Pity the symbolic figure of Justice. The scales she must balance are weighted with competing obligations and rights in the complicated environment of international law.
Last week, the Federal Court of Appeal handed down a decision in the case of Manickavasagam Suresh that will almost certainly find its way to the Supreme Court of Canada. There are two issues here: the legal principles on which we balance human rights against national security, and the practical problems of dealing with the immigration status of a refugee/terrorist.
Mr. Suresh is a Tamil who was born in Sri Lanka in October, 1955. He arrived here in 1990, and was recognized as a United Nations Convention refugee the following spring on the grounds that his life was in danger in his native country because of his involvement in the struggle for Tamil independence.
However, when he applied for permanent residence status, his application was first delayed and then denied. The grounds were that he posed a security risk because of his fundraising and organizing activities on behalf of the World Tamil Movement and the Federation of Associations of Canadian Tamils. The Canadian Security Intelligence Service alleged that these Tamil organizations went well beyond promoting cultural and ethnic values and were in fact a front for the Liberation Tigers of Tamil Eelam, a terrorist movement operating in the Indian subcontinent.
Mr. Suresh has been fighting his deportation back to Sri Lanka ever since. The judge who heard his first appeal concluded that he "lacks total credibility," that he gained his refugee status by "willful misrepresentation of facts" and that "he lied under oath before the Immigration and Refugee Board."
That would be enough to deport him, but does he also pose "a danger to the security of Canada," the grounds in the Immigration Act under which he can be returned to his native country? Mr. Justice J.T. Robertson, who wrote the unanimous decision for the Federal Court of Appeal last week, certainly thinks so: ". . . those who freely choose to raise funds used to sustain terrorist organizations bear the same guilt and responsibility as those who actually carry out the terrorist acts."
To let Mr. Suresh stay would be to promote Canada as a haven for terrorists. Sending him back to Sri Lanka, a country with a questionable human-rights record, especially with regard to Tamils, means that he might be detained and possibly tortured or subjected to other indignities and injustice. That is where Canada's commitments to human rights may come into conflict with its obligations to national and international security.
For example, the UN Convention Against Torture, of which Canada is a signatory, says that no country shall return a person to another state where there are "substantial grounds for believing that he would be in danger of being subjected to torture."
In arguing that the "Canadian conscience" would not be shocked by deporting Mr. Suresh to Sri Lanka, the Federal Court argued that the risk of torture is not substantial because Sri Lanka is a member of the Commonwealth and a democratic state with an independent judiciary. The attention the case has attracted will also undermine any danger there to Mr. Suresh.
If the Canadian government is confident that Mr. Suresh will receive due process in Sri Lanka, the argument for deportation seems clear. What would happen, however, if the appellant came from a country where there were substantial grounds for thinking that he or she would be tortured? What would happen to the Canadian conscience then? Is there a third option, other than deportation? If so, what is it?
The Supreme Court, if it hears this case, must deal with the legal principles, but it will be up to the government to consider the policy implications where deportation of a clearly undesirable alien is not a civil option.