August 12, 2010
Lorne Waldman
Another boatload of Tamil refugees is expected in Canada later this week. Its imminent arrival has raised important questions about how we should deal with boats that might arrive in the future.
Should Canada adopt a policy similar to Australia and turn the boats away before they enter Canadian waters? This is not a viable option for Canada as it would be a violation of our Charter of Rights and Freedoms and of our obligations under international law. In 1997, The Inter-American Court of Human Rights determined unequivocally that such conduct would be contrary to Canada’s international obligations. Simply put, to summarily turn away refugees without determining the validity of their fear of persecution and without regard to their fate is illegal and unthinkable.
If turning the boats away is not in the cards, then what options are available to Canadian policy-makers? The answer lies in a multi-faceted approach. The best long-term solution is to deal with the root causes of the problem. Given Canada’s obvious interest, we should lead the way in working with the Tamil minority and the government of Sri Lanka to seek a long-lasting and viable peace.
Although the civil war has ended, it has not been followed by any meaningful efforts on the part of the government there to redress the legitimate concerns of the Tamils. Nor has there been any effort to curb and come to terms with the excesses committed by the Sri Lankan forces. Until this is done, it is likely that Tamils will continue to flee and there may be more boats arriving on our shores.
But we are still left with the question of how to respond to the boat that is arriving. They should be treated humanely and in accordance with the law. They should be allowed access to counsel once they are detained. The government should carefully investigate all of the passengers on the boat to determine whether any pose threats to national security and then they should have their refugee claims considered.
The key question the government will have to determine is whether the passengers are refugees fleeing persecution or terrorists. In considering this the government should not lose sight of the fact that tens of thousands of Tamils have already been granted asylum in Canada because they were found to be victims of the bloody civil war that has left tens of thousands dead. Undoubtedly, many of the passengers on the boat are legitimate refugees who are fleeing from a repressive regime that engages in torture and does not respect basic human rights.
It is certainly possible that there may be former members of the Tamil Tigers on the ship. If the Sri Lankan government is to be believed, the boat is full of Tamil Tigers. However, anything that emanates from the Sri Lankan government must be viewed with great caution. Its dismal human rights record led UN Secretary-General Ban Ki-moon to appoint a panel of experts on Wednesday to advise him on accountability issues relating to alleged violations of international human rights and humanitarian law during the final stages of the conflict in Sri Lanka that ended last year.
It is also important to recall that the government of Canada made allegations last year that more than 20 of the migrants on the last Tamil boat were connected to the Tigers. Yet now, 10 months after the arrival of the boat, no evidence has been presented to support these charges. The refugees have all been released and there is no evidence that any of them have engaged in illegal behaviour.
The arrival of the boat undoubtedly is a challenge for our refugee system and our democracy. But it is not a national crisis. For years we have received and dealt with an annual influx of 30,000 claimants. Instead of viewing this latest boat as a threat to national security, it should be seen as an opportunity to open a new dialogue toward a lasting peace in Sri Lanka.
Lorne Waldman is an immigration lawyer in Toronto who is representing some of the Tamil claimants on last year’s boat.
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