Governments should obey the law. Yet, the temptation of government officials to engage in vigilantism in order to
appear tough on crime and get at what officials portray as the bad guys is sometimes overwhelming. The law goes
by the wayside.
A case in point is the December 5th press release by Public Safety Minister Vic Toews and Immigration Minister Jason Kenny announcing the designation of five groups under the recent amendments to the Immigration legislation. The groups were designated as irregular arrivals. The designation was touted as an action against human smuggling.
The designations encompassed 85 individuals, 50 adults and 35 children. The night prior to the announcement, the Government arrested 30 of the eighty five. The individuals were reported to have crossed sometime earlier the Canadian US border at an unmanned border crossing at Stanstead Quebec, temporarily detained, made refugee protection claims, and then released. They are all nationals of Romania.
The law for the non-designated requires for those detained a review after 48 hours, then seven days, then every thirty days. With detention review, an independent tribunal, the Immigration Division of the Immigration and Refugee Board, determines if the detention meets legal standards. Detainees are to be released unless they are a danger to the public, are unlikely to appear for further proceedings or their identity is unknown.
Under the new designation system, detention review is less frequent. The first detention review follows 14 days after arrest, and every six months after that. The grounds of release are more restrictive.
The Government applied the new law to the thirty arrested the evening of December 4 th . Those whom the Government did not release after arrest were detained under the new law. They were not given detention reviews after 48 hours. The Government rather offered them detention reviews after fourteen days.
Designation of a group has the effect, in addition to prolonged detention, of denying appeals from the refugee claim refusals and preventing family reunification and travel documents for years after refugee claim acceptance. The effects of designation are arguably unconstitutional, a violation of the Canadian Charter of Rights and Freedoms, as arbitrary detention, a denial of fundamental justice and cruel and unusual treatment. Even before one gets to those issues, there was something very wrong with what the Government did, throwing individuals in jail without the detention review the current law requires on the basis of a press announcement alone.
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.