Human rights are for the tricky cases, too

Catherine Dauvergne
Globe and Mail
Wednesday, Dec. 3, 2003
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The pesky thing about human rights is that they belong to human beings. Not some more than others. Not citizens, not residents. The universality of the human-rights commitment is hard to square with the us-them line that drives immigration policy. Refugee claimants are stuck in the middle -- the law accords them the slimmest of rights -- hardly anything when compared with the broad expanse of international human-rights regimes and rhetoric.

Margaret Wente and Jeffrey Simpson have recently argued here that the Canadian refugee-determination system is open to abuse, is actively being manipulated, and that Canadian courts are facilitating this. Their claims reflect a surging global rhetoric demonizing asylum seekers. Worse, they conflate refugee concerns with immigration issues, when separating the two is the clearest path to understanding what is at stake.

Canada has signed up to the international law concerning refugees. Forged in the long shadow of the Second World War, this agreement says that when people are fleeing persecution for narrowly specified reasons, nations agreeing to the treaty will not send them back to the places they fear. This isn't much, as rights documents go. Persecution is not human-rights abuse, but a small and serious subset of such. Refugees have no right to enter another country -- only a right not to be returned in some circumstances, provided they are not serious criminals, which very few are.

This commitment to protect a narrowly defined group of people from a particular kind of harm means that Canada has agreed to take seriously those who arrive here and claim to be refugees. Refugee determination in Canada is a one-shot process. One chance to tell one's story to one person, who then decides. There is no appeal. (An appeal exists on the books, but the current government has indefinitely delayed implementing it. Other major Western refugee-receiving nations have some kind of appeal process.)

Here, one can ask the Federal Court for leave to look over basic questions of fairness in the decision-making process. This isn't a full appeal; besides, the court rarely agrees to do this. When it does, it lacks the power to find the first decision simply wrong. The best it can offer is a second chance. Last year, 46 per cent of refugee claimants in Canada were found to be in need of protection. A far cry from Canada's so-called open door.

We don't know the whole story about Hassan Almrei, a Syrian national fighting deportation from Canada, because security concerns keep it from us. How comfortable we are with not knowing the government's side of the story is a matter each of us must determine. But we do know of the Syrian government's reputation for torture. As a matter of international law, Canada has signed a document that says we will not send people to face torture. Never.

Yet, our Supreme Court felt that a commitment to never send people back to face torture was taking human-rights protection too far. The Minister of Immigration can make this decision (bearing in mind that sending people to torture could infringe our basic sense of justice). But Canada has other options for those we believe to be terrorists: Thanks to our new anti-terrorism legislation, there's ample scope to prosecute them here.

It is not the case that our commitment to international refugee law is pulling hordes of people to Canada; 145 states have made this commitment. What draws people to Canada is our wealth, in the face of increasing global inequities. We want to be an international champion of human rights and the rule of law. We look down our noses at Guantanamo Bay; we condemn Syria. Protecting human rights is not easy. Due process, like democracy, is time-consuming. But when columnists find that some people's human rights are better than others, they miss the point about being human.

Catherine Dauvergne is Canada Research Chair in Migration Law and an associate professor in the University of British Columbia law faculty.