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

Introduction

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.¹ 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).² 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.

Bethany Smith’s Story

Bethany Smith is an American citizen. She was sixteen when she realized that she was gay. Bethany decided to join the army in the hopes of getting a college education and the opportunity to travel the world. She walked into a recruitment centre in a shopping mall and enlisted as a mechanic when she was eighteen years old. After basic training and advanced individual training, Bethany was sent to Fort Campbell, Kentucky, where she worked as the only female mechanic in her motor pool. She was harassed and insulted by fellow soldiers because she looked like a “dyke.” One day, while Bethany was off duty, her colleagues saw her holding hands with another woman in a shopping mall. What followed was not only more harassment and physical intimidation but also harsher treatment from her superiors. She also started receiving hundreds of handwritten notes that were posted on her dormitory door. The notes contained threats of beatings. In June, Bethany started receiving death threats detailing how she would be beaten to death in her sleep.

Bethany did not talk about the notes she was receiving to anyone. Who could she trust? She did not know who the authors of the notes were, whether they were her peers or her superiors. Her superiors had already reacted to rumours about her sexual orientation with harassment and harsh treatment. She believed the death threat and worried about who had access to the keys kept down the hall in the supplies room. She began trying to get discharged from the military by disclosing her sexual orientation. The US military’s “don’t ask, don’t tell” policy prohibits gays and lesbians from being members of the military.³ In effect, the policy leads to members being discharged from the military if they are discovered by their superiors to be gay or lesbian. Despite this policy, Bethany was not discharged. Instead, she was scheduled to be deployed to a war—presumably alongside those who were threatening her life. Bethany made the choice to flee to Canada. She was nineteen years old at the time. She knew that fleeing the country could mean that she would never be able to go home again and never see her family again.

The Immigration and Refugee Board’s Decision

Bethany’s refugee claim was heard...