Maureen Silcoff: Fighting fo refugee rights

Maureen Silcoff

Maureen Silcoff became president of the Canadian Association of Refugee Lawyers in June. A graduate of Osgoode Hall Law School, she was called to the Ontario bar in 1988. Aside from private practice, Silcoff spent five years as a member of the Immigration and Refugee Board. She is also an instructor in refugee law at the University of British Columbia.

She spoke recently at Temple Emanu-El in Toronto about the refugee determination process, refugee health care and access to justice.

Can you rate Canada’s overall response to refugees, or does it depend on which country produces claimants?

It’s a difficult question because Canada’s response to refugees depends when in time we’re talking about. Refugee responses are closely linked to the politics of the day. So it’s difficult to give an overall answer, except to say that, traditionally, Canada is committed to protecting human rights and, more specifically, to protecting refugee rights. We know there have been some dark days historically, so if we turn back the clock, we’ll remember certain problematic policies: for example, the Chinese immigration laws, the Japanese internment and, of course, the “none is too many” policy regarding Jews fleeing wartime Europe.

Even in our more recent past, there was a problematic response by the former government in terms of dealing with refugees from eastern Europe; these ended up being primarily Roma refugees. And the former government ended up using terms such as “bogus refugees” in reference to some groups of people seeking protection, and certain harsh laws were put in place. And those were, in fact, struck down by the court under the Charter of Rights and Freedoms.

On the other hand, we see very positive responses. For example, Canada’s response to the Syrian refugee crisis has been very encouraging. Groups of private sponsorships have come together to support Syrian refugees. But now, we’re dealing with another issue that I think we have to think about: people who cross into Canada between ports of entry. That situation has led to some criticism, which I think is unwarranted. I think there are a lot of myths around the people entering Canada between ports of entry.

Speaking of myths, what are some of the biggest misconceptions about refugees?

A lot of people look at refugees in the context of border crossings. So one misconception is that people enter Canada illegally because they’re coming between ports of entry. The first thing to keep in mind is: what drives people to enter at these places is that there is an agreement called the Safe Third Country Agreement. It’s between Canada and the United States. It basically blocks people from entering Canada under the idea that the United States is safe for asylum seekers. There are a few exceptions. If you have close family members here, for example, you could be let in.

The problem is that, currently in the United States, there are many indications that there is no safety for people who require protection. In fact, there’s a real danger that people, through an unfair process and unfair laws, will end up being deported back to harm in their home countries. We know, for example, about the horrific images of children being yanked from their parents’ arms and put it into cages. In some cases, the U.S. government has been unable to match the children back up with their parents later. That’s just one example of how the asylum system is really not safe anymore.

People end up desperate and end up crossing between ports of entry. It’s not illegal to do so. There is nothing in Canadian law that makes it illegal. If you’re crossing for the purpose of seeking protection, it’s totally lawful to do that. Canada has international human rights commitments that require that we offer people a chance to put forward their assessment needs.

Another misconception is that people are jumping the queue. There are two different queues: one for immigrants and a whole separate process for refugees. So if you need protection, there is nothing that compares you to immigration applicants. There are two separate processes.

I think another big misconception is that the numbers are too high, when in fact, we’re dealing with 40,000 to 50,000 people seeking protection in Canada. When you compare those numbers to, for example, what’s happening in some European countries, or even the Rohingya refugees crossing into Bangladesh – they’ve seen 50,000 people enter in one day. So the Canadian numbers are really a drop in the global bucket. It’s nothing to be concerned about and it’s certainly not any kind of a crisis.

Another misconception is that people are bringing values that are not considered Canadian with them, which doesn’t really make any sense. When you think about who is seeking protection, you can think about a gay man seeking protection because homosexuality is illegal in his country of origin. Protecting the rights of LGBTQ individuals in Canada is something that we value. Similarly, we can see women facing domestic violence in their home countries. They’re seeking protection here. Again, that’s a value that we uphold. I think it’s a real misconception that people are bringing in values that are different than what is acceptable in Canada, or what meets human rights standards.

So the United States is no longer a safe destination for asylum seekers? Should Canada provide that safety?

The definition of safety is in our immigration laws, so it’s something very specific. There is a measure. It talks about whether the U.S. complies with certain international refugee standards. It talks about whether the policies and practices in the U.S. comply with human rights requirements. And there’s plenty of evidence to show that the United States falls very short of those standards.

It’s important to understand that. It makes sense at this point to either suspend the Safe Third Country Agreement, or cancel it completely, on the understanding that people have a need and a right to have a fair process in terms of their refugee claims.


What is the current state of health care for refugee claimants?

Traditionally, Canada has provided health care when people enter as refugees. That’s the system that’s been in place since the 1950s. When people first arrive, they need a place to stay, they need a helping hand to get on their feet. But studies show that once people settle in Canada, they actually pay back society and contribute in ways more than many people who were born in Canada. Yes, people get a helping hand to start off, but definitely there’s a very huge payback to society. This is something that we have to take into account.

Among the topics you addressed at Temple Emanu-El was access to justice for refugees. How do you define that justice and do refugees have adequate access to it?

The main concern in terms of access to justice currently in Ontario is that Premier Doug Ford has decimated the legal aid program for refugees and immigrants. What happened in the budget in April is that the province decided it would no longer pay money for representation, leaving refugees in the lurch. There was no consultation and very little notice.

What’s happening now is refugees are left without representation at their hearings. You can imagine someone in Canada, they don’t speak English, they could be traumatized because they could have faced torture back home. They’re facing culture shock and a complex legal system.

The refugee determination process is quite rigorous. Someone has to appear before a board. They have to testify for hours. They have to present evidence to corroborate their claim. It’s almost impossible to navigate this kind of system without representation. The consequences can be very high. If you don’t succeed, you could end up on the trajectory to deportation back to harm in your home country. When I talk about access to justice, I talk about the current crisis, in which Doug Ford has pulled legal aid from this vulnerable group of people.

Is there a Jewish response to refugees?

I think the Jewish community has a moral imperative to support refugees, given the history of the Jewish people, the history of persecution and the fact that as a community in Canada, we are in a position to offer assistance. I think it’s important that we make our support known, make our support heard and do whatever we can to make sure refugee rights are intact in Canada.


This interview has been edited and condensed for style and clarity