It's always been a symbolic reflection of Canadian refugee and immigration policy that the name of the country's largest newcomer processing centre is the Greater Toronto Enforcement Centre (GTEC). There is no official welcoming centre for those fleeing persecution and related horrors. Rather, GTEC is a machine devoted to tracking down, detaining and deporting as many people as possible who have been failed by Canada's broken refugee determination process.
For years, the head enforcer at GTEC was Reg Williams, who oversaw an operation where trauma survivors who had been given bad advice, had poor lawyers, or ran into biased adjudicators at the Immigration and Refugee Board were swept up by officers of the Canadian Border Services Agency (CBSA), thrown into prison as "failed" refugee claimants, and sent back to bleak futures that included torture and death. Williams was recently in the news because of what the National Post described as a "whistleblowing letter" he sent to the Privy Council.
Normally, whistleblowing is associated with the best traditions of revealing grave injustices and malfeasance, and so one might have thought that Williams had had a change of heart and was calling out the government on its failure to live up to Canada's most basic human rights commitments when it comes to asylum seekers. Perhaps he was troubled by the tears and suffering wrought by the tens of thousands of deportations he oversaw while at GTEC, or the $100 million spent annually on needless and cruel detention and deportation.
But what really got Reg's goat was the fact that he believed tax dollars were being wasted because, in his view, "as a retired public servant, taxpayer and citizen, I am deeply concerned … that the downward trend in productivity, if not addressed, will threaten community safety and security." The "productivity" to which he refers are the numbers of traumas that are cruelly imposed on individuals, families and communities when CBSA agents storm into a house, school or women's shelter to nab fearful folks who are then put onto planes and sent away.
A heartless approach
One can perhaps imagine a similar "whistleblower" in the American south during the civil rights era, a sheriff or police superintendent outraged that increased funding to tamp down voting rights advocates had not resulted in filling the jails or increased numbers of cracked heads from police batons.
For Williams, the work of GTEC is as bloodless and heartless as that of a golfball factory manager. Referring to refugees and immigrants who have rightfully refused to co-operate with deportation, he notes in his letter: "There are enough cases in the GTA inventory such that the organization can be fully engaged for two to three years without accepting a single new case."
Women escaping male violence in Mexico, LGBTQ folks from Uganda, India and Jamaica, torture survivors from Sri Lanka, Roma from eastern Europe -- to Williams, they are not individuals trying to live in relative safety while tending to the legacy of the horrors they have experienced overseas, but mere "inventory" to be boxed up and discarded like so much collateral damage.
Repeating the myths and stereotypes that have perpetuated the current anti-refugee climate, including the false notion that crime is directly connected to immigration status, he claims: "For every person not removed or delayed in removal, there is a real cost to the Canadian taxpayer in the form of an increased burden on social and medical services. This is over and above potential unknown threats these individual may pose in the community." Indeed, Williams expresses no similar concerns about, say, home-grown problems, such as the rate of gender-based violence committed against women by born-in-Canada male members of the military or the shootings of RCMP officers by born-in-Canada men.
At around the same time that Williams' letter became public, two significant decisions holding the federal government to task -- and also reminding us of the human face that Williams fails to see in his un-deported "inventory" -- emerged from a very unlikely source. It was the normally conservative and at times heartless Federal Court of Canada, which generally rubber stamps deportation orders -- when it decides to hear them at all -- and also oversees secret trials.
Perhaps it is a sign that the federal government has gone so overboard with some of its anti-migrant policies that even this Court has been left with no choice but to try and rein in some of the more odious decisions.
Rejecting the terrorism label
Take the case of Jose Figueroa, approaching his one-year anniversary in sanctuary in a B.C. church. A survivor of the Salvadoran civil war (in which government forces murdered 75,000 people), he is faced with deportation for his prior association with the FMLN, the former resistance organization that is now the governing party in that country. Despite never having picked up a gun, he is falsely tarred with the terrorist brush by an immigration officer, even though the organization is listed nowhere on the planet (or elsewhere in the universe) as a terrorist entity.
The no-nonsense Judge Richard Mosley was perturbed at that finding. During a hearing in late May, he asked a government lawyer whether the terrorist brush should be applied to the 80-100,000 people who were members of the FMLN. The response: "Yes, my Lord. I mean... Well, as we stand today under Section 34 [of the Immigration Act) all of those members, all of those people would be inadmissible as found by the immigration division in this case and as upheld by this Court."
Needless to say, the thousands of former FMLN members living in Canada, as well as current members (such as ambassadors and diplomatic staff who were present at the hearing) have not faced the same conundrum as Figueroa.
"By extension, everyone who was a member of the ANC [Honourary Canadian Nelson Mandela's African National Congress] during the struggle against apartheid in Africa, will also be caught? Yes?" Mosley asked.
The response was as banal and expected as that offered by German war criminals at Nuremberg: "The minister's delegate is applying the law and as the law stands, that's how it would be."
Mosley's written conclusion found that the decision declaring Figueroa inadmissible to Canada on security grounds was not "intelligible, transparent, justified, and within the range of acceptable outcomes." He also found it "unreasonable as it failed to take into account the nature of the conflict and Mr. Figueroa's personal role as a non-combatant political advocate." Adding that he is surprised that the government failed to consider, despite a recognition of "Canada's commitment to international justice," anything that related to the specific "history of the conflict in El Salvador and, in particular, the political violence inflicted on the population by the military and security forces over many years."
In addition, Mosley notes "none of the other immigration officers who considered [Figueroa's] case over the years that it was pending found that he was a risk to Canada's security or to the security of any person." Indeed, he says concern about FMLN "arrived slowly and late…five years after his application for permanent residence received preliminary approval."
He also finds that immigration officer "unreasonably referred to the FLMN as a 'terrorist organization.'…The FMLN was never a group for which political terror was a primary tactic. It had broad popular support and has now formed the government through democratic means. The armed elements of the FMLN were primarily military forces engaged in a civil war against an oppressive regime much like the African National Congress in South Africa's struggle against apartheid."
While this is a step forward for Figueroa and, perhaps, for others facing similarly unreasonable inadmissibility decisions, the father of three remains in sanctuary as he awaits a new decision on his application for landed status and pursues other legal and political strategies.
Pushing back on health-care cuts
In any event, the targeting of Figueroa and others in his shoes is clearly ideological, in much the same mean-spirited manner as the order-in-council instituting devastating cuts to refugee health care. That was clearly the conclusion of Judge Anne McTavish in a 269-page ruling that not only found the cuts to be "cruel and unusual," but also based on the very stereotyping and lies about refugees and immigrants spouted by GTEC's Williams.
"The effect of these changes is to deny funding for life-saving medications such as insulin and cardiac drugs to impoverished refugee claimants from war-torn countries such as Afghanistan and Iraq…[and] basic pre-natal, obstetrical, and pediatric care to women and children seeking the protection of Canada from 'Designated Countries of Origin' such as Mexico and Hungary." Designated Countries of Origin (DCO) refers to countries curiously considered "safe" by the Canadian government, which proceeds to deny certain procedural protections as well as health-care benefits to refugees who arrive from those countries.
While the decision is unequivocal in its condemnation of an order-in-council which has brought misery to thousands and uncertainty to even more because it differentiates the level of health care one might receive based on one's country of origin, it further notes the cuts decision put "their lives at risk and perpetuates the stereotypical view that they are cheats and queue-jumpers, that their refugee claims are 'bogus,' and that they have come to Canada to abuse the generosity of Canadians. It serves to perpetuate the historical disadvantage suffered by members of an admittedly vulnerable, poor and disadvantaged group."
McTavish also accepts that the cuts are "causing illness and disability," and agrees with the conclusion that "a refugee claimant will eventually die as a result of inadequate access to health care" wrought by the changes. "The executive branch of government has in this case intentionally targeted an admittedly vulnerable, poor and disadvantaged group for adverse treatment," making the health-care cuts with "the express purpose of inflicting predictable and preventable physical and psychological suffering on any of those seeking the protection of Canada."
Cruel and unusual decision
McTavish notes that the changes are marked by "cruelty" on a number of levels, particularly as they adversely impact on children, noting "a refugee-claimant child with asthma may be able to access emergency room treatment for an acute asthma attack, but could later be left gasping for breath if his impoverished refugee claimant parents could not afford the cost of the child's asthma medication…. a child screaming in pain because of an ear infection would not be entitled to funding for any medical care whatsoever, because an ear infection is not a condition that poses a risk to public health or safety. While the child's parents might be able to have the child seen by a doctor through a hospital emergency room, no health insurance coverage would be available to assist with the cost of the antibiotics that would be required to treat the infection.
"Similarly, the young girl from a DCO country who has been traumatized by sexual or gang violence in her country of origin would not be entitled to health insurance coverage for any kind of mental health care if she becomes suicidal, as medical care is not available to the child whose mental health condition only poses a risk to the child herself. Once again, emergency hospital care might be available to deal with a suicide attempt, but no insurance coverage would be available for the ongoing psychiatric treatment and medications that could assist in allowing the traumatized child to recover."
The cuts are discriminatory, she notes, because they are based in part on nation of origin (which violates Article 3 of the Refugee Convention, to which Canada is a signatory).
In another sign that the Court grasped the ideological and factually thin rationale for the cuts, McTavish also points out that the government's witnesses in this case spoke only of a "perception" held by "some" individuals that certain people may come to Canada only for the medical care, but "there does not, however, appear to have been any attempt by the government to determine whether the subjective perception on the part of certain unidentified individuals … was in fact justified. Nor has there been any attempt to determine the extent to which, if at all, the availability of state-funded health care operates as a 'pull factor' for non-meritorious refugee claimants."
In a finding that speaks volumes about the multi-tiered justice faced by immigrants and refugees to Canada, Mctavish bluntly states that the cuts send:
"the clear message that refugee claimants from DCO countries are undesirable, and that their well-being, and indeed their very lives, are worth less than those of refugee claimants from non-DCO countries…The [federal government has] acknowledged that in cutting the health insurance benefits for refugee claimants from DCO countries, it is trying to use the hardship that will be suffered by claimants in Canada as a means to an end in deterring others from coming to Canada. Indeed, this is one of the stated objectives of the 2012 changes…. This demonstrates a lack of regard for the inherent dignity of these claimants."
It "also serves to further marginalize, prejudice, and stereotype refugee claimants from DCO countries."
Unsuccessful does NOT equal bogus
In a refreshing acknowledgement of the real obstacles refugees face, McTavish notes that the refugee determination process is not as simplistic as is often made out by government claims, noting that being found "unsuccessful" in a refugee claim does not mean one's claim was "bogus."
Strong as those words are, though, the Court is unwilling to unravel its stranglehold on the notion that immigration status cannot be used as an "analogous ground" in determining equality rights challenges under Section 15 of the Charter, which means that in other cases, discrimination will continue to be judicially upheld because of the country of one's birth or current immigration status. McTavish notes she is bound here because of Federal Court of Appeal decisions.
The decision also reminds us that collectively, Canadian courts' Charter interpretation have failed everyone in this country when it comes to truly embedding social and economic rights, for Charter guarantees of life, liberty and security of the person do NOT "include a positive right to state funding for health care," nor for many other social benefits.
As GTEC's Reg Williams perhaps awaits a career in punditry parroting the lies he believes about immigrants and refugees, perhaps he can use his down time to catch up on some corrective reading with these two significant decisions. If he eventually creates a group like "Former Enforcers Against Deportations," I'd be happy to be his first contributor.
Matthew Behrens is a freelance writer and social justice advocate who co-ordinates the Homes not Bombs non-violent direct action network. He has worked closely with the targets of Canadian and U.S. 'national security' profiling for many years.