CKNW Editorial
for September 25, 2001

The story goes that the lawyer had argued his case at length when the judge asked a question … the lawyer responded "My Lord, if you have to ask that question then I’m going to have to start all over from the beginning". So be it with the position I have taken on refugee claimants past and present. I do this because of an email I got after yesterday’s editorial saying that I was admitting my egregious errors when dealing with the Chinese boat refugees a couple of summers ago. I don’t mind admitting error nor do I blush at changing my mind. The fact is I stand 100% behind what I said with the rusty boat people and with what I said yesterday. There is no inconsistency.

When the refugee claimants arrived I said, put simply, this … we are a country of laws and we respect the rule of law. Under our law, those who claim refugee status are entitled to have that status determined according to the laws of the country, requiring a fair hearing. If this took a very long time and resulted in a bureaucratic nightmare then we should change the law. Moreover, the fact that these claimants may have come in inconveniently large numbers and perhaps brought in by people who have broken our laws does not disentitle them to the hearing Canadian law demands.

From that was extrapolated the notion that I was in favour of Canada accepting anyone who washed up on our shores or landed in an airplane who only knew one word of English – ‘refugee’. Needless to say that is not only a gross distortion of what I said but indicates a trip to some ear doctors are in order. Moreover I stated over and over again that if Canada wanted to change its rules about refugees and its procedures, as a sovereign country, it was entitled to do so … but that as a civilized country it had to enforce existing laws until such changes were made. I frankly would have thought that was pretty uncontroversial stuff. Such were the passions of the moment – with the refugee claimants being called criminals by a prominent politicians – that my statements were simply not heard by many.

Now, after September 11, I’m stand accused of helping to harbour a hidden enemy within etc etc

Now let’s move to what I said yesterday. Hearkening back to the rusty boat people I opined that we should have a debate in Canada on what our laws should be. I also expressed the view that the Liberal government wouldn’t want a debate for fear of offending its support groups and said with only mild if any hyperbole, that the Liberals only cared about one thing – getting re-elected.

Now let’s flesh the problem out a bit – and it is precisely the same problem as existed two years ago. Canadians are bound by international agreement to accept refugees as defined by the United Nations which are "persons outside their homeland owing to a well founded fear of persecution on the basis of race, religion, nationality, membership in a social group or political opinion." What my critics seem unable to understand or accept is that when a person arrives in Canada claiming refugee status, a determination must be made, namely is or is not that person a bona fide refugee and not someone who simply wants a better life? That leads logically to the next question, how and by whom is that done? And bear in mind that you can’t make these things up as you go – there must be laws and appropriate procedures. This is compounded by the ruling of the Supreme Court of Canada that those who claim refugee status are entitled to the protection of the Charter of Rights and Freedoms. These were, of course, the points I was making two years ago when, according to critics, I was helping spread terrorism in Canada.

The question is, what can we do?

Apart from streamlining our present system – which I have steadfastly favoured - there is but one thing we can do and it’s up to the Canadian people as to whether or not this is the route to go. We can pass a law saying that each refugee claimant’s case will be heard, summarily, by an immigration officer whose word is final. No hearings, no lawyers, no judges, no appeals. All done within, say, 72 hours.

If this is the way we want to go we must understand that this law must be passed, excepting from operation the Charter of Rights and Freedoms. That’s a pretty big step to take but it is a crucial one if we want instant disposal of refugee claims. We must also understand that the fate of human beings, many of whom will be by any definition refugees, will be in the hands of one person.

But, you might ask, can’t we have hearings but short ones? The practical answer is no. For if you permit a hearing at all, by definition you must permit people to be represented by counsel. That, effectively, ends the short hearing bit. And I don’t say that in criticism of the legal profession for they are bound to do whatever is best for their client. It is not for them to make a judgment as to whether or not their client is legitimate – that’s for the officer. It’s the lawyer’s job always to put his client’s best foot forward.

And it will be well to remember that even under the present system many people have been denied refugee status who, after a great public fuss, are reluctantly admitted by the authorities. If we make the changes I suggest we can, there will be no more fusses because arbitrariness will be the heart and soul – the very essence - of the system.

Do I agree with the changes I’ve suggested can be implemented, so as to end the refugee claimant problem once and for all? No I don’t. I believe that the richest Canadian with the world’s best lawyer often has trouble getting justice from a trained judge … why would I want to entrust the future of a refugee claimant to the untrained, overworked public servant?

What I do say is this – if we’re going to deny refugee claimants any of the protection of rules of natural justice – the right to a fair hearing, the right to counsel and so on – the necessary new laws must expressly be passed notwithstanding the provisions of the Charter of Rights and Freedoms.

This means that we Canadians, lovers of freedom and fair play, must legalize drumhead justice for those who claim they are escaping persecution.

Many of you will disagree but that’s a step I’m not prepared to take.

As to the Chretien government, they neither have the will to make the present system work nor the guts to make the system arbitrary..