Manufacturing “Terrorists”: Refugees, National Security, and Canadian Law

Refuge

Volumn 19, Issue 3, 2001, Pages 54-73

  Aiken, Sharryn J ^a  

^a YORK UNIVERSITY   (Canada)

Author keywords

admissibility; Canada; human rights; Immigration Act; law; national security; refugees; terrorism

Indexed keywords

EID: 85134535591     PISSN: 02295113     EISSN: 19207336     Source Type: Journal    
DOI: 10.25071/1920-7336.21205     Document Type: Article

References (170)

1. J. Zulaika and W. Douglas, Terror and Taboo (New York: Routledge, 1996) at x, xi, 16.
2. O. Elagab, International Law Documents Relating to Terrorism, 2nd ed. (London: Cavendish Publishing Limited, 1997) at xx.
3. The words terrorism and terrorist are placed within quotation marks throughout this paper in recognition of their meaning-lessness as a legal category.
4. T.H. Mitchell, “Defining the Problem” in D.A. Charters, ed., Democratic Responses to International Terrorism (New York: Transnational Publishers, 1991) at 10.
5. T.H. Mitchell, “Defining the Problem” in D.A. Charters, ed., Democratic Responses to International Terrorism (New York: Transnational Publishers, 1991), at 11.
6. CSIS, “Trends in Terrorism,” Report #2000/01, 18 Dec. 1999 at 2; and Report of the Special Senate Committee on Security and Intelligence (Kelly Committee), January 1999 c.1 at 2.
7. Kelly Committee, ibid., c.1 at 14.
8. B. Gorlick, “The Exclusion of ‘Security Risks’ as a Form of Immigration Control: Law and Process in Canada” (1991) 5:3 Immigration and Nationality Law and Practice 76.
9. See P. Shah, “Taking the ‘Political’ out of Asylum: The Legal Containment of Refugees’ Political Activism” in F. Nicholson and P. Twomey, eds., Refugee Rights and Realities (Cambridge: Cambridge University Press, 1999) 119-135.
10. R. Whitaker, “Refugees: The Security Dimension” (1998) 2:3 Citizenship Studies 413 at 427.
11. R. Whitaker, “Refugees: The Security Dimension” (1998) 2:3 Citizenship Studies at 430.
12. Institutional racism can manifest in the form of explicitly racist policies in which the state directly reinforces racist biases in society, or it can be found in systemic form (“systemic racism”) concealed in systems, practices, policies, and laws that appear neutral and universalistic, but disadvantage racialized persons. The Commission on Systemic Racism in the Ontario Criminal Justice System noted that racism has “a long history in Canada.” While the focus of the provincial study was the criminal justice system, the commissioners emphasized that “[r]acism has shaped immigration to this country and settlement within it … ” An examination of Canadian immigration law and policy from historical and contemporary perspectives requires an analysis of racism as a defining feature of Canadian society. Report of the Commission on Systemic Racism in the Criminal Justice System (Ontario: Queen’s Printer, 1995); Stephen Lewis Report on Race Relations in Ontario (Ontario: Queen’s Printer, 1992).
13. In a meeting between representatives of the Canadian Council for Refugees (ccr) and the Senior Director for Security Review with the Department of Citizenship and Immigration (cic), cic acknowledged that some Kosovars had joined the kla because it was “the only way to protect themselves and their fami-lies;” and that in such circumstances the individuals were not declared inadmissible. (Montreal,12 September 2000).
14. Canadian Council for Refugees, Report on Systemic Racism and Discrimination in Canadian Refugee and Immigration Policies, in preparation for the un World Conference on Racism, Racial Discrimination, Xenophobia and Related Intolerance, 1 Nov. 2000 .
15. H. Bannerji, The Dark Side of the Nation (Toronto: Canadian Scholars’ Press, 2000) at 115. See also, D. Matas, “Racism in Canadian Immigration Policy” in C. James, ed., Perspectives on Racism and the Human Services Sector (Toronto: University of Toronto Press, 1996); L. Jakubowski, “Managing Canadian Im-migration: Racism, Ethnic Selectivity, and the Law” in E. Comack et al., Locating Law, Race/Class/Gender Connections (Halifax: Fernwood Publishing, 1999); A. Simmons, “Racism and Immigration Policy” in V. Satzewitch, ed., Racism and Social Equality in Canada (Toronto: Thompson Educational Pub-lishing, 1998).
16. For an excellent account of one such interview/interrogation experienced by Suleyman Goven, a Kurdish refugee from Tur- key, see M.J. Leddy, At the Border Called Hope (New York: Harper Collins, 1997) at 76-82; and the recent conclusions of the Security Intelligence Review Committee (sirc), discussed infra, In the Matter of the Complaints under the Canadian Security Intelligence Service Act by S.G. and S.D., SIRC File Nos. 1500-82, 83,7 April, 2000, in which the Committee upheld two com-plaints, recommending in particular the need for Canadian Security Intelligence Service (csis) officials making assessments to develop a more sophisticated analytic framework, the enti-tlement of the applicant to written notice of the date and time of the interview, its purpose, and the fact that the applicant has the right to attend with counsel (at 31). Mr. Goven’s complaint was one of three immigration security screening complaints on which sirc rendered decisions in 2000. In the wake of sirc’s findings in these three cases, a new policy has been adopted that will provide applicants two to eight weeks’ written notice of the interview by a convocation letter specifying that the interview will be with a csis employee. See sirc Annual Report, 1999-2000 at 82, footnote, 33 .
17. In the past year csis conducted 81,650 immigration security screening assessments, of which 109 contained notification that the individual “is or was” a member of an inadmissible class as defined in s. 19(1) of the Immigration Act. sirc Annual Report 1999-2000, ibid., at 36. The number of individuals subsequently subject to security certificate procedures or left in legal limbo due to inaction on the part of cic is not published. However, a cic official recently indicated that there are approximately 250 security cases pending with the department, of which 150, or 60 per cent, are Convention refugees within Canada, a further 20 per cent are overseas applicants, and 20 per cent are non-refugee cases. Supra note 10.
18. J.J. Paust et al., “Terrorism” in International Criminal Law: Cases and Materials, 2nd ed. (Durham, N.C.: Carolina Academic Press, 2000) at 999-1000.
19. See P. St. John, “Counterterrorism Policy Making: The Case of Aircraft Hijacking, 1968-1988” in D.A. Charters, ed., supra note 4 at 73-77.
20. N.J. Schrijver, “Interpreting the Principles and Purposes of the United Nations” in P.J. van Krieken, ed., Refugee Law in Con-text: The Exclusion Clause (The Hague: T.M.C. Asser Press, 1999) 237 at 244. See also, Reference Re Secession of Québec [1998] 2 S.C.R. 217.
21. R. Higgins, “The General International Law of Terrorism” in R. Higgins and M. Flory, eds., Terrorism and International Law (London: Routledge, 1997) at 16.
22. Mitchell, supra note 4 at 14. Several years later, members of the Ad Hoc Committee on International Terrorism drew attention “to the unacceptability of a broad interpretation of the concept of international terrorism which would include the national liberation struggle, acts of resistance against the aggressor in territories occupied by the latter and demonstrations by workers who were opposed to exploitation.” Report of the Ad Hoc Committee on International Terrorism, ch. 2, Summary of the General Debate, UN Doc. A/34/37 (1979), para. 16; and see paras. 30-31.
23. U.N.G.A. Res. 53/108, 26 Jan. 1999 at para. 1. See U.N.G.A. Res. 3034, 18 Dec. 1972; UN G.A. Res. 44/29, 6 Dec. 1989; U.N.G.A. Res. 46/51, 9 Dec. 1991, UN Doc. A/46/54; and the Declaration on Measures to Eliminate International Terrorism, annex to UN G.A. Res. 49/60, 9 Dec. 1994, which states, inter alia, that “crimi-nal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstances unjustifiable, whatever the considerations of political, philosophical, ideological, racial, ethnic, religious or any other nature that may be invoked to justify them.” See also Measures to Eliminate International Terrorism, UN G.A. Res. A/51/631, 4 Dec.1996; and UN G.A. Res. A/51/210, 16 Jan. 1997.
24. The eleven Conventions include: the Tokyo Convention on Offenses and Certain Other Acts Committed on Board Aircraft, 1963; the Hague Convention for the Suppression of the Illegal Seizure of Unlawful Acts against the Safety of Civil Aviation, 1970; the Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, 1971; the Protocol to the Montreal Convention for the Suppression of Unlawful Acts of Violence at Airports serving Civil Aviation, 1988; the International Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, 1973; the International Convention against the Taking of Hostages, 1979; the Rome Convention on the Suppression of Unlawful Acts against the Safety of Maritime Navi-gation, 1988; the Protocol on the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continen-tal Shelf, 1988; the Montreal Convention on the Marketing of Plastic Explosives for the Purpose of Detection, 1991; the International Convention for the Suppression of Terrorist Bomb-ings, 1998; and the International Convention for the Suppression of the Financing of Terrorism, 1999. Two instruments, while not directed expressly at terrorism, are also relevant: the Convention on the Prohibition on the Development, Production, and Stockpiling of Bacteriological (Biological) and Toxic Weap-ons and on Their Destruction, 1972; and the Vienna Convention on the Physical Protection of Nuclear Material, 1980.
25. See OAS Convention to Prevent and Punish Acts of Terrorism Taking the Form of Crimes against Persons and Related Extortion that Are Internationally Significant, 1971, which avoids defining terrorism in favour of an enumerated list of “common crimes of international significance” that includes “kidnapping, mur-der, and other assaults against the life or personal integrity of those persons to whom the State has the duty to give special protection … as well as extortion in connection with those crimes” (art. 2). Art. 6 indicates that “[n]one of the provisions of this convention shall be interpreted so as to impair the right of asylum.” See also, European Convention on the Suppression of Terrorism, 1977; European Communities, Agreement Concerning the Application of the European Convention on the Suppression of Terrorism among Member States, 1979; saarc Regional Convention on the Suppression of Terrorism, 1987.
26. A draft text proposing that inclusion of “crimes of terrorism” within the parameters of the Court’s jurisdiction was not adopted. In addition to listing offences under the major un terrorism treaties, the text indicated that the Court would have jurisdiction over “Undertaking, organizing, sponsoring, order-ing, facilitating, financing, encouraging or tolerating acts of violence against another State [emphasis added] directed at persons or property and of such a nature as to create terror … for whatever considerations and purposes … ” Preparatory Committee on the Establishment of an International Criminal Court 11-21 Feb. 1997, Working Group on Definition of Crimes, UN Doc. A/AC.249/1997/WG.1/CRP.4 at para.1.
27. One hundred and twenty states voted in favour of the establishment of the icc, and twenty-two of the sixty states required for the Statute to enter into force have ratified it. Canada signed the Rome Statute in December 1998 and ratified it on 7 July 2000. See . The Rome Statute is the most current codification of a universal approach to combating serious international crimes. See . Within the ambit of “war crimes,” defined in Article 8, are wilful killing, torture, taking of hos-tages, intentionally directing attacks at civilian populations or civilian objects, and attacking or bombarding undefended towns or buildings. The Statute sets a higher threshold for crimes committed in internal wars, stating the Court’s jurisdiction extends only to acts that take place in a state where there is a “protracted armed conflict between government authorities and organized armed groups or between such groups.”
28. See Rome Statute, art. 25(3) “Individual Criminal Responsibil-ity,” art. 28, “Responsibility of Commanders and Other Superi-ors,” and art. 30, “Mental Element”; See also Report of Preparatory Commission for the icc, Finalized Draft Text of the Elements of Crimes, PCNICC/2000/INF13/Add.2,; and the decision of the International Criminal Tribunal for the Former Yugoslavia in Prosecutor v. Tadic, which gave extensive consideration to the question of criminal responsibility, Opinion and Judgment. Case No. IT-94-1-T, 7 May 1997, paras. 688-692.
29. The g8 (Group of 8) countries are Canada, France, Germany, Japan, Italy, Russia, the U.K., and the U.S.A.
30. Measures adopted during the g7/p8 Ministerial Conference on Terrorism, Paris, June 1996, as cited E. Chadwick, “Terrorism and the Law: Historical Contexts, Contemporary Dilemmas, and the End(s) of Democracy” (1997) 26 Crime, Law and Social Change 329 at 330, and sirc Annual Report 1999-2000, Section 1 n.6.
31. P. Webster and I. Brodie, “G7 Vow to Pursue Terrorists,” The Times, 27 June 1996 at 14. Ironically, the United States has refused to sign the 1998 Convention for the Suppression of Terrorist Bombings.
32. Criminal Code, ss. 76, 77, 78, 78.1. Until this year, s. 7 of the Criminal Code stipulated that in cases where the alleged acts were committed outside Canada, prosecutors had to prove an offence under international law as well as an equivalent offence in the Code. This was one of the reasons that prosecution of World War ii war criminals has been difficult, particularly after the Supreme Court’s ruling in R. v. Finta [1994] 1 S.C.R. 701.
33. The Crimes against Humanity Act, R.S.C. 2000 c. 24, imple-ments Canada’s obligations under the Rome Statute. It amends, inter alia, the Criminal Code by replacing the jurisdictional provisions of s. 7 with the actual offences of genocide, crimes against humanity, and war crimes, enhancing the government’s capacity to prosecute and punish persons accused of these crimes. This Act closes the technical loophole left in the wake of the Supreme Court’s ruling in Finta.
34. In response to what many scholars have described as a “very modest terrorist threat,” the Canadian government proclaimed the War Measures Act, which gave the police sweeping powers to arrest and detain anyone suspected of association with the flq. The use of these powers was widely criticized at that time and “has come to be regarded as a heavy-handed overreaction.” W.M. Vaughn, “Canadian Reason of State: Terrorism, Emer-gency Powers, and Civil Liberties” in D.A. Charters, ed., supra note 4 at 165.
35. As discussed in A. Cassese, Terrorism, Politics and Law (Princeton, N.J.: Princeton University Press, 1989) at 121-123.
36. J.J. Paust et al., supra note 19 at 1020.
37. See R. Slater and M. Stohl, “Introduction” in R. Slater and M. Stohl, eds., Current Perspectives in International Terrorism (New York: Macmillan, 1988) at 1-11; A.P. Schmid and R.D. Creliston, Western Responses to Terrorism (London: Frank Cass, 1993) at 11; and P.P. Heymann, Terrorism and America (Cambridge: MIT Press, 1998) at 3-9.
38. A.P. Schmid and A.J. Jongman, Political Terrorism: A New Guide to Actors, Concepts, Data Bases, Theories and Literature (New Brunswick, N.J.: Transaction Books, 1988) at 1-38.
39. J.F. Murphy, “The Need for International Cooperation in Combatting Terrorism” (1990) 13 Terrorism: An Int’l. J. 381, quot-ing W. Lacqueuer (citation omitted).
40. J. Lambert, “The Problem of International Terrorism and the Response of International Organizations” in P.J. van Krieken, Refugee Law in Context: The Exclusion Clause” (The Hague: T.M.C. Asser Press, 1999) at 177.
41. W. Lacqueur, ed., The Terrorism Reader (1979) at 262, and W. Lacqueur, ed, The Age of Terrorism (1987) at 11, as cited in J. Lambert, “The Problem of International Terrorism and the Response of International Organizations” in P.J. van Krieken, ibid., at 177.
42. G. Levitt, “Is ‘Terrorism’ Worth Defining?” (1986) 13 Ohio N.U.L. Rev. 97.
43. R. Higgins, supra note 23 at 28.
44. J. Borricand, “France’s Responses to Terrorism” in R. Higgins and M. Flory, eds., supra note 23 at 145.
45. Zulaika and Douglas, supra note 1 at 96-99.
46. N. Chomsky, Necessary Illusions: Thought Control in Democratic Societies (Concord, Ontario: House of Anansi Press Limited, 1991) at 287; and see ———, The Culture of Terrorism (London: Pluto Press, 1988); ———, Pirates and Emperors (Montreal: Black Rose Books, 1991). In a similar critique, Said notes that the terms fundamentalism and terrorism “ … signify moral power and approval for whoever uses them, moral defensive-ness and criminalisation for whomever they designate.” E. Said, Culture and Imperialism (London: Chatto and Windus, 1993) at 375.
47. E. Herman and G. O’Sullivan, The Terrorism Industry: The Experts and Institutions that Shape Our View of Terror (New York: Pantheon Books, 1990) at 218-219.
48. R. Falk, Revolutionaries and Functionaries: The Dual Face of Terrorism (New York: E.P. Dutton, 1988) at 164.
49. “Colombo Hails Ban on the ltte,” The Hindustan Times, 10 Oct. 1997. A few months later, in January 1998, the Sri Lankan government formally outlawed the ltte.
50. E. Chadwick, Self-Determination, Terrorism and the International Humanitarian Law of Armed Conflict (The Hague: Martinus Nijhoff Publishers, 1996) at 120.
51. E. Chadwick, Self-Determination, Terrorism and the International Humanitarian Law of Armed Conflict (The Hague: Martinus Nijhoff Publishers, 1996), at 3.
52. Wilkinson suggests that “there should be no special privileges or discrimination in favour of those who plead political mo-tives for their crimes of violence. According terrorists special status only serves to legitimise and perpetuate their own self-perception as ‘freedom fighters’ … ” P. Wilkinson, “The Strate-gic Implications of Terrorism” in M.L. Sondhi, Terrorism and Political Violence, A Sourcebook (India: India Council of Social Science Research, Har-Anand Publications, 2000); and see ———, Terrorism and the Liberal State, 2nd ed. (London: Macmillan, 1986). For an analysis of the “terrorism industry,” its links with Western governments, and the scholarship that sustains it (in-cluding the work of Wilkinson), see Herman and O’Sullivan, supra note 50.
53. None of the international instruments that identify the rights inhering in “peoples” actually define the term, thereby provid-ing no guidance on which “peoples” are entitled to self-deter-mination. In the early years of the un states attempted to re-strict the interpretation of the term in the interest of preserv-ing territorial units. Scholars now suggest that the term peoples has evolved to mean groups that share common political goals, a will to live together, and clear ethnic and/or cultural ties. Chadwick, supra note 53 at 4-5.
54. International humanitarian law (ihl) includes two main branches: the law of war, and limited aspects of human rights law. It is principally concerned with jus in bello, that is, the rules applicable during armed conflicts, governing the conduct of hostilities and the protection of persons affected by the con-flict. The primary treaty instruments that codify these rules are the four 1949 Geneva Conventions for the Protection of War Victims and the 1977 Protocols i and ii Additional to the Geneva Conventions of 1949. The Geneva Conventions are considered customary, as are parts of the 1977 Additional Protocols. International law also addresses jus ad bellum, that is, the rules governing resort to force. See A. McDonald, “Introduction to International Humanitarian Law and the Qualification of Armed Conflicts” in P.J. van Krieken, ed., supra note 42.
55. See International Educational Development/Humanitarian Law Project, Written Statement Submitted to the un Commission on Human Rights, 53rd Session (1997), which addressed the question of the status of the ltte in Sri Lanka. The brief em-phasized: “[a] fundamental principle is that combatants in a war are entitled to combatant status … this status is inconsist-ent with a label of ‘terrorist.’ A terrorist has neither combatant status nor the right to engage in combat.” at para. 5.
56. C. Greenwood, International Humanitarian Law (Laws of War): Revised Report for the Centennial Commemoration of the First Hague Peace Conference 1899, May 1999, at para. 3.10.
57. Whether a conflict is characterized as international or internal is relevant for two reasons: In an international conflict there is a right to armed resistance; there is also concomitant responsi-bility, as all violations of ihl will be subject to prosecution as universal jurisdiction offences. The traditional approach to the classification of conflict focuses on the technical status of the parties, while another approach has developed that focuses on the general process of armed conflict and the presence of vari-ous “internationalizing” elements. Subject to some interpretive debate, an internal conflict becomes international when a “peo-ple” face conditions of colonialism, alien occupation, or rac-ism, or the non-state party is recognized as a belligerent (either outside the state or by the established government), or a foreign state participates in the armed conflict. Many states will resist characterizing a liberation group as a “people” and their struggle as an “international” conflict, as it represents an incursion on sovereignty. As noted by Chadwick, a series of successful liberation wars has “led to alterations in common under-standing regarding which ‘Peoples’ are entitled to assert claims for self-determination, and to use force to achieve their rights.” Chadwick, supra note 53 at 4, 64.
58. As an expert witness in a Canadian immigration security case, discussed infra, Falk characterized the right of self-determination as “an emerging norm of customary international law that de-pends for its clarification and assessment upon the specific context within which the claim is being made.” Minister of Citizenship and Immigration and Solicitor General of Canada v. Suresh, DES-3-95 (T.D.), Transcript vol. 48, 3 Feb. 1997, at 33-34, 43-47; See also, E.P. Syquia, “Dr. Jean Pictet and International Humanitarian Law,” Studies and Essays (The Hague, Boston: Martinus Nijhoff, 1984); T. Meron, “War Crimes in Yugoslavia and the Development of International Law” (1994) 88 AJIL 78; A. Cassese, Self-Determination of Peoples: A Legal Reappraisal (Cambridge: Cambridge University Press, 1995); P. Malanczuk, “Self-Determination and the Use of Force” in P.J. Van Krieken, ed., supra note 42 at 263-278; J.J. Paust et al., supra note 19 at 803-833; Declaration on Principles of International Law and Friendly Relations Among States, 1970; un General Assembly Resolution 3103 (xxviii) 12 Dec. 1973.
59. Article 51 of the Charter of the United Nations, 1945, enshrines the “inherent right of individual and collective self-defence” in the face of armed attacks against member states of the United Nations.
60. Geneva Conventions Act, R.S.C. c. G-3, as am. S.C. 1990, c.14.
61. In proceedings before the un Commission on Human Rights, the government expressed the view that the right of self-determination belonged to indigenous peoples as well as other collectivities and that the right is “ … expanding to include the concept of an internal right for groups living within existing states that respect the territorial integrity of states … ” Statement of the Canadian Delegation to the un Commission on Human Rights, 21 Oct. 1996-1 Nov. 1996.
62. A. Cassese, supra note 37 at 7.
63. A. Cassese, supra note 37 at 123.
64. Terrorist Financing Convention, supra note 26, art. 21.
65. S. Bell, “Canada to Outlaw Fundraising for World Terrorism,” National Post, 30 Dec. 1999.
66. W. Elcock, Submission to the Special Committee of the Senate on Security and Intelligence, 24 June, 1998, at 11.
67. International Convention for the Suppression of Financing of Terrorism, 1999, art. 2 (a).
68. International Convention for the Suppression of Financing of Terrorism, 1999, art. 2.1(b). Hathaway and Harvey suggest that this section may provide a conceptual basis for a more general definition of “terrorism,” a project to which the un General Assembly re-mains committed. J.C. Hathaway and C.J. Harvey, “Framing Refugee Protection in the New World Order” (2001) 34(2) Cornell Int’l L.J. n. 46.
69. The government also has never initiated prosecutions of alleged torturers in the refugee population, despite the specific obligation to do so in the Convention against Torture and the Criminal Code. Denying safe haven through deportation continues to be the government’s preferred strategy.
70. The government also has never initiated prosecutions of alleged torturers in the refugee population, despite the specific obligation to do so in the Convention against Torture and the Criminal Code. Denying safe haven through deportation continues to be the government’s preferred strategy., art.2.1
71. The government also has never initiated prosecutions of alleged torturers in the refugee population, despite the specific obligation to do so in the Convention against Torture and the Criminal Code. Denying safe haven through deportation continues to be the government’s preferred strategy., art.2.5
72. See G.S. Goodwin-Gill, The Refugee in International Law, 2nd ed. (Oxford: Oxford University Press, 1996) at 95-114; S.D. Amarasinha and M. Isenbecker, “Terrorism and the Right to Asylum under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees: A Contradiction in Terms, or Do Opposites Attract?” (1996) 65 Nordic Journal of International Law 223 at 228; and Ramirez v. Minister of Employment and Immigration [1992] 2 F.C. 306 (C.A.), discussed infra, with respect to complicity in the context of refugee exclusion under the Convention (and Canadian law).
73. G.S. Goodwin-Gill, The Refugee in International Law, 2nd ed. (Oxford: Oxford University Press, 1996), art. 14. This limitation, known in extradtion law as the “political offence exception,” is also found in the European Terrorism Convention. For a discussion of the application of the political offence exception in the context of asylum and terror-ism, see. J.C. Hathaway and C.J. Harvey, supra note 71.
74. J.C. Hathaway, The Law of Refugee Status (Toronto: Butter-worths, 1991) at 176-179.
75. D. Stasiulus and N. Yuval-Davis, eds., Unsettling Settler Socie-ties, Articulations of Gender, Race, Ethnicity and Class (London: Sage Publications, 1995) at 23-24.
76. S.C. 1872, 35 Vict. Ch. 28, s.10.
77. S.C. 1910, Edw. VII, ch. 27, s. 41.
78. S.C. 1910, Edw. VII, ch. 27, s. 23.
79. N. Kelly and M. Trebilcock, The Making of the Mosaic: A History of Canadian Immigration Policy (Toronto: University of Toronto Press, 1998) at 181-82, 207-209. See also, D.H. Avery, “Dangerous Foreigners”: European Immigrant Workers and La-bour Radicalism in Canada, 1896-1932 (Toronto: McClelland & Stewart, 1979) at 87; and J. W. St. G. Walker, “Race,” Rights and the Law in the Supreme Court of Canada (Canada: The Osgoode Society for Canadian Legal History and Wilfrid Laurier Press, 1997) at 250.
80. Canada v. Dueck (T.D.) T 938-95 (1998) at n.144. A fascinating record of post-war immigration security procedures is con-tained in this Federal Court decision rejecting the government’s application to revoke Dueck’s citizenship.
81. R.S.C. 1952, ch. 325.
82. R.S.C. 1952, ch. 325, ss. 5 (l), 19 (a).
83. S.C. 1966-67, ch. 90.
84. See A. Brannigan and Z. Lin, “‘Where East Meets West’: Police, Immigration and Public Order Crime in the Settlement of Canada from 1896 to 1940” (1999) 24 Canadian Journal of Soci-ology 87 at 91.
85. nd ed. (Dordrecht, Netherlands: Martinus Nijhoff, 1988). By affording individuals the right to seek and enjoy asylum, the Refugee Convention represents a significant incursion on state sovereignty. However, neither the Convention nor other international instruments impose an unequivocal obligation on states to admit or host refugees. This apparent contradiction is addressed in part through the application of non-refoulement provisions, discussed below.
86. R. Whitaker, supra note 10 at 419-420.
87. S.C. 1976-77, ch. 52.
88. See Immigration Act, ss. 3(f), (d),(i),and (j).
89. Sections 32 and 33 of the Refugee Convention set out the security and public order exceptions to the obligation of non-refoulement, an obligation described as the cornerstone of international refugee protection. See G. Goodwin-Gill, supra note 75 at 167-171. The Convention stipulates that these exceptions must be applied in accordance with “due process of law”—lan-guage that the new Act did not incorporate and thatexisting procedures arguably lack. The Act also failed to incorporate many other protections afforded in the Convention.
90. See excom Conclusions No. 6 (xxviii) on Non-Refoulement and No. 7 (xxviii) on Expulsion (1977). Established in 1951, the functions of the unhcr include the promotion of international standards for the treatment of refugees. Consensus reached by its Executive Committee in annual sessions are expressed in the form of Conclusions. Strictly speaking, these Conclusions are not binding on states, but they comprise a form of “soft law,” which contribute to the development of international refugee law. The unhcr’s interpretation of the exclusion clauses is consistent with the general rule that exceptions to human rights standards should always be interpreted restrictively. Art. 31 of the Vienna Convention on the Law of Treaties 1969 also requires that interpretation be made in “good faith” and in light of a treaty’s object and purpose. See also G. Stenberg, Non-Expul-sion and Non-Refoulement: The Prohibition against Removal of Refugees with Special Reference to Articles 32 and 33 of the 1951 Convention Relating to the Status of Refugees, Swedish Institute of International Law, Studies in International Law, vol. 9 (Uppsala: iustus Forlag, 1989) at 165 and 220-221; and Pushpanathan v. Canada [1998] 1 S.C.R. 982, in which the Supreme Court confirmed that provisions that disentitle a person to human rights protection are to be read narrowly and restrictively. This caution was articulated most recently in unhcr, Comments on Bill c-31, 11 July 2000, available on the website of the Canadian Council for Refugees .
91. As noted by Kiss, national security has a very specific meaning in international law, which is distinct from public safety or or-der. As it is used in the Covenant on Civil and Political Rights to limit specified rights, national security “means the protection of territorial integrity and political independence against foreign forces or threats of force. It would probably justify limitations on particular rights of individuals or groups where the restrictions were necessary to meet the threat or use of exces-sive force. It does not require a state of war or national emer-gency, but permits continuing peacetime limitations, for ex-ample, those necessary to prevent espionage or to protect mili-tary secrets.” A. Kiss, “Permissible Limitations on Rights,” in L.K. Henkin, ed., The International Bill of Rights (New York: Columbia University Press, 1981) at 297.
92. Immigration Act, s. 19(1) (e) and (f).
93. Immigration Act, s. 19(1)(g).
94. Immigration Act, s. 19(1)(j).
95. See S. Aiken, “Racism and Canadian Refugee Policy” (1999) 18:4 Refuge 2.
96. Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police, Freedom and Security Under the Law, Second Report, vol. 2 (Ottawa: Minister of Supply and Services Canada, 1981).
97. Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police, Freedom and Security Under the Law, Second Report, vol. 2 (Ottawa: Minister of Supply and Services Canada, 1981)., at 823.
98. Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police, Freedom and Security Under the Law, Second Report,, vol. 1, at 43-44.
99. Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police, Freedom and Security Under the Law, Second Report, vol. 2 (Ottawa: Minister of Supply and Services Canada, 1981), at 436.
100. Gorlick, supra note 8 at 77.
101. CSIS Act, R.S. 1985, c. C-23, as am. by R.S., 1985 c.1 (4th Supp.). s. 2 (a), (b), (c), (d).
102. See, e.g., M.J. Leddy, supra note 17. 82. See sirc, Annual Report 1997-1998 (Ottawa: Minister of Supply and Services, 1998) at 9-12.
103. SIRC File Nos. 1500–82, 83, supra note 17.
104. Sirc Annual Report 1999-2000, supra note 17, Section 1, at 17.
105. See, A. Thompson, “Not Our policy to Coerce Refugees,” The Toronto Star, 1 May 1998; “More Refugees Come Forward with Claims of csis Threats,” The Toronto Star, 23 April 1998; “Spy Agency Tactic under Fire,” The Toronto Star, 4 April 1998; “How a Spy is Hired: Case of Tamil Refugee Claimant Shines Light on How csis Operates,” The Toronto Star, 20 Jan. 1996. This has been difficult to “prove” for the purposes of formal complaints, as screening interviews are not tape recorded. Certain csis officers have been unable to recall such remarks when subsequently requested to address concerns on the manner in which an interview was conducted. Although complaints of this nature were raised in the cases of S.G. and S.D., the Chair was unable to substantiate them with regard to the complainants themselves. The sirc reports recommended that all security interviews should be recorded and retained until a decision on immigration status is determined by the Department of Citizenship and Immigration. See SIRC File No. 1500–83 supra note 17 at 32.
106. Outlawing an Ancient Evil: Torture, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punish-ment, Initial Report of Canada (Ottawa: Multiculturalism and Citizenship Canada, 1989) at 1. The Committee against Torture is a body of ten experts who are elected by states but serve in their personal capacity to monitor state compliance with the Treaty. Every four years Canada must submit a performance report on measures it has adopted to effect its treaty commit-ments and defend the report before the Committee. Canada submitted in its third report in September 1999, which the Committee evaluated in November 2000. Note that Canada has recognized the Committee’s competence to receive and consider communications alleging violations of the Treaty, from individuals subject to its jurisdiction, as well as other states.
107. Art. 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment states: 1. No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. 2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.
108. The Criminal Code, s. 269, criminalizes torture, defined in the
109. same terms as art. 1 of the cat. The government has suggested
110. that the “post claim review” available to refused refugee claim-
111. ants implements Canada’s obligations under art. 3 of the cat.
112. However, people at risk of torture are not eligible to apply if
113. they never made a refugee claim, if they were found ineligible
114. to make a refugee claim, if their refugee claim was found to
115. have “no credible basis,” if they have been designated as a secu-
116. rity risk or public danger, or if they fail to apply within fifteen
117. days of a negative refugee decision. For those who are eligible
118. to apply, the complex definition is not consistent with art. 3,
119. requiring, for example, that the risk apply in every part of the
120. country of deportation destination. Decisions are made on pa-
121. per submissions, without any oral hearing, by a relatively jun-
122. ior immigration official. A positive decision on a discretionary
123. “humanitarian and compassionate” review (which requires a
124. $500 application fee for an adult and $100 for a minor) will not
125. overcome security inadmissibility. In rare cases, a “minister’s
126. permit” may be issued to individuals who are inadmissible for
127. security reasons but for whom there are extraordinary circum-
128. stances to grant a temporary right to remain in the country.
129. Generally evidence of successful establishment is required, in
130. addition to any personal risk associated with return. In 1999
131. just four permits were issued in security cases. There is no au-
132. tomatic stay of removal in cases where decisions are pending,
133. so individuals are often removed even though a decision has
134. not been made on their case. See Annual Report to Parliament
135. on Minister’s Permits Issued in 1999
136. permits99e.html>; and Canadian Council for Refugees, Sub-
137. mission to un Human Rights Committee in preparation for
138. the examination of Canada on its compliance with the Cov- enant on Civil and Political Rights, March 1999, .
139. Re Singh and Minister of Employment and Immigration and 6 other appeals [1985] 1 S.C.R. 177.
140. Immigration Act, s.38.1. See ss. 39-40.1 for details of the proce-dures.
141. Immigration Act, s. 19(1)(e)(iii).
142. Immigration Act, s. 19(1)(e)(iv)(C).
143. Immigration Act., s. 19(1)(f)(ii), (iii)(B).
144. Hon. D. Lewis, Solicitor General, House of Commons De-bates,132:163 at 12533, 22 June, 1992.
145. Immigration Act, s. 19 (1)(e)(iv)(A);(f)(iii)(A).
146. Immigration Act, s.46.01(1)(e)(ii).
147. Note that s. 52 of the Immigration Act provides that persons subject to deportation may be allowed to leave “voluntarily” and to select the country to which he or she wishes to go, unless the Minister directs otherwise (emphasis added). A person who is not permitted to leave voluntarily will be removed to one of four destinations: (1) the country from which the person came to Canada; (2) the country in which the person last perma-nently resided before coming to Canada; (3) the country of which the person is a national or citizen; or (4) the country of that person’s birth. If none of these countries is willing to receive the person, then the Minister may select any country willing to accept him or her. With the approval of the Minister, the person may select (within a reasonable period of time) any country willing to grant admission (emphasis added).
148. J. Shields, Parliamentary Secretary to the Minister of Employment and Immigration, House of Commons Debates, 132:163 at 12504-5, 22 June 1992.
149. Interview with A. Brouwer, Maytree Foundation, 22 November 2000. See also SIRC Files No 1500-82, 83; and sirc Annual Report 1999-2000, supra note 17.
150. In the U.K., a new terrorism law authorizes the Secretary of State to proscribe organizations involved in either international or domestic terrorism, but such designations require the approval of both Houses of Parliament. In addition, the legisla-tion sets out a procedure to be followed by an organization that wishes to challenge the designation or an affected individual. After an initial application to the Secretary of State, there is a right of appeal to the Proscribed Organizations Appeal Commission with provisions for representation, and a further appeal on points of law to the Court of Appeal in London. M. Barber, House of Commons Library (U.K.) Research Paper 99/ 101 13 Dec. 1999, “The Terrorism Bill: Bill 10 of 1999-2000,” . In the U.S., the Antiterrorism and Effective Death Penalty Act, 1996, empowers the Secretary of State to designate “foreign terrorist organizations.” The purpose of the power is to deny material support to the designated organization and to seize its assets. It is not a criminal offence to be-long to a designated organization, but membership is grounds for deportation and denial of entry for non-citizens. According to the Immigration and Nationality Act, an “alien terrorist” is an alien who contributes in any of several specified ways to any of several designated unlawful acts. The list of acts includes hi-jacking, sabotage, hostage taking, assassination, other miscel-laneous crimes, and a “threat, attempt, or conspiracy” to com-mit any of the enumerated acts. The U.S. State Department currently includes thirty non-state organizations on its list of terrorists and seven governments.
151. The identification of a general principle of international law as jus cogens provides it with the status of “higher law.” Art. 53 of the Vienna Convention on the Law of Treaties sets out the jus cogens rule, indicating that a treaty is void if it conflicts with a peremptory norm of general international law, namely a norm that is “accepted and recognized by the international commu-nity of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” There is some disagreement on the precise scope and content of jus cogens. See Sir I. Sinclair, The Vienna Convention on the Law of Treaties, 2nd. ed. (Manchester: University Press, 1984) at 18. With regard to the prohibition on torture, see, J.H. Burgers and H. Danelius, The United Nations Convention against Tor-ture: A Handbook on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Dordrech, Netherlands: Martinus Nijhoff Publishers, 1988) at 12 and 176; Re Pinochet Ugarte [1999] H.L.J. No. 12 (24 Mar. 1999); Prosecutor v. Furundzija (10 Dec. 1998), Case No.: IT-95-17/1-T 10; and on the principle of non-refoulement, see G.S. Goodwin-Gill, supra note 75; K. Parker and L.B. Neylon, “Jus Cogens: Compelling the Law of Human Rights” (1989) 12 Hastings International & Comp. L. Rev. 411 at 435-436; G. Stenberg, supra note 93 at 278-280; Cartagena Declaration on Refugees, 1984-85 Report of the Inter-American Commission on Human Rights, Conclusion 5 at 177-182; and 1988 Report of the United Nations High Commissioner for Refugees, UN GAOR, 40th Sess., Supp. No. 12 at 6, UN Doc. A/40/12 (1985).
152. R. v. Schmidt [1987] 1 S.C.R. 500 at 522 and 532; Kindler v. Canada [1991] 2 S.C.R. 779 at 832 and 851.
153. EXCOM Conclusion No. 79 (xlvii) General Conclusion on International Protection (1996), para. (j).
154. In 1997 and 1998 Canada carried out deportations in contravention of requests from the Committee against Torture (Tejinder Pal Singh v. Canada) and the Inter-American Commission on Human Rights (Roberto San Vicente v. Canada). See Amnesty International, “Refugee Determination in Canada: The Responsibility to Safeguard Human Rights,” Response to Government of Canada’s White Paper, February, 1999.
155. In 1995, in a climate of rising hysteria about “immigrant crimi-nals,” the government implemented Bill c-44, introducing significant changes to the rights of refugees and long-term per-manent residents. Pursuant to s. 70(5) of the amended Act, individuals who are classified as a “danger to the public” may be arrested and held indefinitely pending deportation under an opinion issued by the Minister. The threshold for consideration of the issuance of a danger to the public opinion is convic-tion for a criminal offence carrying a maximum penalty of ten years or more. The potential sentence, rather than the actual sentence imposed by the court in the particular circumstances of the case, is the determinative factor. Under the new scheme there is no right of appeal or an oral hearing, and procedures largely resemble those used in security cases with the exception of more complete disclosure in the absence of a need to protect intelligence information.
156. In 1998 the House of Commons Standing Committee on Citizenship and Immigration issued a report in which the question of deporting people in contravention of formal requests by international human rights bodies was considered. The Committee indicated that “[w]e are unwilling to recommend that deportation should never occur in these cases, because there could be extreme situations that would shock Canadians should the government not remove an individual.” It was recommended that “great caution” should be exercised in such cases and that deportation proceed “only for the most compelling reasons.” Standing Committee on Citizenship and Immigration, Immigration Detention and Removal, June 1998, at 19; Recommenda-tion 28. In its formal response the government agreed that “such caution is needed” but made no commitment to comply with the requests of international human rights bodies. Government response to the Report of the Standing Committee on Citizenship and Immigration, Immigration Detention and Removal. See also, Canadian Council for Refugees, Comments on Canada’s Compliance with the Convention against Torture, Prepared for the United Nations Committee against Torture, November 2000.
157. UN G.A. Res. 51/210 (16 Jan. 1997), para. 3; see also, Declaration on Measures to Eliminate International Terrorism, U.N.G.A. Res. 49/60 (9 Dec. 1994) Annex, para. 5 (f).
158. In the case of Paez v. Sweden the un Committee against Torture directly addressed the scope and nature of article 3 of the cat and its relationship with the Refugee Convention. This case involved Sweden’s proposal to deport a failed refugee claimant who was a member of the Shining Path and had admitted to handing out home-made bombs that were used against police. The Committee rejected Sweden’s contention that the “terror-ist character” of the Shining Path could justify the deportation, noting that “the nature of the activities in which the person concerned engaged cannot be a material consideration when making a determination under article 3 of the Convention.” Committee against Torture, Communication No. 39/1996, UN Doc.A/52/44 (1997) at 94. See also Khan v. Canada, Committee against Torture, Communication No. 15/1994, UN Doc. A/50/ 44 (1995) at 46; International Covenant on Civil and Political Rights, art. 7; and un Human Rights Committee General Com-ment 20 (article 7) UN Doc. CCPR/C/21/Add.3: “State parties must not expose individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement” (at para. 9). The European Court of Human Rights has developed a similar protection against non-refoulement. See, e.g., Chahal v. U.K. (1996), Reports of Judgments and Decisions, 1996-V, paras. 72-82; 23 EHRR, 1997, at 413; also, R. Plender and N. Mole, “Beyond the Geneva Convention: Constructing a de facto Right of Asylum from International Human Rights In-struments” in F. Nicholson and P. Twomey, eds., supra note 9, 81-105.
159. Second Optional Protocol to the International Covenant on Civil and Political Rights, G.A. res. 44/128, annex, 44 UN GAOR Supp. (No. 49) at 207, UN Doc. A/44/49 (1989). Despite the fact that the death penalty is not imposed in Canada, the Supreme Court of Canada has confirmed the constitutionality of extradition orders against non-citizens in cases where the fugitives could be subject to the death penalty in their country of origin. The constitutionality of surrendering Canadian citizens to face the death penalty in the United States is pending decision in the Supreme Court. See Kindler v. Minister of Justice, [1991] 2 S.C.R. 779; Reference Re Ng Extradition (Canada), [1991] 2 S.C.R. 858; and Minister of Justice v. Burns and Rafay, S.C.C. No. 26129.
160. Art. 8 of 1961 Convention on the Reduction of Statelessness; and excom Conclusion No. 78 (xlvi) Conclusion on the Prevention and Reduction of Statelessness and the Protection of Stateless Persons (1995). Although the Convention does not directly address deportation, it imposes on states an obligation to ensure that the right to nationality is protected and that state action does not lead to statelessness. See also art. 12. 4 of the International Covenant on Civil and Political Rights.
161. The right to family life is inscribed in arts. 17 and 23 of the International Covenant on Civil and Political Rights as well as in arts. v and vi of the American Declaration on the Rights and Duties of Man; the Convention on the Rights of the Child imposes a direct obligation on states to ensure that the “best in-terests” of children are a primary consideration in all actions concerning children. See Baker v. Canada [1999] 2 S.C.R. 817; and R. Plender and N. Mole, supra note 132 at 97-101.
162. See, e.g., the evidence provided by former ambassadors M. Collacott and W. Bauer before the Standing Committee on Citizenship and Immigration on 1 Dec. 1999, on the Committee’s Study “Refugee Protection and Border Security,” .
163. R. Tassé, Removals: Processes and People in Transition, Report prepared for Citizenship and Immigration Canada, February 1996; Legislative Review Advisory Group, “Not Just Numbers, A Canadian Framework for Future Immigration” (Minister of Public Works and Government Services Canada, 1997). In January 1999 the government released its long awaited white paper Building on a Strong Foundation for the Twenty First Century: New Directions for Immigration and Refugee Policy and Legisla-tion . The document proposed reforms in broad terms without indicating concrete measures to be pur-sued. For relevant commentary see the special issue “Not Just Numbers and New Directions: Implications for Canadian Refugee Policy” (1999) 18:1 Refuge.
164. Bill c-31, The Immigration and Refugee Protection Act, ss. 30(1) (c) and (f).
165. See, e.g., The Report of the Special Senate Committee on Security and Intelligence, Jan. 1999, ch. 2 at 11 ; Legislative Review Advisory Group, supra note 127, Recommenda-tion 138; and the Security Intelligence Review Committee, Annual Report 1997-1998, Section 1 at 10 .
166. See Immigration Act, ss. 39.1,39.2 and 40.
167. Immigration Act, s. 40.1.
168. “In Flux but not in Crisis,” Report of the Special Committee on the Review of the csis Act and the Security Offences Act (Ottawa: Queen’s Printer, 1990); and see Gorlick, supra note 8 at 79. In response to Bill c-31, sirc expressed concern, noting its “unique expertise in acting as a competent tribunal to handle appeals related to intelligence and security matters—a capacity that Parliament intended it to have … this proposal would remove important existing safeguards in the activities of csis that could have a serious negative impact on national security, on individual rights, or on both.” sirc Annual Report 1999-2000, supra note 17 at 2.
169. Bill c-31, supra note 119, ss. 71, 72, 75, and 108. For critical commentary see briefs submitted by unhcr, Comments, supra note 94; Canadian Council for Refugees; Maytree Foundation .
170. R. Romonow, J. Whyte and L. Leeson, Canada … Notwith-standing: The Making of the Constitution 1976-1982 (Toronto: Carswell/Methuen, 1984) at 218; M. Mandel, The Charter of Rights and the Legalization of Politics in Canada (Toronto: Thomson Educational Publishers, 1994) at 68-74; and P. Russell, “The Political Purposes of the Canadian Charter of Rights and Freedoms” (1983) 61 Can. Bar Rev. 30 at 49.