Beyond Country of Origin: Smith V. Canada and Refugees from Unexpected Places

Abstract

Smith v. Canada reminds us that the Convention Relating to the Status of Refugees (Refugee Convention) was crafted to protect those at the margins and that we cannot predict with any certainty where we may find those that need the surrogate protection the Refugee Convention calls for. Just as we tell children not to judge a book by its cover, the Canadian refugee system should not judge a claimant by his or her country of nationality or habitual residence. With this in mind, this comment aims to examine the case of Smith v. Canada and argue that the Federal Court provides an instructive lesson for policy makers and advocates alike — that we should steer away from making generalizations, stereotypes, and pronouncements that a person coming from a particular country simply could not be a refugee. Members of the gay and lesbian community or women threatened by domestic violence, for example, are not protected by a refugee system that sees the claimant’s country of origin as the most important question.

This comment goes beyond the doctrinal analysis and discusses the approach to litigation that was taken in this case (I was Bethany Smith’s representative in her refugee hearing). There is action beyond the litigation as well. With the assistance of the War Resisters’ Support Campaign, and several members of parliament, Smith and others are lobbying the Canadian government to allow service members from the United States to stay in Canada. In their efforts to convince the government, many service members such as Smith have chosen to share their story with the public. This comment should serve to increase awareness and understanding of how we can understand someone such as Bethany Smith to be a bona fide refugee.

Keywords: immigration, refugee, gender, country of origin