U.S. Army Deserters Denied Leave to Appeal

Last week, the Supreme Court of Canada (“SCC”) released judgments in 31 applications for leave to appeal, denying leave in each case (see for example, Brandon David Hughey v Minister of Citizenship and ImmigrationJeremy Hinzman (AKA Jeremy Dean Hinzman), Nga Thi Nguyen and Liam Liem Nguyen Hinzman (AKA Liam Liem Nguye Hinzman) v Minister of Citizenship and Immigration, and Kit Mei Ann Chu v Minister of Citizenship and Immigration).

Making the most noise in the media are two cases involving U.S. army deserters who were appealing the denial of their claims as Convention Refugees. Jeremy Hinzman and Brandon Hughey were both privates in the U.S. army who fled to Canada upon learning that their units were being deployed to Iraq in 2004. They both opposed the war, declaring it to be immoral and illegal, and claimed that there was “a well-founded fear of persecution” if they were to return to the U.S. The Immigration and Refugee Board disagreed. Both the Federal Court and the Federal Court of Appeal upheld this decision. In being denied leave to appeal by the SCC, the two claimants have exhausted all of their legal options in Canada and can be deported back to the U.S., where they may face court martial proceedings and the possibility of serving jail time.

Their plight is reminiscent of American draft dodgers who found refuge in Canada during the Vietnam War. However, one significant difference is that the two claimants in this case were not drafted into the army against their will but presumably joined the army of their own free choice. While I was personally against the American war in Iraq, I find myself without much sympathy for these two men. They made the conscious choice to join the U.S. army understanding the commitment which that choice entailed and they should have been aware of America’s history of engaging in similar military actions in the past.

The denial of their refugee claims should not be about whether one agrees or disagrees with America’s policy in Iraq. The Canadian public’s displeasure with the Iraq war should not mean that these two men should be given favourable treatment in the determination of their refugee claim. Such refugee status should be reserved for those who are truly fleeing situations where their personal beliefs lead to persecution, not for those who decide to backtrack from commitments made through their own personal choices.

However, it does appear that this case has taken on a more political dimension and it is through political, rather than legal, avenues that the deserters and their supporters have now turned in hopes that they may be allowed to stay in Canada.

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