Canadian Immigration Blawg

Updated: CBSA on its role in Dziekanski's death

CTV reports that the CBSA is to break its silence on its role in Polish immigrant Dziekanski's death:

...

The federal agency will release its report this afternoon on the Oct. 13-14 events at Vancouver International Airport that culminated with the 40-year-old Polish man's death after RCMP officers used a Taser on him.

It's premature to speculate, but there does appear to be cause for concern given the apparent (false) information provided to Dziekanski's mother:

Walter Kosteckyj, Cisowski's lawyer, has said a Border Service agent told his client around 10 p.m. on Oct. 13 that there was no record of any Polish immigrant at the airport and that she should go home.

National Post on a well attended protest on Saturday outside the Vancouver Art Gallery:

Ms. Lukasiewicz [one of the organizers for Saturday's protest] ... said the protest was "just the tip of the iceberg" and the public is demanding change in police training and airport services.

I hope that Dziekanski's (preventable) death results in a number of changes to the way that government deals with immigrants (a vulnerable group) and individuals in general. One would hope that this tragedy will result in increased respect and courtesty to individuals and results in greater transparency and accountability for those that deal in enforcing the country's laws.

Globe and Mail article on the Mountie's logical decision to restrict taser use (or more correctly, a conducted energy weapon):

... that the stun guns can only be employed on people displaying "combative behaviours" or actively resisting officers.

The use of the Taser (an offensive weapon with the very real possibility of death or serious injury) should be the last resort of enforcement. However, there is much at stake, for the interests of the manufacturer, RCMP, government may not be in concert with the best interests of the public.

Of note, it appears that a 'taser' manufacturer has hired a lobbyist with ties to Public Safety Minister Stockwell Day:

...the U.S. company that makes the devices hired a well connected lobbyist who is a former policy adviser to Public Safety Minister Stockwell Day and Prime Minister Stephen Harper.

Londonistan Calling

I'm cognizant of the reasonable accommodation debate sparked by Herouxville, and reminded of Christopher Hitchens in this article for Vanity Fair who probably captures the sentiments of many in the reasonable accommodation debate as well as the experiences of the UK with 'multiculturalism':

They say that the past is another country, but let me tell you that it's much more unsettling to find that the present has become another country, too. In my lost youth I lived in Finsbury Park, a shabby area of North London, roughly between the old Arsenal football ground and the Seven Sisters Road. It was a working-class neighborhood, with a good number of Irish and Cypriot immigrants. Your food choices were the inevitable fish-and-chips, plus the curry joint, plus a strong pitch from the Greek and Turkish kebab sellers. There was never much "bother," as the British say, in Finsbury Park. Greeks and Turks might be fighting in Cyprus, but they never lifted a hand to one another in London. Many of the Irish had republican allegiances, but they didn't take that out on the local Protestants. And, even though both Cyprus and Ireland had all the grievances of partitioned former British colonies, it would have seemed inconceivable—unimaginable—that any of their sons would put a bomb on the bus their neighbors used.

Returning to the old place after a long absence, I found that it was the scent of Algeria that now predominated along the main thoroughfare of Blackstock Road. This had had a good effect on the quality of the coffee and the spiciness of the grocery stores. But it felt odd, under the gray skies of London, to see women wearing the veil, and even swathed in the chador or the all-enveloping burka. Many of these Algerians, Bangladeshis, and others are also refugees from conflict in their own country. Indeed, they have often been the losers in battles against Middle Eastern and Asian regimes which they regard as insufficiently Islamic. Quite unlike the Irish and the Cypriots, they bring these far-off quarrels along with them. And they also bring a religion which is not ashamed to speak of conquest and violence.

...

It's impossible to exaggerate how far and how fast this situation has deteriorated. Even at the time of the Satanic Verses affair, as long ago as 1989, Muslim demonstrations may have demanded Rushdie's death, but they did so, if you like, peacefully. And they confined their lurid rhetorical attacks to Muslims who had become apostate. But at least since the time of the Danish-cartoon furor, threats have been made against non-Muslims as well as ex-Muslims (see photograph), the killing of Shiite Muslim heretics has been applauded and justified, and the general resort to indiscriminate violence has been rationalized in the name of god. Traditional Islamic law says that Muslims who live in non-Muslim societies must obey the law of the majority. But this does not restrain those who now believe that they can proselytize Islam by force, and need not obey kuffar law in the meantime. I find myself haunted by a challenge that was offered on the BBC by a Muslim activist named Anjem Choudary: a man who has praised the 9/11 murders as "magnificent" and proclaimed that "Britain belongs to Allah." When asked if he might prefer to move to a country which practices Shari'a, he replied: "Who says you own Britain anyway?" A question that will have to be answered one way or another.

Supreme Court will hear Street Racer's Appeal

Sukhvir Singh Khosa and Bahadur Singh Bhalru were streetracing in November 2000 when they struck and killed 51 year old Irene Thorpe on Marine Drive in Vancouver. Khosa's vehicle was travelling at 120 km/hr in a 50 km/hr zone when it struck Thorpe. Both Bhalru and Khosa were convicted of criminal negligence causing death and both received conditional sentences of two years less a day to be served in the community.

Removal orders were issued against both Bhalru and Khosa, as they were inadmissible to Canada by reason of their criminality; while both appealed, only Bhalru was eventually removed from Canada in 2005 -- Khosa has managed to remain in Canada these last seven years, appealing the decision of the Immigration Appeal Division to the Federal Court and Federal Court of Appeal, which had set aside the decision of the IAD and ordered a new determination of the appeal. Diane Finley, the Minister of Citizenship & Immigration appealed against the decision of the Federal Court of Appeal to the Supreme Court. The Supreme Court has just indicated that it will hear the matter.

The issue that has resulted in numerous appeals and delay in removing Khosa is whether the Immigration Appeal Division was correct in refusing to exercise its discretion to grant the appeal on humanitarian and compassionate grounds. The IAD considered Khosa's expression of remorse to the victim's family, his lack of a previous criminal record and the possibility of rehabilitation but found it "troublesome" that Khosa continued refusal to admit that he was participating in a street race (instead admitting only to speeding and dangerous driving). Khosa reiterated that his tire had 'popped' causing him to lose control of his vehicle. This 'blown tire' defense theory was discounted at the criminal tire and at the appeal. In terms of establishment, while Khosa was in Canada for 8 years at the time of appeal, evidence before the IAD indicated both immediate and extended family present in India as well as a residence and a large agricultural land holding.

In the hearing before the IAD, Khosa's counsel argued that the immigration proceeding was not to mete out further punishment. Counsel is correct; the IAD is not a forum to punish an individual twice. It is does however have jurisdiction over permanent residents who commit serious crimes and have been issued removal orders. While the criminal court found that Khosa was not a risk to the public and unlikely to re-offend, the Board (with no specialization in this area) found otherwise. The Federal Court of Appeal, in setting aside the decision found this (in part) to be 'unreasonable' on the part of the IAD.

I don't believe that the Federal Court of Appeal has undermined the Board's ability to remove permanent residents who pose a risk to the public; this is but one facet of our rule of law society – that there exists oversight over the discretion of decision makers. A.V. Dicey, the leading constitutional theorist of the 19th century – and who still casts a long shadow over administrative law today, found that discretion resulted in arbitariness which in turn led to abuse of power. Discretion is of course necessary, given the hundreds of decisions (and the necessary interpretation of law, policy and regulations) made in Canada every day.

Khosa, now 25 had immigrated to Canada in 1996 at the age of 14. While he has immediate family, including his wife and two children in Canada, evidence before the IAD indicated that he also had immediate family and land holdings in India as well. The marriage was a factor, however the Board found that Khosa married shortly after the conviction, and after the issuance of the removal order and therefore was a personal decision made with full knowledge of potential consequences.

If Khosa is eventually removed from Canada, he can be assured that his removal was fair, handled in accordance with principles of fundamental justice, and that he was given every opportunity to test the actions of the government and its delegates.

Unfortunately for Irene Thorpe's friends and family, it is unlikely that they will view Khosa's challenges to his removal order and the delay in his removal as fairness; only continued inequity as they face life without their loved one.

*******Note, the above article was published in the Calgary Herald on November 19, 2007 *************

The End of Lawyers?

Richard Susskind argues that a fundamental change awaits the practice of law. In a forthcoming book, "The End of Lawyers" he argues that technology and stardarisation will make lawyers less important. He is Emeritus Professor of Law at Gresham College, IT adviser to the Lord Chief Justice and consultant to leading law firms. The book is out next year, but Timesonline has extracts here.

US Military Deserters Lose Refugee Bid to Stay in Canada

MSNBC on the end of the road for American soldiers Jeremy Hinzman and Brandon Hughey, who attempted a review of their matter by the Supreme Court of Canada:

The Supreme Court of Canada on Thursday refused to hear an appeal by two U.S. military deserters who sought refuge in the country to avoid deployment to Iraq, a conflict they argued is “immoral and illegal.”

The announcement ends a bid by American soldiers Jeremy Hinzman and Brandon Hughey, the plaintiffs in the case, to win refugee status and opens the way for them to be deported to the United States, where they could face court martial for going AWOL and missing troop movements.  It also could lead to deportation of dozens of other American soldiers who have filed formal applications for refugee status. 

“Theoretically they (are) facing immediate removal,” said Jeffry House, a Toronto lawyer who represents most of the U.S. refugee applicants, including Hinzman and Hughey. The Supreme Court’s refusal to hear the case, “vastly advances the government’s agenda to remove them,” he said.

BBC article - which indicated that both former soldiers believed the war (in Iraq) to be illegal and immoral; Reuters article; National Post; News release/media advisory on the SCC decision from the War Resistors support campaign; Canadianpress.

However, given the fact that the US is a 'volunteer' based army with no coercion probably undercut their arguments.

Full text of the IRB decision in Hinzman matter here.

Decision excerpt:

Counsel for the claimant submits that Mr. Hinzman risks incarceration for a lengthy period of time, should he be found guilty of any of these offences. He argues that the cases set out in the materials suggest that the most likely sentence may be several years in custody. He states that each case turns on its own facts and that it is not impossible that a lengthened, or indeed a shortened, sentence might be imposed. He submits that, unless the Board were to conclude that the length of sentence imposed is likely to be minimal, the risk of such incarceration would satisfy the objective fear that Mr. Hinzman is required to establish. I disagree. Mr. Hinzman has adduced insufficient evidence that he would be treated differently or punished more severely because of his religious beliefs or political opinions. In addition, he has not established that the punitive articles of the UCMJ amount to cruel or unusual treatment or punishment. The articles are a lawful sanction, not imposed in disregard of acceptable international standards, because they do not represent a disproportionate punishment for the offence of desertion, and the punishment is not so excessive as to outrage standards of decency and surpass all rational bounds of punishment. The punishment is not grossly disproportionate to the inherent seriousness of the offence of desertion.⁸⁸

Pakistan's Faultlines Part II and MQM refugees

Pakistan's faultlines have ruptured once again: President Musharraf has declared a state of emergency, suspending Pakistan's constitution and (for the second time this year) setting aside and replacing the chief justice of the Supreme Court (which was demonstrating some independence from the executive this year). Earlier this year Musharraf had arbitrarily suspended the former Chief Justice Iftikhar Mohammad Chaudhry, before reinstating him after massive civic protests.

Pakistan is currently ranked twelfth on the (unenviable) Failed States Index. Undoubtedly Pakistan will now likely crack the top ten. While there isn't a strong correlation between the failed states index and the top refugee source countries for Canada, my feeling is that Pakistan will once again be a major refugee source country for Canada.

Earlier refugee claim types varied depending on the current political climate in Pakistan. Most claimants were purported members of a number of political parties. Pakistan political parties all seem to be acronymically inclined, including the PPP (Pakistan's People Party), the PML (the Pakistan Muslim League, later splintering into PML-N and PML-Q), the MQM (the Muttahida Qaumi Movement), the JKLF, and members of minorities subject to Pakistan's blasphemy (Hudood) laws, such as the Shiites and Ahmadiyya.

There are serious issues in accepting refugee claims from members of Pakistan's free-for-all, anything goes, violence prone 'political parties'. Once a claim is deemed eligible to be referred to the Immigration and Refugee Board, the claim could either succeed, or, even if it is refused, removal could take years (and even over a decade).

This year, supporters of the former chief Justice were massacred by members of the pro-government ethnic based MQM (Mutahida Qaumi Movement) party while Pakistan's security forces stood by and watched. There is credible evidence that the MQM has repeatedly engaged in acts of violence and terror.

Hundreds of refugee claimants claiming persecution as members of the MQM party were successful and were granted refugee status in Canada. There are now attempts by the government to strip them of that status and remove them from Canada, but removal is a slow and arduous process. Removal is predicated on section 34(1)(f) of the Immigration and Refugee Protection Act (as the refugee claimants are inadmissible to Canada as members of an organization that has engaged in acts of terrorism). Of note is that the MQM is not listed as a terrorist organization by the US Department of State, nor is it listed as a designated entity by Public Safety Canada.

How does Canada balance its humanitarian tradition and international obligations to refugees with security?

One way is to create greater efficiencies in the refugee determination system. The CBSA has been successful in a number of cases in finding MQM 'refugees' as inadmissible to Canada. However, inadmissibility should be ascertained prior to a determination by the refugee protection division. Once information is received that could render an individual inadmissible to Canada, the refugee claim ought to be 'clawed back' by CIC for an admissibility hearing. If this occurs before the refugee hearing (which is taking about 14 months from the date of referral), such an individual could be removed from Canada in a year, rather than a decade.

In any event, Pakistan's faultlines will continue to have far reaching repercussions for Canada. It's imperative that the department of Public Safety Canada, Citizenship and Immigration Canada, and the Refugee Protection Division work together to strike the appropriate balance between safeguarding genuine refugees and diligently enforcing Canada's existing laws to safeguard the integrity of the immigration and refugee determination system.

** Note the above article was published in the Calgary Herald on Wednesday, November 7, 2007