flawed in principle, since even
well-established democracies
sometimes fail to protect their
citizens from persecution. For
example, the
Federal Court
recently ordered
a new refugee
hearing for a
United States
Army deserter
who claims that
the U.S. military
discriminates
against its homosexual personnel.
Contends Poulton, Bill C- 11 is
“an unrealistic proposal that is not
going to offer better, or even the
same, protection as genuine refuges are getting now,” except for
the new RAD.
Poulton
“We are going to refuse genu-
ine [refugee] cases because there
just isn’t the time to put them
together, and I think we are going
to see people who are at real risk
[of harm] facing deportation,” he
predicts. “There is going to be an
enormous flood of litigation
because of the process being fun-
damentally unfair.”
University of Ottawa law pro-
fessor Peter Showler, the IRB’s
chair from 1999 to 2002, told
The Lawyers Weekly Bill C- 11
contains “some very good ele-
ments…that could produce a
system that is faster and fairer,
but there are also weaknesses
that need to be shored up.”
Having cases heard within 120
days, rather than 60 days, after
the initial information-gathering
interview by an IRB official, would
give people enough time to get
legal aid, retain competent legal
counsel and prepare their case,
Showler suggests.
Unfortunately, I think having that
fast interview [within eight days]
without legal representation
reflects that second view. However
my recommendation would be to
fund a duty counsel program to
assure that it’s a fair, open interview because at the end of that
interview the claimant is going to
be given a diskette or a memory
stick with the entire interview
recorded.” That recording will
used by the lawyer who is subsequently retained to do the hearing.
If Bill C- 11’s “unrealistic” timelines remain unchanged, conscientious refugee lawyers may
cede the field to shoddy “
consultants” and lawyers who don’t
bother with case preparation,
Showler says.
“This [proposed] system
makes it most difficult for the best
refugee lawyers. When their client
comes to see them—let’s say at
Day 15 of 60—they haven’t considered or analyzed the case, or
looked at the evidence, and yet
they would be expected to commit
to a scheduled hearing. Well, you
can’t commit to too many hearings at once, particularly before
you have had a chance to look at
the case. So I think it would make
it very difficult for them to carry
on a full-time refugee practice.
[Yet] for lawyers or consultants
who are not diligent, and don’t do
a lot of preparation, for them it’s
easier to commit to a hearing
because they are not doing the
preparation they should do.” ;
first-level decision makers on refugee claims
final negative decision from the
IRB, there would be a one-year
time period in which failed
claimants would not be able to
access pre-removal risk assess-
ments, make requests for
humanitarian and compas-
sionate consideration, or apply
for temporary resident permits.
To address exceptional situa-
tions, the Minister of Immigra-
tion could exempt people from
specific countries, or groups of
nationals of countries, from the
one-year limit (for example, if
civil war broke out in a country
during this one-year time
period, the minister could make
an exemption).
; The immigration minister’s
authority to grant permanent
resident status, or an exemption
from any obligations of the Act,
on humanitarian and compas-
sionate grounds or on a public
policy ground, would be clari-
fied by separating the two types
of grounds. This is because
humanitarian and compas-
sionate applications are decided
case-by-case basis by a single
decision maker, and must be
justifiable on humanitarian and
compassionate grounds. Public
policies, established by the
immigration minister, facilitate
processing a large number of
individuals who meet the same
general criteria. Public policies
may be justifiable on national
interest grounds or on humani-
tarian and compassionate
grounds. Bill C- 11 proposes as
well to change the humanitarian
and compassionate considera-
tion by barring the filing of
requests while an asylum claim
is pending and the filing of
requests if less than a year has
passed since the final negative
IRB decision. The bill would
also eliminate from humani-
tarian and compassionate exam-
inations the assessment of risks
that are also assessed as part of a
refugee protection claim or pre-
removal risk assessment, i.e.,
risks as defined under ss. 96 and
97 of IRPA. The bill would also
legislate the existing policy that
those requesting humanitarian
and compassionate considera-
tion must pay cost recovery fees
and would authorize the immi-
gration minister to exempt for-
eign nationals from having to
pay any applicable fees given
their circumstances.
Prosecutorial independence at stake
Inquiry
Continued From Page 2
lenged Davies’ right to review
the conduct of the prosecutors
in the matter.
A chambers judge dismissed
the CJB’s petition for a judicial
review, holding that the cabinet
order establishing the inquiry
constituted a waiver of both
Crown immunity and solicitor-client privilege.
In the B.C. Court of Appeal,
Justices Carol Huddart, Robert
Bauman and Harvey Grober-
man found that Davies “is
required to review what took
place in the aftermath of
Mr. Paul’s death, with a view to
recommending procedures that
will improve the exercise of
prosecutorial discretion in the
future. As such, its function is to
enhance, rather than detract
from prosecutorial independ-
ence.”
Accordingly, it decided the
chambers judge reached the
correct conclusion in dismiss-
ing the appeal.
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