Clarke Immigration Law had the privilege of participating in the recent Manitoba Torch of Dignity Event. Alastair Clarke was honoured to be invited as a Speaker & Presentor to this event, based on his advocacy on behalf of Manitobans. Alastair has been fighting for his clients for many years, including cases based on human rights violations and cases based on Charter rights. Here is a copy of Alastair’s speech, which is available online:
Thank you for the invitation to speak with you today. I am prerecording my talk and I expect that we started this conference with acknowledge to the First Nations people. I am speaking to you at Clarke Immigration Law, located on the traditional lands of the Anishinabe, Cree, Oji-Cree, Dene, and Dakota, and is the Birthplace of the Métis Nation and the Heart of the Métis Nation Homeland. And this acknowledgment is not perfunctory. As a conference focused on human rights, we need to recognize the human rights that have been violated in Canada. For the first National Day for Truth and Reconciliation, Clarke Immigration Law announced pro bono services for Indigenous people. I believe it is incumbent on all of us to be part of the solution.
OK – today I have been asked to speak on Article 14 of the Universal Declarations of Human Rights. Namely, the right to seek and enjoy asylum from persecution. The Declarations were proclaimed by the UN General Assembly in 1948 in the shadow of WWII. Subsequently, member states participated in four Geneva Conventions that led to the 1951 Refugee Convention. Immigration lawyers regularly refer to the 1951 Geneva Convention as the foundation for modern refugee laws. It is important to note that Canada did not sign the Convention until 1969 – more than 18 years after it was adopted by the UN.
In Canadian law, the principles have been ratified in sections 96 and 97 of the Immigration and Refugee Protection Act. For any foreign national in Canada, they may be granted refugee status or protected person status if they fall within sections 96 or 97. These sections are the backbone of the refugee determination system and the particular language of these sections has been heavily litigated.
As a practitioner, my job is to help my clients navigate the Canadian immigration system. I have represented thousands of clients from around the world on all kinds of immigration applications. Today I want to share 3 cases with you. These are real cases of real people. The point of the first case is to show how Canadian laws may fail to protect human rights. The second is to how the Canadian system has adapted to help people who have suffered human rights violations. The third case is a challenging case that I am currently handling. The point of this third case is to highlight some of the issues refugee lawyers have to deal with in 2021. Finally, I want to propose an expansion of refugee law and I want all of you to get involved in helping refugees who need our help.
The first story starts in Burundi. The former president of Burundi and his regime committed many human rights violations and the International Criminal Court has been investigating human rights abuses since 2017. I got involved in 2018 when I got a call from a Burundi journalist at the border. She entered the United States on a visitor visa and she was attempting to file a claim for refugee protection in Canada. Her sister-in-law lives in Winnipeg and they are very close. Unfortunately, when she got to the Canadian border, the officers could not allow her refugee claim to be referred to the tribunal unless she passed the legal test in the Safe Third Country Agreement. In this case, the Agreement mandated that this Burundi journalist file her refugee claim in the USA unless she fell under one of the exceptions. The family thought that having a family member in Canada would grant her access to the Canadian refugee determination system – which is far more humane than the American system. Alas, her relationship with her sister-in-law, a relationship by marriage not by blood, was not sufficient and she was denied entry. On a side note, her children were allowed to enter as they have a blood connection with their Canadian aunt. The journalist made the heart-wrenching decision to give her children to her sister-in-law and to stay at a shelter near the border in the USA. That is when I got involved. We filed an Application for Judicial Review to Federal Court and negotiated with the Department of Justice. It was not easy but the journalist is now in Canada with her children and they are all permanent residents.
I have spoken on the so-called Safe Third Country Agreement at national conferences for immigration lawyers and in many news interviews. In my view, this Agreement allows Canada to shirk its human rights obligations. In 2020, Federal Court Justice McDonald determined the Safe Third Country Agreement is unconstitutional and fails to protect human rights. I would encourage you to read this well reasoned decision that is based on very strong evidence. This decision, however, was overturned by the Federal Court of Appeal earlier this year. I disagree with this recent decision and more work needs to be done.
The second case refers to the Singh decision by the Supreme Court of Canada, rendered on April 4th, 1985. The reason I mention the date is because April 4th is Refugee Rights Day and that date was chosen based on the Singh decision. Prior to the Singh decision, refugee claimants in Canada did not have the right to a hearing. They submitted a written claim only. No testimony. No witnesses. There were many lawyers involved as advocates in this decision but I want to mention Barb Jackman. She is one of the reasons I fight for my clients. She was my professor at Queen’s Law and she would talk to me about her cases during breaks. Barb was a young lawyer when she argued the Singh case at the Supreme Court and she made strong Charter arguments to fight for change. Indeed, the Court agreed and the Immigration and Refugee Board was created. I have been giving guest lectures to students at the University of Winnipeg for many years and we focus on the Singh decision. This decision gives me hope for positive change and it shows the importance of both individual effort and the judicial system to be part of the solution.
My last story involves a member of the Falun Gong from China who is currently fighting to stay in Canada. Human rights abuses of members of Falun Gong are well documented. My client was tortured and she is emotionally exhausted. She fled China without any documents and she has been trying to have evidence sent to her. Alas, the Chinese government’s draconian surveillance system has cut her off from her relatives and friends. Her WhatsApp account was canceled. Her friend’s account has been suspended. She is now afraid that if she continues with her claim, her family members in China will be punished. The reason that I bring up this case is the highlight the challenges of fighting human rights abuses in 2021. While we have technology that allows me to present to you, wherever you are, modern technology also allows governments to hide human rights violations.
Finally, I want to end on a call to action. Currently, we are facing possible extinction if we do not confront climate change. The 1951 Geneva Convention and, subsequently, sections 96 and 97 of IRPA did not consider people being displaced from environmental disasters. These people are currently not covered by our laws. I have been working on this issue since 2010 when I edited an article by Peter Showler entitled The Plight of the Eco-Refugee. Climate change is an existential threat and we need to recognize this risk within the context of refugee law.
Thank you and I look forward to further discussion on any of these points. I hope I have helped spark change.