> September, 29, 2011
> Refugee lawyers form group to fight laws they say violate Charter
> Human smuggling bill was ‘a wake-up call’ for lawyers and academics who
> started the Canadian Association of Refugee Lawyers.
> By Kristen Shane
> Published Sep 29, 2011 1:10 AM
> After the government’s human smuggling bill gave them "a wake-up call,"
> refugee lawyers and academics have started the Canadian Association of
> Refugee Lawyers to fight what they say are bad bills.
> And with a majority government, that fight will shift from the House of
> Commons to the courts, where they anticipate Charter challenges.
> More than 150 refugee lawyers and academics who study refugee law
> gathered in Toronto and via webcast from cities across Canada Sept. 9 to
> launch the group.
> As of Sept. 26, more than 100 had registered as members of the new
> group, which is in the process of being incorporated. It plans to
> intervene before the courts on national refugee issues, make submissions
> to parliamentary committees, and do other public outreach and education
> on refugee law and policy.
> The group wants to act "as a strong counter balance" to "current policy
> trends seeking to limit refugee rights in Canada," said a Sept. 20 news
> release announcing the group’s creation.
> "More than ever, lawyers and academics across Canada must coordinate
> their efforts to protect human rights, preserve the Charter, and defend
> asylum seekers," said Lorne Waldman in the release. The Toronto
> immigration lawyer is the group’s elected president.
> “I think it is fair to say that the political landscape for both
> refugees and migrants more generally has been changed by the election of
> a majority Conservative government,” University of Toronto law professor
> Audrey Macklin, one of three chairs of the group’s legal research
> committee, told Embassy.
> Groups such as the Canadian Bar Association and Canadian Council for
> Refugees have long spoken out on refugee policy, said Ms. Macklin, but
> the game has changed.
> "I think C-49 was a bit of a wake-up call," she said.
> Bill C-49 died on the Order Paper at last spring’s election call, and
> the government has since retabled one that is largely the same, called
> C-4, the Preventing Human Smugglers from Abusing Canada’s Immigration
> System Act.
> It is currently being debated at second reading in the House, but is
> expected to easily pass now that the Conservatives have majorities in
> both the House and Senate. Immigration Minister Jason Kenney has said he
> hopes it will be law by Christmas.
> The bill defines human smuggling as an offence and sets out tough
> penalties. But the bill also lets the immigration minister designate an
> "irregular arrival" of a group of people to Canada, whose members may be
> arrested without a warrant and detained for at least a year, unless
> their claim has been resolved or they get special permission from the
> Some refugee lawyers have said this clearly violates the Canadian
> Charter of Rights and Freedoms, which, in Section 7 guarantees the right
> not to be deprived of life, liberty and security of the person except
> "in accordance with the principles of fundamental justice."
> They also take issue with other parts of the proposed law that prevent
> people whose asylum claims have been accepted the ability to sponsor
> their family to come to Canada, or for the refugee to travel outside
> Canada for five years.
> "If you have a majority government that doesn’t feel politically
> constrained, because they have the majority of seats in government, and
> they don’t feel any self restraint in introducing legislation that
> appears on its face to be unlawful, then that raises the stakes and in a
> sense requires an even greater emphasis on legal mechanisms for
> contesting it," said Ms. Macklin.
> "We expect that there are going to be more fights that have to be fought
> in the court room than there were in the past," she added.
> "Obviously, it’s always our hope...that the government will reconsider
> some of the proposals before Parliament, like C-4. But we are also aware
> that the Conservatives now have a majority. And if they pass the
> legislation in its current form, we certainly expect there will be
> constitutional challenges and we want to be as ready for them as we can
> be," said Mr. Waldman.
> The government says otherwise. Candice Malcolm, a spokesperson for Mr.
> Kenney, noted in an email the section of the House of Commons procedural
> manual that says the minister of justice must review every bill the
> government introduces to see whether it's consistent with the Canadian
> Bill of Rights and the Charter.
> When the bill was reintroduced in June, Public Safety Minister Vic
> Toews, who has been championing the bill alongside Mr. Kenney, told CBC
> News "I'm confident that the measures are Charter-compliant."
> But C-4 isn't the only piece of legislation worrying refugee lawyers.
> They are also seeing problems with the implementation of Bill C-11 that
> became law in June 2010, which is set to reform Canada’s refugee system
> by, for instance, adding an appeals division and speeding up the process
> for claimants coming from so-called 'safe' countries.
> Peter Showler, a former Immigration and Refugee Board chairman and
> current director of the University of Ottawa’s Refugee Forum, said he
> anticipates court challenges. For example, the bill allows 15 days to
> file and complete an appeal, which he said is virtually impossible.
> Mr. Showler is one of the founders of the new group.
> Refugee lawyers' concerns about potential constitutional challenges come
> amid a climate of fear that the government this summer had delayed
> implementing C-11 to June 2012 in order to use its majority status to
> claw back concessions it had made to opposition parties to get it passed
> with only a minority government last year.
> In an interview with Embassy last week, Mr. Kenney said the bill that
> was passed "was not the bill that we introduced," and even that "was I
> think very deliberately calibrated to get support in a minority Parliament."
> He said his government's commitment is the implementation of C-11, but
> didn’t close the door completely on any potential changes, saying "look,
> I'm not going to rule anything in or out."
> He said the delay was due to the nature of the complexity of the changes
> to be made, and because the government is grappling with how to
> implement costly changes in a time of government-wide budget cutbacks.
> The first version of the bill did not allow access to appeals by people
> from the so-called 'safe' countries, under the notion that they are
> generally known to be democratic and respecting of human rights.
> "Obviously, we’re extremely concerned if C-11 is re-opened to restrict
> even further the rights of refugees," said Janet Dench, executive
> director of the Canadian Council for Refugees.
> Mr. Showler said that if Mr. Kenney isn’t going to change the bill, he
> should have just said that clearly, rather than leaving the door open.
> Various federal departments and agencies, not to mention legal aid
> groups and bar associations, have spent two years and put a lot of
> energy into preparing for the new system, he said.
> "This is not something that you can turn on a dime or a policy whim."