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.