Time for reforms to reverse punitive 2012 refugee laws

In 2012, Stephen Harper’s government introduced farreaching changes to Canadian refugee law and policies. Some of these changes were unconstitutional and were in fact struck down by the Federal Court. Now is the time to make sure all vestiges of those punitive and unfair reforms are swept away.

The courts did overturn the “cruel and unusual” restrictions to refugee health care and discriminatory restrictions to appeal rights based on nationality. Many other changes were criticized by Amnesty International, the Canadian Association of Refugee Lawyers, UN human rights bodies and many other groups as violating basic human right standards. One of those 2012 changes stands out. The Designated Foreign Nationals (DFN) regime gives the minister the power to designate groups of individuals arriving in Canada, certainly including refugee claimants, based simply on their mode of getting here. It is a vast and arbitrary power and can be used against any group of two or more persons. To be clear, DFNs are not people who have been charged with any crimes. They are individuals, including refugees, who the former government simply wished to deter from seeking Canada’s protection. The consequences are severe. First and foremost is mandatory detention for potentially lengthy periods for every DFN who is more than 16 years of age, with minimal review. Mandatory imprisonment simply on the basis of how someone has arrived in Canada, without any individual assessment to determine whether there are legitimate grounds for taking away their freedom, constitutes arbitrary detention and clearly violates international law.

There is more. There is no right of appeal to the Refugee Appeal Division for those whose refugee claims are denied. Even if a claimant is ultimately recognized by Canada to be a refugee, he or she cannot begin the process of bringing loved ones to Canada for at least five years.

That amounts to a five-year violation of the fundamental and very precious right of refugees to speedy family reunification.

And let’s not forget that many of those spouses, children and parents left in limbo are struggling to survive in war zones or refugee camps. This provision is mind-bogglingly mean-spirited, as well as a violation of the UN Refugee Convention, international human rights treaties and our Charter of Rights and Freedoms.

The DFN regime is such a clear violation of human rights standards that experts, testifying at the parliamentary committee when it was being adopted, questioned how Department of Justice lawyers could possibly have signed off on the law’s constitutional compliance. In a different context, the Supreme Court has already ruled that a six-month detention without review, as proposed under the DFN regime, is unconstitutional.

Canadian law already provides for the detention of foreign nationals — with a meaningful right of review — for identity, public safety or flight risk concerns. There was no need to expand those powers.

The Trudeau government has rightly signalled its intention to ensure the detention of refugees and migrants will be an exceptional last resort, particularly given the impact on mental health and the terrible consequences for affected children. Doing away with the DFN regime is central to that laudable goal.

We welcome the fact that the current government has not used the DFN regime. And we are aware the former government generally shied away from it as well. That should not, however, in any way lull us into assuming it needs no attention.

The bottom line is that legal provisions granting authorities vast and arbitrary powers have no place in Canada’s statute books. True, the courts would likely eventually strike down such flagrant Charter violations.

But that would take years and come at considerable public expense.

In the meantime, vulnerable people in need of protection would suffer, needlessly and cruelly.

The Trudeau government has set a strong example to the world that refugee rights must be protected. That example will carry all the more force if we get rid of Canadian laws that violate those rights.

Repealing the DFN regime is a very good place to start.