Canada starts application process for stranded Iranian Christians
Convert Family in Eastern Turkey Considered for Immigration
by Barbara G. Baker
Compass (07.08.2001)/ HRWF International Secretariat (08.08.2001) - Website: http://www.hrwf.net - Email: info@hrwf.net - Canadian authorities issued written verification yesterday that its embassy in the Turkish capital of Ankara has begun the immigration application process for an Iranian Christian family stranded in eastern Turkey for more than two years.
An official notice dated August 6 was issued to Mahmoud Erfani by the Immigration Office of the Canadian Embassy in Ankara. The Iranian convert was also given an official case file number. The document declared that Erfani and his family had submitted "an application for immigration to Canada now being processed by Canadian authorities." According to the notice, if Erfani and his family meet all of Canada's immigration requirements, they could leave Turkey for Canada within eight months.
The new Canadian Embassy document is expected to stay a previous letter of deportation ordered by the Turkish Interior Ministry after the Erfanis were refused refugee status under the United Nations High Commissioner for Refugees (UNHCR) in Ankara.
According to Erfani, who spoke with Compass by telephone from Nevsehir, embassy officials indicated they would notify him of a date for his first interview in Ankara sometime next month. Erfani, 45, confirmed that he was greatly relieved to have been issued the Canadian Embassy document, which notes, "We trust that this information will facilitate the above person's temporary stay in Turkey." The family's Turkish residency status expired nine months ago, leaving them vulnerable to possible deportation back to Iran.
An Iranian convert from Islam to Christianity, Erfani fled with his wife and three daughters to Turkey in July 1999. Now in a wheelchair, his wife Atefeh was diagnosed with advancing multiple sclerosis seven years ago.
Both Erfani and his wife were baptized 20 years ago in Mashhad, a center of Islamic activity and the holiest Shiite pilgrimage shrine in Iran. Since the Islamic revolution in Iran, local authorities have closed the city's two Protestant churches, hung one convert pastor and opened apostasy cases against three other convert Christian families who fled the country for asylum abroad. Although part of a handful of remaining convert Christians meeting secretly in their homes, Erfani had no formal documents proving that he was under official threat of persecution for his faith. After his family was evicted from their home on the former Presbyterian church compound in the spring of 1999, he was terrified by repeated threats and interrogations and fled with his family by bus across the Turkish border.
Admitting the Erfani family into the Canadian application process does not guarantee that the country's immigration authorities will accept them, but official church sponsorship is often a determining factor in the process.
On June 19, an Anglican church in Toronto pledged full sponsorship for the stranded couple and their three daughters, filing the necessary papers taking legal responsibility for their financial support for their first year in Canada.
"But we are not sure how the Canadian authorities will view his wife's health problems," a church representative told Compass today from Toronto. "Sometimes they are cautious about this."
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Religious Discrimination
Annual Report 2000, Canadian Helsinki Watch Group
by David Matas
HRWF (06.03.2001) / Website http://www.hrwf.net C Email info@hrwf.net
The case of Waldman v. Canada, decided by the Human Rights Committee established under the International Covenant on Civil and Political Rights, presents an unusual dilemma for Canada. What is Canada to do about religious discrimination entrenched in the Canadian constitution?
The Canadian Charter of Rights and Freedoms prohibits religious discrimination. The Charter is part of the constitution of Canada. However, the Canadian constitution, because of another provision, article 93, discriminates in favour of Roman Catholics and against other religious denominations.
Article 93 gives provincial legislatures exclusive power over education. The article states that any law enacted under this power shall not "prejudicially affect any right or privilege with respect to denominational schools which any class of persons have by law in the province at the union." In Ontario, at the time that the province joined Confederation, Roman Catholic schools had rights and privileges which other denominational schools did not. In particular, Roman Catholic denominational schools received state funding and other denominational schools did not. The effect of article 93 was to prevent the legislature of Ontario from prejudicially affecting those rights and privileges, from prejudicially affecting that funding. State funding of Roman Catholic schools in Ontario is, by virtue of article 93, constitutionally entrenched.
Once the Canadian Charter of Rights and Freedoms was entrenched in the constitution in 1982, and, especially once the equality guarantee in the Charter became effective, 1985, the question arose whether the discrimination flowing from article 93 of the constitution could survive the entrenchment of the guarantee of equality in section 15 of the Charter. The Supreme Court of Canada decided that it could.
Shortly after the Charter guarantee of equality sprung into life, the Ontario government of Premier Bill Davis introduced legislation, Bill 30, extending funding for Ontario Roman Catholic schools from primary to secondary education, and then referred to the courts the question of the constitutionality of its proposed legislation. The Supreme Court of Canada ruled, in June 1987, that the proposed legislation was constitutional[1].
Public funding of Roman Catholic secondary schools in Ontario was a right or privilege existing in 1867 at the time the Canadian constitution came into effect protecting that funding. So that protection survived today. One part of the constitution, the Canadian Charter of Rights and Freedoms, could not be used to invalidate another part of the constitution, the guarantee of denominational rights existing in 1867.
Madam Justice Wilson, writing the majority opinion stated: "These educational rights, granted specifically to Roman Catholics in Ontario, make it impossible to treat all Canadians equally. The country was founded upon the recognition of special or unequal educational rights for specific religious groups in Ontario." In a concurring opinion, Estey J. conceded: "It is axiomatic (and many counsel before this court conceded the point) that if the Charter has any application to Bill 30, this Bill would be found discriminatory and in violation of ss. 2(a) and 15 of the Charter of Rights."
What generated the litigation was not the funding already in place for primary education, but new funding proposed by Bill C-30, for secondary education. Even that proposed funding was, according to the Supreme Court of Canada, protected by the constitution. Madam Justice Wilson found that, at the time of Confederation, Roman Catholic separate schools were entitled to public funding for secondary education, even if they were not getting that funding. Thus, the constitution of Canada requires the Ontario government to fund fully Roman Catholic separate schools. Seen in this light, according to the Court, Bill 30 simply righted an old wrong.
To call Bill C-30 the righting of an old wrong, as the Supreme Court did, in light of its other remarks that Bill C-30 was discriminatory, was perverse. The failure to fund fully Roman Catholic schools in 1867 was wrong. However, by 1985 and the entrenchment of the equality guarantee in the Constitution, it had ceased to be wrong. The Roman Catholic population in Canada 1985 was no longer in the disadvantaged position it was in 1867. Whatever constitutional protection to which it was entitled in 1867 had ceased to be relevant to 1985. The Supreme Court of Canada, rather than confirming the righting of a wrong, was confirming the accumulation of wrongs. Because the Roman Catholics were wronged yesterday, it became acceptable, according to the Ontario legislature and the Supreme Court of Canada, to wrong other minorities today.
After the Bill C-30 case was decided, parents who wanted state funding for denominational schools that were not Roman Catholic went to Court to argue that the guarantee of equality in the Charter required funding in Ontario for their schools. Individuals from the Calvinistic or Reformed Christian tradition, and members of the Sikh, Hindu, Muslim, and Jewish faiths argued that the Ontario Education Act, by requiring attendance at school, discriminated against those whose conscience or beliefs prevented them from sending their children to either the publicly funded secular or publicly funded Roman Catholic schools, because of the
high costs associated with their children's religious education. A declaration was sought stating that the applicants were entitled to funding equivalent to that of public and Roman Catholic schools.
The Supreme Court of Canada rejected this challenge as an attempt to revisit its earlier decision on Bill 30. The Court ruled that the funding of Roman Catholic separate schools could not give rise to an infringement of the Charter because the province of Ontario was constitutionally obligated to provide such funding[2].
However, that was not the end of the matter. Canada has signed and ratified the International Covenant on Civil and Political Rights as well as the Optional Protocol to that Covenant. The Optional Protocol allows for an individual right of petition against signatory states. The Covenant, like the Charter, has a guarantee of equality[3].
Arieh Waldman petitioned the Committee to find Canada in violation of the Covenant because of Roman Catholic separate school funding in Ontario. Given that the Supreme Court of Canada in the Bill 30 reference had already conceded that the Ontario scheme was discriminatory, it was perhaps inevitable that the Human Rights Committee, established under the Covenant to give its views on petitions, would come to the same conclusion.
The Government of Canada made a feeble attempt to argue that Ontario funding to Roman Catholic schools was non-discriminatory because the obligation to provide that funding was in the Canadian constitution. Yet, the source of discrimination cannot change the fact of discrimination. The Human Rights Committee expressed the obvious view that the preferential treatment of Roman Catholic schools does not cease to offend the equality guarantee in the Covenant simply because it is in the Canadian constitution[4].
The International Covenant on Civil and Political Rights provides: "Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant."[5] So, Canada, by ratifying the Covenant, freely undertook to change its laws, if necessary, to comply with the Covenant.
Canada ratified the Covenant on August 19, 1976. It entered into the Optional Protocol on October 29, 1979. Neither at the time of the ratification of the Covenant or the Protocol did Canada append any reservation or understanding.
The Canadian Charter of Rights and Freedoms entered into force on April 17, 1982. By way of exception, the equality guarantee in the Charter entered into force on April 17, 1985. The three year delay was to allow Canada to get its equality house in order.
During those three years there was much legal soul searching to root out inequalities that might offend the Charter. The House of Commons produced a report titled "Equality Now" in March 1984 under the auspices of a Special Committee on Visible Minorities in Canadian Society, chaired by Bob Daudlin. The report had a whole chapter on education with fourteen recommendations, but nothing on separate school funding. The federal government Department of Justice produced a tandem report in 1985 titled "Equality Issue in Federal Law: A Discussion Paper". Again, here there was nothing on separate school funding.
To be fair to the House of Commons Committee, the ratifiers of International Covenant on Civil and Political Rights, and the authors of the federal equality report, at the time of their efforts, separate school funding, though a potential equality problem, was a sleeping problem. Until Bill 30, which post dated all of these efforts, separate school funding was far from the forefront of the equality debate. It is probably fair to say that none of the people involved in the earlier efforts anticipated that the Ontario government would later propose new discriminatory funding and that the Supreme Court of Canada would rule that section 93 of the Constitution protected this new discrimination. Bill 30, given its timing, shortly after the entrenchment of the equality guarantee in the Charter and the heightened Canadian human rights consciousness, was inflammatory. The flames it lit are still burning.
As contentious as separate school funding is, for Canada to adopt a stance as an international outlaw would be even more contentious. Such a stance would gut huge swathes of Canadian foreign policy, and throw up an awkward obstacle to Canada's attempting to enforce obligations that other states owe to Canada. Once the Human Rights Committee says that Ontario separate school funding violates Canada's treaty obligations, something must be done.
The present Ontario government does not want to do anything at all. However, the implications of international lawlessness are more severe for Canada as a whole than they are for any one province. Given the isolationism of Ontario politics, the violation of Canadian treaty obligations imposed by Ontario legislation will have to be handled by the federal government and Parliament alone and directly.
Parliament cannot amend the provisions of the constitution dealing with separate school funding in Ontario unilaterally, without the agreement of the Ontario legislature. As long as the Government of Ontario insists on maintaining the present regime, that regime is constitutionally protected.
Nonetheless, for the purpose of international compliance with the Covenant, the fact that separate school funding is in the constitution is a red herring. Any constitutional provision that relates only to one province can be amended by Parliament and the legislature of that province. There is little doubt that, if the Government of Ontario were willing to legislate an amendment to Article 93 of the constitution to remove the protection for separate school funding that the Roman Catholic denominational schools now have, the federal government and Parliament would go along. The fix that Canada is now in is no different from the fix it would be in where a violation stemmed from provincial legislation without any constitutional status other than that it was within the power of the legislature to enact, and the province refused to do anything about that legislation. The only impact of constitutional status of the Ontario legislation is that it prevents the Charter and the courts from solving the problem. The problem, like in the old pre-Charter days, will have to be solved by politicians and legislators.
Fortunately what we are dealing with here is only money. The Parliament of Canada cannot legislate within the domain reserved to provincial legislatures simply because provincial legislation puts Canada in violation of international law. However, the government of Canada can spend on a subject matter reserved to provincial legislation, whether the subject matter has an international dimension or not.
Discrimination in funding can be resolved in one of two ways. One is to remove funding from those unfairly advantaged. The other is to give equivalent funding to those unfairly disadvantaged. Because of Ontario government unwillingness to act, the first alternative is not now an option. The only option is to give equivalent funding to those unfairly disadvantaged.
Money which the Government of Canada spends comes from taxpayers across Canada. While geographical inequality is not the sort of inequality against which either the International Covenant on Civil and Political Rights or the Canadian Charter of Rights and Freedoms protects, it would be unfair, in a political, if not a legal sense, for the federal government to give separate school funding to Ontario schools and not to separate schools elsewhere in Canada.
Again, here, there are two alternatives. Either all Canadians would pay for separate school funding and all Canadians would benefit. Or, only Ontarians would pay, and only Ontarians would benefit. The federal government could devise a scheme for Ontario only payment by deducting any money that the federal government spent on separate school funding in Ontario from federal tax point or funding transfers to Ontario.
The full funding of all separate schools is a politically contentious position, because it has the effect of undermining the public school system. However, at the level of principle, the ending of discrimination is uncontentious.
It should be up to the voters of Ontario to decide whether they want full funding of all separate schools, or full funding of no separate schools. It can no longer be up to the voters of Ontario to decide whether they want full funding of only Roman Catholic schools and no others. The Canadian Helsinki Watch Group takes the position that the Government of Canada should put the state of Canada in compliance with Canada's treaty obligation under the International Covenant on Civil and Political Rights by fully funding all separate schools in Ontario and deducting the money it spends on Ontario separate schools from transfer payments and tax points to Ontario. The government of Ontario should then be left to decide how they want to respect the obligation not to discriminate, whether by maintaining funding of all separate schools or by funding no separate schools.
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