Court of appeal gives conscientious objector to Iraq war a reprieve

  • July 7, 2010
Jeremy HinzmanTORONTO - The federal government can't send Jeremy Hinzman and his family back to the United States just yet.

A unanimous decision of the Federal Court of Appeal has ordered Citizenship and Immigration to consider the AWOL American soldier's religious, political and moral beliefs before deciding whether the Hinzman family can stay in Canada. The Hinzmans reside in Toronto.

In January 2004 Hinzman became the first American conscientious objector to the Iraq war to claim refugee status in Canada. That refugee claim was eventually rejected and a subsequent appeal to remain in Canada on humanitarian and compassionate grounds was also rejected.

The Federal Court of Appeal's July 6 decision sends the Hinzmans' humanitarian and compassionate leave appeal back to Citizenship and Immigration for redetermination by another officer.

The court found that Citizenship and Immigration "failed to have regard to Mr. Hinzman's personal circumstances, including his sincerely held moral, political and religious objections to service with the United States Army in Iraq."

While the decision doesn't directly deal with Hinzman's right to freedom of religion under Canada's Charter of Rights and Freedoms, it does give weight to a right to conscientious objection, said Alyssa Manning, Hinzman's lawyer.

"The court doesn't say that there is a right. It just says there's evidence of an emerging right in international law," said Manning. "That right comes out of the right to freedom of religion and the right to freedom of thought and conscience that are recognized in international instruments and are mirrored in the Charter."

The decision could be significant for some of the approximately 200 American soldiers who have come to Canada rather than serve in Iraq, said Manning.

"There hasn't been really any engagement with the main reason these men and women are in Canada, and that's because of their sincere beliefs. So the fact the Federal Court of Appeal has clearly said that these have to be taken into account — that's a good decision for Jeremy and for people in like situations," she said.

The decision is being hailed by the War Resisters' Support Campaign because it repeats some of the same language used in Liberal MP Gerard Kennedy's bill to allow conscientious objectors the right to stay in Canada. Bill C-440 would require the Minister of Citizenship and Immigration to allow foreign soldiers who refuse military service "because of a moral, political or religious objection to avoid participating in an armed conflict not sanctioned by the United Nations" to remain in Canada.

The bill went through debate and second reading May 25. Kennedy expects it to come up for a vote in the fall.

The Canadian Conference of Catholic Bishops asked Immigration Minister Jason Kenney to stop trying to deport Hinzman in a May 7 letter .

There's no telling how long it will take Citizenship and Immigration to redo their decision on Hinzman, said Manning.

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