OPINION: Canada not doing enough to protect refugees against despotic regimes

The rule of law, due process, and human rights are all seen as fundamental values in our society, yet when it comes to dealing with permanent residency or refugee claimants from authoritarian countries, Canadian officials often rely on facts provided by regimes with very different interpretations of those values.
    
Toronto-based refugee and immigration lawyer Lorne Waldman has represented clients -- like his current client, B.C. businessman Shiyuan Shen -- who faced deportation from Canada because of criminal charges in their countries of origin. Waldman says refugee claimants from countries such as Russia, Kazakhstan, and China have had their claims derailed by sketchy criminal allegations and he believes that the values of Canadian justice should be reflected in the immigration system.

(The full interview is available in the audio player above. The following portions have been edited for clarity and length.)

Would you start by giving us a brief explanation of your client Shiyuan Shen's situation?

Mr. Shen came to Canada and he got married to a Canadian citizen who sponsored his application for permanent residence. The application was approved but the immigration authorities became aware that he had charges pending in China. And so they started proceedings to send him back to China and of course he was terrified to go back to China because, as we know, it's not a country that respects the rule of law, he wouldn't get a fair trial and would likely be subject to torture, so he made a claim for refugee status... The charges are false, the people who were detained and convicted were subjected to torture. This is a complete fabrication for political reasons. 

How common is it to see cases like this, where Canadian officials are forced to weigh the word of a refugee claimant against the word of a foreign government?

It's very common. And what's concerning about it is that what we see persistently is that the Government of Canada, and the officials in the Canadian Border Services Agency in particular, takes the evidence that comes from countries like China, where there is a very poor rule of law, very poor human rights record and where there's evidence of persistent use of torture, as if it were coming from a country like England -- where, generally speaking, the rule of law is respected. And they use this evidence as a basis to deport people back to China, where they would face the charges. 

The devil's advocate argument would be: If these people are facing serious criminal charges in another country, let's allow our system to air on the side of caution...

And what does it mean to 'air on the side of caution' in Canada? Our system is based on the presumption that the burden is on the State to prove guilt. An immigration proceeding is different from a criminal proceeding: In a criminal proceeding, it's beyond a reasonable doubt; in an immigration proceeding, the burden of proof is lower but it's still reasonable grounds -- there has to be some credible evidence or balance of probabilities, depending on which type of case it is. So if we believe in the rule of law, what that means is we have to be sure the evidence we're relying on to send someone back to a regime where he could face an unfair process is at least credible and trustworthy evidence and I don't see that happening. I see, far too often, the officials taking the evidence at face value and the person has to prove his innocence, rather than the other way around.

Click the blue button above to listen to the full interview.