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OpEdNews Op Eds    H4'ed 12/26/12

Designation and publication

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David Matas
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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   So, we had the Government operating on the basis of an unpublished law, what was, at least for ten days, a secret law.   People were being detained and their existing rights to detention review denied based on an unpublished law.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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David Matas is an international human rights, immigration and refugee lawyer in Winnipeg Manitoba Canada
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Designation and publication

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