Using the Charter to Challenge Discrimination
Against Refugees and Immigrants
Workshop June 1997
Introduction
The Canadian Council for Refugees, with funding from the Court Challenges Program of Canada, conducted a 3 hour workshop devoted to strategizing and networking on possible court challenges of various discriminatory measures faced by refugees and immigrants. In part the session served as a follow up to the session held during the CCR conference at Aylmer in November 1996 which was a discussion of the ongoing court challenge of the ID requirement for landing of Convention refugees. It was hoped that the session in Edmonton in June 1997 would allow a broadening of the discussion and more importantly it would provide a forum for a greater degree of interactive information sharing from concerned communities across Canada and ideally more focused legal strategizing.
An estimated 60 people attended the session in Edmonton. The majority of those present were non-lawyers who worked in community based settlement or ethno-specific agencies. Nevertheless, lawyers played an important role in the group by helping to set the stage for the discussion in the opening plenary session. This plenary session helped to frame some the issues to be discussed and it also set an historical and legal background against which the group members could view their own experiences with discrimination in Canada's immigration system. Most importantly, the plenary session gave lawyers and the CCR an opportunity to explain to the group as a whole the importance of a community based approach to Charter litigation particularly in documenting the effects of discrimination. Following the plenary session, participants were able to gather into smaller groups in order to discuss specific issues and to share information with one another.
Plenary Session
Historical background to discrimination in Canada's Immigration Policy (Chantal Tie)
Until the 1960's Canada chose its immigrants on the basis of their racial categorization, not on an assessment of the individual merits of applicants. What set Canada apart form the U.S.A. and Australia was that our "whites only" policy was never publicly acknowledged. Aside from the exclusion of the Chinese, which was an overt legislative action, the exclusion of other racial groups was accomplished through a combination of regulatory Orders in Council, policy directives, and the rigid enforcement of seemingly neutral immigration, health and money requirements against specific racial groups. Canadian immigration practice had two hallmarks: large amounts of discretion vested in the Minister, and a lack of judicial scrutiny.
Exclusions against specific racial groups were achieved in specific ways. For example the Chinese were forced to pay a head tax and a exorbitantly high passenger to tonnage ratio was imposed and by 1923 the door was explicitly closed to Chinese immigration. In contrast the Japanese were effectively excluded by the operation of a secret agreement called the Lemieux Agreement which was entered into by the governments of Japan and Canada. Later the Canadian government imposed a 'continuous journey' Order in Council so that Japanese Immigrants could only arrive directly from Japan, ensuring that they would be subject to the restrictions of the Lemieux Agreement.
Many Canadian have heard of the "underground railway" that brought escaped black American Slaves to Canada. Few were aware of the previous "railway" which went south before Slavery was abolished in what is today Canada. Later when farmers from the United States were being encouraged to settle in Western Canada, black farmers were actively discouraged. Immigration agents in the US were instructed to stop providing information to blacks; to penalize railways who distributed the transportation subsidies for transporting blacks; to actively discourage Blacks from immigrating by telling them it was too cold and Canadians too hostile. Finally Blacks like Chinese who entered under the Head Tax, and Jews from Europe, were subject to additional medical scrutiny not applied to Whites. Finally, an Order in Council was passed in 1911 which directly prohibited Blacks from Canada however, by this time the other measures had already stopped Black immigration to Canada.
Immigrants from the Indian Sub-continent were subject to similar measures as outlined above - they were subject to a Head Tax and the "continuous passage" requirement. Since they did not have the co-operation of the Indian Government to restrict emigration, the Canadian government directed the CPR to stop selling continuous passage tickets from India. Thus all immigration from India was stopped by these measures. After India, Pakistan, and Ceylon (Sri Lanka) became self-governing, Canada negotiated restrictive agreements directly with the countries. In contrast, White immigrants faced virtually no entry requirements and were often subsidized and cared for until they became self-sufficient.
Since the 1960s when a point system was introduced for the selection of immigrants, race officially ceased to be a relevant factor. Now more than 82% of our immigrants come from third world countries. Thus when the government now moves to restrict family sponsorship or imposes a new "head tax" which are on their face "colour blind", the effect of these measures falls upon the 82% of immigrants who come from groups that were until very recently barred from our shores. It is also of note that seemingly "new" interdiction measures such as carrier sanctions, ID and medical requirements, and the non-availability of immigration information in many third world countries have a history in Canada's immigration policy. Meanwhile the hallmarks of restrictive judicial scrutiny and vast discretion in the hands of the Minister continue to this day.
What is a Discrimination Case? (Avvy Go)
In order to determine whether a "Charter Right" has been violated, it is necessary to refer to the Canadian Charter of Rights and Freedoms which is a part of the Canadian Constitution (1982). The following sections are of particular significance to immigrants and refugees:
Mobility Rights: s.6(1), (2)
s.7 Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice
s.15
(1) Equality Right before and under the law, equal protection and 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
(2) (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those listed in (1)
s.27 interpretation of Charter in manner consistent with the preservation and enhancement of the multicultural heritage of Canadians
s.28 rights and freedoms to be guaranteed equally to male and female persons
s.32
(1) The Charter applies to the Parliament and government of Canada and to the legislature and government of each province
s.1 Limitation on rights - such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society
The Court Challenges Programme is specifically geared toward litigation under s.15 of the Charter and indeed, s.15 will be the starting point of most discrimination cases. How do you know if your right under s.15 has been violated? First you must have a certain law, government policy or government action which deprives you of equal protection or benefit of the law because the law singles you out as a member of a group which faces historical disadvantage (examples are found in s.15). This is direct discrimination. A historical example of this type of discrimination was the Chinese head tax which said that all Chinese must pay the special tax. The other kind of discrimination is Adverse Impact discrimination which means that a law or government action has an adverse impact on you because you are a member of a disadvantaged group. An example of this type of discrimination may be the ROLF which says that all immigrants must pay a fee. However it affects some more than others. Finally, for the government to justify the law, policy or action, the objective being pursued by the government in making the law must be substantively important, the law or action must be rationally connected to the stated objective, the law must not impair rights more than necessary, and the law must not have a disproportionately severe impact on those it affects.
Organizing Communities for a Court Challenge (Avvy Go)
In order to have a successful challenge of a government law or policy it is imperative that as community activists and lawyers we have the support of the affected communities. The reason is that most discrimination that leads to litigation is adverse impact discrimination. Therefore, in order to even establish that the discrimination exists, one must do research in the communities to document the effects of the government policy or law. This is often one of the most difficult steps in mounting a court challenge. One example is the case of sponsored immigrants in Ontario being deemed to be receiving income from Sponsors. Another example is a case where the issue concerns fiancées who arrive in Canada but do not get married within the required 90 days due to the abuse of the sponsoring fiancé in Canada. In both examples many of the members of the immigrant communities were reluctant to come forward, fearing negative publicity by potential media reports tying immigrants to welfare, or domestic violence. However with much information-sharing the court cases did go forward once the communities became convinced of the necessity of standing up for their rights. It was also pointed out that the Court Challenges Programme does have some money to give people who are trying to collect this kind of information to litigate a discrimination case.
Small Group Sessions
The large group was divided into 3 smaller groups each co-facilitated by a lawyer and a community activist. These groups consisted mainly of non-lawyers working with new immigrant and refugee communities across Canada.
Brainstorming in the Small Groups
The use of the Immigration Act to punish criminals or "dangerous persons" is becoming more frequent. This results in non-citizens lacking the same access to rights and procedural guarantees that citizen criminals have. This issue is also a difficult one when trying to mobilize affected communities due to label of criminality. Further the time limits involved in the issuance of a "danger to the public" certificate do not allow for the preparation of a proper defence by competent counsel. There needs to be more co-ordination between criminal lawyers and immigration lawyers especially in "danger to the public" situations.
- Access to federal language training (English or French). Such programmes are not open to immigrants once they become citizens, nor to people excluded from the refugee process altogether.
- Access to appropriate education for refugee children is also a problem that can be looked at through a human rights perspective. Refugee children often lose 3-10 years of education in the process of becoming a refugee in Canada. Many end up dropping out of the school system altogether. The impact of the provincial funding cuts are especially significant here as children with special needs are being forced to attend regular classes. Federal government should be setting standards particularly in the case of government sponsored refugees to ensure that they are getting the appropriate education. Is Canada living up to obligations under Convention on Rights of the Child re elementary education?
- 10 year sponsorship guarantees are a barrier to immigration and family reunification, and unfair especially once the sponsored immigrant becomes a citizen (and does not have same access to social services as other citizens).
- Access to income maintenance programmes. Individuals were frustrated in attempting to get welfare benefits for clients. Eg. in BC refugees and immigrants receive only a "hardship benefit" rather than regular benefits until they receive landing. Access is very arbitrary. Often there are delays due to lack of proper documentation. In Alberta it was discovered that there was an in house memo in the Welfare Dept entitled "how to stop refugee claimants from receiving welfare" which was 12 pages long. People moving between provinces are routinely denied or delayed funds, even emergency assistance. It is however likely to be difficult to mount a charter challenge on such issues because of the reluctance of courts to recognize poverty as an "analogous ground".
- Sponsorship breakdown and welfare - some welfare offices throughout the country refuse to recognize that someone is in a sponsorship breakdown situation unless so declared formally by Immigration. For example in Alberta, CIC will not make such a declaration unless the sponsor signs a form saying why they will not support the person. This process puts women's lives at risk.
- Healthcare - upon being recognized a Convention Refugee, the interim federal programme ceases but the provincial plans do not necessarily begin
- There was also some discussion on how to challenge written or unwritten policies that seem discriminatory or just wrong but may not constitute a charter issue. There are other legal options besides bringing a charter challenge to a higher court. For example you can usually appeal administrative decisions to relevant review tribunals. However it was pointed out that if you think the charter may be involved it is always very important to raise the issue at this early point or else a court may refuse to hear such arguments later.
- ID issue was also discussed. The government's relatively new ID requirements for landing has had a huge impact on several communities in particular. Family reunification is nearly impossible as well as a myriad of other social benefits and rights. A court challenge is being led by Somalis in Ottawa.
- Increased use of DNA testing and requests by Immigration for DNA testing to prove family relationship in sponsoring relatives from overseas very expensive. CIC is no longer accepting evidence that they would have in the past. It seems discriminatory because they appear to ask mainly people from poor countries ie. Africa and Asia to get DNA testing and refuse to accept documents.
Conclusion
Participants expressed feelings of isolation in their small agencies. They found the small group discussion in particular quite helpful. Many found the time too short as much of the time was used trying to understand and digest the information and issues presented in the plenary session. It was hoped that the next CCR consultation in Toronto would supply a further opportunity for continuing and focusing the discussion.