Photo: CIJnews
Canadian government liable for damages from Syrian refugees?
By TSEC Network
Canadian Prime Ministerial candidate Justin Trudeau promised in his campaign that he would move quickly to have Canada take 25,000 refugees from Syria. Now, as the new Prime Minister attends the G20 meetings in Turkey (15 November 2015) he has reconfirmed this pledge by saying that Canada is a “country that defines itself by its shared values, not its cultural differences.”
On the same day, European officials have stated that they believe that there is “a very professional new squad of terrorists inserting themselves into some of these migrant voyages.”
Simply put, Canada lacks the resources and knowledge base to screen this many people this quickly.
The union representing the CBSA border guards says “the government doesn’t have the manpower to process 25,000 people in less than eight weeks.”
Most flagrantly, Canada’s new Minister of Immigration, Refugees and Citizenship, John McCallum, has stated that some of the screening will be done after the refugees arrive. Mr McCallum has stated that he might use a special exemption for the Syrian refugees called a “Minister’s Permit” and allow refugees into Canada even if the “security or health checks were not yet completed.” He would then “allow the rest of the scrutiny to take place in Canada.”
Anyone with even the most basic knowledge of Canada’s immigration and legal system is aware of the absurdity of this statement. Among the most obvious problems are:
Individuals arriving from Syria may be inadmissible for a variety of reasons. The most common will be war crimes and crimes against humanity from the Assad regime officials, terrorism from ISIS and other groups, genocide from ISIS officials, and “all of the above” including general criminality (rape, murder etc.) from a variety of Syrian factions. The BBC estimates there could be 1000 different armed groups.
Even if an individual is determined to be inadmissible for reasons of war crimes, crimes against humanity, terrorism or violent crime, removing them will take three years (minimum), multiple court cases and appeals to the Federal Court. Leon Mugesera, who helped plan the Rwandan genocide, was living in Canada on welfare with his family for 14 years before removal. His family remains here.
If one of these refugees is determined to be inadmissible for reasons of criminality, the courts have often ruled that they cannot be held in detention centres while the years-long deportation and appeal process unfolds.
The Government of Canada can be sued, although determining in which court (Federal, Provincial Superior) is difficult and the plaintiffs would have to establish where the “substance of the claim occurred” based on a “fact-specific analysis”.
In determining whether the Federal government was liable for damages suffered at the hands of un-screened refugees, the Court would likely have to take into consideration a number of factors:
Was there an immediate or real world pressing need to advance the process of refugee acceptance? (Answer: No. Most of these refugees have been in camps for years where their immediate security is not at risk).
Was the Government aware that there was a substantial risk that the incoming flow may have persons who are intent on committing acts of terrorism? (Answer: Yes. Following the Paris attacks of 13 November 2015, European officials have publicly stated that some of the attackers entered Europe through the refugee system and that they believe a “very professional new squad of terrorists inserting themselves” into the refugee flow system.[6]
Was the Government aware that its bureaucracy did not have the ability to perform this sort of screening task in such short order? (Answer: Yes. As noted above, the CBSA union and the Minister have both stated that the screening cannot be done in such short order and checks will have to continue after arrival.)
Does the Government have the necessary knowledge base to do an effective screening, regardless of the timelines? (Answer: Unclear. However, significant information suggests that without an embassy in Syria, lacking troops on the ground, absent allies with a presence on the ground and having the ISIS “government” unwilling to share screening data on its “citizens” it is probable that such knowledge is lacking. Social media reporting over the years of conflict may have valuable information, but sorting it and assessing its reliability and credibility would be a time consuming and difficult task.)
Did the Government avail itself of non-governmental sources of information during the screening process to improve its capabilities? (Answer: Unclear. For instance, private individuals have a list of 130,000 Syrian regime officials, many of whom are “bad guys.”[7] It is not clear if the government has contacted these individuals to make use of this information.)
CONCLUSION
Given all that is currently known (15 November 2015) the Government of Canada is taking considerable and unreasonable risk in allowing un-screened refugees into Canada. As such, the Government may find itself liable if one of these individuals commits an act of violence or terrorism and in so doing cause harm or damage to Canadians or their property.
(N.B. This paper does not address the issue of the spreading of diseases. Germany authorities have noted concerns about Crimean Congo hemorrhagic fever, diphtheria, hepatitis, HIV/AIDS, malaria, measles, meningitis, mumps, polio, scabies, tetanus, tuberculosis, typhus and whooping cough, influenza and Norovirus. Determining liability if one of these diseases spreads from an un-screened refugee is the subject of a different assessment.)
The article originally appeared on TSEC Network and with permission posted on CIJnews. To read the article on TSEC Network click here.
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