Joshua Key is one of multiple US military deserters who have come to Canada. Several of them have unsuccessfully claimed refugee status.
I'm of two minds about these cases. On the one hand, I think we regularly deny/deport more deserving claimants. These people just don't rank extremely high on my righteous-indignationometre. On the other hand, the Refugee Board and the courts have refused to consider key legal issues in the cases, such as whether the war in Iraq is illegal and therefore being forced to participate in it would constitute persecution. Instead, these central issues have been brushed off as irrelevant and outside the jurisdiction of refugee law, which I find hypocritical. Under international law, participants in illegal military actions could be prosecuted for participation. Logic suggests that if we would prosecute someone for doing something, then we should not condone his government for forcing him to do that same thing.
Of course, logic and international law...even "law" and international law...are often at odds.
The gist of the ruling:
[Federal Court Justice Robert] Barnes said the board erred “by concluding that refugee protection for military deserters and evaders is only available where the conduct objected to amounts to a war crime, a crime against peace or a crime against humanity."
Citing a case from the U.S. Federal Court of Appeal, Barnes said officially condoned military misconduct could still support a refugee claim, even if it falls short of a war crime.
"The authorities indicate that military action which systematically degrades, abuses or humiliates either combatants or non-combatants is capable of supporting a refugee claim where that is the proven reason for refusing to serve," Barnes wrote.
Barnes said the board imposed a legal standard that was "too restrictive" on Key, who lives in Saskatchewan.
While I would not be surprised to see this appealed and superior courts to cop out, I am delighted to see this decision conforming with the internationally agreed-upon rules and standards we claim to live by in Canada.
Also via CBC, some of the others:
- James Burmeister (claim pending)
- Kyle Snyder (arrested and released, permanent residency application pending)
- Jeremy Hinzman & Brandon Hughey (claims rejected, appeal refused by Supreme Court)
- Ross Spears (claim pending)
- Corey Glass (ordered deported)
Also interesting: the House of Commons--yes, that's right, the organ of representative democracy in this country--passed a motion to allow the deserters to remain in Canada. However, it was a non-binding motion, and the government kiboshed it. See this? This is my shocked face.