For a
designation to take effect, the Immigration law requires that the designation
"must be published in the Canada Gazette". The Immigration statute is clear, unequivocal
and specific on this matter. Yet, for
these designations, that happened only on 14 December 2012, ten days after the
arrests.
Publication
in the Canada Gazette is more than a mere formality. The press announcement did
not release the designation instrument.
Nor did the disclosures to those arrested. So, we had the Government operating on the
basis of an unpublished law, what was, at least for ten days, a secret
law. People were being detained and
their existing rights to detention review denied based on an unpublished law.
This sort
of behaviour is so fundamentally wrong that is the subject of a traditional
legal maxim - nulla poene sine lege, no penalty without law. That is what we had here. People were thrown into detention without the
right to the review the Immigration statute provides based on a designation
which for ten days could not be seen.
Are the
designations done in conformity with the statutory requirements? Do the designations meet standards set out by
international law which binds Canada, including the Refugee Convention? Do the
designations conform to the Canadian Charter of Rights and Freedoms? Without the actual designations to examine,
these questions were impossible to answer.
British
philosopher Jeremy Bentham wrote: "Publicity is the very soul of
justice". The Government has to be
accountable to the public for its behaviour.
When the law under which it operates is not public, accountability
disintegrates.
For the
Government to express indignation, as it has done, at the violations of the
Immigration law the arrested are claimed to have committed rings hollow when
the Government itself violates the very same law in maintaining people in
detention without review based on a secret law.
The first step for the Government in promoting respect for the
Immigration law is to respect that law itself.
.....................................................................................................................................
David
Matas is an immigration and refugee lawyer in Winnipeg, Manitoba, Canada.
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