For refugee aid worker, rewards outweigh risks
Those who assist migrants face threat of prosecution under controversial law
Every day Francisco Rico, co-director of the FJC Refugee Centre in Toronto, gets calls from undocumented migrants wondering how to get to Canada. Some have tracked his organization down on the Internet; others heard about it through friends. Their constant refrain: “We want to come to Canada and we don’t have any papers.”
Rico advises them. It’s not in his nature to turn away a request for help. “Our mandate is to help and protect refugees,” he explains.
But in offering advice, he could be committing a crime under a controversial section of the 2002 Immigration and Refugee Protection Act that critics say is written far too broadly and puts people who legitimately help refugees at risk of prosecution.
Section 117 makes it illegal to “organize, induce, aid or abet the coming into Canada of one or more persons knowing that, or being reckless as to whether, their coming into Canada is or would be in contravention of this Act.”
The possibility of being charged doesn’t worry Rico. “I’m dedicated to protecting human rights and I will continue doing it,” he says. “It’s not defiance. It’s part of who I am and the work I do.”
The clause, originally designed to snag human smugglers, not humanitarian workers, comes with a stiff penalty: a first offence could mean jail time of up to10 years and a fine up to $500,000.
“We do it being aware of the daily risk,” says Rico, 56. “If this is going to make the government come after me, I’ll face it. I’m too old to change the way I live my life. They know what we do and I’m pretty sure they (Ottawa) have discussed the possibility of doing something, but I think the political climate has been in our favour.”
Still, many challenging the law worry that in a political climate increasingly hostile to refugees, it could criminalize the work of all advocates and humanitarians, says Janet Dench, executive director of the Canadian Council for Refugees.
Rico and others hope a recent Supreme Court of Canada case will clarify the law. In late February, Canada’s top court heard an appeal of three cases that involved human
“I’m dedicated to protecting human rights and I will continue doing it. It’s not defiance. It’s part of who I am and the work I do.” FRANCISCO RICO FJC REFUGEE CENTRE CO-DIRECTOR
smuggling and trafficking, which turn on Section 117 as well as Section 37, which deals with the admissibility of a refugee who has participated in transnational crimes such as “people smuggling, trafficking in persons or money laundering.”
Arguments during the two-day hearing in Ottawa were presented by the lawyers for those charged, the minister of public safety and emergency preparedness, and intervenors including the British Columbia Civil Liberties Association, the Canadian Council for Refugees and the Canadian Association for Refugee Law- yers. The court reserved its decision.
Federal government representatives, including Public Safety Canada and the Canada Border Services Agency, would not discuss the case while it’s before the court.
A ruling that lets the current law stand could have a chilling impact on the work of refugee advocates and humanitarians, including Rico, who has been recognized by the Canadian Museum for Human Rights for his efforts in the field.
Carmen Cheung, senior counsel for the B.C. civil liberties group, says Section117 needs to be narrower in scope. “All that is required is that a person knowingly assists any undocumented person coming to Canada,” she says.
Assistance can be anything from escorting refugees, to telling them how to go to Canada, where resources are on the way or what kinds of routes to take.
“They don’t actually have to be in the act of smuggling itself,” says Cheung. “Just providing assistance can be interpreted as human smuggling.”
Lawyer Lorne Waldman, who represented one of the appellants in the Supreme Court case, said if the law stands, it “will be a strong disincentive against people helping refugees to try to come to Canada.”
The Canadian Council for Refugees fears the law might be used against individual Good Samaritans, says Dench. That’s already happened in one case: American refugee aid worker Janet Hinshaw Thomas was charged in 2007 for helping refugees passing through the U.S. come to Canada. It was the first time the section in the 2002 act was used against someone helping refugees. The charges against Hinshaw Thomas, founder and director of a Pennsylvania-based resettlement group called PRIME — Ecumenical Commitment to Refugees, were eventually dropped. But for many advocates, the case signalled a shift in enforcement.
“If the law is left to stand, it increases the insecurity and denial of protection for refugees and it also marginalizes groups in Canada that support refugees,” says Dench. “It goes against the better traditions of Canada’s history of standing up for refugees and rather puts those who protect refugees in the place of being a criminal.”
She acknowledges it is unlikely there will be wholesale prosecutions of refugee aid workers. “But it means that you’re constantly on edge and don’t know if you’ll be at risk.”
Whatever the Supreme Court decides, Rico plans to continue his work. He knows what it’s like to be desperate for help: he fled his native El Salvador amid persecution from a right-wing dictatorship over his human rights work, eventually arriving in Canada with his family in 1990.
“If we want to do our mandate, we have to sometimes look like we break the law,” he explains. “It makes me proud that we do it.”