SCC not the end of the road for war resisters
For most people hoping to be heard by the Supreme Court of Canada (“SCC”), the denial of leave marks the end of their legal battle. However, for the American soldiers who have fled to Canada in an attempt escape the horrors of fighting in a war with which they fundamentally disagree, the denial of leave has only changed their course. They have shifted the focus of their struggle to stay in Canada from the courts into the political arena – recently gaining the support of the Federal Parliament’s Standing Committee on Citizenship and Immigration.
The denial of leave for Jeremy Hinzman (A.K.A. Jeremy Dean Hinzman), et al. v Minister of Citizenship and Immigration was discussed by Yu-Sung Soh a few weeks ago. To briefly review, Mr. Hinzman and Brandon Hughey were appealing the denial of their claim for refugee status. They both enrolled in the U.S. military voluntarily and both decided to flee to Canada upon hearing that they were being deployed to Iraq to fight a war that they felt was immoral and illegal. Both enrolled prior to the conflict and served dutifully until notified they would be deployed to Iraq. They claimed that they would face persecution if they were returned to the United States, where they would confront the possibility of jail time for desertion. The Immigration and Refugee Board disagreed. The Federal Court and the Federal Court of Appeal upheld the board’s decision. On November 15th, their legal battle ended when they were denied leave by the SCC.
Despite the denial of leave, the war resisters have persisted in their attempts to stay in Canada. On November 6th, 2007, Hinzman’s lawyer, Jeffry House, and others appeared as witnesses in front of the Standing Committee on Citizenship and Immigration. After hearing their testimony, NDP-Member Olivia Chow put forward a motion, which was later amended to read:
“The Committee recommends that the government immediately implement a program to allow conscientious objectors and their immediate family members (partners and dependents), who have refused or left military service related to a war not sanctioned by the United Nations and do not have a criminal record, to apply for permanent resident status and remain in Canada; and that the government should immediately cease any removal or deportation actions that may have already commenced against such individuals.”
The committee voted 7 to 4 in favour of the motion, with the Liberals, NDP and Bloc Quebecois all giving yeas. The 4 nays came from the all of the governing Conservatives who are on the committee.
For now, what this means for the war resisters is that the resolution will be debated in the House of Commons sometime after the new year. Considering that all opposition parties voted in favour of the resolution, it is possible in the context of the current minority government that the House of Commons will support the resolution. This will put the issue of whether war resisters will be able to escape the war by fleeing to Canada in the political spotlight – a place it has not held since the Vietnam War.
That said, even if the House of Commons does support the resolution, the final decision lies with the governing Conservatives. Despite the war resister’s persistence and potential political support that they have now demonstrated, it is unlikely that the government will upset our American neighbours by allowing the war resisters to apply for permanent residence in Canada. Nonetheless, their actions show that not all cases end with the SCC’s denial of leave.