CANADA'S KANGAROO COURTS?

In an article entitled "Osgoode Hall Law School: Daniel McSweeney", Sean Rehaag, an assistant professor at York University's law school, discovered that Daniel McSweeney, an IRB judge, had approved none of the refugee claimant cases (127) that he attended in 2011. [see the complete article at http://www.immigrantscanada. com/2012/03/osgoode-hall-law-school-daniel.html]. This fact was also reported in the mainstream media.

As an interpreter and translator who has worked for dozens of refugee applicants, this is very disturbing to say the least. There is no conceivable way that an IRB judge, if he receives his cases randomly in the same way as the rest of his colleagues do, could have adjudicated 127 cases and not one merited approval - it's statistically impossible. Something is going on with this person: either he is grossly incompetent or prejudiced to the point of being (yes) criminally irresponsible. Why criminally? Because no doubt not just a few, but many of the applicants would have been genuine cases who were then returned to their home countries with unpleasant fates awaiting them. It reminds me of the 1939 case of the SS St. Louise, a ship full of German Jews escaping persecution in their home country, which was turned away from Canada's ports for no better reason than the prevailing anti-Semitism existing in Canada at that time. The vast majority of them returned to Germany to their deaths. We abhor that shameful moment in Canadian history and yet, in my opinion, we possibly have the same situation occurring again.

Hearings and trials in which the sentence is pre-determined are called kangaroo courts. In a kangaroo court, guilt or innocence is of no account, neither is a good defense, because the government trying the person has already decided to condemn him/ her for political reasons. Canada decries, for example, the trials of Canadian citizens and residents (among other nationalities) in Iran. These unfortunate people are arrested on pretext by the Iranian government for reasons of real politik. They are innocent people who's unpleasant fates are predetermined by a murderous regime in kangaroo courts. What we Canadians see happening at the IRB lumps us in with regimes such as these if not in degree, then at least en essence. But, it might be argued, Canada does not torture and kill the refugee applicants. Yes it does if it is knowingly sending people back to countries like Iran; to death or torture or cruel and inhuman treatment. At the very least the IRB subjecting them to deep emotional anguish and to very uncertain futures. They return to their countries bitter, angry and disillusioned with Canada. Many have given up everything they possess and have (e.g. positions, etc) to come to Canada. Many of them will return worse off than if they had stayed. Many will be marked by regimes or groups for persecution. As well, Canada's good name is being smeared by people like McSweeney.

I am also a volunteer with a human rights organization called CHRIO [Canadian International Human Rights Organization]. As such, I see the human side of what we are talking about. I see the tears and disbelief of applicants being rejected. I am with them in their last days here in Canada. I see how they are sick with fear of returning to their countries. I see their children, more Canadian than their own nationality going back to cultures that are foreign to them. I have been with their lawyers who upon learning of the presiding judge, have declared, "Unfortunately, this is one who has a reputation for rejecting all refugee claimants. Was Sweeney being referred to, or are there more?The media outlets that have covered this story come to the same conclusion: a person's chance of being accepted is a matter of luck. Image the despair of refugee claimants as they realize that the soundness of the evidence they bring to the hearings is of little consequence; it all comes down to a roll of the dice. Did they get a "good" judge, or a "bad" one? The one who accepts 80% of the cases, or 0 % of his cases? This is not right or fair; that is, if these concepts matter to the IRB.

A question has to be raised: is someone like McSweeney just a rogue judge, or is he carrying out a new, albeit unofficial policy coming from higher up? Are Canadians seeing the new face of the government, following suit the pogroms in the U.S.A? That is, "get rid of them at all costs because they're all liars coming with bogus claims looking to take advantage of our generous social system"? One last question: how do people such as McSweeney and others of his ilk manage to operate in the IRB? Shouldn't he have raised flags along the way? Is there no system in place to detect patterns to weed out people like this? For example, if a university professor were to fail all his students all the time, this would raise eyebrows and invite questions on the part of the faculty.

If remedial suggestions are in order, then one would be for IRB to review McSweeney's decisions, as in the case of Charles Randal Smith, who was a Canadian pathologist responsible for sending innocent people to jail on the basis of his supposed 'expert' testimony. Once he was exposed, criminal cases involving his testimony were re-opened and reviewed with the result that a number of imprisoned people were declared innocent. Another suggesting is that the hearing of refugee cases be taken out of the hands of the IRB and placed in another body where the judges don't take their orders from IRB bureaucrats and/ or politicians. A final suggestion is that the appointees have a legal background and that they have been trained in law. For McSweeney's credentials, refer to http://www.cic.gc.ca/english/department/media /releases/2006/0622-e.asp.

These are not just academic matters that are being discussed; it must not be forgotten that people's lives are at stake. Canadians cannot begrudge asylum seekers here in Canada they resent refugee claimants as "line-jumpers" in the immigration system or because they waste the country's valuable resources. Canada must not become the land of refugee kangaroo courts.

ABOUT THE AUTHOR

Jonathan Whiteside is a professional translator working in the English and Spanish languages. He lives in Toronto, Ontario.