(L-R) Prof. Audrey Macklin, Lorne Waldman, Prof. James Hathaway, Prof. Lorraine Weinrib (chair)
On August 13, 2010, the MV Sun Sea was intercepted by the RCMP off the coast of British Columbia and escorted into port. On board were 492 Tamils from Sri Lanka, all of whom claimed refugee status upon reaching Canadian soil. The University of Toronto Faculty of Law invited three experts on refugee law to discuss the incident during a constitutional roundtable October 5, 2010 called “Is None Still Too Many? Asylum Seekers on Boats, Then and Now, Here and There.” The arguments presented by each of the three speakers are paraphrased below.
By Ian Kennedy
James Hathaway, William Hearn Professor and former Dean of the Melbourne Law School, Distinguished Visiting Professor, U of T Faculty of Law:
Prime Minister Stephen Harper and Minister of Public Safety Vic Toews responded to the Sun Sea’s arrival by invoking common myths about asylum seekers. Mr. Harper expressed concern that the Sun Sea didn’t go “through any normal application process.” The Prime Minister also speculated the incident might require that laws be strengthened because “we are responsible for the security of our borders.” Mr. Toews equated the human smugglers who orchestrated the Sun Sea’s crossing with human traffickers.
When Mr. Harper spoke of a “normal application process,” he was suggesting refugees accept the fate of spending years in camps awaiting resettlement. Canada resettles 10,000 refugees each year, a sizeable portion of the hundred thousand refugees resettled internationally— but a sliver of the 14 million refugees worldwide. The chances of any single refugee being resettled are too slender for this option to be relied upon.
Regarding Mr. Harper’s security concerns, it must be remembered that security was the highest priority of the drafters of the Refugee Convention. The Convention requires every state to exclude “any person with respect to whom there are serious reasons for considering” that they have committed a humanitarian crime. This means the law in its current state demands that refugees posing security concerns be deported notwithstanding the persecution that might await them. It is difficult to conceive of why such a law would ever demand strengthening.
As for Mr. Toews, he was mistaken to amalgamate human smuggling and human trafficking. Human trafficking entails coercion and exploitation by definition, whereas human smuggling amounts to the unlawful facilitation of border crossings and involves no such nastiness. The reality is that people do trust their lives to smugglers because we have created a market by not allowing refugees to freely come to our borders. This is in the face of Article 31 of the Refugee Convention which expressly permits refugees to arrive at a country illegally as long as they present themselves to authorities without delay.
Audrey Macklin, Professor of Law at the University of Toronto:
The spectre of people on boats is an archetype that triggers moral panic. There is a long history of boats of immigrants arriving unannounced at Canada’s shores and the public response has always been the “boat people” will hurt us in some way. The narrative only fluctuates with regard to whether the damage will be to the economy, public health, security, or our social/racial identity.
While boat immigrants have long been perceived as a threat, it is easier to illicit moral panic today than it has been in the past for three reasons. First, people don’t travel by boat in the same way that they used to. Now the coding is easy: if you’re on a boat you’re a problem. Second, Canada is now able to control immigration beyond our borders through practices like screening in foreign airports. In this context, the fact of arrival signifies a failure in our immigration policy. Third, the high seas remain one of very few places in the world not subject to the control of a state. That boat immigrants emerge from the unregulated high seas encourages the perception that they are destabilizing.
A second issue is what constitutional principles constrain the government’s response to refugees arriving by boat. The Supreme Court’s finding in Singh has been framed as an obstacle to the government’s ability to “do something.” This characterization is inaccurate. Singh ruled everyone who is in Canada is entitled to the protection of the Charter. It is ambivalent towards anyone not physically in Canada and so does nothing to constrain the government from intercepting boats before they reach Canadian shores. If the government’s ability to respond to boat immigration has been hampered by the Supreme Court, it is Hape that is responsible. In Hape, the Supreme Court held that Canadian officials acting extraterritorially may be constrained by the Charter if they breach Canada’s international legal obligations. Whether this includes the Refugee Convention is open to debate.
Lorne Waldman, refugee practitioner with Lorne Waldman and Associates:
We have to understand the government response to the Sun Sea is driven by politics. Last October, when 76 Tamil refugee applicants arrived on the Ocean Lady, Minister of Immigration Jason Kenney was designated as the government spokesperson for the issue. At the time Mr. Kenney was raising the profile of the Conservative party among minority groups by attending ethnic events across the country. In responding to the Ocean Lady’s arrival, he struck a moderate and relaxed tone, which was imitated by public opinion. Conversely, the Sea Sun arrived at a time when the government was reaching out to its traditional conservative base. Vic Toews was chosen as the government’s spokesman and he adopted a hysterical tone. He talked about being flooded with terrorists and criminals, terms that have been picked up by the media and repeated again and again.
The government has also talked about increasing the penalty for people smuggling. It’s worth noting that for anyone smuggling more than 10 people into the country, the penalty is already life. Yet people smugglers provide 97% of clientele at Lorne Waldman and Associates. This shows that going tough on people smugglers only makes sense if you provide an alternative process of resettlement that works. Currently, there is none.
At the end of the day, a reasonable government response to the Sun Sea would be to accept the refugees that are genuine and deport those that aren’t. Canada processes 30,000 refugee claims every year; 492 more is a “drop in the bucket.”
