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Passengers crowd the deck of the Sun Sea, then off the B.C. coast. 'Tamils seek asylum because of the conflict in Sri Lanka.' (MCpl Angela Abbey/Canadian Forces Combat Camera)
Passengers crowd the deck of the Sun Sea, then off the B.C. coast. 'Tamils seek asylum because of the conflict in Sri Lanka.' (MCpl Angela Abbey/Canadian Forces Combat Camera)

Lorne Waldman and Audrey Macklin

Why we can't turn away the Tamil ships Add to ...

The arrival of the Sun Sea in British Columbia, just months after the Ocean Lady, has brought calls for legislative changes to allow the federal government to intercept and turn away future ships. Public Safety Minister Vic Toews wisely rejected this proposal, which would be contrary to our obligations under international law and the Charter of Rights.

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Asylum seekers on boats is not a new phenomenon. In 1939, the St. Louis, filled with hundreds of refugees fleeing the Nazis, was turned away from Canada. At the time, the government tried to discredit the passengers as frauds and economic opportunists, and warned that, if the St. Louis were permitted to dock, more Jews in Europe might follow. The "line must be drawn somewhere," and it was drawn at zero. Many of the people on board subsequently perished in the death camps.

In 1969, Canada signed the Refugee Convention and undertook not to return refugees if they had a valid fear of persecution. This obligation is part of our law. Once asylum seekers reach our territorial waters and are in Canada, they cannot be sent back to another country unless their claims for protection have been denied.

From the St. Louis onward, every new boat is accompanied by denunciation of the passengers as frauds and dire warnings of future "waves." Yet, two boats - one filled with Tamils and the other with Sikhs - arrived in the 1980s followed by four boats with Chinese in the 1990s, and the sky did not fall in. All were given due process without creating havoc. Some were found to be refugees, some not. Other countries, including Australia and the United States, receive far more sea-borne migrants than Canada, and far more irregular migrants in general.

But what of turning the boats away before they enter our waters? Various human-rights bodies all have held that interdiction on the high seas is illegal under international law. Both the Inter-American Court of Human Rights and the Office of the United Nations High Commissioner for Human Rights agree that asylum seekers' right to life require they have their claim determined in a fair process, not on the high seas.

Moreover, such a regime would run afoul of our Charter. Our Supreme Court has held that Canada cannot be directly or indirectly complicit in torture or other human-rights violations. By turning away boats without fairly determining whether those on board would be at risk, we would be violating refugees' right to life and security of the person.

If turning away boats is not the answer, what can Canada do? First, Canada can accept the fact that the arrival of boats waxes and wanes according to factors disconnected from Canada's refugee policies. In the case of the Chinese migrants in the late 1990s, the flow stopped because the economic conditions that drove them to leave improved. Today, Tamils seek asylum because of the conflict in Sri Lanka and its ongoing aftermath. Since the Sri Lankan government proclaimed that it won the civil war, it's done nothing to redress the Tamils' legitimate demands. Instead, it has continued a campaign of intimidation and persecution that has produced a mass exodus from the country. Canada must join with others to press Sri Lanka to negotiate in good faith with the Tamil minority. Without real peace, the flow of Tamil refugee claimants will continue.

Canada can also discourage any non-genuine claimants by ensuring timely, fair decisions in their refugee claims, followed by the prompt return of failed claimants. Parliament has already acted to amend the refugee procedure to provide for timely decisions, but the procedures will not come into effect until 2011. Assuming the system is resourced and staffed in a way that enables it to operate fairly and efficiently, this will act as another deterrent against fraudulent claims.

Canada receives about 30,000 claimants each year. Five hundred Tamils represent only 2 per cent of the annual intake. The rest arrive by plane or overland, so don't elicit the same moral panic as people on boats. Although the system has experienced delays in recent times, it has managed to provide a reasonably fair determination. Failed claimants are being deported each year in record numbers. All this to say, that with a just and efficient determination system, we will be able to deal with asylum seekers arriving by boat or otherwise. And the best way - indeed, the only way - to stop any future boats from Sri Lanka is by solving the problems in Sri Lanka.

Lorne Waldman is an immigration lawyer practising in Toronto. Audrey Macklin is a law professor at the University of Toronto.

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