Canadian Friends Service Committee
60 Lowther Avenue, Toronto, Ontario, M5R 1C7
Telephone: 416-920-5213
Email: cfsc@cfsc.quaker. ca

November 15, 2007

Quakers shocked by Supreme Court announcement on Hinzman-Hughey cases

Canadian Friends Service Committee, the peace and service agency of Quakers in Canada, is shocked and disappointed that the Supreme Court of Canada has not given leave to appeal to Jeremy Hinzman and Brandon Hughey, two American soldiers who came to Canada seeking refugee status on the basis of conscience and the illegality of the US war on Iraq.

Friends (Quakers) have a strong relationship with both men. Jeremy and his family attended Fayetteville (NC) Friends Meeting for a year prior to their arrival in Canada on 3rd January 2004. They have had the support of Canadian Friends since arriva l . The family participates in the life of the local Quaker congregation though they are not members of the Religious Society of Friends.

CFSC arranged for Brandon to live with a Quaker family in St. Catharines, Ontario upon his arrival in Canada on 5th March 2004. He lived with this family for a year before moving to Toronto. Brandon continues his relationship with these Friends but is not a Quaker.

The Supreme Court of Canada has chosen to let stand as binding the decision of the Federal Court of Canada (Trial Division) in Hinzman and Hughey. This lower court certified a question concerning the proper interpretation of the United Nations High Commission for Refugees (UNHCR) Handbook--"Is the question whether a given conflict may be unlawful in international law relevant to the determination which must be made by the Refugee Division under s. 171 of the UNHCR Handbook?" specifically as it applie s "in th e context of a foot soldier."

The Federal Court of Appeal and now the Supreme Court of Canada have now both decided to leave this certified question unanswered, leaving it open to standing interpretation that "the lawfulness of a conflict could well be relevant where a refugee claimant is a high-level policy-maker or planner of the military conflict in issue" but may not be applicable in the case of "a mere foot soldier" such as Mr. Hinzman or Mr. Hughey. That is, rights (and responsibilities) of conscience are only applicable to those with sufficient rank as to be determining and executing orders that might violate international law. Those who are being asked to carry out such orders-"mere foot soldiers"-apparentl y have no rights of asylum should they exercise their rights of conscience (guaranteed under the International Covenant on Civil and Political Rights) in such an interpretatio n of t he UNHCR Handbook. This is a very troubling outcome for anyone concerned with rights of conscience that will haunt Canada in the years to come.

The Religious Society of Friends, since its beginnings in the 1640s in England, has understood conscience as an inherent moral faculty, possessed by all humanity-regardless of class, rank, race, sex, etc. Limiting rights of conscience to a select few is morally untenable. Rights of conscience, which are guaranteed through various national and international legal instruments, are legally inherent to all persons. Rights of conscience are an accepted part of the "global commons" of human rights and are upheld by Canada (through our Charter of Rights and Freedoms and international instruments to which Canada is a signatory). As such, how can conscience, and the provisions for asylum in the relevant sections of the UNHCR Handbook, be limited on the basis of rank? This i s p articularly troubling as "mere foot soldiers" have been held accountable for the human rights abuses at Abu Ghraib prison in Iraq rather than their superiors.

An authoritative interpretation of paragraph 171 of the UNHCR Handbook by the Supreme Court of Canada would have had international significance given the limited jurisprudence on cases involving conscientious objection by a person within the military.

Given this outcome, Friends are left to conclude that this is a decision which the court thinks is best left to government. As such, Friends strongly encourage Parliament to create a legal provision that would immediately provide refuge for all of the US "war resistors".

Contact (English or French):
Svetlana MacDonald, Clerk [chair], Canadian Friends Service Committee
519-451-2489 (London, ON)

Alternate: Jane Orion Smith, General Secretary, Canadian Friends Service Committee
646 -415 -3291

Jane Orion Smith
General Secretary
Canadian Friends Service Committee
60 Lowther Avenue
Toronto, ON, Canada M5R 1C7
Tel:1-416-920- 5213; Fax: 1-416-920-5214