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

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

This letter first appeared in The Eyeopener, the Ryerson University student newspaper. It can be found on the Eyeopener website at: http://www.theeyeopener.com/storydetail.cfm?storyid=1984

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