The chapter is called “ENF 18 – War crimes and crimes against humanity”.
“Paragraph 1” describes its purpose.
“This chapter describes how to determine if persons are inadmissible to Canada under any of the statutes dealing with war crimes and crimes against humanity”.
It says that those who committed or who were complicit in the commission of a war crime, a crime against humanity, genocide, or “any other reprehensible act”, whenever or wherever they occurred, “are not welcome in Canada”.
Its thirty pages are written for visa officers working in our Canadian embassies and consulates and for officers who work in immigration offices throughout the country.
The thirty pages cover a number of Canadian statutes relevant to war crimes and international laws on the topic.
It defines the terms genocide, crimes against humanity, war crimes, and acts of terrorism.
It describes how a person can become “complicit” in one of these acts even by doing nothing at all. It informs officers that “case law in Canadian courts has determined that complicity can be found” by merely “being present at the scene” of a crime or by simply “being a member” of an organization. In other words, officers are instructed that a person can be held accountable for such “reprehensible acts” without even lifting a finger.
Officers are encouraged to conduct their own Internet research and to identify “links or sites that may provide required information” to help prove their case.
Foreigners can be denied visas, be ordered deported, or be denied protection in Canada if an officer has “reasonable grounds to believe” complicity in one of these offensive acts.
In the case of foreigners applying for a visa to Canada, no hearing is conducted. An officer simply has to have some information that is, in his/her opinion, sufficient to form “reasonable grounds to believe” the act occurred and that complicity was present.
Officers are provided a “sample refusal letter” that they should complete and which even includes a sentiment of regret. “I realize that this reply will be a disappointment to you,” it says.
Well, Fateh Singh Pandher, a retired constable with India’s Border Security Force got one such letter and was obviously more than just “disappointed.” He was mad.
Visa officials refused his application for permanent residence with one of these letters saying that India’s Border Security Force “has engaged in systematic attacks on civilians and has been responsible for systematically torturing suspected criminals.”
Pandher believed he did no wrong and took offence to being called a human rights violator and got the Indian press involved. It was quickly discovered that other members of India’s border agency received similar letters. Not surprisingly, this created an international incident when the democratic government of India objected strongly to the accusation that it commits war crimes or crimes against humanity.
On Friday, Minister Jason Kenney apologized profusely to the Indian government and vowed to review how such decisions are made.
No judge, and no jury anywhere in Canada has the power to pin such a horrible label on a person with such little evidence and with such little opportunity to be heard let alone the power to tar a whole country — over one billion Indians — with such a mark. This unprecedented power only lies with Canada’s immigration and visa officers.
While Canadians probably have no qualms about entrusting our immigration officers with the power to deny access to Canada to convicted criminals, to those who are a threat to us, to those who have abused our hospitality before, and to those who are likely to overstay their welcome here, very few, I would imagine would want to see officers wield a power capable of such offence and impact on Canada’s foreign relations.
I am the son-in-law of two Holocaust survivors whose lives were utterly destroyed by real war criminals. My wife and my children have been forever denied any kind of real family on my wife’s side because virtually no one survived. Accordingly, I would not hesitate to deny access to Canadian soil to anyone guilty of atrocities.
However, when our laws are cast so wide such that an Indian border guard can be painted with the same brush as the Nazis who systematically murdered millions, then it is clear that we need to reconsider how wide we cast these labels.
While I have respect for our immigration officers and the training that they are given, the impact of their decisions should not be capable of reaching beyond the applicant’s personal sphere and be permitted to enter the arena involving Canada’s political and economic relations.
Their power to do so should be clawed back immediately and unequivocally.
Guidy Mamann practices law in Toronto at Mamann, Sandaluk and is
certified by the Law Society of Upper Canada as an immigration
specialist. For more information, visit www.migrationlaw.com or email [email protected]