Displaying items by tag: International Law

It’s not about winning

Université Laval moot team: (l to r) Élise Paiement, jury member Serge Gakwandi, Isabel Charron, and Morgane Aroua.

“I have yet to meet a contestant in the Concours Pictet whose face does not light up when they recall the experience,” professor Françoise J. Hampson once said. As law students who recently participated in the competition, we tend to agree with this statement.

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Subtitle Laval team takes home memories, if not the cup, from South African moot

Published in Latest News

Canada no longer a safe haven for genuine refugees

While Canada ranks fifth as one of the world’s happiest places, according to the United Nations High Commissioner for Refugees it ranks 8th as a destination of choice for asylum seekers — with the United States, France, and Germany taking the top spots.

A recent UNHCR report defines an asylum-seeker as:

“An individual who has sought international protection and whose claim for refugee status has not been determined yet. As part of its obligation to protect refugees on its territory, the country of asylum is normally responsible for determining whether an asylum seeker is a refugee or not. This responsibility is often incorporated in national legislation of the country and, for State Parties, is derived from the 1951 Convention Relating to the Status of Refugees.”

In 2011, 25,300 people sought asylum in Canada, nine per cent more than in 2010. While Canadians are right to be concerned about the numbers and pace of immigrants and refugees admitted to Canada, we should also be concerned about how we treat extremely vulnerable people who land on our soil seeking refuge.

Bill C-31, whose short title is “protecting Canada’s immigration system act,” has received strong criticism from a variety of civil society groups including the Canadian Association of Refugee Lawyers, the Canadian Civil Liberties Association, Amnesty International, the Canadian Council for Refugees, and the Refugee Forum. It is an omnibus bill that seeks to amend the Immigration and Refugee Protection Act, the Balanced Refugee Reform Act, the Marine Transportation Security Act, and the Department of Citizenship and Immigration Act.

The criticism focuses on the proposed change in the treatment of people seeking asylum in Canada. Sections 24 and 25 of bill C-31 modify the Immigration and Refugee Protection Act such that asylum seekers will be presumed to be bogus and have to remain in detention for up to one year before a hearing determining their status will take place.

Under the present law, hearings must be held within 48 hours. This is a major change in Canada’s approach towards the protection of refugees, and regardless of how one might feel about the challenges of selecting and integrating new immigrants into Canadian society, reading these sections of the bill is quite chilling.

Critics argue the detention provisions of bill C-31 violate several rights and freedoms guaranteed by the Charter: the freedom from arbitrary detention, the right to prompt review of the reasons for detention, the right to liberty and security of the person, and freedom from cruel and unusual punishment.

Section 9 of the Charter states that “everyone has the right not to be arbitrarily detained or imprisoned.” Section 10(c) provides that everyone who is arrested or detained has the right “to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful. These constitutional provisions apply to everyone and not just to Canadian citizens or permanent residents.

The Supreme Court of Canada’s 2008 decision in Charkaoui v. Canada (Citizenship and Immigration), which dealt with the legality of the security certificate process for foreign nationals, underscores a Canadian value that people should not be arbitrarily detained, and if they are detained the review of a person’s detention should take place as quickly as possible. The bill is almost certainly in conflict with this conclusion.

In addition, critics argue the bill’s designation and detention provisions violate international law.

Canada is a signatory to the 1951 Refugee Convention, which was created after the Second World War as a humanitarian response to the needs of the huge number of resulting refugees. Canada signed the convention in 1969, and it is part of our domestic law.

Under the Convention, states agree to not punish refugees who enter a country by unlawful means. In contrast, bill C-31 seeks to do just that by making a distinction between visa-carrying asylum seekers and those who don’t have a visa, where those who do not have a visa will be automatically designated as an “irregular arrival” and detained on this basis. The convention also guarantees freedom of internal movement and residence to regularized asylum claimants. The mandatory detention provisions of the bill clearly contradict this obligation.

The legislation also violates the freedom from arbitrary detention provisions of the International Convention on Civil and Political Rights. As well, it violates the Convention on the Rights of the Child by scooping up children 16 years and older into its provisions and causing unnecessary trauma to children aged 15 years and under who will be separated from detained parents.

When thinking about the correct treatment that should be afforded to asylum seekers it is important to reflect upon the reasons why they land on Canadian soil in the first place. We should accept it as a social fact that as long as there are despots and tyrants, people will seek safe havens. If you are an asylum seeker, you are not usually granted a visa and so you are forced to enter by unauthorized means. Canadians do not need to personalize this phenomenon. Refugees are not queue jumpers trying to take our jobs and take advantage of our generous nature. They are people who are just trying to live. After all their troubles, don’t they have a right to do that without being thrown in jail for the audacity of wanting to survive? Canada is a wealthy country, with a number of very clever, highly educated people. Surely we can think a little bit harder to get a better balance between the respectful treatment of asylum seekers and the management of our immigration issues.

While Canada ranks fifth as one of the world’s happiest places, according to the United Nations High Commissioner for Refugees it ranks 8th as a destination of choice for asylum seekers — with the United States, France, and Germany taking the top spots.

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Subtitle Human Rights . . . Here & There

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The offshore banking nightmare

Cover: Mick Coulas

It was a strategy born of sheer frustration, a chess move that failed. On Nov. 28, 2006, Michael Morris, a Canadian who runs a small offshore bank in the Bahamas, arrived at a bustling Starbucks in downtown Toronto expecting to meet a woman called Ginette Brown. The previous month, a woman by this name had called Morris at his offices in Nassau, where he runs Barrington Bank International Ltd., and told him she had a client seeking financing and would Morris agree to meet with her when he was next in Toronto? Weeks later, they arranged to rendezvous at the Starbucks while he was in town visiting family.

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Published in Canadian Lawyer Cover Story

Doing business in Africa

Cover: Jacqui Oakley

As the world’s second-most populous continent and blessed with abundant mineral riches, Africa holds great promise and economic opportunity. But those opportunities must also be mentioned and measured along with Africa’s many challenges: its division into 50 often fractious nations, frequent wars and civil strife, a stubborn history of corruption and inefficiency, and the deepest poverty anywhere on the planet. It’s fair to say Africa is the toughest place in the world to do business.

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Published in Canadian Lawyer Cover Story

Aziz & Al-Masri: the complexity of seeking justice in a globalized world

When I first read The Globe and Mail article about the case of Ossama Aziz and Huwayda Al-Masri, I was intrigued by the complexity of the diversity issues at play — a divorced Iraqi-American woman asking the Superior Court of British Columbia to apply a Jordanian marriage contract against her Iraqi-Canadian ex-husband and issue payment of mahr that she claimed was due as a consequence of the failure of the marriage. It is a simple matter of contract, the ex-wife’s lawyer argued. But the BCSC decision is an illustration of why, on so many levels, such cross-cultural matters may not be simple at all.

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Subtitle Human Rights . . . Here & There

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Going abroad

Alison Hopkins nervously walked into the session. As part of her internship with the Asia Foundation, she would for three days educate 100 male imams in Bangladesh on the importance of child and civics education. Her task wasn’t easy: as a young, female student in a highly patriarchal society, it would be difficult to gain the imams’ respect. “I sat down and they sat as far away from me as possible,” says Hopkins, an articling student at Blake Cassels & Graydon LLP in Ottawa. “I was so uncomfortable.”

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Published in Issue Archive

The curious case of the crime of aggression

The crime of aggression, formerly known as crimes against peace, has been under discussion since the Nuremberg trials concluded over 60 years ago, but it was not until the negotiations seeking the creation of the International Criminal Court that the adoption of this crime became a real possibility.

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Ending war through justice – in time

Over the past two weeks, state parties to the Rome Statute of the International Criminal Court, along with non-state-parties, non-governmental organizations, and academics, have met at a resort on Lake Victoria in Uganda to negotiate amendments to the statute, an international treaty governing the ICC’s jurisdiction.

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Turbulent times

Rob Donald was in private practice as a corporate litigator and partner in a Montreal law firm when he was hired by a British company in 1992 to help it retrieve a big Boeing jet it had leased to a Canadian firm in a deal gone south. “It was the first time I’d ever dealt with aviation law,” he recalls. “But the complexity of the case was extraordinary — trying to seize an aircraft that was flying around the world. It really hooked me.”

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Subtitle Industry Spotlight

Published in Issue Archive

A new attitude

In this month’s issue of Canadian Lawyer InHouse, we have our first roundtable on e-discovery, which seems to be an area that continues to grow and grow. We gathered together a fantastic panel of experts from Ontario Superior Court Justice Colin L. Campbell to in-house counsel Laurie MacFarlane from the CIBC Legal Department and Melanie Schweizer of Bell Canada to private practitioners Alan D’Silva, a partner at Stikeman Elliott LLP, and Kelly Friedman, a partner at Ogilvy Renault LLP and also chairwoman of Sedona Canada.