Before 1970, refugee status had no firm legal basis in Canada. There existed in most countries an age-old tradition of political asylum, but in Canada it was exercised by the cabinet on a political basis and not through any adjudicative process. Canada signed the convention on refugees after the Second World War, but even that decision did not turn refugee status into a judicially enforced right immediately. However, by 1970, the instances created to deal with immigration appeals were given the new task of determining who was a genuine refugee.
The judiciarization reflected a growing discontent with the partisan aspect of refugee status. Canada had turned back many refugees from Nazi and fascist Europe, but invariably granted asylum to anti-communists. Most Western democracies were biased in the same way. The growing awareness of human rights made it seem desirable to determine the sincerity and seriousness of refugee claims in a dispassionate, non-partisan way. Moreover, as we aban- doned capital punishment in Canada, it became clear that immigration and refugee law along with extradition law were the last areas where the state might have to make deci- sions involving life and death and it would be anomalous, to say the least, to make these decisions more peremptory and less reviewable than others.
From the outset, the immigration department resisted the judiciarization of refugee status. For instance, it created a judicial process before the Immigration Appeal Board in which it was necessary to prove the probability and not only the possibility of success to have access to a hearing. This made the judicial proceedings far less useful and less certain. Moreover, in the days before the seminal case of Law Society of B.C. v. Andrews, the government relied on the doctrine that there was no discrimination if all ”œsimilarly situated” persons were treated in the same way. In earlier years this could have authorized the rejection of Jews from Nazi Germany on the ground that they all received the same treatment.
In the late 1980s, a number of legal developments occurred which removed both the procedural and substan- tive obstacles to a fair hearing. Firstly, in Singh v. M.E.I., the Supreme Court invalidated the restrictions to a hearing and pointed that at least one full oral hearing was appropriate for something as significant as refugee status. Secondly, in Andrews, and in subse- quent immigration cases, the courts did away with the insidious ”œsimilarly situated” test, to replace it with general Canadian standards. Somewhat later in Ward v. M.E.I., the Supreme Court stat- ed that issues of discrimination should be decided according to principles sim- ilar to those used in Charter litigation in Canadian domestic law and that democratic countries were not auto- matically exempted from scrutiny.
Finally, in Pushpanathan v. M.E.I., it was decided that the standard for judi- cial review should not be a high one, because courts cannot defer to boards and other administrative decision- makers on issues of fundamental rights. The heyday of refugee status in Canada had been reached. As often happens, an inexorable decline had started to set in, even before the last Supreme Court decision came down.
In part, this decline can be attributed to the misuse of refugee status by applicants. Ever since, in the 1970s, the decision was made to refuse to accept applications for immigration unless they are made outside Canada, many individuals resorted to unjustifiable claims to refugee status to avoid leaving Canada for as long as they could. The false refugees were the subject of much attention in the 1980s and were a major part of the argument to limit hearings, appeals and delays. However, the importance of this phe- nomenon can be exaggerated espe- cially since there now exist channels for applying for relief on humanitar- ian grounds without invoking refugee status.
A more serious cause for the decline of refugee protection is the government’s attempt to narrow the definition of refugees to exclude many of the traditional, political exiles. When asylum was granted in the past, people who benefitted were often revolutionaries from other countries ”” Kosciuszko, Kossuth, Ben Bella, for example. Most refugees were far less famous than these leaders, but they had often conspired against governments and fought in civil wars.
There can be no doubt that many of them could have been associated with ruthless resistance. It is now established beyond doubt that both sides in the Spanish Civil War commit- ted atrocities, even if the Nationalists were, on the whole, far worse. The same is true for the Russian Civil War. Yet many democratic countries grant- ed asylum both to Spanish Republicans and to White Russians.
Well-intentioned advocates of human rights became concerned in the 1980s with the possibility that people who committed atrocities and war crimes would use refugee status to avoid punishment. Such fears were no doubt partially justified. Nazis, supporters of Batista, or members of the Khmer Rouge could all invoke refugee status to try to stay in the West, and some have done so in the past. The international instruments for refugee protection were thus amended to exclude such people.
However, a summary examination shows this change to be wrong-headed. People with a very unpleasant past can be genuine refugees. Moreover, in situations where both sides committed crimes, it seems absolutely counter-productive to hand the losers over to the win- ners and thus to provoke one more atrocity.
In Canadian law, not only did we adopt these changes, but we stipulated a low burden of proof; less than the balance of probabilities. Thus, people could be denied refugee status on strong suspicion or on very weak evi- dence of participation in international crimes. Moreover, mere association with certain governments could mean presumed complicity, and thus diplo- mats and public servants in areas of endeavour unconnected to any crimes (e.g. education, health) could be excluded. This was particularly serious with respect to communist govern- ments that violated human rights but that, in such spheres as education and health, tended to do many commend- able things. We can see how someone connected with the Soviet occupation in Afghanistan could be excluded, even though his or her work did not involve violence or abuse.
To this was added the Immigration Act’s definition of inad- missibility which included anyone tending to subvert democratic consti- tutions or to overthrow any govern- ment by force. The last stipulation would have excluded from Canada some people whom we tend to regard as heros ”” Jefferson, Nat Turner, Kossuth or people plotting the anti- Nazi coup d’état of 1944.
The protection afforded to ”œdemo- cratic institutions,” subtly undermines the essence of democracy. What gives democracy its superiority over other systems is its refusal to turn itself into an obligatory ideology. Democracy by definition tolerates advocates of communism, fascism, theocracy and other undemocratic ideologies and allows them to compete in elections. With very few exceptions, they lose every time. To make refugee status or admis- sibility to Canada depend on holding democratic opinions is to lessen the uniqueness of democracy and to make Western democracy simply another type of ideological regime.
History teaches us, as well, that opponents of democracy can, in certain circumstances, genuinely be refugees and can merit protection. For instance, communists fleeing Hitler certainly ful- filled all imaginable criteria for refugee status and they had often resisted the Nazis admirably and courageously. It would be an outrage if our law today did not apply to such refugees.
The refusal to apply refugee status to the traditional groups that ben- efited from this concept, coupled with current political correctness, has led to curious results. On the one hand, we maintain protection of refugee status in order to fulfil our international obli- gations and our good reputation. On the other, we decline to protect many real refugees. We plug the gap by extending the notion to such unusual categories as battered women. Clearly, this is a concession to present-day political correctness. Not that battered women or children are unworthy of protection ”” but they are not refugees. We could and should add a category of protected persons who do not qualify under the refugee definition, but it is surely a bizarre decision to distort refugee status by excluding the per- sons for whom it was intended and substituting other, currently sympa- thetic groups.
Refugee status in the internation- al law sense represented only a mini- mum which we had to respect. Nothing ever stood in the way of adding categories. Subtracting cate- gories through arcane definitions is entirely a different matter.
What then is the solution? It is submitted that the best policy is the most simple. Let us determine in a judicial way whether a claimant is or is not a refugee regardless of any nega- tive features in his background. Once one is found to be a refugee, we should have a mechanism to decide which persons should nevertheless be denied permanent status. We should virtually never send anyone to death or to torture, but we might consider providing for trials within Canada for certain types of heinous crimes. Never should we allow ourselves the luxury of removing persons without verifying the possibility of their persecution.
An effort should also be made to divorce our current political thinking from refugee issues. This is very difficult to do because most citizens tend to forget history. In the 1930s, our erstwhile snobbish anti- Semitism made us insensitive to Jewish refugees. After the war, we accepted the Vichy French and other right-wing refugees from Europe, but the fashionable anti-communism would likely have doomed applica- tions from the left. Moreover, we would not have entertained seriously applications from blacks in the US, even though, by today’s standards, many of them would have qualified as late as 1954. Until John Diefenbaker in 1959, we considered South Africa a loyal Commonwealth ally and would probably have been insensitive to the plight of its black and Asian population. Today’s exclusion of many groups is based on similar, topical grounds. For instance, we seem inca- pable of seeing the merits of revolu- tion even against terrible governments. Whether this attitude is justifiable or not, it should not affect refugee determination.
Since no society can ever insulate itself from its own prejudices, no panacea exists. Given that refugee law, along with extradition is still the only place where the law deals directly with life and death, an effort to reinforce it must be made. The only trustworthy way to decide such questions is through the judiciary with a simple, non-political, non-partisan definition.
Moreover, the consequences of an error are such that there is a strong case for applying to this field the crim- inal law principle that it is better to acquit a hundred guilty persons than to convict one innocent. In short, doubtful cases should be decided in favour of the claimant.
Unfortunately, such a development is most unlikely. Not only is Canada’s immigration bureaucracy determined to protect its discre- tionary powers, but the growing fears about terrorism and security play into the hands of those who wish to restrict refugee status to those whose views are currently palatable. Moreover, other democratic countries are even more restrictive than we are and that tends to influence legisla- tors and to limit indignation which would normally arise after unjust deportations.
Historically, refugees and immi- grants would win occasional but important victories at the level of the Supreme Court ”” Singh, Ward, Pushpanathan, Baker. In between the Supreme Court cases, the usual tech- nical and restrictive jurisprudence of the Federal Court would weak- en the effects of the victories. While the Supreme Court could increase the number of its occasional forays into the field of immigration and refugee protection, it does not seem plausible to expect it to reverse the general social trends, the bureaucracy’s ten- dencies to misinterpret and dilute the cases as soon as they come down, or the Federal Court’s tradition of upholding governmental discretion. It is not the function of the Supreme Court to administer government programs, only to set down certain constitution- al rules. Nor is it certain that the Supreme Court itself will never come to reflect the soci- ety’s growing conservatism, because courts are part of society and are not insulated from its trends for long periods of time.
It seems highly probable that the protection of persons who face prose- cution will inevitably become more sporadic and more political in the coming decades and that this will hap- pen despite our tiresome habit of con- gratulating ourselves on our wonderful human rights record.