BILL C-3 - PURVEYOR OF
HUMAN MISERY
(The
following article is from
the January 1-15,
2008
issue of People's Voice, Canada's leading communist newspaper. Articles
can be reprinted free if the source is credited. Subscription rates in
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By
Bill Sloan
The decision by
the Supreme Court last
February in the Charkaoui case told the Harper government to go back to
the drawing board because the Security Certificate process in the
Immigration law is just not fair. The Conservatives have responded with
Bill C-3, which makes things worse, not better.
Old King
Louis used to send people to the Bastille with a lettre de cachet, and
that's basically what Bill C-3 empowers federal Ministers to do with
their Certificates. A Federal Court judge can then review the
Certificate to see if it is reasonable. "Reasonable" means that the
conclusion flows logically from the evidence. The problem here is not
only that the evidence is presented to the judge in secret, but that it
is not only fact but opinion. Bill C-3 uses the terms
"information and
other evidence." When someone is detained for "national security"
reasons, either the whole world knows why, or CSIS does.
In recent
years, Immigration ministers have presented the opinions of police
officers to "prove" that young immigrants are members of gangs, and
thus subject to deportation without any appeal. The Immigration Board
bases itself on police "opinion" as evidence, and the Federal Court
finds such a process completely legal. The Minister bases a Security
Certificate on a CSIS, FBI, CIA or other secret police opinion. If this
process was found acceptable for youngsters who have committed no more
than petty theft, why expect the Federal Court to rock the boat when
National Security is the stated issue? After all, CSIS and their ilk
never lie and are never wrong. Just ask Maher Arar.
Secret
evidence will remain secret under C-3, though a "special advocate" gets
to look at it. But the detainee still won't know what is in the file,
because the "special advocate" is not even allowed to talk to his
lawyer, except by the specific permission of the judge, who can also
fire the "special advocate" without reason. Why, if not to assure
compliance?
C-3 provides
for an appeal of the judge's decision, if that self-same judge decides
to allow the detainee to appeal by "certifying a question". In
practice, that means no real appeal. Why? Because the judge can only
certify questions of law, and the reasonableness of the certificate is
a question of fact. The use of CSIS opinions as evidence might have
been a question of law for appeal, if the detainee knew about it, but
they've already decided that it was OK.
Remember also
that all nine Federal Court judges who ruled on the Charkaoui cases
thought the process was fair (9-0), while the higher Supreme Court went
(0-9) the other way. We are not dealing with a group of civil
libertarians, yet the minister and the courts are basically given the
power to police themselves. And speaking of police...
Both police
and Immigration officers can re-arrest a person who has been released
from Security detention. The officer must have reasonable grounds to
believe that the person has or was about to violate bail conditions.
That translates as suspicion leading to an opinion on a speculative
occurrence. If someone tells the officer that they smelled marijuana
smoke on the released person' street, that would be enough to
re-arrest. A judge will review the detention within 48 hours, but the
danger of police opinions as evidence appears again. The same "Appeal"
is available on detentions, again only on questions of law, when the
issue is one of fact - whether the person did or was about to do or not
do something.
What is
missing from C-3 is habeas corpus,
which allows a person to challenge
their detention. Anything else is a sophisticated dressing up of
arbitrary detention, based on secret opinions of the secret police.
Kafka would be shaking his head.
(Bill Sloan
is a Montreal lawyer who frequently deals with immigration and civil
rights cases.)
Found at:
http://www.peoplesvoice.ca/articleprint09/BILL_C-3_-_PURVEYOR_OF_HUMAN_MISERY.html