animus (rooted in history) does not satisfy a legitimate state interest. Near the end of its judgment, the court posited: “We have...been taught through the passage of time that classifying alcoholics as evil people, rather than as individuals suffering from a disease, is neither rational nor consistent with our fundamental values.”

The case highlights but one instance of discrimination that those with disabilities experience in the immigration process. This experience is by no means limited to the United States - indeed there is a long history of excluding disabled persons in other countries, including Canada. While Ledezma-Cosino is situated within the framework of removal proceedings, many face discrimination in other immigration contexts. Immigration policies are often constructed from an ableist perspective and with the view that a disabled person will be a drain on the host country. A person may be denied entry altogether (even for vacation) because, for example, a past history of depression requiring hospitalization. Even where a person has been permitted entry for work purposes and has demonstrated their value to the country, they may be denied a subsequent visa or request for permanent residency due to the perceived economic burden of a disabled child on the state. This has occurred in Australia and Canada. The antipathy toward those with a disability can also transpire where a foreign parent, who while residing in Canada, seeks to sponsor and bring their disabled child into the country. It may make little difference that an individual's actual or potential costs are or will be covered by private insurance or other funding. 

  

If discrimination on the basis of a disability is to be truly seen as prohibited, nations should strongly consider the appropriateness of permitting such discrimination against those seeking entry or to remain in a host country. As scholar-activist Kim Sauder argues: “It’s a little hard to argue that we [as disabled persons] are valued members of society when people are being excluded from the country for being like us.” 

The Protection Paradox: Why Hasn’t the Arrival of New Media Transformed Refugee Status Determination? By Rosemary Byrne

The International Journal of Refugee Law published an article by Rosemary Byrne entitled: "The Protection Paradox: Why Hasn’t  the Arrival of New Media Transformed  Refugee Status Determination?"

The article is currently available for download for free here. 

The abstract for the article is as follows:

The arrival of new media and communications technology has given rise to a protection paradox for refugees. In principle, it should enhance protection for asylum seekers by developing a more informed RSD process. Instead, it can be argued to have decreased protection for some, as the omnipresence of electronic information is accompanied by a demand in domestic asylum systems for increasingly detailed corroborative evidence to support the particulars of individual claims which many asylum seekers are ill equipped to provide, and that decision makers are disinclined, or insufficiently trained, to assess. In exploring the underlying dynamics of this paradox, this article examines the intersection between new media and the evidentiary regime for refugee protection that is gradually developing in lieu of a dramatic transformation of RSD. It argues that the democratization of human rights documentation and the arrival of new technologies and actors gives rise to novel forms of evidence and a different type of asylum seeker, introducing electronic evidence (e evidence) and the electronic dissident (e dissident) into RSD. The implications of e evidence and e dissidence for RSD include: an emerging duty to corroborate e documentation in protection cases; a need to consider the effect of the cyberactivity by decision makers (the ‘googling judge’) and asylum claimants outside of the RSD process, on disclosure and the admission of evidence within the assessment process; and, the knowledge to evaluate the risk of e dissidence and the changing features of sur place claims in the era of instant on-line dissent. The protection paradox could be diminished when the potential of new media to transform RSD is realized by realigning the approach to e evidence in the asylum process with the advanced practices developed across human rights sectors in the creation, filtering, assessment, and preservation of e evidence.