BarTalk October 1999
Volume 11, Number 5

New tide of migrants raises legal and policy issues

Since July 20, 1999, four boats carrying human cargo have arrived off the shores of BC. Almost 600 men, women and children have sought—by whatever means available to them—a new life in Canada. BC’s official response has been based on principles of international human rights and the Supreme Court of Canada ruling that anyone stepping foot in Canada has the same basic rights as any Canadian. At a political and public level, criticism has been loud, frequent and harsh. Editorial cartoons, media commentary and politicians have attacked the Canadian approach to the problem of dealing with illegal migrants. Most distressing to the profession however, are concerns about behind-the-scenes infringements of the migrants’ rights; the impact of $1 million in unbudgeted Legal Aid expenses over the next two years (based only on the four boats to date); and extremely negative public portrayals of immigration lawyers.

BC Reform MP Keith Martin was quoted in the Ottawa Citizen as saying that migrants should not be allowed to consult immigration lawyers, who only counsel them to lie. Branch Immigration Section Chair Gordon Maynard is outraged: “Counsel are very aware of their responsibilities, and the integrity that goes with the position. The role of counsel is not to give a story to a claimant, but to ensure that they understand the law and process, and that they are dealt with in accordance with the law. The issues involved can be serious, even life-threatening, and it is important that individual rights and due process be protected.”

The Immigration Bar is deeply concerned with the position of the Department of Citizenship and Immigration that the migrants have no right to counsel for the purposes of their initial interview and Senior Immigration Officer (SIO) interview. The Bar is concerned that the migrants do not understand the law, and do not understand that they must initiate their claims before the SIO interview is concluded. Failure to initiate the refugee claim before issuance of a removal order by the SIO is a bar against any future claim.

The Department is interpreting these interviews as though they are interviews at an airport entry. The Supreme Court of Canada’s Deghani ruling stated that in conducting these primary and secondary interviews, the Charter right to counsel is not engaged as the person is not detained. The SCC leaves open that if counsel were ready and willing to attend at the secondary interview, that it would be appropriate. The Department is taking the approach that the detention of boat migrants are not, in fact detentions, and that they are equivalent to port-of-entry examinations.

“We are hearing accounts of counsel being available, but interviews being conducted without access to counsel. Counsel are being told they can attend SIO interviews but not participate,” says Mr. Maynard. “There is no question that the process is fundamentally different from an airport interview. It is detention. This is arguably contrary to the Charter entitlement of right to instruct counsel upon detention.”

This article was published in the October 1999 issue of BarTalk and is subject to the copyright by the British Columbia Branch of the Canadian Bar Association, 2005, all rights reserved.