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Are You Inadmissible to Canada for Complicity in Crimes Against Humanity?

Legal Team — Fri, 09 Nov 2018 16:26:07 +0000

On 18 December 1998, Canada became a signatory to the Rome Statute of the International Criminal Court, reinforcing its commitment to hold those believed to have committed or been involved in war crimes, crimes against humanity or genocide accountable for their actions. For a considerable number of years, Canada has implemented a “no safe haven” policy against individuals believed to have participated in serious international crimes. The policy is strictly enforced by the Government of Canada through an interdepartmental initiative called the Crimes Against Humanity and War Crimes Program (“War Crimes Program”), established in 1998. The Canada Border Services Agency, the Department of Citizenship and Immigration, the Department of Justice and the Royal Canadian Mounted Police deliver the War Crimes Program by responding to individuals suspected of international criminal conduct and denying them access to Canada or removing them from Canada if they have already entered.

Recently, the Federal Court of Canada in Jeleca [Jelaca v. Canada (M.C.I), 2018 FC 887] upheld the negative decision of an Immigration Officer after determining there were reasonable grounds to believe that the Applicant was inadmissible under paragraph 35(1)(a) of the Immigration and Refugee Protection Act (IRPA) because of his role as a member of the Bosnian Serb Army also known as the Vojska Republike Srpske (VRS) that led the siege of Sarajevo during the Bosnian War. Paragraph 35(1)(a) of IRPA provides that a person can be inadmissible to Canada for violating human or international rights if he or she has committed an act outside Canada that constitutes an offence under sections 4 to 7 of the Crimes Against Humanity and War Crimes Act.

The Applicant in Jeleca was deployed as a guard in Sarajevo during the siege from August 1993 to January 1994. The siege itself lasted for nearly four years and during that time many moral lines were crossed, including the killing, raping, wounding and looting of civilian population at a shocking scale. Open source documentation indicated that members of the VRS in the location where the Applicant served prevented humanitarian assistance from reaching the besieged civilian population. Although there was no direct evidence linking the Applicant to the crimes committed, the Court in Jelaca noted that, based on the Supreme Court of Canada’s decision in Ezokola, a determination of inadmissibility “on grounds of violating human or international rights” under paragraph 35(1)(a) of IRPA, does not require personal commission of the crime to establish complicity.

In Ezokola, the Supreme Court of Canada determined that as long as there is evidence showing that the person made “voluntary, knowing and significant contribution” to the crime or criminal purpose, the person is inadmissible to Canada even if they were not directly involved in crimes against humanity. [Ezokola v. Canada (M.C.I.), 2013 SCC 40]. This is because, as noted in Ezokola, the standard of proof required for exclusion or inadmissibility determinations under paragraph 35(1)(a) is “reasonable grounds to believe,” which is different from the standard of proof for determinations of guilt that is “beyond a reasonable doubt.” Since Ezokola Canadian jurisprudence has continued to find that the applicability of paragraph 35(1)(a) does not depend on non-involvement. Complicity is made out if there is cogent evidence of “voluntary, knowing and significant contribution” in the commission of crimes against humanity. The Federal Court in Jeleca decided that the officer’s decision was justifiable in law and fact as there were reasonable grounds to believe that the Applicant as a member of the VRS had made a “voluntary, significant and knowing contribution” to the siege of Sarajevo and as a result was inadmissible.

Think you may be criminally inadmissible to Canada? Click here to learn more.

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Criticism Continues for Canada’s Immigration Detention System

Legal Team — Mon, 17 Aug 2015 20:06:11 +0000

Canada’s immigration detention system has been the focus of much scrutiny in recent months. On July 23^rd, the United Nations Human Rights Committee released a report raising a number of concerns with the Canadian system, including lengthy periods of detention and inadequate treatment for detainees suffering from mental health conditions. This report, which reviewed Canada’s compliance with the International Covenant on Civil and Political Rights, offered the following recommendation with respect to immigration detention:

The State party should refrain from detaining irregular migrants for an indefinite period of time and should ensure that detention is used as a measure of last resort, that a reasonable time limit for detention is set.

This strong statement is not surprising, given that immigration detention in Canada has no prescribed limit, unlike other Western countries which have established a presumption against detention in excess of 90 days (and judicial oversight should longer periods of detention be ordered).

In sharp contrast, recent research has highlighted cases of immigration detainees in Canada being held for seven or eight years, unable to be removed to their countries of origin often because their identities cannot be positively confirmed. While most detainees are legally entitled have their continued detention reviewed every 30 days, in reality, release rates are at only 15 per cent nationally, and 9 per cent in Ontario. This does not even address the cases of Designated Foreign Nationals (deemed as “irregular arrivals” under subsection 20.1 of the Immigration and Refugee Protection Act), who face mandatory detention and the review of their continued detention only every 6 months.

The UN Human Rights Committee’s report was released following extensive research conducted in the Canadian context. A study released by the University of Toronto law school’s International Human Rights Program (IHRP) found that Canada breaches international human rights obligations on a routine basis by detaining non-Citizens with mental health conditions in maximum-security prisons for extensive periods of time. The IHPR’s study, entitled, “‘We Have No Rights’: Arbitrary imprisonment and cruel treatment of migrants with mental health issues in Canada,” was presented to the UN in July.

IHPR executive director, Renu Mandhane, said that their research revealed “shocking gaps in the rule of law,” especially given that there are no legal criteria governing how or when a detainee is to be transferred from an immigration holding centre to a provincial jail. One third of immigration detainees in Ontario were found to be held in provincial prisons intended for criminal populations. The IHRP study found:

Once a detainee finds him or herself in provincial jail, they fall into a legal black hole where neither CBSA nor the provincial jail has clear authority over their conditions of confinement. This is especially problematic since in Ontario at least, there is no regular, independent monitoring of provincial jails.

The IHRP study also includes an interview with Reg Williams, the director of Canadian Border Services Agency’s (CBSA) immigration enforcement in Toronto from 2004 to 2012. Mr. Williams explained a concerning trend, stating that “the culture [of the CBSA] is heading in one direction only—towards a more para-militaristic organization where the emphasis is on power and force, and less on interaction, cooperation and engagement.”

This intense focus on immigration detention follows the June 11^th death of Abdurahman Ibrahim Hassan, a Somali foreign national who suffered from mental illness. Mr. Hassan died in a Peterborough hospital after three years in immigration detention. As recently as last week, protesters were demanding an inquest into the circumstances surrounding Mr. Hassan’s death.

There is no doubt that the immigration detention regime in Canada demands increased scrutiny and review, not only due to alarming human rights implications, but also considering the ever-expanding costs associated with increased detention. On the whole, the UN’s recommendations are a stark reminder of the work that needs to be done if Canada is to reassert itself as a world leader in the promotion and protection of human rights.

(Sources)

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Federal Court of Appeal Considers Refugee Health Care

blgpc_web — Thu, 05 Feb 2015 15:28:23 +0000

The Canadian Federal Court of Appeal is currently considering an appeal of the seminal decision in Canadian Doctors for Refugee Care v. Attorney General of Canada and Minister of Citizenship and Immigration (2014) FC 651 (Canadian Doctors). In 2014, Justice Mactavish of the Federal Court of Canada found that the 2012 changes to the Interim Federal Health Care Program (IFHP) were unconstitutional.

By way of background, the Canadian government introduced significant changes to the IFHP in 2012. The revised IFHP created different tiers of coverage based on an individual’s position in the refugee process. Resettled refugees, who are selected from abroad, for instance, did not have their health care provision altered. Asylum seekers received however only “urgent or essential health care.” Asylum seekers from countries of origin which the government designates as generally safe received no health care coverage unless their condition posed a danger to public health or public safety. Individuals ineligible to make refugee claims all together received no coverage at all.

In July 2014, the Federal Court of Canada found that the IFHP denies certain asylum seekers state-funded basic health care and is cruel and unusual treatment under section 12 of the Canadian Charter of Rights and Freedom (Charter). Section 12 states provides that “(e)veryone has the right not to be subjected to any cruel and unusual treatment or punishment.”

The Court also found that the IFHP’s deprivation of insured health care forrefugee claimants from countries on the list of ‘safe countries of origin’ was discrimination based on national origin. Discrimination on the basis of national origin is a stipulated ground in section 15(1) of the Charter which state provides that “(e)very individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”

One of the stipulated drivers behind this decision was the government’s desire to contain costs. In 2012, the Minister’s spokesperson explained the changes in the following terms:

“Canadians have been clear that they do not want illegal immigrants and bogus refugee claimants receiving gold-plated health care benefits that are better than those Canadian taxpayers receive. Our Government has listened and acted.”

Canada is not alone in pushing forward such an agenda. Countries are limiting the health care rights of asylum seekers by reference to commonly stated goals of deterring health tourism and avoiding undue strain on finite health care resources. However, this rhetoric is often unsupported by concrete evidence.

Commenting on the government’s cost-containment rationale, Justice Mactavish stated:

There is… no reliable evidence… of the extent to which the 2012 changes to the IFHP will, on their own, result in cost savings at the federal level. Moreover,… it appears that some of the cost of medical services that was previously covered under the IFHP has now simply been downloaded to the provinces.

Assuming, however, that the 2012 changes to the IFHP have indeed resulted in some measure of cost savings at the federal level, are there ways that this cost savings could be achieved in a less infringing manner, keeping in mind that this alternative measure does not have to satisfy the objective of cost containment to exactly the same extent or degree? (paras. 1012-1013)

The limited empirical evidence which does exist on this issue suggests a lack of evidence to support the cost-containment argument. It is unclear whether there is a significant number of individuals who come to Canada to seek asylum for health related reasons. Evidence on HIV asylum claimants in the UK context, for example, suggests that asylum claimants do not seek treatment until long after arrival.

The decision of the Federal Court of Appeal is highly anticipated in this case.

For more information on claiming refugee protection, please click here.

(Sources)

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