Was Canada’s refugee system a success or failure in the case of Lai Changxing?

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I use the word “blame” because it seems that the framing of Lai as a “bad” person arises, in part from his alleged crimes, and in part because he fully exerted his legal rights. It is as if a “good” refugee does not have to work so hard to prove his case, the “good “ refugee will win. If a refugee advocates too much and appeals too much, something must be wrong with the refugee. He has too much money. His lawyers are looking for loopholes. The system is too lax. His case has no merit.

I suggest that we think of the Lai case with a more balanced and fairer set of frameworks. 

Complex cases, complex justice

Complex cases lead to complex justice. Trying to simplify or “hurry” complex cases often leads to miscarriages of justice. In the refugee system, Canada has committed to providing just decisions. Not only within our domestic law, but also within our commitments to international law.

I would argue that some of the most complex refugee cases, ones that looked like “losers” at lower levels of court have resulted in some of the foundational principles in our legal system.

The refugee process in Canada is not like an hour of Law and Order or a half-hour of Judge Judy. A full chart of how the process works looks like a plate of spaghetti.

In the case of Lai, Canada requested and was able to secure “strict, clear and unequivocal assurances” from China that Lai’s imprisonment be monitored and that he not meet with any mysterious end. I suspect China was not happy to be taken to task on its human rights record and took offence that Canada would ask for such assurances, but such assurances were provided.

This is a big deal -- Canada compelled a super power to commit to human rights guarantees.

This was a story not covered by the media.

Justice is for everyone, not only you

Why is it that when many Canadians look at the case of Lai, they begrudge him the very legal processes that they would seek for themselves were they in his shoes?

I am not sure of the answer to this question. I can only point out that in his reasons which led to Lai’s deportation, Justice Michel Shore noted: “the rule of law and due process are the hallmarks of the values which Canada cherishes. Although the cost of such are high, they are no higher than the very values for which Canada strives to hold dear.”

Eloquent words. Perhaps such concepts are just too much to deal with, until we personally seek justice.

It seems that if a refugee claimant (or an immigrant) is labeled as being “bad”, “a rule breaker”, an “abuser of the system”, then the public response is to throw the book at them. Swift justice is good justice.

But if we are personally charged with a crime or accused of doing wrong, then we want every legal safeguard to be used in our case. We want the best legal representation.

If the above is true, I would suggest that we are a poorer civil society because of it.

The system worked

It is arguable that in the case of Lai, the system worked.

He pursued complex legal arguments to all levels of court. He was permitted to do so. His legal claims cost him money and cost the Canadian government money. Justice is not cheap. He did not try to run away or evade his deportation. He reported for removal and was escorted back to China. Human rights guarantees were sought from China that Lai would be treated fairly in the jail system and assurances were granted.

His fate is now in the hands of the Chinese government. If the assurances are not complied with, Justice Shore notes that China will lose honour and “face”. Human rights advocates fear exactly such an outcome for Lai and are disappointed that he was not permitted to stay.

In his thoughtful reasons, Justice Shore refers to a Chinese parable: 

“A child who once wanted to outwit his teacher, asked his teacher, ‘Is the bird which I have in my hand alive or dead?’ The child thought if the teacher answered, ‘The bird is alive,’ he would crush the bird; and, if the teacher said it is dead, he would let it live. The teacher answered with a great understanding for both the child and the bird, 'The life of the bird is in your hands, my child.'

So it is with the Chinese government’s assurances.”

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