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167. In concluding its review of selected issues concerning the Canadian refugee and determination system, the Commission wishes to acknowledge the human and material resources devoted by the State to making this large scale, complex operation function, and the constant attention in recent years to further refinements. The system as a whole is both humanitarian in spirit and highly generous in terms of its results. It plays a central role in the State’s efforts to respect the right to seek asylum and other attendant rights, and serves as a model in many respects. The ongoing interest of the State in refining the immigration and refugee system to better serve the interests of claimants and the citizenry in conformity with international obligations and domestic law provides the necessary basis for further enhancing compliance with its human rights obligations.

168. As indicated, this report analyzes specific issues relating to Canada’s compliance with its human rights obligations under the OAS Charter and the American Declaration. On the basis of its examination, the Commission notes that achieving enhanced compliance with applicable human rights standards would be greatly facilitated by the adoption of measures aimed at ensuring that State authorities involved in all aspects of the refugee system are aware of the obligations Canada has freely undertaken. With certain important exceptions, the Commission noted a surprising lack of information or understanding on the part of administration and judicial officials at both the federal and provincial levels of Canada’s regional and international human rights obligations in the refugee context. The Commission also noted a perception on the part of some officials that international human rights law was a question falling within the sphere of foreign affairs rather than one pertaining to the implementation of domestic law.

169. As a State Party to the Charter of the OAS, Canada has freely undertaken to uphold respect for human rights, one of the fundamental principles of the Organization. Given that the American Declaration is a source of international obligation, that those subject to Canada’s jurisdiction are entitled to its protections, and that the failure to observe those rights may give rise to State responsibility on the international plane, it is of fundamental importance that all relevant authorities, at the provincial and federal levels, are fully aware of its provisions, as well as those pertaining to other treaties and instruments in effect in Canada.

170. In its observations, the State noted initiatives in development or underway to train relevant authorities with regard to Canada’s international human rights obligations. It reported that IRB members, and PCDO and H&C decision-makers receive training in human rights; members of the IRB Refugee Division receive training in the relationship between international human rights law and international refugee law; and CIC offers various training initiatives for its personnel. For example, immigration officers are being trained in connection with new H&C guidelines and international standards. The State noted that further guidelines and training activities relative to Canada’s international human rights obligations are available to decision-makers.

171. Canada observed that, "[i]n order to ensure that training is accurate and timely, however, prompt and thorough guidance from the various concerned bodies is of prime importance." The State indicated that it looked forward "to considering the possibility of training activities with Commission personnel" at a future time deemed opportune by both.

172. On the basis of the foregoing analysis, and in light of the overall Canadian commitment in favor of refugee protection, the Commission offers the following recommendations designed to assist the State in its ongoing efforts to refine the refugee determination system, and to further enhance its compliance with the standards of the American Declaration of the Rights and Duties of Man and the international instruments which assist in its interpretation.

173. With respect to the issue of access to the refugee determination system, the Commission recommends that the State take measures to:

1. Place the substantive determination of eligibility to enter the determination process within the competence of the CRDD. While the international law applicable to this determination leaves it to national authorities to determine the procedures to be applied, ensuring that the decision to exclude asylum seekers from the determination process is made by an official competent to determine refugee status would safeguard the fundamental right of the person concerned to be effectively heard in stating his or her claim pursuant to Article XXVII of the American Declaration, and its related minimum due process guarantees, while respecting the duty of the State to protect the system and citizen security.

2. Amend the determination process before the CRDD to enable it to be reopened to consider newly available material facts or evidence deemed to meet a reasonable threshold of relevance, thereby providing an important safeguard in identifying genuine refugees and ensuring their right to non-return under Article XXVII of the American Declaration, and the minimum procedural guarantees necessary to ensure the efficacy of that right.

3. Expedite family reunification in the case of persons who have applied for landing without sufficient identification documents, consistent with the generous overall commitment of Canada to family reunification and respect for family life.132

174. With respect to access to administrative and judicial review mechanisms, the Commission recommends that the State take further action designed to ensure that:

1. Refused refugee claimants have access to a merits-based review of the decision taken by the CRDD, whether through administrative or judicial channels. This could be done by establishing a separate appeals competence within the CRDD, or by modifying the judicial leave requirements to assure access as a right. In either case, pursuant to Article XVIII of the American Declaration, claimants must still have access to effective judicial protection for rights under the Declaration or Canadian Charter.

2. Refused refugee claimants who may not meet the standard to be deemed a Convention refugee, but who nonetheless can make a showing that return would subject them to a serious risk of inhuman treatment or torture, are heard through a prompt effective procedure capable of effectively protecting their fundamental right to be free from torture pursuant to Article I of the American Declaration, with the minimum procedural guarantees necessary to ensure the efficacy of that right.

3. Those claimants who require legal aid to effectively vindicate their rights within the refugee system as a whole, whether in determination proceedings, detention review, post-claim administrative review or post-claim judicial review, may avail themselves of that important safeguard relative to, inter alia, Articles XVIII, XXV and XXVII of the American Declaration.

175. In it observations, the State submitted information relating to the recommendations set forth in paragraphs 173-74. First, it reported that, in January of 1999, the Government "announced policy options to amend the Immigration Act, including a proposal to consolidate all decisions on the need for protection into one by the Immigration and Refugee Board, i.e., refugee determination process, post-determination risk review, risk-related humanitarian and compassionate review." "Pre-removal risk assessment would be available in appropriate circumstances." The State indicated that "[i]mplementation of these proposals will speed up the process so that refugee claimants can get on with their lives as quickly as possible." The State further reported that the Department of Citizenship and Immigration is considering options for the consolidation of decision-making in the IRB. "The possibility of judicial review would be maintained, as would a pre-removal risk assessment." "Eligibility decisions would continue to be conducted by CIC given that senior immigration officers’ determinations are based on interpretations of fact."

176. The Commission looks forward to receiving further information on the process of legislative reform, particularly insofar as it may further enhance Canada’s observance of its inter-American human rights obligations. Given the impact on the situation of persons within the system, the objective of ensuring that determinations of status are made in a timely manner, with all requisite guarantees and thoroughness, is a critical one. With respect to the question of eligibility determinations, the Commission has expressed its concern about current procedures and maintains that the modification recommended would better ensure the fundamental rights at issue. With regard to the determination process as a whole, the Commission strongly encourages those charged with designing and implementing reforms to ensure that newly available, relevant information can be considered, and to provide for the possibility of a merits-based review.

177. Second, the State indicated that the Department of Citizenship and Immigration "is examining the possible extension of protection grounds to include certain international conventions where refoulement would threaten the life or security of the person." Given the fundamental nature of the prohibition of refoulement under such circumstances, the Commission looks forward to receiving information on measures adopted. The Commission values and encourages initiatives with the potential to amplify the application of Canada’s international human rights obligations in its domestic policy.

178. Finally, as noted in section IV.B.3 above, the State reported that "[t]he Minister of Citizenship and Immigration has announced that the waiting period for the UCRCC will be reduced from five years to three …. hasten[ing] both stability and family reunification" for members of this class. The Commission is very pleased to report this positive measure, which, as the State correctly noted, will hasten the process of family reunification. Steps designed to further respect for the right to family life are given great significance by the Commission.

179. With respect to the right to liberty in exclusion and removal proceedings, the Commission recommends that the State pursue additional steps to assure that:

1. The standard for detention as a "danger to the public" is further clarified to ensure consistency of decision-making, and the ability of the detainee to defend his or her right to liberty as recognized in Articles I and XXV of the American Declaration.

2. Further consideration be given to the question of the length of preventive detention in the immigration and refugee context, and to assure that additional safeguards are put in place to prevent such detention from extending for months and in some cases years absent effective action capable of resolving the situation, in accordance with the requirements of Article XXV of the American Declaration.

3.    With respect to the section 40.1 security certificate procedure specifically, that additional safeguards are enacted to: (a) provide the detainee with access to judicial review of the legality of the detention without delay; (b) offer access to periodic detention review at reasonable intervals; (c) to assure that adequate procedures are in place to protect such persons against return where this would expose them to a serious risk of inhuman treatment or torture; and, (d), with respect to the right to due process specifically, that the person named in the certificate has the ability to know the case he or she must meet, and to enjoy the minimum procedural guarantees necessary to ensure the reliability of the evidence taken into account.

180. In relation to respect for the rights of the child and family life in removal proceedings under Articles V, VI and VII of the American Declaration, the Commission recommends that the State pursue additional action aimed at enhancing:

1. The compliance of decision-making at all levels of the process with the obligation to take the best interests of the child into account in all decision that affect him or her, and to assure that, where a child is capable of expressing his or her views, those will be taken into account. In the wake of the recent encouraging developments in Canadian jurisprudence, analyzed above, concerning recognition of the rights of Canadian-born children in certain proceedings related to the removal of one or both alien parents, and in view of the importance of ensuring that the best interests of such a child are properly considered in any determination affecting him or her, the Commission recommends that further steps be taken to clarify how that standard is to be applied by decision-makers at all levels, in accordance with Articles V, VI and VII of the American Declaration, interpreted in conjunction with the Convention on the Rights of the Child.

2.    The conformity of decision-making at all levels with the international obligation to consider the principle of family reunification and unity.

3.    The adherence of such decisions to the standard by which removals separating families are a highly exceptional measure requiring an extremely serious justification to override the resulting interference with family life.

181. In relation to Canada’s efforts overall to perfect its compliance with its international human rights obligations, the Commission recommends that additional measures be taken to:

1. Ensure that where those obligations are not expressly incorporated into domestic law, there are policies and procedures in place to assure that the relevant provisions are observed and given full effect as rights.

2. Inform and train relevant officials at all levels, particularly judges and other decision-makers responsible for interpreting and applying the State’s human rights obligations, to ensure that they are aware of and understand those obligations under applicable international law.

182. With respect to Canada’s status as an OAS member State specifically, the Commission recommends that additional consideration be given to:

1. Adopting the measures necessary to become a Party to the American Convention on Human Rights, and, consistent with its commitment in favor of gender equality and the prevention and punishment of torture, to become Party to the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women and the Inter-American Convention to Prevent and Punish Torture.

2. Making full use of the resources that exist within the regional system for advisory services and collaboration in the protection of human rights, for example, through the presentation of questions concerning the interpretation and application of human rights provisions through the advisory jurisdiction of the Inter-American Court of Human Rights, and training activities with Commission personnel designed to augment the awareness and understanding of relevant State personnel of the norms, procedures and practices of the inter-American human rights system.

183. While noting its position that the Commission should limit its comments to the American Declaration, the State provided specific comments concerning the recommendations set forth in paragraph 182. With respect to the question of ratification of the American Convention, the State observed that Government officials have been consulting with provincial and territorial counterparts since 1991 to ascertain their positions and concerns. "Canada has reservations concerning the Convention regarding the exact scope of its obligations [there]under … and, therefore, with its ability to ensure full compliance." The State indicated that it has identified some apparent inconsistencies between provisions of the Convention and other international human rights norms and trends in international human rights law. The State referred to specific concerns relative to certain Convention provisions,133 observing that ratification would accordingly require a series of reservations and statements of understanding, a result contrary to its position that reservations to human rights treaties should be few and limited in scope. Canada indicated that, while it "does not adhere to the Convention, this does not undermine our commitment to its fundamental principles."

184. With respect to the recommendation that Canada consider ratification of the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women and the Inter-American Convention to Prevent and Punish Torture, the State indicated that, as the American Convention is the fundamental instrument of the system, it would be difficult for it, as a non-Party, to ratify these two treaties. It also noted several content-related concerns,134 while stressing its strong commitment to gender equality and the prevention and punishment of torture under national and international law.

185. Given the contribution these instruments make in protecting fundamental rights in the region, the Commission encourages the State to continue consultations and other efforts concerning ratification. The Commission hopes the State will make full use of the resources the system offers, such as those noted in paragraph 182, recommendation 2, to seek clarification with respect to the issues of concern referred to in its observations. Without responding exhaustively in the present report, the Commission observes that these concerns warrant clarifications which could significantly assist the State in appreciating the scope of the rights and duties arising pursuant to these conventions.135

186. The Commission has provided the foregoing analysis and recommendations in conformity with its mandate to protect and promote human rights in the Americas, and in the context of Canada’s demonstrated commitment to providing safe haven. The Commission is at the disposal of the State with respect to any cooperation it may offer in the process of effectuating those recommendations, and looks forward to opportunities for ongoing engagement with respect to the fundamental human rights and obligations raised.

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132 As noted in para. 79 supra and para. 178 infra, Canadian authorities have recently taken steps to expedite the process for this class to be accorded permanent residence, thereby facilitating speedier family reunification.

133 The State opined, first, that the scope of the right to life under Article 4 is inconsistent with Canadian law on the issue of abortion and the constitutional right to personal security, as well as with trends in international law concerning women’s rights. Second, it characterized that "Article 13 on freedom of expression prohibits prior censorship, a measure Canada considers essential for the protection of vulnerable groups from, inter alia, hate propaganda and child pornography." Third, it posited that Article 22, concerning the right to freedom of movement and residence, prohibits the extradition of nationals, which would be inconsistent with the State’s commitments under extradition treaties and before the International Criminal Tribunals and future International Criminal Court. Fourth, the State characterized that Articles 1, 23 and 24, concerning equality before the law, "do not contemplate affirmative action, an essential element of the Canadian human rights regime." "Finally, provisions on the `right to reply’ - a concept unknown in Canadian law - and the detention of minors with adults are problematic."

134 With respect to the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women, the State characterized that "the duties of states are insufficiently precise to set out identifiable and practicable obligations." Further, the protection mechanisms provided for lack "adequate strength so as to ensure a complaints mechanism which is both effective and consistent with relevant international human rights standards, and does not extend to breaches of rights that are not linked with violence against women." With respect to the Inter-American Convention to Prevent and Punish Torture, the State expressed concern that it "excludes high-ranking officials from prosecution and extradition," because the obligation as set forth applies to public servants to the exclusion of their political masters, an approach contrary to prevailing international law.

135 In substantive terms, to provide one example, the State’s observations indicate what appears to be a misapprehension with respect to the scope of the right to equal protection under the American Convention. While it is true that Articles 1, 23 and 24 do not expressly refer to affirmative action, this does not mean, as implied, that they are antithetical to it. In fact, in the fall of 1999, in response to a request from the Inter-American Commission of Women for an opinion on the compatibility of measures of affirmative action with the rights to equal protection and nondiscrimination, the Commission presented an analysis indicating that such measures are, in principle, not only consistent with the norms of the system, but may in certain circumstances be required by applicable norms of international human rights law as one means of combating gender discrimination. In procedural terms, to provide another example, the system’s conventions on torture and gender violence are fully susceptible to ratification by non-States Parties to the American Convention. The Commission must also note that, while the terms of the Inter-American Convention to Prevent and Punish Torture have a specific field of application which may be subject to interpretation, they may not be read to "exclude" high-ranking officials or political actors from prosecution and extradition where that is required as a matter of domestic and/or international law.