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EXECUTIVE SUMMARY
December 1997
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The following research is the result of a project undertaken
under the auspices of the Canadian Coalition for the Rights of
Children (CCRC), financially sponsored by the Department of
Foreign Affairs and International Trade (DEAlT) and hosted by
two
non-governmental organizations, the Canadian Council for
Refugees
and the Inter-Church Committee for Refugees. The six month
internship placement has consisted of reviewing different
Convention on the Rights of the Child (CRC) articles and the
results will contribute to CCRC's mandate of monitoring the
implementation of the CRC in Canada. The monitoring
"Framework
Grid" created by the CCRC -- an article by article analysis that
incorporates information about Canada's legislation, judicial
decisions, policy, practice, statistics, indicators and relevant
research -- is the measurement tool that is utilized in the
analysis. Two specific groups of minors, immigrant and refugee
and Aboriginal, are the focus of the following research.
IMMIGRANT AND REFUGEE CHILDREN
Within the context of Canadian immigration and refugee law,
policy and practice, children's rights are severely undermined.
When analyzing their situation, article 22 of the CRC -- which
provides rights to "a child who is seeking refugee status or who
is considered a refugee" -- becomes the point of convergence,
along with the four general principle articles (2, 3, 6 and 12).
It is important to consider that, while this monitoring report is
not a representative sample of all of Canada, the research
concentrated mostly on Ontario and British Columbia, two of
the
three largest provincial regions where refugees arrive and
settle. Through literature research, the coordination of two
regional meetings in Toronto and Vancouver, attendance at
conferences, meetings and workshops, four main areas of
concerned
were identified and linked with their respective CRC articles (in
parenthesis):
a) IRB determination process (# 19, 22 & 39)
b) CIC Enforcement: Detention (# 22, 37, 39 & 40) and
Removals (#
7, 8, 9 & 16, 22)
c) Family reunification (#9, 10 & 22)
d) Access to basic services: Health (# 22, 23 & 24), Education
(#
18(c), 22, 28 & 29), Social Security (# 22, 26 & 27) and
Protection (# 19, 22 & 39)
a) IRB Determination Process
The Immigration and Refugee Board (IRB), a quasi-judicial
administrative tribunal operating independently from Citizen
and
Immigration Canada (CIC), makes decisions concerning claims
to
Convention refugee (CR) status in Canada. In 1995-96, 6381
claims
(approximately 20-25% of all refugee referrals) were made by
minors; there are no statistics to monitor the proceedings of
unaccompanied minors. The laws relating to refugee
determination
are oriented towards adult applicants. The only two places
where
children are recognized in the Immigration Act -- to provide
them
the right to have a guardian appointed at the refugee and
removal
hearing -- only ensure that their statutory interests, not their
"best interests," are protected. Claims presented by children
manifest special problems including the need to interpret the
refugee definition in accordance to the rights provided by
children in the CRC. While some case law has made reference
to
the CRC in considering a well founded fear of persecution for a
child (Re D. (F.L)), others have determined that Canada's
international rights obligations in the immigration context need
not be considered as a means of interpreting Charter
obligations
(Langner).
The new IRB Guidelines for refugee children, the only set of
guidelines to have been established thus far by any country,
provide a positive step towards resolution of some of the
procedural and evidentiary issues concerning children.
However,
they fail to address some of the larger problems faced by child
refugee claimants. Some areas requiring further attention
include
evaluating the need for a subjective fear of persecution in
claims made by children, the role of the principles of family
unity and indirect persecution in national refugee law and the
advisability of having parent claimants act as the designated
representative for their children. In addition, minors who failed
their refugee claims face the same appeal determination
process
(and the same concerns within) as that used for an adult; at
these hearings, the child's circumstances need not be applied
at
all.
b) CIC Enforcement: Removals/Deportatlon of Parents
Canada appears to be in violation of article 9 -- "a child shall
not be separated from his or her parents against their will,
except when.. .such separation is necessary for the best
interest
of the child." -- when parents of Canadian children or children
recognized as Convention Refugees (CR) in Canada are being
removed (deported) after having been denied CR status. When
monitoring Canada's jurisprudence in relation to the rights of
non-discrimination (article 2) and family unity for refugees,
three main problems can be highlighted: 1) non-Canadians do
not
have a right to remain in Canada (Chiarelli),2) the Charter has
not been interpreted in the immigration context to cover
interests such as the integrity of the family and the
relationship between child and parent; in Langner, the Federal
Court of Appeal ruled that the child has no legal interest in the
expulsion of his or her mother or father; and 3) there is no
legislation in Parliament that directly discourages the
separation of family; consequently, Federal Court judges have
ruled that the interests of children in respect of the family are
placed in the private sphere. There are limited cases where the
provincial courts of Ontario and British Columbia have
intervened
(using the parens patriae protection provision) to hear cases of
Canadian or CR children whose parents face deportation. In the
unique case of Baker, after granting an interim stay of removal
to the parent, the application for leave to appeal in the
Supreme
Court of Canada have been granted.
According to jurisprudence and practice, neither the best
interests of the child (article 3) nor the child's points of view
(article 12) are considered in the determination course or prior
to the deportation of a parent. Parents facing removals have to
decide if it is in the best interests of their child to either to
stay behind in Canada (with strangers or distant relatives) or
take the child along with the possible risk to life, liberty and
security of the person. Canada's courts are inconsistent with
judicial trends in other industrialized nations which recognize
that removal decisions which impact on citizen children must be
made in a manner which takes into account the best interests
of
any child affected by such decisions.
b) CIC Enforcement: Detention
In contravention of article 37 of the CRC, the practice of
administrative detention under the Immigration Act is regularly
used on unaccompanied and other minors on arrival, waiting a
decision(s) or a deportation order. The criteria for detention as
outlined in the Immigration Act -- thought to pose a danger to
the public or thought unlikely to appear for immigration
proceedings -- are applied to all regardless of age. Despite CIC
policy outlining that detention of a minor be a measure of last
resort, grounds for detention are discretionary and the policy is
not upheld in practice. The majority of children who are
deprived
of their liberty are those that are accompanied and dependent
on
their parents; Canadian and non-citizen children are held in the
detention facilities unless there is someone outside willing to
take care of the child. Children, like adults, have the same
rights to access to counsel and to detention review; there are
no
special provisions for minors. In practice, the review and
release process for all detainees has been criticized. Prompt
access to legal and other services in the provinces of Ontario
and British Columbia has been problematic and, in some
instances,
it has been outrightly denied; unaccompanied children are
detained on arrival and may be held without access to a
telephone, to counsel or provisions to stay of proceedings. The
immigration detention facilities in Toronto and Vancouver are
not
set up to particularly address the needs of children nor are the
present conditions of the detention centres adequate for
children, whether for short or longer term detention.
c) Family Reunification
One of the objectives of the Immigration Act is to facilitate
reunification. In fact, a large proportion of immigration to
Canada consists of cases of family reunification. However, the
process for children abroad waiting to rejoin a parent in
Canada
who is in immigration or refugee proceedings and for children in
Canada waiting for a parent to enter the country is not
consistently done in a "positive, humane or expeditious
manner"
(article 10). Various legal and procedural barriers, including
numerous delays in processing abroad and in Canada, prevent
expeditious reunification. A CR parent in Canada cannot
sponsor a
child until the parent has been granted landed status, a
lengthy
process lasting one to three years. Visitor's visas to children
with nonresident parents are rarely granted. Blocks in the
process of family reunification include showing strict proof of
family relationship such as through DNA testing, strict
identification for landing (including undocumented refugees
having to wait 5 years plus permanent residency approval
before
applying for family reunification) and the introduction of high
fees for landing documentation. It must be noted that those
parents forced to flee without their children often do so as a
result of difficulties encountered by a range of measures
geared
at blocking entry to Canada. Lengthy delays for family
reunification can impose severe hardships on a child overseas,
who is often in a dangerous or precarious situation. Extended
family separation also complicates reunification; a child is most
likely to experience parental psychological distress and
intergenerational conflict after long separation.
d) Overall Access to Basic Services
Access to health, education, welfare and protection (services
provided by the provinces) is not a guaranteed right to children
involved in immigration and refugee proceedings. There are
various concerns that overlap when children attempt to gain
access to these social rights. Provincial legislation and policy
base eligibility access on residency status, where refugee
claimants, CRs and illegal persons fall under special categories.
Provincial policy allowing access requires written permission or
clear legal documentation from CIC (for example, a Minister's
Permit); the Immigration Act prohibits access unless such is
approved by 010. In the face of contradicting federal-provincial
legislation, the policy often adopts the regulations of CIC. For
example, while the Education Act of Ontario guarantees
admission
to any minor under eighteen years of age, the policy of most
school boards in Toronto is to obtain CIC documentation before
allowing a child to attend school (in Toronto, this can take up
to four months). Coverage gaps are also encountered between
different programs -- such as the time when the federal health
coverage to CR expires while the provincial health coverage has
not yet begun -- and in the renewal of the same program.
Moreover, a child is most often dependent on the status of the
parent, rather than on his or her own. Differential coverage of
health and welfare is also applied to refugee claimants and CRs
(when compared to Canadian and landed immigrants) while
access is
denied to most who have no status. The general principle
articles
of life, survival and development of the child on the basis of
non-discrimination (articles 6 and 2) are not upheld in most
circumstances.
ABORIGINAL CHILDREN
A brief introduction into Canada's implementation of Aboriginal
children's rights was also conducted. As demanded by
Aboriginal
groups and asserted by the Canadian government's statement
of
understanding in signing the CRC, it is suggested that Article 30
be used as the key article and the filter through which all other
rights of the CRC are monitored when addressing Aboriginal
children. While the four general principle articles (2, 3, 6 and
12) are relevant, of particular importance is article 2 --
non-discrimination -- when comparing the rights of Aboriginal
children to those of the rest of Canada. The key issues
identified and their respective CRC articles are:
a) Identity, land and culture (#30, 7, 8, 2, 3)
b) health and healing: basic health care (#24) abuse (#19)
substance/drugs/alcohol (#33) suicide (#6)
c) the Justice system (# 37, 39 and 40)
d) poverty: standard of living (#27)
e) education, training and media (#28, 29 and 17)
Aboriginal children and youth -- who make up over half of the
Aboriginal population -- are facing special problems with their
enjoyment of fundamental rights. When applied to Aboriginal
children, the best interests principle, for example, has
considerable potential to defend cultural practices that may be
incompatible with Aboriginal children's rights norms. For
example, Canada's placement of Aboriginal children away from
their families and communities, was a policy seen as natural
and
legitimate, rather than coercive and destructive. Most Aboriginal
communities, including their children, have lost a great deal of
their identity, land and culture and are unfamiliar with their
language and religion. Canadian legislation and case law, in
particular the Indian Act and its numerous amendments, have
provided for the historical assimilation of Aboriginal peoples
into Canadian society and many children and youth feel are
angry
that elders are not taking time to teach traditional knowledge.
Identity loss continues to be a structural problem in schools
and
the media; children do not learn about Aboriginal history and
culture and access to secondary school and vocational training
in
the Territories is scarce.
The provision of basic services continues to be blurred in
current law and policy: the federal fiduciary responsibility is
being lost to the provincial jurisdiction of the health care,
education and welfare systems. In the Territories, land
seizures,
poor infrastructure, poverty and cuts in health spending further
endanger the rights of Aboriginal children. Various studies have
proven that substance, drug, and alcohol abuse -- endemic
among
Aboriginal children -- is an indicator of a community falling
apart. A disproportionate number of suicides exist among
Aboriginal youth -- the 15-24 age group commit suicide 6 times
the average rate of all Canada (the highest in the world) -- as
does the number of abuse and violence encountered by
Aboriginal
children. While the Aboriginal notion of the justice system
differs greatly from Canadian legislation, policy and practice, a
great disproportion of Aboriginal children continue to be in
conflict with Canadian law.
The most important current piece of government policy -- Report
of the Royal Commission on Aboriginal Peoples (Canada:
Canada
Communication Group Publishing, 1996) -- addresses the
needs of
youth (Vol. 4, Chpt. 4) and calls for a comprehensive Canada-
wide
policy framework to guide initiatives and programs directed at
Aboriginal youth. After more than a year's time since its
release, the federal Government has only recently indicated
that
it will soon respond to the Report.
FEDERAL GOVERNMENT ACTIVITY
SUBJECT: IRB DETERMINATION PROCESS
Article 22: 1. State Parties shall take appropriate measures to
ensure that a child who is seeking refugee status or who is
considered a refugee in accordance with applicable
international
or domestic law and procedures shall, whether unaccompanied
or
accompanied by his or her parents or by any other person,
receive
appropriate protection and humanitarian assistance in the
enjoyment of applicable rights set forth in the present
Convention and in other international human rights or
humanitarian instruments to which the said States are Parties.
Other Relevant InternatIonal Agreements: * 1951 Geneva
Convention
Relating to the Status of Refugees and its 1967 Protocol
Relating
to the Status of Refugees where article I defines the term
"refugee."
LegIslation and Regulations The Immigration Act adopts the
Convention on Refugees definition in s. 2(1). Canadian refugee
determination law, including the subjective fear of persecution
component, is the same for adults and children. There are only
2
places where children are recognized in the Immigration Act s..
69(4) and 29(4) gives a minor the right to have a guardian
appointed at the refugee hearing and at a removal hearing.
S.46.04 speak on family unity,
Case Law Cheung v. Canada (1993), 191mm. L.R. (2d) 81(CA)
"(a)s a
minorchild dependent on Ms. Cheung, Karen Lee may also
claim the
benefit of such status on the principle of family unity" * Bhatti
v. Canada (1994) 25 1mm. L.R. (2d) 275 (Fed TO) the court
avoided
a conclusive statement on the scope of the family unity principle
and ruled on indirect persecution * Castellanos v. Canada
(1994),
89 F.T.R. 1 (TO) the court rejected the principle of family unity
because s. 46.04 is Parliament's express intent to provide for
family unity and therefore, there is no justification for
judicial interference to expand the law. Also ruled against
indirect persecution. * G.M. v. Canada [1996] F.C.J. No. 790
(TO)
(QL) a child of a CR family was denied because he was born in a
third country; family unity principle was rejected. Re D.(F.L.)
11994] C.R.D.D. No. 333 (QL) the Board made reference to the
CRC
recognizing that "childhood is entitled to special care and
assistance" and making special reference to article 9 and found
that forcible separation without any regard to the best
interests
of the child can be considered an act of persecution. * Langner
v. Canada (M. El) (March21, 1995), Court No. A-396-94 (F.C.A.);
affg (July 12, 1994), Court No. T-3097-91 (F.C.T.D.) the Federal
Court has negated Canada's international rights obligations in
the immigration context -- including the CRC -· by determining
that such obligations need not be considered as a means of
interpreting Charter obligations.
Policy Guideline 3: Child Refugee Claimants: Procedural and
Evidentiary Issues (Guidelines Issued by the Chairperson
Pursuant
to Section 65(3) of the Immigration Act).
Practice 1997 Report of the Auditor's General (Canada:
December
2,1997) Chapter 25, "Citizen and Immigration Canada and
Immigration and Refugee Board: The Processing of Refugee
Claims"
critiques the Convention refugee determination process.
Statistics and Research Out of 26,000 refugee referrals each
year
of 1995 and 1996, 6381 claims (approximately 20-25%) were
made by
minors. There are no statistics to monitor the proceedings of
unaccompanied minors but, according to the IRB chair, in 1994,
an
estimated 700 new cases of unaccompanied refugee children
went
before the IRB.
Public Opinion
Other Relevant Resources The laws relating to refugee
determination in Canada are oriented towards adult applicants.
Claims presented by children manifest special problems
including
the need to interpret the refugee definition in accordance to
the
rights provided by children in the CRC. The new Guidelines
provide a positive step towards resolution of some of the
procedural and evidentiary issues, yet they fail to address
some
of the larger problems faced by child refugee claimants. Some
areas requiring further attention include evaluating the need
for
a subjective fear of persecution in claims made by children, the
role of the principles of family unity and indirect persecution
in national refugee law and the advisability of having parent
claimants act as the designated representative for their
children. _ Sadoway, Geraldine, "Refugee Children before the
Immigration and Refugee Board" in "Refuge" Vol. 15 No. 5
(Toronto: Centre for Refugee Studies, York University, 1996)
and
Toronto and Vancouver Meetings (October 13 and November
14,1997).Owner: Marsha Moshinsky