This new arrangement may cause refugee advocates on both sides of the U.S.-Canada border to ask the question: "what kind of refugee protection is offered by our neighbours?".
The answer depends on the aspect from which one approaches the question.
Aspect 1: the legal system
Canada's refugee status determination system is considered internationally as a good working model.
In Canada, refugee claimants enjoy the constitutional protections of due process, as well as the right to seek habeas corpus or similar relief if detained. (Note: some or all of these rights may be curtailed if the refugee claimant is also a suspected threat to national security). Nevertheless, it is worth noting that respect for individual rights is traditionally stronger in the United States and the Canadian constitution even allows for the derogation of its protections in certain circumstances.
Assuming they are not criminals or terrorists, refugee claimants have the right to one oral hearing before a single member of the Immigration and Refugee Board (IRB) to determine whether they meet the definition of "refugee" contained in the 1951 Convention Relating to the Status of Refugees and also whether they would be otherwise a "person in need of protection" as defined in the Immigration and Refugee Protection Act, section 97. This latter form of protection is somewhat similar to the American concept of "withholding of deportation", except that it is broader in scope: it does not require the individual to show a threat to his life or freedom on account of a ground enumerated in the Convention. It also would encompass relief under the Convention Against Torture (CAT).
Very strong cases are pre-screened and put into expedited processing; if they satisfy a Refugee Protection Officer of the merits of their claim during an interview, they are accepted without the necessity of a full hearing. The overall acceptance rate of the IRB (including the expedited cases) is currently around 40%. Processing time is around one year.
If they are not successful before the IRB, refugee claimants in Canada then have a significant problem which simply does not exist in the United States: they do not have an automatic right to judicial review of the IRB's decision. They must first make a written application for "leave". Statistics show that some 80-90% of leave applications are denied by the Federal Court. No reasons are given. Anecdotal evidence suggests that a significant number of those denied leave had meritorious cases.
Denials of leave are unappealable. Claims cannot be re-opened by the IRB for new evidence or circumstances, only breaches of natural justice. There is simply no effective error-correction mechanism for rejected refugee claimants in Canada at the present time. Provisions creating a special refugee appeal tribunal have yet to be declared in force.
On the other hand, if rejected claimants have some entirely new evidence of risk upon return to their country of origin, they may present it to Citizenship and Immigration Canada (CIC) who cannot not remove them until such evidence is analyzed. But the acceptance rate on this Pre-Removal Risk Assessment is only around 5%.
As well, anyone in Canada may make an application for residence based upon humanitarian and compassionate grounds to CIC at any time, although the filing of such an application does not automatically result in a stay of removal. The acceptance rate for this is, again, around 5%, the processing time is approaching 30 months and there is a processing fee of at least $500.00 CDN.
As ineffective as these latter two options are, they do not appear to have direct equivalents in the United States. The humanitarian and compassionate application is particularly interesting in that its outcome can sometimes be affected in individual cases by the political process, NGO intervention, the media and public opinion.
In Canada, refugee claimants are eligible for work permits and health care almost immediately upon filing their claims. As well, most of the populous provinces have a legal aid system which covers some parts of the process (although this system has started to erode significantly). Such benefits significantly facilitate the access of refugee claimants to the legal procedures in place in a given country. Their absence, obviously, has the opposite effect. Relevant also is the use of detention by immigration officials. In Canada the detention rate is said to be much lower than in the United States. The best system in the world is useless if one is underground, ill, in jail or cannot afford a lawyer.
Aspect 2: judicial interpretation of the refugee definition
In this area there are definitely differences between Canada and the United States, but no clear "winner" in terms of wider overall protection.
In Canada, rejected refugee claimants routinely attempt to have their refusals judicially reviewed. This has resulted in a plethora of refugee case law. In fact, over the past 50 years or so there have been approximately three times as many significant Canadian judicial opinions on refugee law as in the United States. The jurisprudence of the Federal Court applies nationwide and thus avoids the sharp disparities created in the United States by the Circuit Court system. On the other hand, in Canada almost no principles of interpretation of refugee law are codified, as they frequently are in the United States, allowing for some uncertainty. Canadian refugee jurisprudence is frequently cited internationally.
Canadian judicial opinions are at least as favourable to refugees as those in the United States in following areas: credibility assessment, subjective fear, well-foundedness, definition of persecution (including laws of general application, evasion of military service, cumulative effect), definition of "particular social group", definition of "political opinion", change of circumstances, "compelling reasons" and expulsion of refugees on the basis of particularly serious crimes.
There are several areas, however, where Canadian jurisprudence could be said to be less "refugee-friendly".
- In terms of family claims, Canadian courts have refused to recognized the concept of derivative persecution.
- Canadian courts generally afford less deference to past persecution as means of establishing a well-founded fear of future persecution.
- Canadian jurisprudence is quite weak on the concept of group persecution, the notion of "pattern and practice" of group persecution having not yet been developed.
- Canadian refugee law has quietly developed a somewhat sinister "double nexus" requirement. No longer can a woman or child, for example, claim "social group" (i.e. family) persecution just because he or she suffers the heinous consequences of a family member's pursuit by agents of persecution. He or she must establish additionally that the family member is being pursued on account of a Convention ground.
- As well, the so-called "internal flight alternative" is a veritable obsession of the IRB, thousands of claimants having been rejected on the basis that they could not disprove the proposition that they would be safe from persecution in some areas of their countries. The courts, rather than noting its dubious provenance, have upheld this notion's validity without question, although tempering it somewhat by recognizing an additional requirement that internal refuge be a "reasonable" option. This is in sharp contrast to some U.S. opinions, which stated affirmatively that there was no obligation on a refugee claimant to show country-wide persecution and on the general position that the burden is on the government-not on the refugee claimant-to establish an internal flight alternative.
- Finally, scores of claimants each year are rejected by the IRB on the basis of the exclusion clause in Article 1F(a) of the Convention-i.e. complicity in crimes against humanity or war crimes. Accordingly, there are numerous Canadian judicial opinions in this area and norms have become well-developed. This is in contrast to the relative dearth of American judicial opinions on "persecution of others".
It is often said that most refugees worldwide are women and children. Gender does indeed matter in assessing the safety of any particular host country. Canada was one of the first signatories to the Convention to recognize how a fear of domestic abuse in the country of origin could fit into the refugee definition. The IRB has even issued guidelines on the subject. The situation in the United States appears much murkier at present due to the continuing unresolved status of Matter of R.A.
Nevertheless, on other issues of concern to woman such as rape, female genital mutilation, forced marriage, reproductive freedom, dress codes, and the like, Canadian and American law seem to be equally favourable. But again, the question of the social safety net available to women refugees in Canada might well play into the equation.
Aspect 4: vulnerable groups--suspected terrorists
Canada is not a safe country for refugees who are suspected of being terrorists or supporting terrorism. A security certificate is issued against them based on secret evidence, and they are placed in detention. If they can't be removed right away, they are kept in detention indefinitely. A Federal Court judge does review the certificate for reasonableness, but does not reveal the details of the secret evidence to anyone, although the person concerned can receive a summary of the evidence. Although this type of process is obviously repugnant to Anglo-American notions of fairness, the Canadian judiciary has not yet had the fortitude to condemn it. (This is in contrast to the House of Lords in 2004, the 9th Circuit in 1995  and the New Jersey District Court in 1999  .)
All this to say that the Canadian refugee protection system serves some well and fails others miserably. The same can probably be said of the American system. The difference in the quality of protection offered by each country is largely dependent upon the circumstances of each claimant.
1Document holders, family members of residents or refugee claimants in country to which entry is sought, unaccompanied minors. Canada adds: persons from countries on which there is a moratorium on deportations, US citizens, persons facing the death penalty in the United States.
2A & others (2004) UKHL 56
3American-Arab Anti-Discrimination Committee v. Reno 70 F.3d 1045
4Kiareldeen v. Ashcroft 71 F. Supp 2d 402
by Pat Zambelli