Jason Kenney's discriminatory and unfair refugee rules lie in ruins

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Then citizenship and immigration minister Jason Kenney at a 2012 press conference. Photo: Daily Xtra/Flickr

Whatever the long-term impact of the SNC-Lavalin affair -- and it just might blow itself out over the next few months -- there are other highly consequential issues that are sure to play a big role in the coming federal election campaign.

One of those is climate change.

The federal Conservatives and their provincial allies are crystal clear on that one. They are opposed to the most effective, proven, market-based means of lowering greenhouse gas emissions: a price on carbon.

As for their own policies to combat what the latest scientific data describe as the rampaging global warming taking place in Canada -- Conservatives are in no hurry to share those with us. Conservative leader Andrew Scheer thinks all he has to do is mindlessly repeat the mantra that he will kill the carbon tax and lower prices at the pump. It's a tactic that worked for Ontario premier Doug Ford, after all.

We'll have more on the economics and science of climate change in the coming days.

For now, let's look at another contentious zone of political conflict: immigration and refugee policy.

Jason Kenney, current leader of the United Conservative Party (UCP) in Alberta and aspiring premier, made his first political bones as the Harper Conservative government's immigration minister.

Kenney's signature accomplishments in that role were to ostentatiously kill a low-cost federal program that funded refugee health care and bring in a major overhaul of the rules and regulations for refugees.

The latter included provisions that discriminated against asylum seekers who came to Canada by boat, or who came from countries a minister could arbitrarily and unilaterally designate as safe.

The current Liberal government rolled back a number of Kenney's most odious changes. It restored health care for refugee claimants, for instance. The courts have also done their part to undo many of the Kenney measures that defy human rights.

Most recently, the federal court deemed that Jason Kenney's signature safe designated country of origin (DCO) provision is unconstitutional. The case was brought by a group of Roma from Hungary who were seeking refugee status in Canada.

Slandering members of a historically persecuted group

Hungary was one of the first countries Jason Kenney designated to be safe, while he was immigration minister. When he did so, Kenney characterized Hungary as a model liberal democracy, and described the Hungarian Roma as bogus refugees, interested only in Canada's generous welfare payments.

Five or six years ago many of us were relatively unaware of the far-right, nationalist, authoritarian Viktor Orban government in Hungary. Today, we know much more about it. We know that Hungary's Orban has defied the European Union in many ways: he refused to accept even a single refugee from among the flood who entered Europe from Syria and other countries in the Middle East and Africa; he imposed limits on press freedom; he undermined the independent judiciary and he lavished official state honours on anti-Semitic and pro-Nazi leaders of the past.

Last September the European Parliament took the extraordinary step of voting to impose sanctions on Hungary for its backsliding on democracy.

The large Roma community of Hungary, numbering some 800,000, has been a principal victim of Orban's avowedly "illiberal" and ethnic nationalist policies. A good many hardline Hungarian nationalists do not consider Roma and Jews to be true, pure Hungarians, and over more than a decade they have made their lives miserable.

Hungarian Roma are frequently subject to right-wing gang violence -- ranging from fire bombings to murder -- to which authorities more often than not turn a blind eye. Their children are placed in de facto segregated classes in school, and they face major discriminatory hurdles in employment and housing.

Canada, with its multi-cultural identity, has seemed a beacon of hope to many Roma. But both the earlier Chrétien and Martin Liberal governments, and the Harper Conservative government considered the influx of Roma refugees to be an awkward and somewhat embarrassing matter.

When Canada's neutral, non-political process granted refugee status to thousands of Roma from Hungary and other central and east European countries, Canadian politicians worried about damaged relations with our friends and allies in Europe. For years, both Conservative and Liberal governments had been negotiating what is now the Comprehensive Economic and Trade Agreement (CETA) with the European Union. They did not want what they considered to be a messy refugee problem to upset the delicately balanced applecart of the talks.

One way of keeping out Roma was to impose a visa requirement on countries from which the Roma were coming. Canada used that tactic with the Czech Republic, to some effect. But, given the large, well-established and influential Hungarian diaspora in Canada, a visa requirement would not work for Hungary.

Jason Kenney decided that the solution to the Roma "problem" was to make it extremely difficult for Roma to qualify as refugees once they came here. Designating Hungary as a safe country of origin and repeatedly characterizing Roma refugees as bogus and queue jumpers helped encourage the Immigration and Refugee Board (IRB) to massively reject Roma asylum claims, at least for a while. The designated country of origin rules made it almost impossible for those rejected applicants to appeal, meaning they could be expeditiously removed. Kenney's goal was to deport as many Roma asylum seekers as possible, as quickly as possible, and thus discourage others from coming here.

It did not work out that way. Roma have continued to come. And, since the change of government from the refugee-phobic Conservatives to the more benign Liberals, the IRB has been granting refugee status to a high proportion of Hungarian Roma. Even worse for Kenney's signature policy, some of the Roma caught in the system he created took the government to court, arguing that the designated safe country of origin rule is contrary to Canada's Charter of Rights and Freedoms.

Designated country of origin rule is contrary to the charter

On March 20, a federal court judge, Keith Boswell, ruled in favour of the Roma refugees. Justice Boswell ruled that the measure in the refugee law that discriminates against people from an arbitrary list of designated safe countries of origin runs counter to Charter of Right's guarantee of equal protection under the law for all, without discrimination based on race, ethnic origin, colour, or religion.

In his judgment, Justice Boswell makes frequent, and not very complimentary reference to Jason Kenney.

To cite one example, Justice Boswell quotes anthropologist Julianna Beaudoin, who studied Canadian media coverage of the Roma. In her research, Beaudoin showed how government officials tried to spread what Boswell calls the erroneous view that those who claim refugee status once they get to Canada are fraudulent queue jumpers.

Boswell relates, based on evidence Beaudouin provided, that "individuals have been contacted after reporting sympathetic stories about the Roma by various officials including then minister of citizenship and immigration, Jason Kenney." This was a case, Justice Boswell notes, of an attempt to "control the narrative and public information through intimidation."

In Justice Boswell's view, mainstream media were, in many cases, willing accomplices to the then immigration minister's campaign of slander against the Roma people. He quotes Beaudouin as saying "fear sells, and the media is quick to spread news on criminality, especially about Roma."

Jason Kenney, who hopes to become premier of Alberta on April 16, often harkens back proudly to his time as immigration minister.

He points to the record number of immigrants who came to Canada on his watch, and to his good relations with many ethno-cultural communities. But Kenney was not above appealing to ancient prejudices and hatreds when it suited his political purposes. Alberta voters might want to take note.

The current Trudeau Liberal government has taken a far more generous stance toward refugees than its predecessors, both Liberal and Conservative. Of late, however, Justin Trudeau and his team have been spooked by what they see as a growing backlash in the Canadian heartland against refugees -- a backlash actively fueled by Andrew Scheer and his Conservatives.

The Boswell decision achieved a change in the law the Liberals had, at one time, planned to accomplish through legislation. When the national mood on refugees seemed to sour, the Trudeau government quietly shelved that plan.

What about the safe third country agreement with the U.S.?

The designated country of origin provision, which created a two-tiered refugee system, is now dead, and will stay dead if the government chooses to forgo an appeal of the Boswell decision to the Supreme Court. There is still, however, the matter of another safe country rule, the safe third country agreement with the United States.

This safe country measure is not part of Canadian refugee legislation. It is an accord the Paul Martin Liberals signed with George W. Bush's U.S. administration in 2002, which states that refugee claimants from all over the world who arrive at Canadian border crossings from the U.S. can be refused admission and sent back south. These refugee claimants, the agreement stipulates, have already made it to a safe country and should not be allowed to shop around for a better option.

And so refugees from Africa, the Middle East, Asia and Latin America, who do not believe they can get a fair shake in Donald Trump's America, have taken to entering Canada through unguarded back roads and farmers' fields.

Once on Canadian soil they cannot be automatically returned to the United States. International law, based on the Convention on Refugees to which Canada is a signatory, obliges the Canadian government to let them stay at least until it has fully considered their refugee claims.  

The NDP takes the view that since the U.S. is now demonstrably not a safe country, Canada should abrogate the 2002 treaty. That would mean refugee claimants currently in the U.S. could enter at official border crossings, and not resort to often dangerous back routes.

The Trudeau government has shown no inclination to heed the NDP's advice. To the contrary, Trudeau's border security minister, former Toronto police chief Bill Blair, has mused about toughening the regulations that emanate from the safe third country accord. Blair wants to completely shut down the back-road option for refugee claimants.

So far, it is only a matter of musings; the government has not yet produced any new regulations or legislation to that effect.

There is still time for that, of course.

Before the summer recess, the Trudeau government will have to table a budget implementation bill, and we have seen how governments, both Liberal and Conservative, like to add all kinds of extraneous measures to those voluminous pieces of financial legislation. The measure that allows for a deferred prosecution agreement for companies accused of serious crimes (such as SNC-Lavalin) is only the most recent example of that legislative sleight of hand.

Stay tuned.

Karl Nerenberg has been a journalist and filmmaker for more than 25 years. He is rabble's politics reporter.

Photo: Daily Xtra/Flickr

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