Prejudicial Posturing

Well before the MV Sun Sea arrived this past summer, in press conference, interview and announcement, over and over, the Harper government portrayed it as a challenge to our sovereignty, linking it to terrorists, traffickers and smugglers, an imminent horde of illegal immigrants, abusers of our vaunted generosity, and, quite simply, an outrage.

Given that this began weeks before the ship even neared Canadian waters, before they’d had any opportunity to violate any Canadian law, before it was even known who was actually aboard, this must be seen as nothing less than prejudicial posturing, which continued long after their very public and compliant arrival.

Besides confusing asylum seekers with illegal immigrants, and denigrating them as queue-jumpers (though there is no queue), the government in its rhetoric speaks of human smuggling interchangeably with the heinousness of human trafficking, even though they’re entirely different, and even as there’s still no case here for either.

Having for weeks fanned the flames of outrage and intolerance, the government then introduced bill C-49, their so-called “Preventing Human Smugglers from Abusing Canada’s Immigration System Act,” justifying its excesses – because of growing public outrage and intolerance!

The numbers of people who arrive in this manner are very small. We get upwards of 30,000 refugee claimants each year, which is itself a small fraction of our total immigration, and maybe a few hundred every few years as mass arrivals by boat. The measures introduced here are wildly disproportionate to the scale of the alleged problem.

Capitalizing on the promoted confusion between human smuggling and human trafficking, the bill demands severe sentences for smugglers that might well be suitable for human traffickers but are manifestly unreasonable for smuggling offences.

This bill also gives the Minister the ability to declare foreign nationals as “designated,” which requires them to be arrested and detained – with no review permitted for the first year and no oftener than every six months after that, and no objective basis upon which such review would be conducted.

Designation is supposed to be based on whether determination of identities and admissibility can be conducted in a “timely” manner, but includes “any” investigation of any persons in a group. There being no longer any onus for timeliness, the government can simply side-step any obligation to improve their process or its fairness. It becomes a question of convenience for the Crown, and the individual pays the price: indefinite imprisonment without trial, without charge, and with no defence possible. Exit Habeas Corpus, stage right.

Such designation can also be made if the Minister “suspects” such foreign nationals might have engaged smugglers or that a criminal or terrorist enterprise might have been involved along the way.  We must recognize that refugees, by necessity, often use smugglers to help them escape, and smugglers, sometimes, are affiliated with criminal or terrorist organizations. While we might well frown on smugglers, we should not punish people for having had the need to escape, and the need to consort, sometimes, with nefarious persons in order to do so.

Such designation is not in fact limited to mass-arrivals, nor only to refugee claimants. It can be applied to any foreign national whose arrival the Minister might choose to consider “irregular.” So, while distracted by the slight of hand of whether we should treat “boat-people” in this way, the scope is considerably broader.

In the end, the Minister doesn’t have to justify the designation, and there’s no appeal. This increased Ministerial discretion at the expense of fair and open legal process is no less than an affront to the rule of law itself.

The bill further provides that the Crown can impose “any” restrictions and obligations on a designated person they may choose to release, attempts to extinguish Charter rights such as the right against self-incrimination, limits their ability to travel and work, and refuses them the right to even apply for citizenship for up to five years – even for refugees whose claims for asylum have been judged valid: a further persecution for having had the bad manners to need protection and the audacity to ask for it.

We will not lose the hard won freedom we cherish in one fell blow, but by gradual erosions of this kind that individually don’t quite catch our attention. Today it’s foreign nationals whose rights are diminished. What about tomorrow?

The Harper government contends that this bill is balanced and fair.  It is neither.  They contend that it protects Canada. It doesn’t. It has no redeeming quality, and cannot be fixed. It must be rejected, swiftly, and utterly.

While the Harper Conservatives remain behind this abhorrent bill, it is encouraging that the opposition caucuses, without exception, have determined to soundly defeat it. Hear! Hear!

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