The individualized assessment: how the Hilewitz and De Jong cases played out in Abdelkader Belaouni’s struggles against immigration controls and ableism

Abdelkader Belaouni’s struggle for status in Canada lasted 3 years, 9 month and 22 days. This is the amount of time Belaouni spent at Montreal’s St Gabriel Church since January 1, 2006 until the long-awaited granting of his status in September, 2009. Prior to the legalization of his status, Belaouni found sanctuary in this Montreal Church as his only alternative to evading a deportation order. Having lost his vision earlier in life, Belaouni’s story has become a living example of a hero who not only won the victory against immigration controls, but also surmounted ableism within Canada’s immigration system.

Belaouni’s legal struggles showcase many of the obstacles that disabled applicants face in pursuit of legal status in Canada. What is the attitude of Canada’s immigration system towards disabled applicants? What does medical inadmissibility entail in the context of Canadian immigration law? In order to address these questions, it is important to describe Belaouni’s legal struggles in relation to two commonly cited cases on disability and immigration law in Canada, the Hilewitz and De Jong cases.[1]

The Algerian man who had lost his eyesight in his mid-twenties, fled to New York City in 1996 after a civil war unraveled in his country. Apprehensive about his future in the USA, a country where racial prejudice had spiked following the 9/11 terrorist attacks, Belaouni sought refuge in Canada in March 2003. He was denied…

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South Africa’s ‘Zimbabwe Problem’ – International Law vs. Soccer

Driving around the Cape Peninsula in South Africa, tourists are bound to run into street side hawkers trying to unload cheaply made pieces of “African” art – at least some of which are apparently made in China. Entering into a conversation with these traders, one quickly finds they are often not South African, but from Zimbabwe. The Republic of South Africa is awash with these economic migrants, many of whom have entered the nation illegally. The rash of xenophobic attacks here in 2008 makes it obvious that the local population does not appreciate the presence of so many illegal aliens in South Africa. After all, this is a nation with a lot of race issue to begin with, and unemployment rates hovering around fifty percent.

Ideally, South Africa’s partnership in the Southern African Development Community (SADC) means that such migrants may have a right to be here – at least on a limited basis. Article 5 of the SADC Treaty calls for the “the progressive elimination of obstacles to the free movement of capital and labour, goods and services, and of the people of the Region generally….” Article 2 of the SADC Draft Protocol on Facilitation of the Movement of Persons aims to allow citizens free movement within the group of member states. With that in mind, the interpretation of South African…

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Haitians Seeking Refuge: Canada’s Obligations Under International Law

Since the devastating earthquake in Haiti on January 12, 2010, Canadians have opened their hearts and their wallets, raising over $27 million during a recent two-day telethon, for a total of more than $50 million for victims of the Haitian earthquake. The Haitian community in Montreal is particularly sizeable and Quebecers have dispatched medical teams, emergency rescue squads and hundreds of soldiers from the Valcartier base. Canadians seem to feel a sense of unprecedented kinship and solidarity with the Haitian people.

It is little wonder then that phone lines have been ringing off the hook at Immigration Canada, with calls from well-intentioned viewers seeking to alleviate some of the pain and suffering they watch on their TV screens by adopting Haitian orphans. However, despite estimates that more than 50,000 children have become orphans as a result of the quake, many agencies are calling on governments to deliver aid, not adoptions.

While fast-tracking adoptions already approved by the Haitian and Canadian governments may be a humane and logical tactic to support Haiti, additional mass adoptions of children from the earthquake zone may in fact violate international law.  Haitians orphaned by the earthquake do not meet the traditional criteria of Convention Refugees, in that they are not subject to persecution based on their “race, religion, nationality, membership of a particular social group or political opinion”, but there…

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Should Canada Gyp the Roma?

Surprisingly for such a boring country, Canada has on occasion been described as “cool”.[1] But if we want to stick with the cool international crowd, we have to keep up with the latest trends. Most Canadians probably think that discrimination against minorities went out of fashion years ago, but lately one old classic has come back in vogue: persecuting the Roma (also known as Romani, or Gypsies).

Many Canadians may find picking on members of a small diaspora community unappealing. But like other trends such as Ugg boots or skinny jeans, just because we find them distasteful doesn’t mean we can ignore them. And there’s no denying that discrimination against the Roma is back in style – just look at Europe.

According to Amnesty International, and despite a 2007 ruling against the practice by the European Court of Human Rights, Roma children in the Czech Republic and Slovakia are still routinely placed outside mainstream schools in “special schools,” ordinarily reserved for children with mental disabilities. In Serbia and Romania, groups of Roma have been evicted from their “unlawful settlements” (which, in Serbia, were then bulldozed), and forced into even more makeshift accommodations. To be fair though, as one Romanian Vice-Mayor noted, this was really positive discrimination since the evicted Roma were provided with free metal barracks to live in – the lucky devils! In Hungary, incidents of violence…

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Last Week in International Law

1. Prosecutor v. Karadzic

Proceedings against Radovan Karadzic began on October 28, 2009, despite the accused’s refusal to attend court. The case was supposed to start on October 26 but Karadzic, who is representing himself, asked for at least eight more months to prepare his case. The court gave him 24 hours to change his mind. After he failed to appear on Tuesday, judges ordered the Prosecution to open its case and warned Karadzic to appear in court or risk having counsel assigned to him and being tried in absentia.

For more information, see the Reuters article or our own Lee Rovinescu’s analysis of the situation.

2. R. v. Munyaneza

On October 29, 2009, Justice André Denis of the Quebec Superior Court handed down a life sentence to Désiré Munyaneza, the Rwandan genocidaire who helped organize and perpetrate the mass-murder of Tutsis in the Butare area. On May 22, 2009, Justice Denis found Munyaneza guilty of two counts of genocide, two counts of crimes against humanity and three counts of war crimes. Having concluded that the killings were premeditated, Justice Denis held that Munyaneza would not be eligible for parole for 25 years.

Munyaneza was the first person to be charged under Canada’s Crimes Against Humanity and War Crimes Act. The Act incorporates universal jurisdiction, allowing Canada to prosecute any individual present…

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