Bank account: Creditanstalt-Bankverein 0221-00283/00, BLZ 11 000
Extract from the IHF report Human Rights in the OSCE Region: Europe, Central Asia and North America,
Report 2005 (Events of 2004)
IHF FOCUS: national human rights protection; national and ethnic minorities; asylum seekers and refugees; anti-Semitism; international humanitarian law (accountability for war crimes).
The Canadian Helsinki Watch Group criticized the Canadian refugee determination system in 2004, which failed to fulfill the necessary elements of a functioning procedure. To mention just a few deficiencies, it barred access to the refugee determination system, it did not fully guarantee the right to counsel, and it did not provide for the necessary oral hearings and the right to appeal or re-open cases.
Further, the government of Canada continued to fail to fulfill its duty to proceed promptly with the revocation of citizenship and extradition of Nazi war criminals who resided in Canada, despite adequate legal provisions that provided for this.
The situation of Canadian indigenous peoples was a source of concern. Despite enduring conflict over treaty rights and the visible social and economic consequences of a failed policy, the year 2004 saw a number of more positive developments in indigenous peoples’ conditions than previous years, reflecting a possible change of political attitudes.
The Canadian Helsinki Watch Group discussed the forms of redress available in various countries – including Canada – for international human rights violations. It drew up a list of them, presenting also techniques tried in Canada.
The group continued to monitor hate speech and hate crimes. It criticized the fact that, in the wake of the firebombing of the United Talmud Torahs elementary school library in Montreal, Quebec, on 5 April, the prosecution minimized the seriousness of what happened by restricting the charges to arson and failing to bring charges of “mischief relating to religious property,” “willful promotion of hatred” and “public incitement of hatred.”
National Human Rights Protection
The Canadian Helsinki Watch Group made ten different remedial suggestions for redress of international human rights violations in Canada.
The first step is to canvass the adequacy of existing remedies. If they are obviously deficient, human rights NGOs should demand reform. In Canada’s case, the country was mired in a system of total immunity for war criminal for decades. What eventually broke the logjam was the commission of inquiry on war criminals, headed by the Judge Jules Deschenes, whose commission (reported in December 1986) held public hearings about Nazi war criminals who had been granted entry en masse into Canada and given immunity once they arrived. The commission’s recommendations led to changes in Canadian law to provide for their prosecution in Canada. The commission showed that it could be an effective weapon against indifference toward war criminals and its proceedings sensitized the public to the need for bringing human rights violators to justice.
A second possibility is to consider a libel suit. This technique has been used with success by Falun Gong – a meditation and exercise group that has been persecuted in China – in Canada. It has tried three different libel suits, each with different results.
The Falung Gong sued the Sing Tao newspaper for publishing an article claiming that Falun Gong advocated the destruction of the world, but lost the suit, also on appeal. A second libel lawsuit proceeded against the Chinese deputy consul general in Toronto, Pan Xinchun, who publicly labeled Joel Chipkar, a member of Falun Gong, as a member of a “sinister cult.” Chipkar won the libel suit against the consul in December 2003 by default. The amount awarded against the consul was CAD 1,000 plus legal fees. A third lawsuit in Quebec was filed by a number of Falun Gong practitioners against La Presse Chinoise for publishing a number of disparaging articles against the Falun Gong. The Quebec courts allowed the lawsuit to proceed and issued a safeguard order against the newspaper prohibiting the paper from repeating the libel. The court heard evidence in Montreal on the merits of the case and reserved judgment. A judgment had not been pronounced as of March 2005.
Lawsuits for Damages
Another civil remedy is suing a government responsible for persecution for damages in the country where the victims of human rights violations now reside.
Houshang Bouzari is a torture victim who had to pay a ransom directly into state coffers to escape his torturers in Iran. As a permanent resident of Canada, he sued in Canada for return of the ransom and damages. He argued that the Canadian State Immunity Act was unconstitutional because it gave immunity for torture or other violations of other peremptory norms of international law. His case was rejected by the Ontario Superior Court, and then by the Ontario Court of Appeal on 30 June 2004. Iran did not defend, but the government of Canada intervened to defend the constitutionality of the act. After that, Bouzari created a new NGO, the International Campaign against Torture (InCat), the goal of which is to amend the State Immunity Act to provide an exception to state immunity for violations of torture and other peremptory norms of international law. Though he failed in the litigation, the campaign to fill the gap in the law he identified has already begun.
Another possibility for victims is a suit for damages against named individuals. This remedy would normally avoid the hazards of state immunity legislation, particularly if the perpetrator is no longer an office holder. There have been a number of such lawsuits in the United States under the Alien Torts Claim Act and Torture Victim Protection Act.
Civil litigation can invoke public remedies as well as private remedies. The simplest civil public remedy is asking the government to bar entry to perpetrators. Most countries have legislation barring entry to war criminals and criminals against humanity. Moreover, the standard of proof for this prohibition is low, far less than the criminal standard of proof beyond a reasonable doubt.
The Falun Gong have tried this in Canada. They met in 2004 with members of the War Crimes Unit of the Royal Canadian Mounted Police, providing them a list of names with evidence in support and asked for a prohibition of entry. Included in the list was Jiang Zemin, former president of China and the leader of the repression against the Falun Gong. Falun Gong expects to provide as many as 10,000 names for the list. Privacy legislation prevents the government from indicating which, if any, of those whose names the Falun Gong have forwarded will, in fact, be banned from Canada. But the mere fact of invoking the remedy serves as a warning.
A second public civil remedy is deportation. Once a war criminal or criminal against humanity has arrived, the simplest way of dealing with the criminal may be to get him/her out. Deportation procedures have the same advantage as prohibition of entry procedures. They are less complex than criminal proceedings, as the standard of proof is lower and the rules of evidence are more relaxed. However, the remedy suffers the disadvantage that the criminal may be relocated without the crime being punished.
Deportation is a government-initiated remedy, but, at higher levels, organizations representing victims can intervene.
The Rwandan community in Canada has been attempting to pursue this remedy in the case of Leon Mugesera, who in November 1992 gave a highly defamatory speech which led to mass killings of Tutsis and served as a key piece of propaganda leading to the genocide of April 1994. Mugesera surfaced in Canada in August 1993 as a permanent resident. The government of Canada began removing proceedings against him and succeeded at the first two levels but lost at the Federal Court of Appeal. The Supreme Court of Canada heard the case in 2004, reserved judgment but did not pronounce it.
Revocation of citizenship
The third civil public remedy is revocation of citizenship. For criminals against humanity who have become citizens, revocation of citizenship is a necessary first step towards deportation. It is, however, a procedure fraught with difficulties (see the section on International Humanitarian Law).
The preferable criminal remedy, if available, is extradition. Ideally, perpetrators should be tried in the jurisdiction where the crimes were committed. If the regime has changed, that trial becomes possible.
In theory, extradition awaits a request from a foreign government, but there is no need for victims to be passive. They can approach the foreign jurisdiction to attempt to elicit requests for extradition, or they can approach the jurisdiction of the country where both they and the perpetrators are found to elicit these extradition requests.
Private Criminal Prosecution
The second criminal remedy is private criminal prosecution, allowed by many jurisdictions.
Private prosecutions put the remedy in the hands of the victims rather than the state. The state may be reluctant to prosecute because of the costs involved and the burden of bringing the case to court. A private prosecution allows the victims to circumvent bureaucratic objections.
The Falun Gong in Canada is seeking to invoke this remedy. Canada has legislated a universal jurisdiction for the crime of torture. This means that any victim who is a Canadian citizen can launch a private prosecution against torturers. Kunlun Zhang, a torture victim from China, has asked the attorney general for consent to launch such a case in Ottawa against his Chinese torturers, however, as of early 2005, no answer had been received. As soon as consent of the attorney general of Canada is provided, the counsel for Zhang can ask a Canadian court to issue an arrest warrant against the perpetrators. The arrest warrant can, in turn, be forwarded to Interpol, in an attempt to have the perpetrators brought to Canada for trial.
Prosecution for War Crimes
The most obvious remedy is a public prosecution for crimes within the jurisdiction of the International Criminal Court: war crimes, crimes against humanity and genocide. Victims can draw up a model indictment and present it to the prosecutors or they can call on the prosecutors to launch the prosecution. One virtue of national prosecution is that it is not subject to the limitations imposed by the Rome Statute, which is limited by political compromises. States are free to disregard these compromises when implementing their own prosecution legislation in its place.
A panel of international law experts prepared and submitted in 2003 a detailed indictment against Robert Mugabe of Zimbabwe. The indictment was endorsed by representatives of three largest political parties, the Liberals, the Alliance and the Bloc Quebecois.
The call for an indictment against Robert Mugabe may not lead to an immediate remedy. But it provides a voice to the victims, emphasizes the universality of the wrongs, and raises public consciousness of the violations that have occurred.
National and Ethnic Minorities
Despite enduring conflict over treaty rights, and despite the visible social and economic consequences of failed policy, 2004 saw a number of more positive developments in the promotion of indigenous peoples’ rights than previous years. Canada’s newly elected Prime Minister Paul Martin appeared willing to initiate positive changes, calling an aboriginal summit, scrapping the controversial First Nations Governance Act (Bill C-1) and passing the First Nations Governance Act (Bill C-7), which handed the Westbank Tribal Nation, near Kelowna, British Columbia, the right to self-government.2
“Gathering Strength” – Canada's Aboriginal Action Plan, founded in 1998, continued to serve indigenous peoples and to increase their quality of life and promote self-sufficiency.3
As part of Prime Minister Martin’s promised “renewed relationship” between Canada and its indigenous peoples, he committed to provide “a full seat at the table for Aboriginal Peoples” as well as collaboration and partnership in future policy making. The Canada/Aboriginal Peoples Roundtable brought together leaders from the First Nations, Inuit and Metis to meet with senior leaders and government officials. Seventy aboriginal leaders from across the country attended the summit.4
The first in a year-long series of meetings on key policy issues was held in April. A joint policy retreat of the cabinet committee and aboriginal leaders was planned for February 2005 and will culminate in a full ministers meeting on aboriginal issues proposed for the fall of 2005. Martin vowed that this summit in Ottawa would be a turning point in the lives of aboriginal Canadians.5
A ministers conference on health was held in April. At the conference, native leaders said that the health systems serving their communities were in a “shameful condition” compared to the services non-aboriginal Canadians enjoyed.6 1.4 million Indian, Inuit and Metis people in Canada lag well behind Canadian averages in education, health status and life expectancy. Aboriginal women have an average life expectancy that is 14 years less than the lifespan of non-aboriginal women. Aboriginal people have higher suicide rates (for Inuit six times higher than the national average) and higher rates of diabetes (four times the rate for the rest of the Canadian population).7 A new study found that First Nations’ babies in British Columbia are much more likely to die than other children. The excess mortality is due to preventable causes such as infections, sudden infant death syndrome or crib death and external causes such as accidents, poisoning and violence, according to Statistics Canada.8 To deal with some of the issues, Prime Minister Martin announced funding of CAD 700 million over five years for an aboriginal health transition fund, a new initiative to increase the number of nurses and doctors serving native communities, and health promotion and disease prevention.9
The Haida and Tlingit
On 18 November, Canada’s top court ruled that governments have a legal duty to consult with First Nations to some extent about the development of disputed land, and, if appropriate, accommodate, aboriginal groups prior to their claims. Two First Nations in northwestern British Columbia, the Haida and the Tlingit, were involved in resource-use battles over land that they say are their own. The question in both cases was whether resource development on Crown lands should proceed if aboriginal claims on those lands have not been resolved. One case involved logging by forestry giant Weyerhaeuser on Haida Gwaii – the Queen Charlotte Islands – which is claimed by the Haida Nation. The British Columbia government had given the company permission to log 25% of the Charlottes but the Haida challenged the legality of the tree farm licence. The court ruled that the government had not properly consulted with the Haida.10
The Haida and Tlingit got a major boost in 2002, when the British Columbia Court of Appeal ruled that governments and companies must consult and accommodate First Nations before making land-use decisions – even if aboriginal title is still not proven.
The Lubicon Cree, a small aboriginal society of about 500 people, had not ceded their traditional lands in any legally or historically recognized manner, however the Alberta Energy and Utilities Board continued to approve new oil and gas wells, as well as pipeline developments in Lubicon traditional lands. The Lubicon have yet to reach a settlement with the government offering economic stability for the future and to encourage the province to honour its 1988 Grimshaw Accord commitment to make available 243 square kilometres for reserve lands.11
In 2004, the government reiterated that it “remains firmly committed to a just settlement of the land claim of the Lubicon Lake Indian Nation.”12 However, as of November, more than one year had passed since the last talks between the Lubicon and federal negotiators.13
Anishinabe Nation, Long Point First Nation
The Assembly of First Nations Regional Chief for Quebec and Labrador, Ghislain Picard, said the arrest of a group of Algonquins blockading a logging road near Val d'Or to protest against logging on their traditional lands proves that laws regarding forestry must be updated. A riot squad moved in on 24 and 28 November to disperse the blockade and Lac Simon Algonquin community members were arrested. The men were subsequently released but the issue that led to the confrontation remained to be settled.14
The Samson Cree
In a historical court case, the Samson Cree First Nation has successfully sued the federal government for CAD 1.4 billion, claiming that Ottawa had mismanaged its oil and gas revenues for more than 50 years. The Samson Cree claim, for example, that CAD 360 million was misappropriated from them years ago. The law suit, which began in March 2000, set a precedent in the way First Nations oil and gas assets are handled in Canada. The case has produced 365 days of trial, 15,000 documents, 50,000 pages of transcript and dozens of witnesses.15
Suspicious Deaths and Disappearances
Suspicious deaths and disappearances of numerous indigenous people over the past years and even decades continued to raise concern.
Several indigenous men have died over a period of years on the outskirts of the city of Saskatoon, Saskatchewan. It appeared that the men had frozen to death after being dumped in remote areas by police officers.16
The inquiry into the death of Neil Stonechild, that was launched in Febuary 2003, 13 years after his death, was concluded in September 2004. Neil Stonechild was found frozen to death in a field on the outskirts of Saskatoon in 1990.17 According to the final report of the inquiry , the original investigation by Saskatoon police into the death had been “superficial and totally inadequate.”18 There was evidence that Stonechild had been in police custody the night he was last seen alive.19 As a result, Saskatoon's police force fired the two constables that the inquiry linked to Stonechild’s death.20
The Ipperwash inquiry, established by the government of Ontario on 12 November 2003 to look into the events surrounding the death of Dudley George, continued. George was shot in 1995 during a protest by First Nations representatives at Ipperwash Provincial Park and later died.21 The inquiry was established nearly ten years after George's death.
The Native Women's Association of Canada (NWAC) stated that more than 500 aboriginal women had disappeared over the past 20 years and claimed that police had failed to investigate the cases properly. Police replied that the women had not been reported missing. An Amnesty International report highlighted nine such cases from the past 30 years. The report focused primarily on violence carried out by non-indigenous men driven by racism and contempt for indigenous women. The report suggested that high levels of violence are largely due to social and economic marginialization of indigenous women, which puts them into situations of heightened risk, including poverty, homelessness and, in many cases, resorting to the sex trade to support themselves. Aboriginal women aged 25-44 were five times more likely than other Canadian women of the same age to die of violence, said the report.22
In May 2004, a former British Columbia Provincial Court judge, David William Ramsey, pleaded guilty to having bought sex from and assaulted four Indigenous girls between the ages of 12 and 16 who had appeared before him in court. The crimes were committed between 1992 and 2001. In June, the former judge was sentenced to seven years in prison.23
Some 12,000 former residential school students have applied for compensation from Ottawa and the churches that ran the schools. The claims are for physical, cultural and sexual abuses dating back 50 years. Newly released documents showed that the federal government had settled fewer than 10% of the claims and that out of every CAD 5 the Residential Schools Resolution Department (the body in charge of dealing with the claims) had spent, only one dollar had gone to settlements. The rest was taken up by administration costs.24
On 17 November, the Assembly of First Nations called Ottawa's fast-track program to resolve the 12,000 school abuse cases a failure. Two years after it was established, only three people had settled their cases using the process. The Assembly of First Nations also criticized that the application forms were complicated and long.25
Migration, Asylum Seekers, Refugees and IDPs
The Canadian Helsinki Watch Group expressed concern that the Canadian refugee determination system fails to fulfill the elements of a functioning procedure, which include access to the refugee determination system; a definition of protection broad enough to cover serious risk; an independent qualified decision maker; right to counsel and interpreter; controlling unscrupulous consultants; disclosure; an oral hearing; benefit of the doubt; availability of independent country condition information; right to appeal; a possibility of reopening and second claims; humane treatment of claimants; and access to judicial review.
Violations of the right to interpretation have surfaced in individual cases, but are not a structural problem, and the Documentation Centre of the Immigration and Refugee Board provides independent country condition information. But also in 2004, Canada fell short of the other 13 elements.
Many asylum claimants were stopped en route to Canada and persons who had been convicted of a crime did not have access to the asylum determination procedure. The new Immigration and Refugee Protection Act, in force since June 2002, denies the possibility of second claims (which the old law allowed).26 It also bars access to the refugee determination process to those who are determined to be a security risk27 without a ministerial decision to verify that risk.28 Such barriers are unnecessary and harm both refugees and the larger public interest by wasting time and money, said the Canadian Helsinki Watch Group.
The most recent measure to deny access to the refugee determination system is the “safe third country” agreement with the United States,29 which came into force on 29 December 2004. That agreement, with exceptions30, provides that a claimant can have a claim determined only in the country of first arrival. This agreement will most probably create an incentive for illegal crossings and become a boom to smugglers because it does not apply to those who enter Canada illegally.31 The present Canadian definition of protection is broader than the one in the old legislation. But the government fought the case of Suresh32 to the Supreme Court of Canada for the right to put persons regarded as security risks and public dangers at risk for torture, despite the absolute prohibition against torture in the UN Convention against Torture. The court found that the Canadian Charter of Rights and Freedoms prohibits removal of individuals to countries where they might face torture in all but undefined “exceptional circumstances.”
Shifting refugee determination from the minister of immigration to the independent Immigration and Refugee Board in 1989 was an improvement in terms of independent qualified decision making. However, the board’s work has not been unproblematic. For example, patronage has led to the appointment of unqualified, biased members. In 2004, the government acknowledged the problem and vowed to put an end to it.33 It remains to be seen how the changes will affect the work of the board.
The process overseas remained far worse; it was tainted by visa officers who were neither independent from government nor qualified for their positions.
The right to counsel34 was part of the legislation but, in practice, was denied for refugee determinations at visa posts abroad. This policy was challenged in 2004 in the case of Ha.35 The Federal Court of Appeal decided in January 2004 that the policy was invalid as a lawful fettering of discretion. The situation was better within Canadian borders but a new procedure36 introduced by the Refugee Protection Division of the Immigration and Refugee Board on 1 June placed cross examination before chief examination, thus not allowing the claimant to tell his/her story in an orderly, coherent manner. This may not only re-traumatize refugees but is also inefficient: claims will become longer and more disjointed through this new procedure.
In a positive development, a government regulation came into effect in April 2004 to regulate immigration consulting and to fight the phenomenon of unscrupulous consultants.37 The recommendation introduced a self-regulating profession, with which the government and the Refugee Board would do business. Once the proposed profession was in place, authorities would deal only with those consultants who had become members in good standing of the proposed professional association. The self-regulating professional body, the Canadian Society of Immigration Consultants, is now functioning. On the basis of a regulation, which came into effect in April 2004, only lawyers, Quebec notaries and members of the Canadian Society of Immigration Consultants can, for a fee, represent, advise or consult with a person who is the subject of a proceeding or application before the minister of immigration, an officer of the Department of Immigration or the Immigration and Board.38
Another problem was the failure, in the pre-removal risk assessment procedure, to disclose objections to allowing an application for protection with an opportunity to respond before the decision was made. Further, no oral hearings were held to establish “public danger” to deny access to the refugee determination procedure or to decide whether a person falls within the category of old post-determination refugee claimants in Canada class.
The benefit of doubt was endangered by the skepticism with which refugee claims were faced, a problem imposed particularly by the inexperienced board members and the patronage appointments.
With the new law, the Immigration and Refugee Board panel size was reduced from two to one,39 which, in effect, increased the risk of error significantly. As a result, Federal Court applications for judicial review of refugee decisions have skyrocketed.40 An appeal to a division of the board would be a far more efficient and direct remedy than judicial review in the Federal Court.
The refugee determination procedure failed to recognize the fact that claimants’ circumstance can change: it was not allowed to reopen a claim or submit a second claim. Instead, a parallel government housed refugee determination procedure was in charge of considering changed circumstances,41 thus duplicating the determination procedure.
The treatment of refugee claimants was often unacceptable. They had trouble getting local identity documents, driver's licenses, work permits, school authorizations, welfare, benefits, legal aid, medical care and reunification with family members. Malice and xenophobia were not the only or the main problems, but rather policies that were developed without regard to the refugee experience.
Canada prevented family reunification systematically. Children of refugee claimants were not allowed to join their parents in Canada unless and until the claim of the parents was decided favorably and the parents had applied for permanent residence. Nor were children allowed to come as visitors.
Canada allows a person rejected by the Refugee Protection Division of the Immigration and Refugee Board to seek judicial review from the Federal Court. However, before judicial review can be considered, leave must be granted. Leave applications were considered without oral hearings and rejected or granted without adequate reasoning; there was no appeal from a leave decision. This process led to arbitrary results, with some judges having very high rates of granting leave and others very low.42
Regulations provide for a stay of enforcement of removal pending an application for leave and judicial review of a rejection of an asylum claim made by the Refugee Protection Division of the Immigration and Refugee Board.43However, there is no such stay for rejection of an application for refugee protection made by the minister of citizenship and immigration or his delegate. For the court remedy to be meaningful, the applicant must seek a judicial stay. To receive such a stay, the person must establish that the case raises a serious issue, that removal would cause irreparable harm and that the balance of convenience favors the applicant.
Anti-Semitism Incitement to hatred was a significant problem throughout Canada in 2004. B'nai Brith Canada reported 857 anti-Semitic incidents in 2004.44
In one such incident, a fire accelerant was thrown through the window of the United Talmud Torahs elementary school library in Montreal, Quebec, in the early morning of 5 April. The 10,000 volume library was destroyed and all six of the library windows were broken. Estimated damage was CAD 100,000 (approximately EUR 61,350). A note attached to the door of the library read, among other things:
"Here is the consequence of your crimes and your occupation… Here are the results of your assassinations. Here is where you are being led by the terrorist Ariel Sharon. Today our target was an empty building. Our goal was to simply sound the alarm without causing death. But this was only the beginning. If your crimes continue in the Middle East, our attacks will continue. We are not targeting Quebec. We are targeting you, Israelis and Zionists. The next time we will hit you more strongly… The Brigades of Sheik Ahmed Yassin." Sleiman Elmerhebi pled guilty to arson for the firebombing and was sentenced to 40 months in prison.
The Canadian Helsinki Watch Group was of the view that the prosecution should have added to the charges “willful promotion of hatred,” “public incitement of hatred” and “mischief against religious property.”
The group said that the note left at the scene represented “willful promotion of hatred” against Jews. The note referred to "your crimes," accusing the children of the school, their parents and the Jewish community in Montreal of criminality. The accusation was based on race, religion, or ethnic origin. For the offence of “willful promotion of hatred,” the consent of the attorney general of the province where the offence is being prosecuted is required.
Of the four offences – arson, “mischief relating to religious property,” “willful promotion of hatred” and “public incitement of hatred” – arson has the highest maximum sentence: life. However, the higher maximum for arson does not mean that the charge should be restricted to arson alone if a number of different laws were violated.
International Humanitarian Law
Accountability for War Crimes
The Canadian Helsinki Watch Group took the position that the government of Canada should change its procedure for revocation of citizenship of suspected Nazi war criminals residing in Canada on the ground that the current procedure is not authorized by law. In practice, the governor in council has considered a wide range of factors when deciding whether or not to revoke citizenship, whereas the law allows the governor in council to consider only whether citizenship was obtained by false representation, fraud or by knowingly concealing material circumstances. In such cases, the citizenship of a person is revocable. Consideration of any other factors has been done without statutory authority.
False representation, fraud or knowingly concealing material circumstances on entry are not limited to failing to disclose facts that would make the person inadmissible but also includes foreclosing inquiries which, if made at the time, may have led to a discovery that the person is inadmissible. This foreclosure of inquiries is sufficient to allow for revocation of citizenship and deportation whether or not it can be shown today that the person would have been inadmissible at the time of entry.
The government of Canada, as a matter of policy set out in its fifth annual report, decided to seek revocation of citizenship of those suspected of Nazi war crimes in "only those cases for which there is evidence of direct involvement or complicity in crimes against humanity." This means that the government has decided to use a form of prosecutorial discretion, not launching cases against some people, even though the law would allow them to succeed. By law, however, government neither has to allege nor prove allegations of involvement or complicity in crimes against humanity at any stage of the process.
Instead of proceeding promptly with the revocation of citizenship, the government has developed a practice of allowing persons concerned, after an adverse finding in Federal Court, to make time-consuming submissions on irrelevant issues, including behavior in Canada.
The governor in council has not proceeded even in ceases on which there has already been a prior court determination that the person obtained citizenship by false representation, fraud or by knowingly concealing material circumstances. These cases are obvious, and the delays are unconscionable.
The case of Vladimir Katriuk began in August 1996, and the Federal Court found him guilty of false representation and fraud in January 1999. In early 2005, over eight years of commencement of the case, the cabinet had yet to make a decision on the revocation of his citizenship. Similar procrastinations have been evident in the cases of Wasyl Odynsky, Michael Baumgartner, Jacob Fast, and Walter Obodzinsky.45 In all these cases the governor in council has failed to reach a decision even 3-5 years after the Federal Court has found them guilty. In the case of Helmut Oberlander, the Supreme Court of Canada had occasion to remark that the delays were "inordinate and arguably inexcusable" and that the dilatoriness of the case "defies explanation." Oberlander was successful in Federal Court, which set aside the revocation decision. As a result, revocation has to be done all over again, according to the procedures the Federal Court set out.
By circumventing the law of foreclosure of inquiries, the government policy on what the governor in council may consider has undercut the very purpose of the government in moving from prosecution to revocation and deportation.
1 Based on a report from the Canadian Helsinki Watch Group to the IHF. The report was prepared by David Matas, chair, with the exception of the section on indigenous peoples, which was written by Joachim Toelke for the Canadian Helsinki Watch Group.
2 Calgary Herald, Sean Myers, "Election talk bypasses aboriginal issues," 25 June 2004.
3 Indian and Northern Affairs, "Gathering Strength - Canada's Aboriginal Action Plan," http://www.ainc-inac.gc.ca/gs/index_e.html.
4 CBC News, “Aboriginal summit a success: Native leaders, federal ministers," 19 April 2004, http://www.cbc.ca/story/canada/national/2004/04/19/aboriginal_summit040419.html.
5 Assembly of First Nations (AFN), “The Canada-Aboriginal Peoples Roundtable,” http://www.afn.ca/aboriginalroundtable/CAPR.pdf; AFN, “Assembly of First Nations National Chief States Expected Outcomes from the Canada-Aboriginal Peoples Roundtable Follow-up Discussions,” http://www.afn.ca/Media/2005/January/january_27.htm; CBC News, “Aboriginal summit a success: Native leaders, federal ministers,” 19 April 2004, http://www.cbc.ca/story/canada/national/2004/04/19/aboriginal_summit040419.html.
6 CBC News, “Aboriginal health care 'shameful,' summit told,” http://www.cbc.ca/story/canada/national/2004/09/13/health_natives040913.html, 14 April 2004.
7 CBC News, “Aboriginal summit a success: Native leaders, federal ministers," 19 April 2004, http://www.cbc.ca/story/canada/national/2004/04/19/aboriginal_summit040419.html.
8 CBC News, “Death rate higher among B.C. aboriginal babies than others,” 9 April 2004, http://www.cbc.ca/story/canada/national/2004/11/09/mortality041109.html.
9 "Aboriginal summit a success: Native leaders, federal ministers," CBC News, last updated 19 April 2004, http://www.cbc.ca/story/canada/national/2004/04/19/aboriginal_summit040419.html.
10 CBC News, “Government must consult First Nations on disputed land, top court rules,” 18 November 2004, http://www.cbc.ca/story/canada/national/2004/11/18/landclaim_bc041118.html.
12 Letter to Amnesty International from Paul Bresee, Chief of Staff to the Minister of Indian Affairs and Northern Development, 13 May 2004, as quoted in Above All Else, Amnesty International, December 2004, page 20-21.
13 Amnesty International, Above All Else, December 2004, page 20.
14 CBC News, “Tensions mount in aboriginal logging debate,” 29 November 2004, http://montreal.cbc.ca/regional/servlet/View?filename=qc-picard20041129.
15 CBS News, “Ottawa ordered to return $360 million to Samson Cree,” 17 December 2004,
http://www.cbc.ca/story/canada/national/2004/12/17/samson-cree041217.html; CBC News, “Samson Cree lawsuit wraps up,” 21 December 2004, http://www.cbc.ca/story/canada/national/2004/12/21/samsoncree041221.html.
16 Amnesty International, Amnesty International Annual Report 2004-Canada, POL 10/001/2004,
21 The Ipperwash Inquiry, at http://www.ipperwashinquiry.ca.
22 Amnesty International, Stolen Sisters, Discrimination and Violence Against Indigenous Women in Canada, 4 October 2004, A Summary of Amnesty International’s Concerns, http://web.amnesty.org/library/Index/ENGAMR200012004.
24 CBC News, “AFN calls for immediate $10,000 payment to residential school survivors,” 17 November 2004: CBC News, “We can solve native abuse claims faster than Ottawa: AFN,” 17 November 2004, http://www.cbc.ca/story/canada/national/2004/11/17/afn_residential041117.html.
26 Section 101(1)(b).
27 Section 101(1)(f).
28 Section 46.01(1)(e)(ii).
29 Immigration and Refugee Protection Act section 101(1)(e).
30 Article 4.
31 Article 4(1).
32 Suresh v. M.C.I. 2002 SCC 1.
33 "Minister Sgro Announces Reform of the Appointment Process for Immigration and Refugee Board Members," press release, March 16, 2004, www.ci.gc.ca.
34 Section 167(1).
35 2004 FCA 49
36 Chair's Guideline 7, "Concerning Preparation and Conduct of a Hearing at the Refugee Protection Division," section 3.2, paragraph 19, www.irb-cisr.gc.ca.
37 Canada Gazette, Part II, Volume 138, Issue 4, 14 April 2004
38Canada Gazette Part II, Volume 138, Issue 4, April 14, 2004.
39 Immigration and Refugee Protection Act, section 110.
40 Federal Court statistics are found in the annual reports of the court which are posted on the Federal Court website www.fct-cf.gc.ca.
41 Immigration and Refugee Protection Act, section 112(1).
42 Ian Greene and Paul Shaffer, "Leave to appeal and leave to commence judicial review in Canada's refugee determination system: Is the process fair?" International Journal of Refugee Law, Vol. 4, No. 1, 1992, p. 71.
43 Immigration and Refugee Protection Act Regulation 231.
44 For more information, see B’nai Brith Canada, www.bnaibrith.ca
45 For details of these cases, see IHF, Human Rights in the OSCE Region: Europe, Central Asia and North America, Report 2003 and 2004, http://www.ihf-hr.org/documents/doc_summary.php?sec_id=3&d_id=1322 and http://www.ihf-hr.org/documents/doc_summary.php?sec_id=3&d_id=3860.