Ryerson speaks up for Wendy Maxwell
Graduate students and faculty write a letter to Citizenship and Immigration
Minister Joe Volpe.
By Graduate Students and Faculty of Ryerson's Master
Immigration and Settlement Studies Program
April.07.2005
An Open Letter To Joe Volpe
We are writing to you as graduate students and faculty of the first Master
of Arts in Immigration and Settlement Studies program in Canada and as concerned
members of the Ryerson University community. On March 5, 2005, during the
events for International Women's Day, Wendy Maxwell was arrested by Toronto
Police on the Ryerson campus with the cooperation of Ryerson Security and
was subsequently deported to Costa Rica on March 14, 2005. This case highlights
numerous problems with Canada's immigration policies, particularly the failure
to implement the legislated appeals process and the practice of deporting
individuals while an application for Humanitarian and Compassionate review
is pending. Our purpose in writing this letter is to call attention to the
contradictions between the principles and the practices of Canadian immigration
policy that have contributed to the Wendy Maxwell case in the hopes of preventing
similar situations from occurring in the future.
It was twenty years ago on April 4, 1985 that the Supreme Court of Canada
made its landmark decision in Singh. The court held that Section 7 of the
Charter protected the life, liberty and security of the person of everyone
in Canada, regardless of status. This right cannot be deprived except in
accordance with the principles of fundamental justice. Wendy Maxwell's case
comes at a time when many Canadians are marking this anniversary, and shows
how the Canadian government is not meeting its duties set out in the Charter.
Integral to the principles of fundamental justice is the right to a fair
hearing. Ms. Maxwell's case vividly illustrates how the current system does
not give refugee claimants in Canada this right, and demonstrates violations
of the Immigration and Refugee Protection Act, the Charter of Rights and
Freedoms and a number of UN Conventions.
Ms. Maxwell was deported from Canada even though she still has a Humanitarian
and Compassionate claim pending in the Canadian system. Unlike a Refugee
claim, a Humanitarian and Compassionate claim does not give legal status,
and applicants can be deported before a decision is reached. Decisions on
humanitarian or compassionate grounds take on average 30 months. This puts
applicants in a precarious situation in which they may be deported to a country
where they face serious harm or torture before they have exhausted all legal
avenues. This practice has recently been criticized by the UN Committee Against
Torture. In the decision of Falcon-Rios, the Committee stated that deportation
prior to a decision on Humanitarian and Compassionate grounds threatens Canada's
compliance with the Convention Against Torture. The Committee was concerned
that the deportation of persons prior to decisions being made on their Humanitarian
and Compassionate claims, combined with the political nature of the decisions,
rather than judicial nature, would contravene the fundamental principle of
non-refoulment. This principle states that persons have a right not to be
returned to torture and cruel and inhumane treatment, and is the fundamental
principle of the Convention Against Torture.
It is also important to note that this process should not be used as a replacement
for an appeal. Ms. Maxwell strongly believes that she is a legitimate refugee
and while we are not in a position to pass judgment on whether or not this
is the case, it is not uncommon for legitimate refugees to be denied in our
system. Even though the 2001 IRPA states that an Appeal Division should exist,
it has not yet been implemented. This fact has been criticized by the United
Nations High Commission of Refugees, the Inter-American Committee on Human
Rights, the Committee on the Convention Against Torture, and by Canadian
academics, lawyers and NGOS, including the Canadian Council of Refugees who
recently released a report entitled the Refugee Appeal is No One Listening?
The fact of the matter is, no legal system, especially those making life
and death decisions, can meet the standards of fundamental justice without
allowing appeals. This is especially true in a system that has been so criticized
for its inconsistencies. Many have argued that there are a number of avenues
of appeal currently available. This is an entirely false statement since
Federal court reviews are only available on errors in law, PRRAs must involve
new information that was not presented at the refugee hearing, and humanitarian
or compassionate grounds are discretionary, not judicial. Furthermore, the
success rates in these avenues are appalling, ranging from two to five percent.
The Canadian government has recognized the need for an appeal in their legislation,
but four years after the act was passed we are no closer to an Appeal Division.
Minister Volpe, we implore you to use your discretion to bring Wendy Maxwell
back to Canada before the harm she feared so much becomes reality and, more
importantly, for all of those in Wendy's situation who do not have media
support, we urge you to remove the requirement for your discretion. We ask
that the department of Citizenship and Immigration stop the practice of deporting
people who fear harm in their country of origin before all legal options
are exhausted. We demand that the Charter be upheld by implementing an Appeal
Division for Refugee Determination. We ask you at this time to honour the
Singh decision, our Charter of Rights and Freedoms and Canada's reputation
as a world leader in human rights, by giving real meaning to Section 7 for
those seeking asylum from persecution. If we believe in the global system
of human rights, we need to take responsibility for our own contribution
to human rights violations when we do not protect the survivors who manage
to come here and ask for help. We realize that you may not be able to comment
on a particular case, but a response addressing our broader concerns would
be greatly appreciated.
--- Graduate Students and Faculty of Ryerson's Master
Immigration and Settlement Studies Program