Yavar Hameed is an Ottawa-based lawyer specializing in immigration detention, citizenship, and security certificates. He is well-known for addressing systemic racism and Islamophobia in many legal cases with people such as Mohamed Harkat (who was under a security certificate) and Abousfian Abdelrazik (who was denied return to Canada for 5 years). In addition, he actively assists clients facing Candian Security and Intelligence Service (CSIS) interviews related to matters of national security. Hameed’s approach to legal advocacy is unique in that it is collaborative with solidarity groups and activists organizing in immigration and refugee justice. In this interview, he reflects on the dynamics of the relations between legal and extralegal forms of resistance. Lydia Dobson interviewed Hameed during the winter of 2017.
What first motivated you to take on the citizenship and immigration legal work that you do?
When I first became involved in solidarity and legal work in immigration cases, I was sort of thrown into it by an important criminal case. I was retained as Ottawa’s criminal counsel for a number of Montréal activists who were part of the CASS, the Comité d’Action des Personnes sans Statut. At the time in 2002, I was not a criminal lawyer and had never done a criminal law case, but the issue was so compelling that I immediately wanted to become a part of it. The case was very closely aligned to a movement fighting against deportations of a group of non-status Algerians in Canada. These were people who had come to Canada in the late 1990s when there was a moratorium on deportations to Algeria. At that time, Algerians were experiencing terrible human rights violations, including thousands of disappearances and extra-judicial killings.
In the fall of 2003, a number of Algerians facing deportation travelled to Ottawa to deliver a letter to the Minister of Immigration. They ended up staging a sit-in inside Citizenship and Immigration Minister Denis Coderre’s office in order to have a personal meeting with him. After 10 hours of the sit-in, the situation escalated and Royal Canadian Mounted Police (RCMP), Ottawa Police, and security guards arrived on scene. It ended in the violent arrests of members of the Algerian Support Committee, who were both non-status Algerians as well as solidarity supporters from Montréal. For the non-status Algerians, being charged with mischief offences would jeopardize their already precarious status in Canada. There was therefore an extreme urgency to this case. Because of the dire situation in Algeria and the lifting of the moratorium on deportations, they were in a precarious situation where they were advocating for their rights through direct action. Despite this vulnerability, they decided to go forward with this action. So, both politically and legally, they needed someone in Ottawa who could represent them. In the end, our legal team—which also included Montréal lawyers Denis Barrette and Pascale Lescarbeau—managed to get all the accused acquitted after a five-week trial in Ottawa. The win in this case was more than just a win for our clients: it was a win for the movement and a legal outcome that effectively validated a political struggle for basic rights and recognition of non-status people.
Before I was on this case, I was your run-of-the mill labour lawyer who also worked on some human rights cases. However, this political case allowed me to step outside of that frame and become involved in a case which, to my mind, had tremendous political relevance and urgency, in a way that labour case-work—not to diminish the labour movement—did not. What I found working on this case and for these clients was a connected and supportive solidarity network of people who were like-minded. They were intelligent, engaged, and had a political awareness paired with a willingness to resist and become actively engaged to the point where they were willing to risk arrest. I found both the nature of the activism and what I became immediately exposed to highly compelling and different. It was a different level of political significance and urgency compaired to the kind of law that I was doing at the time.
What are examples you can draw from to describe successful relationships between activism and legal casework?
A good example of the relationship between grassroots activism and legal advocacy was Project Fly Home. This was, in my mind, an excellent confluence between direct action and legal strategy. The case involved Abousfian Abdelrazik, a Canadian who was detained in Sudan in the early 2000s. He was held in detention for a number of years and then released in Sudan, where he tried to come back to Canada. However, he was denied a Canadian passport and an airplane ticket home due to him being placed on the United Nations’ No Fly List. The UN listing was the result of an allegation that Abdelrazik was associated with Al Qaeda and the Taliban, even though there was no evidence to support such claims. In addition to having a travel ban, all of his assets were frozen. Further, under both the United Nations’ Regulations and Canadian federal law, it was an offence to financially support someone who was placed on this list.
In 2007, Abdelrazik was still trying to come back to Canada, but the Canadian government told him it was impossible because there was no way for him to be financially supported to purchase a plane ticket home. This was when Project Fly Home organized a national series of donations across Canada in an act of direct action to purchase a ticket for Abdelrazik. The donors made themselves public to challenge the Canadian government’s position.
With a ticket waiting for Abdelrazik to return to Canada, we were then able to file an application to the Federal Court claiming that Abdelrazik’s right to return to Canada was protected by Section 6 of the Charter and that it was the Canadian government that was making it impossible for him to exercise this right. This application wouldn’t have been possible if members of this coalition hadn’t agreed to step forward and commit that act of civil disobedience.
What are the broader political goals that you hope to achieve through acting as a legal advocate with immigration detention and citizenship rights?
I think that the case of the sans-statuts opened my eyes to the social organizing and activism going on both outside of, but connected to, legal struggles. One of my motivating factors became a question of how I could align myself with those movements and actions. In that sense, it was less a question of me looking at legal problems and using the law for a specific objective. It was about looking at movements and social organizing and asking where I could be of assistance. These are movements with clear politics where there is a willingness of individuals to put themselves at risk to challenge the system. So, it was less about aligning myself with one specific group and more about becoming responsive to social movements and seeing that there was a place for like-minded lawyers to assist in the cause.
Are there restraints that you face in your role as a legal actor versus a political activist? How does your obligation to clients influence your political engagement?
I think the question of the limits of the law and the disconnect between legal workers and broader social movements is a perennial issue. It’s one where there aren’t any hard and fast answers to delineate what kinds of strategic choices should be made. The way that legal rules function and how they impact individuals is as multi-faceted as the social and political contexts of the people they affect. For example, if you’re a criminal lawyer recommending a plea, or an immigration lawyer trying to put together a plan of release or “alternative to detention” under immigration laws, what you are doing is deferring to the system. At a certain level, by the very nature of legal work, you’re part of the hierarchy and you’re reproducing that system. There’s something inescapable about operating within those boundaries. However, I think that there is a way to simultaneously be sensitive to broader political and social concerns of engagement and resistance while still validating the choices of your client’s interests.
A prime example of this is the position that was initially taken in the response to security certificates.1 In 2004, before the Supreme Court struck the security certificate laws down, I became involved as a legal advisor and supporter on the Mohamed Harkat case. In those early years, there was a schism between those who advocated for abolishing security certificates altogether and those who thought that there needed to be reforms to make the situation more manageable. The lead counsel on the case was Paul Copeland. One of the strategies he suggested was to use special advocates as intermediaries between private “national security” information and public counsel. Paul Copeland’s proposal was taken up by the courts and later became a part of the security regime itself. I think that within the movement, you saw campaigns taking different strategies. For example, the campaign for Adil Charkaoui2 was staunchly against instating a special advocate, while Harkat’s campaign was open to it.
What I saw around the advocacy for Harkat’s campaign was the ability to manage a public image that was abolitionist against security certificates, while allowing for strategic maneuvering in the context of the specific case, which ultimately opened the door to naming and appointing special advocates. So, sometimes there is a tension or contradiction between what is deemed to be a strategic route in individual cases versus the goals of the broader movement. I think movements need to be true to the position that they advocate. So as lawyers for individuals, I think that we need to be conscious of these multiple dimensions. When a person’s liberty and security are at risk, the choices that clients make need to be respected. I think that the broader movement should respect those choices while still pursuing the broader goals that are politically important to them.
Many of your clients are involved in lengthy trial processes that consume and drastically diminish their quality of life. Deepan Budlakoti, Mohamed Majoub, and Abousfian Abdelrazik have become focal cases for resistance efforts around immigration detention and citizenship rights. How have you seen acts of solidarity and resistance impact the experiences of people you work with?
One of the things that is true of litigation generally, but is definitely the rule in immigration detention cases, is that these cases are all-consuming. People are being detained in a provincial facility, or in alternative forms of detention with restrictions to daily life activities imposed by the Canada Border Services Agency and cannot escape immigration control in their day-to-day life. And so, their case becomes not only a fight for immigration status—to acknowledge one’s right to exist, to be recognized, and to remain in the country. Daily life becomes a struggle. There are many restrictions on who you can meet and who you can associate with. You may not be able to associate with someone who has a criminal record, so immediately some people in the activist community are off limits. Some people who have been accused, but not yet convicted, may be on that list as well. So, there are all these limits that affect basic civil liberties and everyday life. In addition, there is also a polarizing effect on how the person is treated by their own community, which is a product of people who come from immigrant communities not wanting to associate with people who are alleged by the Canadian government as “threats to national security.”
Being embroiled in lengthy and high profile immigration cases affects your ability to access a job, proper healthcare, and it destroys social support networks. Within these disrupted patterns of daily life and barriers to meeting basic needs, activist support networks become a de facto source of connection to a vibrant community and a means for providing some basic needs and material support. There’s a real importance for communities who work in solidarity with individuals who are facing removal and are facing allegations of criminality or of being a “threat to national security.”
Whether it is Justice for Deepan, Justice for Mahjoub, the Mohamed Harkat Committee, the Committee for Justice for Hassan Diab, this pattern of social isolation for individuals is common. Particularly for the cases that are politicized, having a core group of supporters there to provide some kind of social network is invaluable. Activist social support networks are not groups that these people would have normally been a part of in other circumstances. But because these groups are very empathetic, responsive, and aware, they are able to provide both material and emotional support. Those things are, perhaps, more important than the legal battle that’s being fought. A person may be granted status ultimately to live in the country, but it’s the waiting that grinds people down.
For years predating Bill C-51,3 you’ve called for increased oversight of CSIS and limitations to CSIS powers. How would you describe the current state of affairs around Canadian security intelligence, given the enactment of Bill C-51?
Since Bill C-51 we have witnessed a growing encroachment of the security state on the rights of all people in Canada. People without citizenship or with precarious status are obviously more vulnerable because, in addition to criminal repercussions, they are also vulnerable to removal. C-51, in many ways, solidified a lot of powers that CSIS had been trying to have since its inception. Since September 11, there has been increased financial support for security intelligence investigation and the building of a security intelligence infrastructure in Canada. The problems that we have seen historically, notably the lack of accountability and oversight for the RCMP and of CSIS, are being magnified. An expanded array of activities considered to be propagation of terrorism, along with other kinds of crimes (all of which didn’t exist before C-51), have been added to the panoply of things that are conceived to be threats to the state. So, increasing the purview of what the state believes to be very serious crimes against it allows for this greater ambit of collection of information for extended periods of time and for politicized circumstances. These trends are not new in the history of security intelligence in Canada, but I think it has come to the greatest intensity that it has ever been.
C-51 allows CSIS the maximum level of autonomy with the minor restriction that it cannot engage in torture or in the violation of bodily integrity. The recent election of the Liberal government offered a glimmer of hope that perhaps we might see some changes to the bill. However, the Liberals were supporters of Bill C-51 from its inception and that hasn’t really changed. With this latest review process around Canadian national security laws, there’s been nothing more than cosmetic change. So what we see today is anti-terrorism law on steroids. It is opening up more possibilities for politicized uses of security intelligence and the broadening of the security state. This has serious ramifications for activism and resistance in the country. I think that it puts non-status people and immigrants in Canada in a much more vulnerable position than they have been historically.
The Safe Third Country Agreement bars refugees who have landed in the US from claiming asylum at an official point of entry in Canada, causing growing rates of asylum seekers to risk their lives by avoiding official channels when crossing the border. In 2009, after a lengthy legal battle, the Supreme Court of Canada upheld the constitutionality of this deeply problematic agreement. Now, under Trump’s racist regime, the agreement has become far more dangerous than ever before. How do you approach situations like this, when legal oversight mechanisms have been exhausted and those in power actively propagate racism? Is there a tipping point at which working within the legal system is no longer an effective method of resistance?
That’s a very good question. I think that dealing with migrant justice issues and asylum seekers is an area of the law that is somewhat contradictory. It’s different from other areas of law in the sense that in refugee law, there is a recognition of the dire circumstances that compel people to move from an area of persecution and conflict to a place that is safe. Because of that, some of the normal expectations that the law holds are suspended so that a refugee can be permitted to use a false passport, although this is rarely successful. There are reasons why a refugee might construct a certain story or use a pretense to get from one country to another. Where the limit lies is being permitted to make an asylum claim within a country. Despite refugee law being more flexible, there is a barrier put on individuals from making a claim in the first place, which forces those people into a position where there is no legal recourse. I think this a situation where the law takes the back seat to compassionate and politically motivated solidarity—whether they are sanctuary cities or other enclaves of like-minded, positive social support for migrants and failed refugee claimants—where people are willing to risk prosecution by building either a church sanctuary or some kind of area where individuals will be housed. This is where, I think, migrant justice movements and sanctuary coalitions play a pivotal role.
I think that there is a role for the law to play, but it’s one that has to work in deep connection with movements. It’s a role where the law cannot act pre-emptively because the law doesn’t recognize the legitimate reasons why migrants might be in the country. So, the law becomes something that is more of a rear-guard than at the forefront of protection of people’s rights.
1 Security certificates provide the Canadian federal government the authority to detain individuals under the Immigration and Refugee Protection Act (IRPA) without sharing reasons for the detention on the basis that such information is related to matters of national security.
2 Adil Charkaoui was arrested in 2003 under a security certificate. He spent 21 months in prison without charge and over four years under house arrest.
3 Bill C-51 was introduced by the Conservative party under Prime Minister Stephen Harper. The bill sought a large range of amendments and was widely criticized for its harsh sentencing principles and lack of public accountability. It expanded government rights to access personal information and withhold such information from legal proceedings in the interest of national security and the prevention of terrorism.