Last Updated on October 5, 2016 by Steven Meurrens
Justice Diner in Canada (Public Safety and Emergency Preparedness) v. Rooney discussed the issue of the lack of legislation dealing with stateless people in Canada. The relevant portions of his decision provide interesting commentary, and reads (citations removed for ease of reading):
Imposing an obligation to prove a negative in these circumstances may give rise to a Catch-22 situation for the stateless, nameless, mentally ill, and other vulnerable individuals who may not be able to establish identity. While I do not contest the Member’s finding that the Respondent may not be de jure stateless as understood by international instruments, the issue of statelessness and persons unable to establish nationality merits comment.
In a 2010 paper on de facto statelessness, Senior Legal Adviser to the United Nations High Commissioner for Refugees Hugh Massey explains that the inability to prove nationality may be linked to a number of causes, including the fact that “[s]ome people may have never been registered in the civil registration system of the country of their nationality.” Mr. Massey further notes the difficulty to establish nationality in the case of unaccompanied children, especially if the “child is so young as to be unable to provide any information at all about his or her origins, e.g. if the child is a foundling”.
And in a 2012 discussion paper written for UNHCR, referenced at pages 543-544 of the Respondent’s Record, author Andrew Brouwer highlights the consequent difficulties created by the dilemma:
In Canada, as elsewhere, stateless persons who do not have authorization to stay in the country live in a condition of legal limbo. Some stateless persons are refugees and, once recognized as such, enjoy the full set of rights which attach to refugee status. However, non-refugee stateless persons are in an extremely precarious situation. These are persons who are not recognized as nationals by any country but also do not have a well-founded fear of persecution in any country […] Whether they were stateless before arrival or lost their nationality while in Canada […], it is this group of individuals, albeit small, who face the greatest problems in Canada and elsewhere. They are vulnerable and marginalized. [emphasis added]
Mr. Brouwer goes on to explain at page 14 of his paper the impact of being caught in this “legal limbo” on persons unable to establish nationality, which, as the Respondent’s case demonstrates, is so intimately linked to identity:
[…] non-refugee stateless persons in Canada who cannot acquire a legal status are subject to removal from the country, and may be detained pending removal. However, because removal is often impossible what should be short-term detention in preparation for removal may become long-term or even indefinite, as Canadian officials try to convince another country to accept a non-national. The issue of lengthy detention, particularly for administrative reasons is a key concern for UNHCR, which could be avoided if alternative protection mechanisms for this group were to be put in place.
Under subsection 2(1) of IRPA, a “foreign national means a person who is not a Canadian citizen or a permanent resident, and includes a stateless person.” This is the only mention of the word “stateless” in the Act; the Regulations also offer few provisions addressing the notion, without any definition of statelessness. There is an equal dearth of guidance in the jurisprudence regarding stateless persons or persons such as the Respondent, who are unable to establish nationality or are of undetermined nationality, whether found to be stateless in fact (de facto) or in law (de jure).
As currently constructed, Canada’s immigration framework provides minimal, if any, legal guidance for those who are in Canada, but do not know who they are or where they come from. This legislative void can result in what has happened in the Respondent’s case, namely a reality where someone unable to prove legal status is told that he does not belong in Canada, but is also unwanted abroad, and as a result remains in detention for a prolonged period. Neither the Act nor Regulations assist in a situation akin to the Respondent’s, who finds himself betwixt and between Canadian and foreign nationality, caught by the factual and legal complexities of his situation.