Justifications for Differential Treatment BetweenCitizens and Non-Citizens    

Being Set Up to be a Danger to the Public: The Brutalization and Criminalization of Blacks
in Toronto             

The Politics of Legislation:  War Crimes Legislation Short of '' Danger to the Public ''  

The Common Law, Fundamental Justice and Equal Protection and Benefit of the Law

Danger to the Public:  Procedures Under the Immigration Act

Evidence Under the Criminal Code Concerning dangerous Offenders

Evidence of Danger to the Public Under the Immigration Act

Appeals and Reviews Under the Criminal Code Concerning Dangerous Offenders

Is Discrimination on the Basis of Non-Citizenship
Justified Pursuant to Section 1 of the Charter?

Conclusion:  Revolution and Counter-Revolution, Problems of Litigating Race in Criminal and Immigration Cases in Canada                                                   

Buoyed by the long standing common law principle with the imprimatur of the Federal Courts of Canada and the Supreme Court of Canada that a so-called alien has no unqualified right to enter and or remain in Canada, the Parliament of Canada has not hesitated in progressively enacting legislation and conducing practices and policies which would not pass constitutional muster were they to pertain to Canadian citizens or pursuant to criminal law.  It is submitted that these legislations, policies and practices are deliberately brought into being with the knowledge that they do not compote with principles of fundamental justice pursuant to Section 7 of the Charter and the right to the equal protection and equal benefit of the law without discrimination pursuant to Section 15 of the Charter precisely because they pertain to aliens who it has been determined should be treated differently from Canadian citizens or those dealt with under the Criminal Code of Canada. 

it is argued that the Canadian Charter of Rights and Freedoms in its protection of the principles of fundamental justice and equal protection and equal benefit of law, does not distinguish between citizens and aliens.  Or those dealt with under the Criminal Code and other statutes.  The problematic is that the courts have refused so far to recognize in the Immigration Act law context that Section 7 and 15 of the Charter apply equally to citizens and aliens resident in Canada, except in the abstract.  This study will demonstrate how discrimination and the refusal of the courts to intervene apply as a general trend. 

In order to establish that legislation, policies and practices pertaining to aliens would not pass constitutional scrutiny if they related to Canadian citizens or pursuant to criminal law, I will contrast the treatment of Canadian citizens and/or individuals convicted under the Criminal Code and who it is contended should be declared as dangerous or long term offenders with that of the treatment of aliens who have committed criminal offences under the Criminal Code and who it is contended should be declared as posing danger to the public in Canada under the Immigration Act .

These two designations in two federal statutes are roughly equivalent just like the bail provisions of the Criminal Code and the Immigration Act are roughly equivalent.  When the two schemes are compared, it is argued that there is a clear discriminatory distinction in the treatment of aliens as opposed to Canadian citizens and in relation to criminal law, which is contrary to principles of fundamental justice and the rights to equal protection and equal benefit of the law.  This is especially so given the fact that the trigger to the declaration that a person is a dangerous or long term offender under the Criminal Code or poses danger to the public, under the Immigration Act , is a criminal conviction and the attendant probable sentence under the Criminal Code .  Given the common origins of the conviction, there should be common treatment in terms of the designation of whether or not a person poses danger to the public.  It is argued that if you cannot be declared to be a dangerous or long-term offender under the Criminal Code you should not be declared to be a danger to the public under the Immigration Act .  At the minimum, the procedures and protections must be the same under both statutes.

It is contended that if the developing Charter jurisprudence under Sections 7 and 15 were to be applied in the immigration law context, as it is applied in the criminal law context or pertaining to Canadian citizens, the danger to the public provision under the Immigration Act would be struck down.  I compare the applications of the Charter to the Criminal Code sections pertaining to dangerous or long-term offenders with that of the Immigration Act sections pertaining to the danger to the public.

I deal mainly with section 15 of the Charter jurisprudence, as it is the most poignant in bringing out in bold relief that the treatment of aliens under the Immigration Act is brazenly discriminatory on the basis of race, nationality and national origin and this same jurisprudence contains the seeds for striking down the impugned section of the Immigration Act .

The comparative framework or schema is applied because of its analytical rigour, only by showing how the Charter works in one context and not in the other will it be clearly demonstrated how discrimination and constitutional violations occur.  Otherwise, dealt on its own the treatment of aliens under the Charter does not bring out the constitutional violations in sharper relief as it does when there is an application of a comparative analysis.

The comparative framework is also useful because both sections of the relevant statutes have attracted major constitutional challenges.  Both have been regarded as exceptional or extraordinary aberrations to the application of the law to protect the public.  Why are these laws needed?  How do they compare?

It is claimed that this comparative analysis is a major contribution to the understanding of the phenomena of discrimination in general and against aliens in particular even when they are entitled to the claimed protections of the Charter .  This comparative analysis is also a major contribution to the literature on the application of the jurisprudence of the Charter in the non-criminal law context.  This in turn further contributes to our understanding of the application of the Charter in the criminal law context. 

This study fills a lacunae in this regard.  The potential for the Charter to fulfill the realization of equality in the administration of criminal, civil and administrative justice is also indicated by the study.

This study is organized in several chapters.   Chapter One will discuss the history of Canadian immigration law, pointing to its racist under-pinnings.  Chapter Two will discuss the experiences and treatment of African-Canadians under Canada ' s criminal justice system.  Chapter Three will digress to discuss Canada ' s reluctance to legislate on alleged war criminals in Canada, to contrast the quickness with which it legislated against non-citizen criminals throughout its history and at the present time.  Chapter Four will briefly discuss the treatment of aliens under the common law and the Charter and will explore at some length the developing Charter jurisprudence particularly in relation to Section 15 of the Charter .

Chapter Five will discuss the purposes of the criminal law in general and in particular, the purposes of the dangerous or long term offender and danger to the public provisions of the relevant legislations.  The distinctions in the legislations will be pointed out. 

Chapter Six will discuss the procedures for declaring a person a dangerous or long-term offender under the Criminal Code .  Chapter Seven will discuss the procedures under the Immigration Act .  Chapter Eight will discuss evidentiary burdens under the Criminal Code while Chapter Nine will do this under the Immigration Act .  Chapter Ten will discuss the appeal and review procedures under the Criminal Code while Chapter Eleven will do this under the Immigration Act .

Chapter Twelve will further discuss the application of the Charter as related in Chapter One and will attempt to identify future trends if any in the treatment of aliens in light of the new principles based on the Charter .

Chapter Thirteen will discuss whether discrimination against non-citizens is justifiable under section 1 of the Charter.  Chapter Fourteen will conclude by discussing problems and prospects of race litigation in Canada.

The proposed amendments to the Immigration Act and its impact on criminal aliens will not be discussed.

            Throughout this study, a close textual analysis of the law and judicial jurisprudence will be set out.  In other words, in order to make the law clear and self-evident, it will be necessary to quote at length the actual sections of the law as well as lengthy citations from case law.  This is because this is the first time a comparative analysis of this nature has been done and it is necessary to set out everything as completely as possible so that the reader does not have to refer to the Criminal Code or the Immigration Act or to the relevant case law.

This study is not a comparative history of the law of danger to the public under the Criminal Code and the Immigration Act but a comparative legal and constitutional analysis of the law dealing with danger to the public under the two federal statutes.

The study is an attempt to show that the treatment of non-citizen criminals is unconstitutional as it discriminates on the basis of race and other grounds but escapes constitutional scrutiny because this discrimination is justified on the basis of the doctrine of state sovereignty and common law in immigration matters and which is now constitutionalized.  It is argued that discrimination with racial overtones under any circumstances is not justifiable.  The struggle is to make the government and courts accept this argument.

Justifications for Differential Treatment
Between Citizens and Non-Citizens

Until the advent of the Canadian Charter of Rights and Freedoms [1], specifically section 6(1) which states that only citizens of Canada have the ''right to enter, remain in and leave Canada" the distinction in treatment between citizens and non-citizens was justified in terms of national sovereignty[2]. The sovereign state was vested with the power to control who gets in its borders and the conditions under which they will remain. This notion also finds support in common law and international legal norms. In the early 1900s, Lord Atkinson could say with finality in Canada (A.G.) v. Cain: [3] "One of the rights possessed by the Supreme Power in every state is the right to refuse to permit an alien to enter that state … and to expel or deport from the state, at pleasure, even a friendly alien."[4]

Operating under the notion of state sovereignty, the Government of Canada could control immigration policy and enact laws, regulations and undertake practices in accordance with the objectives and interests of the country as perceived by the government of the day. Those who have decoded Canada's immigration law and policy have concluded that until relatively recently, Canadian Immigration Law was influenced by a racist – inspired "White Canada" policy.[5] Section 38(c) of the 1910 Immigration Act was very explicit about who should be denied entry into Canada and that would be:

any nationality or race of immigrants of any specified class or occupation, by reason of any economic, industrial or other condition temporarily existing in Canada or because such immigrants are deemed unsuitable having regard to the climatic, industrial, social, educational, labour ... or because such immigrants are deemed undesirable owing to their peculiar customs, habits, modes of life, methods of holding property and because of their probable inability to become readily assimilated or to assume the duties and responsibilities of Canadian citizenship within a reasonable time after their entry.[6]

The Government created a "preferred" list of countries, which were unmistakably "white" countries:

The policy of the Department at the present time [1910] is to encourage immigration of farmers, farm labourers, and female domestic servants from the United States, the British Isles, and certain Northern European countries, namely, France, Belgium, Holland, Switzerland, Germany, Denmark, Norway, Sweden and Iceland. On the other hand, it is the policy of the Department to do all in its power to keep out of the country ... those belonging to nationalities unlikely to assimilate and who consequently prevent the building up of a united nation of people of similar customs and ideals. [7]

The racist immigration policy was continued right up to the 1960s. In 1947, Prime Minister MacKenzie King could say in his statement on Immigration that:

With regard to the selection of immigrants ... I wish to make it quite clear that Canada is perfectly within her rights in selecting persons who we regard as desirable future citizens. It is not a "fundamental human right" of any alien to enter Canada. It is a privilege. It is a matter of domestic policy ...[T]he people of Canada do not wish, as a result of mass immigration, to make a fundamental alteration in the character of our population. Large scale immigration from the Orient would change the fundamental character of the Canadian population ... [T]he government therefore ... has no intention of removing existing regulations respecting Asiatic immigration unless and until alternative measures of effective control have been worked out.[8]

The race-based immigration policy did not start with the 1910 Immigration Act. As early as 1885, after Chinese immigrants had built up the Canadian Continental Railway and Chinese immigrants were flowing into Canada, Canada introduced The Chinese Immigration Act of 1885. This was aimed at containing or restricting Chinese immigration into Canada. A head tax of fifty dollars was imposed. Chinese immigration continued, prompting the Government to introduce the Chinese Exclusion Act in 1923 which banned Chinese immigration altogether. This Act was only repealed in 1947.

Japanese immigration to Canada was controlled by the Gentleman's Agreement law of 1907, an agreement entered into between Canada and Japan, whereby the Japanese would voluntarily restrict its citizens from migrating to Canada. Immigration from India was controlled by the Continuous Journey Stipulation of 1908, which refused entry to aliens who did not travel directly from their country to Canada. It was impossible to travel directly from India to Canada.

The 1910 Immigration Act did the rest in terms of controlling entry of others.

The aim of this chapter is to examine the evolution of Canadian Immigration policy's justification of the exclusion of immigrants based on race and other factors and what has influenced the evolution. Later chapters will discuss whether and to what extent race has continued to inform Canadian immigration policy.

The exclusion of racial minorities from immigrating to Canada and their treatment once in Canada was facilitated by their social construction by mainstream Canadian society as "criminals", "unhygienic", "leprous", "virulent", "verminous" and "cancerous". In a well researched article entitled, "Race and the Criminal Justice System in British Columbia, 1892 - 1920: Constructing Chinese Crimes", [9] John McLaren explores how the Chinese were the early recipients of being socially constructed as criminals and unsanitary and therefore justified to be excluded or deported from Canada. This study will show that criminalization of recent immigrants and particularly racial minorities and therefore their easy deportation has been a constant in Canadian immigration law and policy. The danger to the public law will be seen to be heavily weighted against non-citizen racial minorities who have been easy prey to criminalization and brutalization, a historically proven Canadian practice.

Mclaren documents that the Chinese were within the criminal justice system on the receiving end of investigation, arrest, charges and conviction. "The assumptions made about Chinese deviancy and its formalization in the construction of criminality and law enforcement were to a significant extent propelled by racist sentiment."[10] As will be seen this applies to racial minorities, particularly Blacks from the Caribbean in contemporary Canada, with the same results - deportation. According to Mclaren, "the triad of vicious practices that were thought to be either distinctively Chinese or particularly dangerous when organized by the Chinese were gambling, opium smoking, and prostitution."[11] In relation to Blacks of Caribbean origin in contemporary Canada, their criminal construction by mainstream society is that they commit drug offences, engage in home invasions and are involved in weapons offences.[12]

The social construction of immigrants as having a propensity to commit crimes and to be dirty has not been limited to the Chinese or Blacks, it has extended to all recent immigrants, including whites not only in Canada, but in the U.S., Australia, Britain, New Zealand and other places.[13] However, the stigma with racial minorities has been more profound because of their races which are distinctly non-white and in the case of Blacks in Canada, they could be said to be the last immigrants, and therefore the latest to be negatively constructed. White immigrants like the Irish, Jews, Ukrainians, Italians, Greeks and others, have ''graduated'' and have ''disappeared''. It is difficult to disappear or graduate in relation to Blacks, among others.

Mclaren documents that the Chinese in the period under study, were regarded as dangerous. Europeans had long noted the penchant of the Chinese at all levels of society for gambling. Whites regarded gambling as posing a potential threat to the well being of the young and impressionable in the White community. Gambling was accordingly criminalized. Opium smoking was also classified in the racist mindset of mostly White British Columbia as a distinctly Chinese activity. The impulse was the criminalization of narcotics manufacture, distribution and use in Canada. Prostitution while not distinctly a Chinese activity, was viewed as widespread in Chinese society. Prostitution was feared as being contagious with the potential to spread to White women.[14] Prostitution was also criminalized.

The view that crime was racially specific translated itself in the tabulation of crime statistics based on race and national origin, a practice that was nearly officially adopted (but in fact informally and unofficially prevalent) in Canada in the late 1980s and early 1990s. The crime figures according to Mclaren were organized under the rubrics of offences committed by "all others but Indians and Chinese", or "Whites", those committed "by Indians" and those committed by "Chinese".[15]

Once crime was racially constructed, there was a significant increase in convictions for Chinese in drug, gambling and prostitution offences.[16]

The Chinese did not get a break from their criminalization. According to Mclaren, the 1920s saw the toughening of the narcotics laws, increases in police powers in arresting drug offenders and exclusionary immigration legislation. Chinese life was stifled from the 1920s until the intervention of the Second World War, which was unprecedentedly premised on state racism and racial cleansing in Nazi Germany. After the war, the Chinese were allowed to claim full citizenship.[17]

In Canada, racial stereotyping during the war was evidenced by the internment of Japanese Canadians who were perceived as aiding enemy aliens and not patriotic to Canada. The Japanese, after a lengthy protracted legal and political struggle, were later compensated for the injustices perpetrated against them during the Second World War.[18] The Japanese Americans were similarly treated by the American government during the Second World War and were similarly compensated in the 1980's.[19]

Mclaren concludes his well-researched study by stating that "althrough the structure of racist laws that form the background to the story told here has happily been demolished, the stereotypes that supported it have the capacity to live on."[20] He is contradicted by Jakubowski and others who claim that "while, in principle, Canadian immigration law has moved from being explicitly restrictive to non-discriminatory, a closer examination of contemporary immigration patterns reveals that racism and ethnic selectivity have not disappeared. Rather, law, policy, and practice in the area of immigration now reflect a more subtle and systemic form of discrimination, particularly towards immigrants from the developing world."[21] This study will explore and hopefully show that indeed Canadian immigration law and policy particularly its danger to the public law while not explicitly racist, is implicitly racist.

Lorne Foster, a former Immigration officer argues in his book, Turnstile Immigration: Multiculturalism, Social Order and Social Justice in Canada,[22] that while Canada's immigration system should be a means for strengthening the social order and promoting social justice, there is identifiable tension between these two social goals. Prior to entry into the country, a legal immigrant would find the accent on a version of social order. All categories of potential residents are expected to apply abroad

and are subject to exacting "admissibility" criteria, ostensibly designed to assess their ability to adapt to Canadian life and to settle successfully, as well as ensuring that criminal elements and undesirables are kept out of the country. After entry, however, the accent is on social justice as it relates to non-discriminatory treatment and the protection of individual rights. All persons unlawfully residing in the country, including hardened criminals as well as run-of-the-mill illegal aliens, can be assessed on the basis of ''humanitarian and compassionate'' criteria for the purpose of waiving the original visa entry requirements.[23]

Foster then defines what he means by social order and social justice:

When we speak of the social order of society, we are referring to a condition of society characterized by fluent social relationships and a relative lack of conflict. Here, social order depends upon the successful interrelation and coordination between individuals, individuals and groups, and between social institutions. Social justice, on the other hand, refers to the predominance of open and equalitarian social relationships, guided by the values of liberty, equality and the rule of law. The principle of social order relates to values of industry and productivity and finds a practical expression in Canada's progressive social and humanitarian objectives in relation to family reunification and safe sanctuary for the displaced and persecuted from all part of the world.[24]

It is argued in this study that non-citizen criminals are not accorded social justice or equal treatment that the constitution embodies and the society is premised on. Non-citizen criminals are confronted with discrimination and unequal treatment. This discrimination and unequal treatment has been a continuum in Canada's history.

Most studies on Canadian immigration law and policy deal with who is allowed into Canada, and not who is deported from Canada. This study deals mainly with who is deported from Canada and why. The law itself as embodied in the guiding principles seem to emphasize the people immigrating to Canada, rather than the kind of people who are deported from Canada.

The 1952 Immigration Act of Canada began to move away from race and culture based immigration policy. In the 1960s, a colour-blind, points-based immigration policy was instituted in response to the shifting economic and labour needs of Canada. The world was also changing.

Canada formally abolished racial discrimination in its immigration law and policy in the Immigration Act of 1976. Section 3(f) stated that:

It is hereby granted that Canadian Immigration policy and the rules and regulations made under this Act shall be designed and administered in such a manner as to promote the domestic and international interests of Canada recognizing the need to ... ensure that any person who seeks admission to Canada on either a permanent or temporary basis is subject to standards of admission that do not discriminate on grounds of race, national or ethnic origin, colour, religion or sex.[25]

The emphasis again is on who gets in and not on who gets deported. As will be seen, those who were to be deported, as already stated were not "subject to standards of [removal] that do not discriminate on the grounds of race, national or ethnic origin, colour ..." Instead, they were subject to standards that discriminate on the grounds of race, national or ethnic origin and colour, albeit not explicitly so stated.

It will be discussed later, whether this discrimination is justified in a free and democratic society.

The advent of the Canadian Charter of Rights and Freedoms in 1982, in a strange twist of fate, which no one has commented on so far, is that it has both constitutionalized non-discrimination in immigration law and practice while at the same time constitutionalizing discrimination in immigration law and practice between citizens and non-citizens. The primacy of national sovereignty in immigration law and practice has received constitutional imprimatur, which makes it extremely difficult for non-citizens who allege discrimination to receive equal benefit and protection of the law. Discrimination between citizens and non-citizens, having received constitutional recognition impels the state not to justify its laws, policies and practices. The state can claim that it is not discriminating against non-citizens because what it is doing to non-citizens is not unconstitutional, in fact it can claim that it is constitutional.

Indeed the objectives of Canada's Immigration law and policy as embodied in section 3 of the successive Immigration Acts carries within it "coded" elements of old restrictive sentiments based on race, health and safety and law and order of the past. Despite the claim that discrimination is excluded in admission and implicitly exclusion policy, the message that indeed discrimination is the order of the day is prevalent when the immigration law and policy is concretely examined, as is the aim of this study.

The relevant portions of section 3 in the principles and purposes of the Immigration Act are:

(f) to ensure that any person who seeks admission to Canada on either a permanent or temporary basis is subject to standards of admission that do not discriminate in a manner inconsistent with the Canadian Charter of Rights and Freedoms;

(g) to fulfil Canada's international legal obligations with respect to refugees and to uphold its humanitarian tradition with respect to the displaced and the persecuted;

(i) to maintain and protect the health, safety and good order of Canadian society; and

(j) to promote international order and justice by denying the use of Canadian territory to persons who are likely to engage in criminal activity.

Of particular concern as will be demonstrated in later chapters is the interpretation of 3(i) and 3(j) and whether the interpretation and implementation of these sections in the immigration context are in accordance with the principles of the Charter. Indeed what are the effects of these subsections given that the Charter itself in section 6(1) stipulates that only citizens of Canada have the "right to enter, remain in and leave Canada?"

The combined effect of the principles and policies of the Immigration Act and the Charter is to effectively discriminate against non-citizens and the non-citizens appear to have no remedies. In Chiarelli[26] the result has been precisely that non-citizens are not accorded constitutional protection because of the combined effect of the principles and policies of immigration law and the Charter. In that case, Justice Sopinka, for the court stated that:

the court must look to the principles and policies underlying immigration law. The most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in the country. At common law an alien has no right to enter or remain in the country.[27]

Sopinka J., moreover, turned to the Charter itself to further justify the qualification of the rights of permanent residents:

The distinction between citizens and non-citizens is recognized in the Charter. While permanent residents are given the right to move to, take up residence in, and pursue the gaining of a livelihood in any province in s. 6(2), only citizens are accorded the right "to enter, remain in and leave Canada" in s. 6(1).

Thus parliament has a right to adopt an immigration policy and to enact legislation prescribing the conditions under which non-citizens will be permitted to enter and remain in Canada.[28]

He then considered the state's interest in removing those who violate conditions of permanent residency set down in the Immigration Act:

One of the condition Parliament has imposed on a permanent resident's right to remain in Canada is that he or she not be convicted of an offence for which a term of imprisonment of five years or more may be imposed. This condition represents a legitimate, non-arbitrary choice by Parliament of a situation in which it is not in the public interest to allow a non-citizen to remain in the country.[29]

As Russell Cohen argues, Justice Sopinka's reasoning when viewed in the context of immigration law, deportation for a criminal offence does not violate the Charter. This view indicates that there is no need for any consideration of the individual's interests vis a vis the state.[30] That is, you cannot even get to section 1 of the Charter which requires the balancing of individual and state interests.

Chiarelli is a throwback to the days of parliamentary sovereignty and common law. According to Pearl Eliadis, the Singh [31] decision, which was decided before Chiarelli had meant that parliamentary sovereignty was subordinated to the rights and freedoms enshrined in the Charter.[32] That decision had held that everyone in Canada regardless of national status was entitled to the benefits of the Charter.

Later legal interpretation and amendments to the Immigration Act as well as treatment of non-citizen criminals demonstrated a clear swing from Singh. Eliadis observes that the interest of the state and national security now seem to be firmly in the foreground in immigration and refugee matters before appellate courts.[33] Embodied or buried within these concerns are elements of racial discrimination, accompanied by criminalization and brutalization of certain segments of society who are then subjected to deportation. Because discrimination is prohibited by the Charter, and there is no mention of race in any immigration enactments, it appears as if no one is ever discriminated against on the basis of race or other prohibited grounds. Treatment is made to appear neutral.

When reading parliamentary debates on Bill C-44 which ushered in the "danger to the public law" or Bill C-31 or Bill C-11, which introduced the notion of "serious criminals" or "criminality", one observes that the parliamentarians do not use the word race or ethnic origin. They use the term "foreign criminals", even when these criminals have been in Canada for a long time. The word immigrant is also frequently used both by parliamentarians and the mass and mainstream media. As the African Canadian Legal Clinic study as well as Francis Henry demonstrate, "foreigners" and "immigrants" have already been socially constructed as having a propensity to commit crimes. These foreign and immigrant criminals are usually without being explicitly referred to, from racial or ethnic backgrounds.[34] It is a repeat of the way the Chinese were socially constructed to be criminals a century ago.

Bill C-44 was introduced in the climate of perceived escalation of violent criminal activities by non-citizen criminals who allegedly had evaded deportation. The two high profile criminal acts involved the shooting of Georgina Leimonis at a Just Desserts Café in Toronto in April 1994 and the shooting of Constable Todd Baylis in June 1994. A bill, Bill C-44 was rushed in parliament, which brought in the danger to the public law that became law on July 10, 1995. That bill was generally referred to as the "Just Desserts Law".[35] The two criminal acts elicited unprecedented negative media coverage about the criminality of immigrants, to the extent that opposition to the expressed sentiment was almost drowned out. It was very easy for parliament to pass the danger to the public law. After all, it dealt with the removal of non-citizen criminals who have no right to remain in Canada and have no constitutional rights pursuant to the Charter.

This chapter has briefly dealt with the evolution of Canadian immigration law and policy. The law and policy has been geared towards the restriction of racial minorities from entering Canada and once racial minorities were in Canada, they were criminalized and brutalized and made amenable to deportation. The law and policy began to shift towards colour-blindness in the 1960s but the core racist element of exclusion remained. The introduction of the Charter raised hope that non-citizens would be treated with equality. This hope was quashed when the Supreme Court of Canada affirmed the long held practice that the sovereign state had the right to control who comes into Canada and the conditions of that stay. There is no balancing of interests of the individual and the state.

Further immigration law amendments and practices demonstrated that non-citizens do not enjoy constitutional protection.

The next chapter will examine the experiences of African-Canadians in the criminal justice system which forms the background to their next contact with the immigration system. Their experience in both systems is underwritten by racist assumptions on the part of the designers of the systems.

[1] Part 1 of the Constitution Act, 1982, being schedule B to the Canada Act 1982 (U.K.), 1982, C. 11 (hereinafter the Charter).

[2] See among others, Russell Cohen, ''Fundamental (In)justice: The Deportation of Long-Term Residents from Canada'' (1994) 32, 3 Osgoode Hall L.J. 457 at 465.

[3] [1906] A.C. 542 (P.C.) at 546.

[4] Cited by the Supreme Court of Canada in Kindler v. Canada (Minister of Justice) [1991] 2 S.C.R. 779 at 202-203.

[5] See for example, among numerous others, Lisa Marie Jakubowski, ''Managing' Canadian Immigration: Racism, Ethnic Selectivity and the Law'' in Elizabeth Comack et al (Eds.) Locating Law: Race/Class/Gender Connections (Halifax: Fernwood 1999) pp. 98 - 124 and Jakubowski, Immigration and the Legalization of Racism (Halifax: Fernwood 1997).

[6] Quoted in Jakubowski, Immigration and the Legalization of Racism ibid at p. 16.

[7] Ibid.

[8] Ibid p. 17.

[9] In G. Blaine Baker and Jim Phillips (eds.) Essays in the History of Canadian Law, in Honour of R.C.B. Risk (Toronto: U. of T. Press 1999), pp. 398 - 442.

[10] Ibid, p. 404.

[11] Ibid p. 405.

[12] For a good study on the criminalization of racial minorities, particularly Blacks, see Frances Henry, The Racialization of Crime in Toronto's Print Media (Toronto Ryerson Polytechnic University, 1999) and more generally Chris McCormick, Constructing Danger the Mis/representation of Crime in the News (Halifax: Fernwood, 1995).

[13] There are many studies and commentaries on this. See Henry ibid. For the U.S., see David M. Reimers, Unwelcome Strangers: American Identity and the Turn Against Immigration (New York: Columbia University Press, 1998).

[14] Mclaren note 9 supra pp. 405 - 408.

[15] Mclaren ibid p. 408.

[16] Ibid pp. 413-423.

[17] Ibid p. 427 - 430.

[18] See Maryka Omatsu, Bittersweet Passage: Redress and the Japanese Canadian Experience (Toronto: Between the Lines 1992).

[19] Reggie Oh and Frank Wu, ''The Evolution of Race in the Law. The Supreme Court Moves From Approving Internment of Japanese-Americans to Disapproving Affirmative Action for African-Americans'' (1996) 1 Mich. J. of Race and L. 165.

[20] Mclaren note 9 supra pp. 429-430.

[21] Jakubowski, ''Managing Canadian Immigration'' note 5 supra p. 98.

[22] (Toronto: Thompson Educational Publishing, Inc. 1998). p. 8.

[23] Ibid.

[24] Ibid p. 20.

[25] Quoted in Jakubowski, note 21 p. 110.

[26] [1992] 1 S.C.R. 711.

[27] Ibid p. 733.

[28] Ibid pp. 733-34.

[29] Ibid p. 734.

[30] Cohen, supra note 2 p. 471.

[31] Singh v. Canada (M.E.I.) [1985] 1 S.C.R. 177.

[32] F. Pearl Eliadis, ''The Swing from Singh: The Narrowing Application of the Charter in Immigration Law'' (1995) 26 Imm. L.R. (2d) 130 at p. 131.

[33] Ibid p. 147.

[34] African Canadian Legal Clinic, ''No Clear and Present Danger: The Expulsion of African Canadian Residents from Canada" Toronto, 1999; Frances Henry, The Racialization of Crime in Toronto's Print Media (Toronto: Ryerson Polytechnic University, August 1999).

[35] For a comprehensive analysis see ibid and Chris McCormick, Constructing Danger: The Mis/representation of Crime in the News (Halifax: Fernwood, 1995) particularly Chapter 7.

Being Set Up to Be a Danger to the Public:
The Brutalization and Criminalization of Blacks in Toronto

The aim of this chapter is to discuss how Blacks encounter the criminal justice system, which then delivers them onto the immigration system and the declaration that they pose danger to the public with the resulting deportation. The rights of Blacks are eroded even before they are confronted by the immigration system. Toronto is home to the majority of Blacks in Canada and as such I use it as a case study of the experiences of Blacks in Canada.

Canada has an international reputation for justice and fairness. Its Constitution and its mode of governance purport to epitomize the best safeguards to the preservation of civil liberties. The humanitarian and economic assistance Canada provides to the part of the world otherwise known as the Third World has given it a pre-eminent international stature. Canadians take special pride in the international reputation of their motherland. They pride themselves that their country is designated by the United Nations as the best place to live in the world. Yet a close scrutiny of the issue of whether there exists a correspondence between the law of the land and the execution by the law enforcement agencies of Toronto reveals that there is a misadministration of justice, vis a vis, visible minorities, principally Blacks.

In this chapter, I show that there exists a wide divergence between the principles of the law and its actual implementation by the law enforcement agencies of Toronto. Race is a sharp dividing line between the law enforcement agencies on the one hand and members of visible minorities on the other. Such a divide so far has obstructed institutionalization of a fair-minded legal system to members of all races. The early 1980s is a major turning point in this regard. For our purpose, the elements of law enforcement agencies essentially refer to the courts, the police, and the Crown prosecutors and associated apparatuses within the criminal justice system. A caveat is in order here. Recognition of the predicament race- prejudice poses to the effectuation of fairness by Toronto's law enforcement agents in no way undermines the apparent unprejudicedness of the principles embodied in the Canadian Constitution.

Among others, the concept of civil liberty, commitment to elimination of any form of prejudice, the idea of democratic legitimacy as epitomized by the supremacy of the legislative body are extremely important tools to the protection of Canadians from discrimination.

Nonetheless, my contention as already indicated in the previous chapter is that the law enforcement agencies' manner of execution of the law in relation, to some extent, to Blacks and other minorities, runs contrary to the constitutional principles of the land and the notions of equality and impartiality. This is the same in the immigration law context. The legal remedies to correct the situation lag behind. Even if the national remedies claim to deal with the question of the demographic diversity of the country, they are primarily designed to manage the Anglo-French dichotomy. In this sense they are reductionist. The remedies are also static. This is because they fail to come to grips with the rapidly changing features of the racial and ethnic diversity of Canada. The remedies' deficiency is further compounded as a result of their failure to relate the idea of equality to actual distribution of political and economic power between racial groups. Such considerations cannot be simply tossed aside.

The analysis begins with a brief treatment of the subject matter of the basic function of the law enforcement agencies. A special attention is then drawn to the role of Toronto's police force and the general and specific features of the legal restraints imposed on its members.

The analysis then shifts to a scrutiny of the evidence of the law enforcement agencies' violation of legal procedures and the principle of justice. The analysis then briefly reflects on the adequacies of the remedial measures proposed by Professor Alan Grant formerly of Osgoode Hall Law School and Stephen Lewis of the New Democratic Party (NDP). These are laudable efforts. But our reflection on their inadequacies enables us to fill a gap. Identification of the gap is useful in order to address the maladministration of justice. This is more so since there are indications that the racial composition of the city is bound to change in favour of visible minority groups. It is argued that the same analysis is applicable to the immigration law context, the criminal law twin in the saga involving Blacks. It is therefore, important to understand how Blacks are treated in the criminal just system before they end up under the quagmire of immigration law.

Students of law have expended vast intellectual energies in seeking to answer how the organs of power of the Canadian state operate and whose interests they serve 1. Regardless of the diversity of perspectives on the role of the Canadian state application of the principle of separation of powers, to some degree permits the state to promote the goal of the common good for members of society.

What is most notable about the notion of separation of powers is that it regulates the pattern of interactions among the three branches of government--the legislature, executive, and the judiciary. But it is the legislative branch that maintains supremacy. It is the major source of law. These powers are justified by the notion of democratic legitimacy2. And this means that unelected law enforcement agencies such as judges, the police force, and Crown prosecutors are expected to follow the directives of elected legislators3. The underlying presumption here is that legislative bodies at the federal, provincial, and municipal governments register the general will of Canada. In the case of Ontario, like every other Canadian province, a pre-eminent role is assigned to all members of the judiciary. This arises from the assumption that judges are impartial and are there to look after the implementation of justice. In concrete terms impartiality of the courts means a host of things. Among others it means that judges do not give in to pressures from police officers, or the Crown prosecutors, or national and international corporates' parochial interests. Ontario courts' primary role is then to see the execution of justice, including the accountability of law enforcement agencies.

In the same context, members of the Metropolitan Toronto's police force have a very crucial role in the well-being and safety of Torontonians of different races and belief systems. They constitute the foot soldiers that directly deal with the larger public. Even if the objectivity of the role of police officers is contested, there are areas where they promote the common good of the public. These in the main include their responsibility to keep the safety, liberty, and personal property of all Torontonians. Detection of crime in the city is another aspect of the idea of the common good. But this does not mean that the manner police officers conduct their business in the streets and neighbourhoods of Toronto, and their relationships with Torontonians on a day-to-day basis do not need legal safeguards.

Thus, in the determination of whether there exists a divergence between Toronto police officers' prescribed roles and their actual conduct in dealing with the public, the early 1960s constitutes a point of departure4. Before, during, and after World War II, radical leftist groups affiliated with the international Communist movement were singled out as major targets. The police's specialized squads dealt with what was then known as the ''Reds.''5

Alleged members of the Communist Party of Canada were vilified. Communists were perceived as principal ''threats'' to the status quo. The racial composition of the city at that time was ''exclusively'' White. Members of the police were recruited solely from the ranks of Anglo-Canadians.

Not finding ''Reds under every bed,'' the police's focus shifted more and more to anti-Vietnam War immigrants from the United States and non-Anglo immigrants from around the world in the late 1960s. The arrival of the successive wave of immigrants from the Caribbean, Latin America, Asia, and Africa to Canada dramatically changed the racial composition of Toronto. The city's police force was ill-prepared to cope with these developments. The other agents of law enforcement of the city were no exception here either.

The police's target shifted from communists to labour groups in the early 1970s as a consequence of the rise in labour's unrest. Police officers declared war on dissident groups such as labour union leaders (a case in point is the brutal attack on Artistic Woodworkers Strike) , leading edge artists (seizing paintings and arresting performers) and radical thinkers (the siege of Rochdale College). In the late 1970s and early 1980s, the police undertook brutal measures against longhaired youths, minorities and gays. The public maintained that the police had become a law unto themselves and with no accountability6.

The sexist, homophobic, and anti-Semitic biases of Toronto police officers appeared to recede to the background in the mid-1980s. Gays and lesbians were more tolerated as a result of positive changes in attitude towards sexual orientation. The rise in the influence of the Jewish community in Canada was another factor that undermined the police officers' anti-Semitic hostility. The revelation of racial prejudices and other forms of discrimination in the police officers' regular publication of racist, sexist, homophobic, and anti-Semitic articles and ''humour'' to the larger public was of immense help here.

Nonetheless, the Metropolitan Toronto Police Force continued to unfairly treat members of the Black community. Hard facts and figures rather than impressions demonstrate that Blacks became the prime targets of police officers than any other racial groups since the early 1980s. The first two incidents that stood out as major indicators of police brutality towards blacks pertained to the subsequent deaths of two Black men. Buddy Evans, a Black man, was killed by a police officer in 1978 as he allegedly threatened an officer with his own billy club. No charges were laid against the officer. The police department was not embarrassed by it. It rather looked as if the Department okayed the contamination of Toronto with drugs, especially crack cocaine, which worsened and justified the violation of civil liberties of Blacks7.

A number of remedial measures, such as pieces of legislation, formation of task forces, Commissions, Inquiries, and civilian organizations were initiated in order to narrow the gap between the public and police officers. The 1977 Roberts Report was the first to recommend that control of the police be transferred from the Province to Metro Council, to make the police more accountable. Also, in 1977, the Pitman Report on Racism in Metro, forwarded a number of reform measures to the Police Department8.

At the national level the passage of pieces of legislation such as the Canadian Human Rights Act (1977), the Canadian Charter of Rights and Freedoms (1982), and so on were envisaged to be of extreme help in bringing about the accountability of Toronto's police force9. The codification of the rights and duties of a police officer in both the common law and statute further helped to delineate what is a rightful act as well as wrongdoings of police officers. These are mainly stipulated in Sections 25, 26 and 32 of the Criminal Code of Canada. Subsection 25 (3) allows the use of force in order to protect police officers or members of the public from death or grievous bodily harm.

Section 26 stipulates that uncalled for excessive use of force by the police would attract criminal sanctions. Section 32 permits the police to suppress riotous acts in order to ensure the safety and liberty of the public.

Such prescriptions were reinforced by further guidelines that elaborated on the duties and rights of the police department in Ontario10. A reflection on the role of the Ontario Police Commission would be helpful here to appreciate the degree of legal restraints imposed on Toronto cop's independent action. The provincial police commission had five options to choose from when making a decision in the event of a complaint on any cop's behaviour. These were: (1) to take no action at all, by deciding that none is warranted. (2) Admonish the officer and put a notation in his or her file. (3) Hold an internal Police Act trial, in which senior officers act as judges and prosecutors. (4) Lay charges under the act and send the complaint to an independent board of inquiry. (5) Finally, request that the Crown attorney lay criminal charges11.

The move towards curbing Metropolitan Toronto police force's abuse appeared to be more promising when the Ontario Solicitor General on December 5, 1988, created the Race Relations and Policing Task Force. The task force made a number of recommendations. These were (1) Affirmative hiring practices. (2) Cross cultural training. (3) Ways to improve the interaction of the policies and practices of the police relating to the use of force12. Moreover, the coming into being of an independent body investigating the police otherwise known as the Special Investigations Unit (SIU) in 1990 further enhanced the opportunity to control police misconduct. In addition to these, the involvement of autonomous civilian control bodies raised the hope of instituting the accountability and accessibility of police officers. The formation of the Citizen's Independent Review of Police Activities (CIRPA) in 1981 was of key importance in this aspect. Among others the aim of CIRPA included:

(1) To systematically gather and review allegations of police misconduct in Metropolitan Toronto.

(2) To provide data on the number and nature of complaints against the police. The data included divisions, names, and numbers of police officers.

(3) To help complainants in pursuing their allegations.

(4) To push for reforms that assist in institutionalization of harmonious relationships between the public and the police.

(5) To provide information to other members of the civil society13.

Unfortunately, despite the above sets of measures overseeing police activities in Toronto, the empirical evidence attests to the escalation rather than de-escalation of the police's failure to adhere to the principle of accountability and the rule of law. According to Kent Roach, the criminalization of politics in the recent past complicated the issue of accountability of the police when it came to their relations with Blacks. ''Conflicts between the rights of minority victims and due-process claims by the accused made the law and politics of criminal justice more complex and inaccessible''.14 Accountability was thwarted by the law and principles of criminal law, which demands that due process be followed.

Poor residential areas of Toronto inhabited by Blacks such as Queen Street West and Lansdowne, Jane and Finch, or certain areas of Etobicoke and Scarborough were subjected to intense police scrutiny since the mid-1980s. The police believe that these ''ghettoized'' neighbourhoods are plagued with crack cocaine and that young Black men are heavily involved in the street trade. Almost every black male who lives in these neighbourhoods has been subjected to unlawful search15. The law enforcement agencies of the province of Ontario has assigned the Black Organized Crime Squad, a race-based intelligence unit aimed at targeting Blacks. A recent study entitled The Caribbean Diaspora in Toronto: Learning to Live with Racism by Professor Francis Henry of York University found that Toronto police pull over more Black drivers than members of any other racial/ethnic group. According to the reasoning of Metropolitan Toronto police officers, Blacks look alike very much and that they especially fail to differentiate Black drivers from one another forcing them to stop Black drivers while looking for alleged Black criminals. The same holds true for Black women who stand on the street since police officers cannot discern between ''decent'' Black women from Black prostitutes. They get equally targeted and indiscriminately harassed.

What is equally alarming is that Blacks are 27 times more likely to be jailed with regard to drug trafficking or importing charges than Whites16. Since 1993, it was estimated that as much as 40 percent of the prison population in Metropolitan Toronto is African-Canadian. The most shocking aspect of the statistics is that which shows that the number of Black prisoners in the province of Ontario climbed by 204 percent between 1986 and 1994. On the other hand, the number of White prisoners increased by a mere 23 percent. The state of affairs is in glaring contradiction to the number of Blacks in the city. Of the 3,683,105 citizens of the Greater Metro area, there are approximately 125,610 Blacks17. Due process revolution allegedly ushered in by the Canadian Charter has meant increasing numbers of Blacks subjected to the crime control regime, according to Kent Roach.

The ill treatment of members of the Black community is wrongly justified by police officers' misperception that all drug dealers are Black18. There are notorious cases that best illuminate the police's association of Blacks with drug trafficking. It is pertinent to mention here of Toronto police's brutal treatment of Rubin ''Hurricane'' Carter. He is a respectable community leader and civil rights activist who fell victim to Toronto police's false arrest and unlawful search. The moment the police officers of 12 Division saw Carter being a Black man coming out of a West end restaurant, they stopped him and handcuffed him and put him in the back of a cruiser on a drug-dealing charge. They did not ask him what he was doing, or read him his rights, or pay any attention to check his identification, or informed him about the charges. Carter was later released when an undercover officer disclosed to the police officers that they had arrested the wrong person. The officers got away with verbal apology and agreement to pay for the damage done to Carter's car.

Another case that has become popular for the Metropolitan Police Department is brutality toward members of the Black community under the guise of seizing drug money involves the crime of two police officers.19 Officers George Bonsu and Trevor Babott forced their entry into the apartment of Elizabeth Hoffereden in order to rob her of her alleged drug money. Elizabeth is a Black woman, who lived in Mississauga. One of the officers pepper-sprayed and tied Elizabeth up while the other hunted for the alleged $40,000 drug money. When confronted with direct evidence, the police officers pled guilty. Bonsu specifically pointed out that he was forced to carryout a robbery style home invasion to get money for his parents whose business fortunes had depreciated. Still in another case, four police officers, Paul Cargill, Robert Lynch, Denis Mercer, and Robert Coon, from 12 Division were alleged to have planted cocaine on one Jasper Brown.20 They wrongfully accused him of drug possession. Jasper spent 19 days in pre-trial custody despite his protest that the officers framed him. The two officers, Robert Lynch and Dennis Mercer, admitted their role in the conspiracy to frame Jasper Brown by planting cocaine. They were only sentenced to 60 days in jail. There are other cases that corroborate the police's inherent bias against members of the Black community of Toronto. The trend shows a rise in the abuse rather than a decline. Due-process rights that the Charter supposedly underpinned have not been realised.

There are all kinds of racial prejudices that reinforce Toronto police's discrimination against Blacks. The widely recognized racial prejudice that ''sanctions'' the illegality of Toronto police's unlawful search of Blacks is related to the myth of the ''Black man's penis''.21 Historically, the white man used to perceive the ''Black man's penis'' as being in direct competition with his. This particular battle has been documented both in fiction and non-fiction.

In actual practice, this competition manifests itself when some white police officers conduct strip searches of alleged Black men to expose their penises. The aim is to see and humiliate. The other arbitrary mythology that perpetually undermines enforcement of a fair and just law in Toronto is related to the pseudo-belief that Blacks are prone to commit more crimes, especially of a violent nature.

Since 1978, some more than 20 young Black men have been illegally shot by the police. Most of the victims of these shootings were neither criminals nor had criminal records. Among others, Ian Coley's death was regarded as outrageous.22 He was brutally shot to death by Constable Richard Shank on April 20, 1993, after having been illegally chased by the officer. Shank went on to shoot and kill Hugh Dawson, another black youth in 1997. All white juries acquitted him both times. In another case, Tommy Barnett, 24 years old, a boarder at an Ellesmere Road House, was shot when he confronted the police with two knives and a metal pipe. Still in some other case, Welder Kenneth Allen, died in 1991 from police injury and beating while in custody.23 Henry Masuku was another Black youth shot by the police on the eve of the new year ushering in 2000. He was holding his baby in his arms. An inquest was convoked in April 2001. On December 8th, 1988, the police shot Michael ''Wade'' Lawson, a 17-year-old Black youth. He was shot in the back. Two police officers were charged but they were discharged at the preliminary hearing stage, as have many others who shot Black youths. The Colour of Democracy reports that ''the Lawson shooting demonstrated that, when suspected of a crime, police officers are treated differently by the criminal justice system than ordinary citizens ... Another strategy used to justify police behaviour in the shootings of Black people is to blame the victims for being in situations they should not have been in, such as an automobile theft. They may, in addition, be portrayed as big, crazy and dangerous, or as requiring more aggressive treatment because they commit more crimes.'' It is common experience that, Every time a police officer approaches a member of the Black community, he draws his gun and he is ready to shoot.'' ''There is a racist assumption that there will be trouble.'' This being the situation, the logical questions to follow are: Is the judiciary able to redress the injustices perpetrated by the police officers? If not, does it mean that the entire law enforcement agency has failed Blacks and members of visible minorities?

As already mentioned, the role of the courts is of critical importance here while considering the impartiality of law enforcement agencies. The administration of justice is said to prevail when Torontonians of all races and creeds are protected against the wrongdoing of police officers, or the Crown prosecutors. In the alternative: Can the behaviour alignment of White conservative judges with White criminal police officers protect the safety of the public? Where is the potency of the rule of law that maintains judges should rise above racial and ethnic cleavages? The evidence is that virtually all Police officers that kill Blacks have been acquitted by White judges and juries.

What is more outrageous about the Judges' race-bias is their acquittal of police officers who have misused force against Black suspects. The acquittal of the police officers that killed Tommy Barnet was contrary to the evidence. The judge failed to penalize the police officers under the general pretext of the notion of reasonable use of force as stipulated in Subsection 25 (3) of the Criminal Code of Canada. The police officers could have used other means to subdue Tommy Barnet. Their options ranged from the use of pepper spray, tear gas, cordoning off the area, etc. The confounding aspects of some of Toronto judges' and juries' verdicts on the cases that involved Blacks is further corroborated by their verdicts on the death of Ian Coley and Kenneth Allen. Ian Coley was struck from behind. Kenneth Allen died because of a police beating at the police station. In Barnett's case, his knife could not have struck the police officers from a distance.

It is perceived that these cases demonstrate established patterns of judges' and juries' deep-seated bias that ''Black equals crime.'' The victim becomes the accused. There is a double standard here. The judges' and juries' acquittal of alleged criminal police officers in the face of the officers' admission of false imprisonment, or disproportional use of force is inherently tainted with skin colour discrimination. The cases treated here unequivocally support the evidence that it is all right for police officers to commit crimes so long as their victims are Black folks.

This perception is not helped by the observation of one judge who sentenced a Black youth who had been shot and wounded by a White officer. The Judge stated:

The officer who fired the shots is extremely fortunate that the accused did not get shot. If that had happened, no doubt irresponsible members of the legal profession would have demanded murder charges be laid, accompanied by such irresponsible statements such as ''Black people are sick of being shot by white police.'' [24]

The implication here is that blacks and all concerned people, including white lawyers, must remain silent when a police officer, always white, shoots at an innocent black person.

One judge directly linked immigration with criminality. In sentencing a Guyanese immigrant who came to Canada in 1981 but was convicted in 1999, 18 years after his arrival, the judge said, ''He is a recent immigrant to Canada and he showed his gratitude by deliberately using a false statement to defraud the public purse of $66,000.00'' [25]

Moreover, the majority of Ontario's judges' anti-Black racism is validated by the 1996 report issued by the Commission on Systemic Racism in the Ontario Criminal Justice System. [26] The Commission reported that at every level of the law enforcement agencies, the image that ''Black equals crime'' is pervasive. Honourable Judge David Cole, co-chair of the Commission, reported that 33 percent of provincial judges appointed after 1989 admitted that Whites and racial minorities are treated differently during a symposium held by the Nelson Mandela Academy of Applied Legal Studies in 1996. Susan Mulligan, who defends visible minorities, said lawyers do not talk about the criminal justice system's anti-Black racism while defending alleged Black criminals. This is because of what she called the ''Sh!''''Sh!'' factor. She pointed out that, if at all lawyers talk about anti-Black racism; they fully understand that their clients will be convicted.

The Commission on Systemic Racism in the Ontario Criminal Justice System made several findings some of which include the following:

1. That Blacks are over represented in the criminal justice system.

2. That Blacks are over policed.

3. That Blacks are denied police bail more often than White accused.

4. That Blacks are denied judicial bail more often than Whites.

5. That Crown attorneys proceed by indictment when they elect a mode of trial against Blacks more often than when they proceed against Whites.

6. That convicted Blacks are sent to jail more than convicted Whites.

7. That Blacks are racially harassed in jails.

8. That Blacks experience extreme alienation throughout the criminal justice system.

9. That racism is endemic and historically so in the Ontario criminal justice system.

The report has been virtually ignored by the government, the judiciary, crown attorneys, defence counsel, the police, the academy, correctional facilities and the media.[27]

The prospect for institutionalization of a fair judicial system that can be impartial to Torontonians from different races is further undermined by the nature of the jury system. The current jury structure fails to fairly represent jurors elected from members of the visible minorities. Here what should be noted is that a set of myths and racial stereotypes jury members share with members of the police force, judges, and Crown prosecutors towards the Black community perpetuates the reality of the maladministration of justice. Juries do wrong through stereotyping.[28] In particular, Black Torontonians from either Jamaica or Haiti end up in jails. The portrayal of Jamaicans as too confrontational, too critical, too narrow minded, too manipulative, too hostile, too anti-cop, and too racist enhance the likelihood for jury's biased verdicts. Historically speaking, ''White juries used to convict Black defendants in 5 minutes''.[29] Challenge for cause on racial grounds has not resolved the problem. If the entire panel is composed of whites, the challenge for cause is neutralized because all jury members will be white in any case. [30]

As we have shown, the evidence gathered validates the conclusion that White judges, White juries and White police officers and prosecutors, do not give Blacks a break whether they are perpetrators of crime or victims of police violence crime. The continuation of the current status quo therefore means the perpetuity of the environment of injustice, criminalization, police brutality, and corruption. Fair minded White judges are in the minority. Other sympathetic characters within the various legal enforcement agencies are silent because of the pervasiveness of the ''silence of conspiracy.'' Or they become actively involved in supporting their colleagues who become besieged. The Police Association of Metropolitan Toronto is known for its assistance in supporting and exonerating their fellow police officers.

On several occasions, the Association has facilitated the defence of their members at all costs to get away with their conduct or crimes. It appears that the Association sacrifices a non-biased professional judgement. Because of the fact that police officers have the same legal protections as anyone else against self-incrimination the Association has been successful in stalling public scrutiny. Some officers such as Detective Dave Cargill have gone as far as harassing journalists for writing about the shooting of law abiding citizens by the police. [31]

The likelihood for dissenting police officers to expose the abuses of their colleagues is slim. And anybody caught dissenting from ''the code of silence'' will either be fired or ostracized. The token representation of minorities in the police force is not a major deterrent here. In the early 1990s the Ontario police was composed of 92 percent white males; 5 percent white women; 2.3 percent visible minorities and 0.2 percent aboriginal. [32] To point out the preponderance of White male police officers does not mean that individual Black criminals do not have to be arrested or if charged necessarily acquitted.

Nor does it mean that we have to condone the behaviour of some Blacks that are involved in the street drug trade or such other criminal activities. Such a position would be very wrong. Individual Black men and women who commit crimes deserve to be punished. Neither does it mean that we have to rally behind criminal characters like the Cop killer, Clinton Gayle, who go as far as exploiting racial discrimination to try to get away with murder.[33]

But, as our empirical evidence shows, the maladministration of justice toward Blacks in Toronto is prevalently shocking. It is Blacks who in the majority of instances fall prey to false and wrong arrests by police officers. It is Blacks who are disproportionally imprisoned in Toronto's prisons. It is Blacks who are stereotyped for drug dealing. It is Black neighbourhoods that are subjected to robbery-style police officers' invasion. It is Black women who are accused of prostitution for standing on the streets. It is Black drivers police officers pull over more than members of any other racial group in Toronto. The pervasiveness of the distorted perception that Blacks are criminals masquerades the police officers' fabrication of evidence. Such being the case, the legitimate questions worth pondering are: what types of models are suited for instituting fair-minded law enforcement agencies? If such models fail, what other course of actions need to be taken?

A reflection on the capacity of the different theoretical frameworks applied by legal analysts to explain and predict the conditions for termination of law enforcement agencies' prejudice instructs us that they remain inadequate. For instance, appreciation of the viability of the five models of former Professor Alan Grant of Osgoode Hall Law School for handling citizen-police complaints reveals his four frameworks remain unsatisfactory. [34] The four models are: the ''in-house'' model, the externally supervised ''in-house'' model, ''the police investigation with independent adjudication'' model. Of all the four models, the ''in-house'' model, which entirely leaves investigation in the hands of the police, is dysfunctional. It has already been counterproductive in Toronto. Grant also ably shows that his three other models fail to counter the perpetuality of police wrongdoings. On the other hand, the 5th approach that Grant refers to as the ''truly independent'' model, where all facets of the complaint, would be kept out of the police hands is compelling. But in and of its own the model fails to prevent police abuse. This is because the framework fails to appreciate what police abuse means in relation to maintenance of race-biased law enforcement agencies such as the courts, and the changing political climate in Ontario as a result of the occurrence of regular elections every four years. As well, the model’s disregard of accounting what ''truly independent'' means in relation to variation of Canadian cities and provinces with respect to racial, ethnic and cultural diversities and political parties in power erodes its potency.

A reflection on the behaviour of the current conservative government of Ontario under the premiership of Mike Harris would be useful in this connection. The efforts of Rod Mcleod to conduct an independent review of citizen-police complaints was initially stalled. This was because of the government's refusal to extend Mcleod's mandate to give civilian associations more time to get involved in monitoring the police's conduct. A coalition of 11 agencies representing minority groups in the Toronto area then boycotted the review. [35] Then Premier Harris disbanded civilian control without much debate. The budget cut to Ontario legal aid has worsened the situation of alleged criminals from the ranks of visible minorities, let alone broaden the opportunity to control police conduct and control illegal shootings.

The validity of consideration of the political factor and diversity of Toronto with respect to its racial and ethnic composition is further reinforced by a close study of the reforms initiated by the New Democratic Party (NDP). In fact, the most progressive stance in Ontario's criminal justice system were the recommendations forwarded by Stephen Lewis in his role as Advisor to Premier Bob Rae on Race Relations. [36] Among others, Lewis' suggestions included: reform of the criminal justice system, educational reform, community policing, employment equity, community development and Anti-racism Directorate. These and other recommendations of Lewis are praiseworthy. But they were disbanded by the present Conservative government.

Yet the recommendations of Lewis suffered a partial setback for their omission to assign a pivotal role to initiation of political and legal reforms that empower visible minorities and women at the executive, legislative and local levels of the government in Ontario. Such a representation of visible minorities, along with women, set dependable conditions in ensuring accountability of a host of law enforcement agencies. There is no other way of monitoring the behaviour of the judges, the Crown prosecutors, politicians, and the police Department. Otherwise, Lewis' sheer evocation of the idea of representation, or, general reference to Professor's Grant's 5th model on their own remain insufficient. Neither a categorical reference to the general principles stipulated in the Canadian Charter of Rights and Freedoms can guard us against the maladministration of justice.

What is lacking in context of the Canadian Constitution is a concrete definition of what equality between racial groups means in relation to distribution of political power, property ownership, and the entrenchment of racist and patriarchal ideology. On this point both Lewis and Professor Grant err. They ignore to explore the centrality of the political process. The issue of the impartiality of the judiciary and other law enforcement agencies cannot be discussed in the abstract. This is further more so in the Canadian setting where the supremacy of the legislative intervention is emphasized. Political wrangling among political parties and their competing visions of the ideal type of the Canadian society cannot be simply set aside. Canadian political parties significantly differ with respect to the notions of fairness and equality.

Moreover, consideration of the nature and level of participation of civil society in the political process is of critical significance. Here too Lewis and Grant err. They omit to assign a pivotal role to civil associations and what they mean in terms of curbing the abuses of law enforcement agencies. It is the Toronto police officers that mainly benefit out of lack of civil associations' participation. For instance, when Lawrence was shot dead by a police officer, the Metro Police Chief opposed the intervention of the Black Action Defence Committee. This is a civic organization that ventilates legal and political issues from the point of view of Blacks. Denis Flynn, the then acting chair of the Metro Police Services Board said, ''he fears the inquest will turn into a forum for ill-founded accusations of police racism.'' This was later corroborated by Art Lymer, President of the Metro Police Association. Lymer said: ''I can see the thing turning into a circus. They will imply racism is an issue when obviously it is not.''

The existence of a strong civil society has the potential to unleashing strong movements that constantly scrutinize police officers' and judges' behaviour. The erosion of the SIU's credibility stems from the predominance of lawyers and former law enforcement agencies whose viewpoints concur with the status quo. Currently civil associations are at their low ebb. The Harris government's disbandment of school boards, its severed relations with Ontario's labour force and minority groups is a case in point. Some associations are ridiculed as the chattering clubs. Civil associations such as CIRPA and the Black Action Defence Committee are non-existent or weakened than ever. In early 1980s CIRPA was criticized for being no ''more than a pressure group of the far left.''

So where do we go from here? We need to come back to the issue of quota representation of members of the visible minorities and women at the provincial and municipal levels of government in Ontario. I do not see any inherent shortcoming in the adoption of the notion of quotas that promotes the representation of these social forces given the ''race-bias'' and ''male-bias'' of the status quo. Such a formulation, which strives for minorities as well as women, in order to deter law enforcement agencies' wrongdoings may sound utopian and far-fetched. This is correct in many ways. Tackling the inherent bias of the status quo also calls for implementation of a comprehensive plan that delineates short-term as well as long-term undertakings.

In the mean time, we need to encourage the idea of community responsibility. A failure to deal with elaboration of what it means in terms of curbing the excesses of the agencies of law enforcement would contribute to our own malaise. The concept of community policing is another issue that deserves to be fostered. It facilitates the creation of a non-brutal, non-corrupt and yet a trustworthy police force to Torontonians of all races. Judicial education in racial issues is a must. Change of the current jury structure is another area that calls for reform. This means that the plan has to be executed at the community, municipal and provincial levels, if we are to have different legal enforcement agencies, from what we know so far. Autonomous minority and feminist groups, as well as other democratic forces have to develop practical skills and visions to intervene in the reform processes.

In conclusion, my findings on exploration of the question whether there exists a correspondence between the law and its fair execution by law enforcement agencies verify that there is a maladministration of justice in Toronto. Race is a sharp dividing line between law enforcement agencies and members of visible minorities. The combination of the forces of racism, poverty, and the drug problem worsen the position of Blacks than other visible minority groups. The majority of those who are falsely imprisoned on police officers' fabrication of evidence, breach of trust, and obstruction of justice are Blacks. Since 1993, nearly 40 percent of prisoners in Metropolitan Toronto have been Blacks. The number of Black prisoners climbed by 204 percent between 1986 and 1994, compared with a 23 percent increase for Whites.

The number of Black prisoners is in glaring contradiction to the size of the Black community. The Black population constitutes only 3 percent of the Greater Metro areas. This is not all. The majority of Torontonians who lose their lives as a result of police officers' misuse of force are also Blacks. This does not mean police officers at all times do not have to use force. Neither does it mean police officers do not have to arrest criminals from the ranks of Blacks. Stopping lawbreakers involves the use of ''proportional'' force and toughness. Criminals deserve to be punished regardless of the pigmentation of their skin colour. What is unfair and abominable is the law enforcement agencies' perception of ''Black equals crime.'' This is a false stigma.

The different reforms initiated by the Metropolitan Toronto City Council, Provincial and local Police Boards, and civil mass organizations have up to now failed to enforce the impartial enforcement of the law to all groups. Fair minded White judges and police officers cannot change the situation. They are simply overwhelmed by the existence of well-rounded active conservative forces at all levels of law enforcement agencies.

Conservative political forces and some members of the media have their share. The rise of a neo-conservative ideology is a major polarizing factor. What we need to redress the situation and institute accountability of the law enforcement agencies is implementation of a host of reform measures. This involves formulation of short-term and long-term strategies.

The practicality of quota representation of members of visible minorities and women in the political process and law enforcement agencies may sound quite idealistic. There is a lot of truth to such a charge. If one ever wants to end the ''race-bias'' and ''male-bias'' nature of the law enforcement agents on an irreversible manner, one has to go as far as demanding quota representation of all infringed groups in the city. In the short-run, Torontonians cannot afford to ignore disclosure of the wrongdoings and frank discussions on the limitations of the law enforcement agencies if the words justice and solidarity among members of all races are to retain any meaning. The persistent drive to have a diversified police force and judges ought to be on the agenda in order to level the playing field. The issue is changing the pool of legal and political institutions changes the perception of the status quo toward visible minority groups.

This chapter is written from a Critical Race Theory (CRT) perspective. This perspective looks at the impact of law enforcement from the point of view of a minority person.

According to Aylward, the dominant themes of Critical Race Theory are:

1. the need to move beyond existing rights analysis,

2. an acknowledgment and analysis of the centrality of racism, not just the White supremacy form of racism but also the systemic and subtle forms that have the effect of subordinating people of colour,

3. a total rejection of the ''colour-blind'' approach to law, which ignores the fact that Blacks and Whites have not been and are not similarly situated with regard to legal doctrines, rules, principles and practices,

4. a contextual analysis which positions the experiences of oppressed peoples at its centre,

5. a deconstruction which asks the question, now does this legal doctrine, rule, principle, policy or practice subordinate the interests of Black people and other people of colour? and, ultimately,

6. a reconstruction which understands the ''duality'' of law, recognizing both its contribution to the subordination of Blacks and other people of colour and its transformative power. [37]

Critical Race Theory is committed to exploring alternatives to discriminatory law and to offering solutions that go beyond ''symmetrical'' equality and include ''asymmetrical'' equality, or affirmative action, to ameliorate conditions of disadvantage. [38]

The exploration of the broader experience of Blacks in the criminal justice system, with examples from Toronto was necessary in order to create the background to the experiences of Blacks within the immigration context. Those who get declared to pose danger to the public under the Immigration Act are products of the flawed criminal justice system that has been explored in this chapter.

The next chapter deals with the role and centrality of politics in legal reform. It is critical to show how the governments, despite sustained pressures from certain constituencies, can simply ignore those pressures in favour of other agendas. The chapter deals with the immigration situation of alleged Nazi war criminals. While the government was purportedly vigilant to keep out criminals from other countries and to deport those who entered its borders, it virtually ignored the issue of war criminals. Given the rapidity with which the government brought in legislation on the danger to the public in 1994, the internment of Japanese-Canadians during the Second World War, the blind eye on Nazi war criminals who were White, validates the analysis so far that Canadian immigration law and policy has had a strong racial component to it.

1 See Michael Mandel, The Charter of Rights and the Legalization of Politics in Canada, 2nd Ed. (Toronto: Thompson, 1994); Allan C. Hutchinson and Pam Marshall, The Law School Book (Toronto: Opus House, 1996), chapter one. Also, see Leo Panitch ''Elites, Classes, and Power in Canada,'' in M. Whittington and G. Williams, eds. Canadian Politics in the 1990s (Toronto: Metheun, 1990). The literature on the Canadian State is vast.

2 For elaboration on the relationship between the three branches of government and the specific duties carried by each of the branches, see ch. three of Allan c. Hutchinson and Pam Marshall, Supra note 1. Again the literature on this is vast.

3 This is elementary knowledge. The critics of the charter believe that with the advent of the charter, this is now tenuous. See Mandel Supra note 1.

4 The historical appreciation of Toronto's police force as well as the data on its targeting of members of the Black community since the early 1980s is drawn from the reading kit prepared by Munyonzwe Hamalengwa, principal of the Nelson Mandela Academy of Applied Legal Studies. For our purpose, subsequent citations in the paper drawn from the kit will be noted as Police Law (1996/7) while identifying either the title of the news clipping or the title of the Report on the criminal justice system of Ontario. The kit is available at source.

5 Police Law, ''Synopsis: Law union of Ontario Presentation to the Task Force on Race Relations and Policing'' Tab 5. P. 200.

6 Ibid.

7 Police Law, ''Boyz N: The Law.'' Tab 6. Reprinted from Toronto Life August 1992.

8 Police Law, Supra note 5.

9 See on the Charter En. Canada Act 1982 (U.K), c 11.

10 For an elaboration of what the notion of responsibility means in the context of the police services, police staff and cases on Toronto's police misconduct, see R. Shilton, John F. Hamilton, Anglea P. Jeffery and Anne M. Kendall, eds., The 1996 Annotated Ontario Police Services Act (Toronto: Thomson Professional Publishing Co., 1996). This is an annual publication.

11 Police Law, See ''Kerr has right to lay Charges.'' Toronto Star February 1st, 1995 p. A7.

12 Police Law, Ontario Task Force on Race Relations and Policing'', Toronto: Queen's Park 1989.

13 See, Munyonzwe Hamalengwa, ''A contribution to the Debate on Civilian Control of police powers in Toronto.'' A paper presented to the Society for the Reform of Criminal Law, Sydney Australia, March 1989.

14 Kent Roach, Due Process and Victims' Rights: The New Law and Politics of Criminal Justice (Toronto: U of T Press, 1999) P. 233.

15 For detailed aspects of the various forms of misconduct perpetrated by members of the Metropolitan Toronto police force against members of the Black community, see some of the brilliant pieces in Police Law. The major ones include: ''Stop the Police Shooting,: :The Audrey Smith's Story;'' and ''Law's Attitude Toward Blacks is Shocking.'' See also Roach, supra note 14. Chapter 7. See as well, Frances Henry et al, The Colour of Democracy: Racism in Canadian Society (Toronto: Harcourt, 1995).

16 In Police Law,''Laws Attitude Towards Blacks is Shocking.'' Toronto Star Jan 18, 1996 P C7.

17 Police Law, ''Adrian Luce's Comment.'' Toronto Sun Nov. 4, 1994 P. 12.

18 Police Law, see ''Another Bad Round for Rubin Carter.'' Toronto Star April 18, 1996, P A26.

19Police Law, see ''Two Officers Plead Guilty to Invasion.'' Toronto Star, June 27, 1996, pA4.

20Police Law, ''Four Metro Officers Charged in Drug Case,'' and ''Metro Officers Must Serve 60 Days for Role in Planting coke on Suspect.'' Toronto Star, March 24, 1995, p. B1.

21For an authentic effort to really understand what members of the Black community suffer from the legacies of slavery and racial prejudice, see Police Law, ''Beyond Fear: A Review of the Policy and Procedures Related to the Drug Raid at 22 Gould St., Ottawa on September 26, 1991.'' prepared for the Ottawa Police Services by Glenda Simms.

22Police Law, ''African Canadian Legal Clinic for Cooley Inquest.'' Pride June 15-21, 1995.

23There are a host of dispassionate newspaper reports on the brutality of Toronto's police against members of the Black community. Perhaps the piece which stands out the most is the one by Rose DiManno, ''A Sad Question: why did police have to shoot at all?'' This journalist has numerous interesting writings on the subject, see Police Law. See Toronto Star, June 14th, 1996, pA7. See also Frances Henry et al The Colour of Democracy supra note 15 from which most of the following information in quotation marks is taken, pp. 122 - 124.

[24] The Queen v. Ranger, December 6th, 1989 (District Court of Ontario, Toronto.) (Unreported.)

[25] See Munyonzwe Hamalengwa, ''A Case of Judicial Misconduct'' in his collection of legal articles, For the Equal Benefit and Equal Application and Protection of the Law, p. 177.

[26] (Toronto: Queen's Printers, 1995).

[27] Gary Trotter, then a Crown Attorney offered the only so far significant commentary on this Report. See Trotter, 2nd ed. The Law of Bail in Canada (Toronto: Carswell, 1999). Contrast this with the reception of the The Commission on Proceedings Involving Guy Paul Morin (Toronto: Queen's Printer, 1998).

[28] There are numerous insightful report as well as analyses on the subject. For further details, see Police Law. See also Munyonzwe Hamalengwa, The Practice of Law in Canada (forthcoming).

[29] Munyonzwe Hamalengwa's account during a symposium organized by the Nelson Mandela Academy of Applied Legal Studies, York University, October 23, 1996, ''On Jury Reform''. The symposium was organized to discuss the government's lack of action of the report of the Commission into Systemic Racism in the Ontario Criminal Justice System.

[30] See Munyonzwe Hamalengwa, ''Criminal Trials: Still not Judged by the Jury of Your Peers'' in Hamalengwa, supra note 25 p. 6.

[31] Police Law, See ''Questions About Police Are Fair in our Civilization'', by Rose DiManno, Toronto Star, July 3, 1996, p. A6.

[32] Police Law, by Munyonzwe Hamalengwa, Supra, note 13.

[33] Police Law, ''Cop Killer Gayle Calls trial Jury Racist.'' Toronto Star, February 2nd, 1996, p. A4.

[34] Police Law, by Munyonzwe Hamalengwa, Supra Note 13. This piece ably sums up the limitations as well as the strengths of Professor Alan Grant's five models. This section of Hamalengwa's article is also the only one of its type that draws out the importance of considering the relationship between civil organizations and the police department

[35] Police Law, See also supra note 10, the 1998 issue.

[36] Police Law,''Stephen Lewis's report on Blacks in the Criminal Justice System.'' Tab 2.

[37] Carol Aylward, Canadian Critical Race Theory: Racism and the Law (Halifax: Fernwood Publishing, 1999) p. 34. The literature on this perspective is blossoming.

[38] Ibid.

The Politics of Legislation: War Crimes Legislation Short of 'Danger to the Public'

Why has Canada declared common non-citizen criminals as posing a danger to the public in Canada, while not doing the same to war criminals?

It took an article in the Ottawa Citizen in 1985,[1] by a New York Times reporter, who claimed that Joseph Mengele, a Nazi Doctor (popularly called the ''Angel of Death''), was in Canada or had applied to enter Canada, to cause a "moral panic"[2] in the Canadian Government of the day to convoke a commission of Inquiry on War Criminals in Canada[3]. That the mention of Mengele triggered the panic is evident from the minute that set up the commission of Inquiry in motion[4]:

WHEREAS concern has been expressed about the possibility that Joseph Mengele, an alleged Nazi war criminal, may have entered or attempted to enter Canada;

WHEREAS there is also concern that other persons responsible for war crimes related to the activities of Nazi Germany during World War II (hereinafter referred to as war criminals) are currently resident in Canada:

AND WHEREAS the Government of Canada wishes to adopt all appropriate measures necessary to ensure that any such war criminals currently resident in Canada, or hereafter found in Canada, are brought to justice.

THEREFORE, the Committee of the Privy Council on the recommendation of the Prime Minister, advises that, pursuant to the Inquiries Act, a Commission do issue under the Great Seal of Canada, appointing the Honourable Mr. Justice Jules Deschênes, of the Superior Court of Quebec, to be Commissioner under Part I of the Inquiries Act to conduct such investigations regarding alleged war criminals in Canada, including whether any such persons are now resident in Canada and when and how they obtained entry to Canada as in the opinion of the Commissioner are necessary in order to enable him to report the Governor in Council his recommendations and advice relating to what further action might be taken in Canada to bring to justice such alleged war criminals who might be residing within Canada, including recommendations as to what legal means are now available to bring justice any such persons in Canada or whether and what legislation might be adopted by the Parliament of Canada to ensure that war criminals are brought to justice and made to answer for their crimes.

The Commission understood clearly why it was convoked and Jules Deschênes was aware of the high stakes involved. He states on page 245 of the Report that ''the sensational allegations concerning Dr. Mengele's connection with Canada were the straw that broke the camel's back: the matter had to be clarified once and for all.''

The government had not responded to the call for a study into war crimes made by the very respected Law Reform Commission of Canada just the previous year. In its 1984 study entitled ''Extraterritorial Jurisdiction''[5] the Commission recommended:

That the Government of Canada authorize a study of the complex subject of war crimes including relevant aspects of international law, comparative law, constitutional law, criminal law and military law with a view to determining what war crimes legislation should be enacted by Canada to replace our present outdated legislation. Until that study is done, any other recommendations would be premature. Regardless of who undertakes the study, the Ministry of the Solicitor General of Canada and the Departments of Justice, National Defense and External Affairs should be included as participants in it.

In fact the government already had several pieces of legislation on the books, pertaining to war crimes, which legislation was never used, but at the same time, it was never repealed[6]. These pieces of legislation comprised of, the War Crimes Act[7] of 1946 and the Geneva Conventions Act of 1965.[8]

More significant however, is that previous references to Joseph Mengele did not cause a ''moral panic'' in the government to cause it to request for a Commission to recommend requisite legislation. The presence or attempted entry into Canada of Joseph Mengele was extensively investigated between 1961 and 1962[9]. This never led to calls for war crimes legislation. Nor did the massive albeit intermittent pressure on the governments of Canada since the end of the Second World War to do something about war crimes result in any concerted response by the government to enact war crimes legislation. This time around, Prime Minister Brian Mulroney called the Presence of Nazi war criminals in Canada," a moral outrage."[10]

Suddenly reports in the press appeared suggesting that there were as many as 6,000 Nazi War Criminals in Canada.[11] Moral panic was triggered.

This paper is an attempt to understand why in 1985, the government of Canada succumbed to the pressure to deal with Nazi war criminals in Canada by new and specific legislation. It is argued utilizing the concept of ''moral panic'' that the invocation of the image of Joseph Mengele in 1985, after the image had been absent for more than 20 years, became a convenient governmental precipitant to respond, especially after an accumulation of unprecedented pressure by very well organized and articulate “moral entrepreneurs'' and pressure

groups. A lengthy historical background going back to 1945 is necessary in order to understand the developments of 1985.

The war crimes legislation is a good example and case study of how modern pieces of

criminal legislation are brought on the scene by pressure groups with vested interests utilizing ''moral panic'' of the moment or period. Depending on the timing, opportunity, pressure and duration of the ''moral panic'' incident, legislatures typically responded accordingly. It is argued that the finished product of criminal legislation is the product of a political process engineered by pressure groups or ''victim groups.''

To understand the politics of war crimes legislation[12], it is necessary to examine the history of the treatment of the issue of war crimes in Canada from 1945 to the present.

The concept of moral panic[13] was coined by Stanley Cohen to explain societal reactions to and labelling of certain incidents that must be controlled because they pose real or perceived threat to society. According to Cohen:

Societies appear to be subject, every now and then, to periods of moral panic. A condition, episode, person or group of persons emerges to become defined as a threat to societal values and interests; its nature is presented in a stylized and stereotypical fashion by the mass media; the moral barricades are manned by editors, bishops, politicians and other right-thinking people; socially accredited experts pronounce their diagnoses and solutions; ways of coping are evolved or (more often) resorted to; the condition then disappears, submerges or deteriorates and becomes more visible. Sometimes the object of the panic is quite novel and at other times it is something which has been in existence long enough, but suddenly appears in the limelight. Sometimes the panic passes over and is forgotten, except in folklore and collective memory; at other times it has more serious and long-lasting repercussions and might produce such changes as those in legal and social policy or even in the way the society conceives itself.[14]

Stuart Hall and others[15] have amplified the definition of moral panic:

When the official reaction to a person, groups of persons or series of events is out of all proportion to the actual threat offered when ''experts,'' in the form of police chiefs, the judiciary, politicians and editors perceive the threat in all but identical terms, and appear to talk''with one voice'' of rates, diagnoses, prognoses and solutions, when the media representations universally stress ''sudden and dramatic'' increases (in number involved or events) and ''novelty'' about and beyond that which a sober, realistic appraisal could sustain, then we believe it is appropriate to speak of the beginnings of a moral panic.[16]

The moral panic caused by the invoked spectre of the possibility of Joseph Mengele being in Canada in 1985 can only be comprehended by the confluence of events, individuals and politics of the immediate period as well as the history of the concern for war criminals in Canada. The panic itself was unleashed by one Sol Littman, who had devoted his life to ventilating the issue of war criminals in the world and in Canada in particular. Sol Littman as a representative of Simon Wiesenthal, the ultimate, Nazi hunter. During the Commission of Inquiry hearings, Sol Littman admitted that he supplied the information to Ralph Blumenthal of the New York Times in his article on Joseph Mengele. Sol Littman further admitted that his assertions were based on ''speculation'', ''impression'', ''possibility'' and '''hyptheses''[17]. The general media picked this information up and splashed it in bold headlines. Suddenly Canada became to be portrayed as a ''haven for war criminals,'' a distinction Canada did not want to have. Moral panic had set in.

According to the Commission, Littman's admissions of the hoax of his creation came too little too late: ''the commission could not, of course, foresee that turn of events, and it devoted some substantial time inquiring into the Mengele affairs''[18]. The Commission concluded that on the basis of the available evidence, it is established beyond a reasonable doubt that Dr. Joseph Mengele has never entered Canada''[19]

The Mengele panic assumed a life of its own which still reverberates in Canada through the war crimes legislation in the Criminal Code and associated offshoots in the Immigration Act and Citizenship Act. Joseph Mengele is a name associated with some of the worst atrocities of Nazi Germany. He is an embodiment of evil. Dr. Mengele was assigned to the concentration camp of Auschwitz (a death camp) where he conducted the cruel experiments which history, according to the commission, has recorded.[20] According to Irwin Cotler, a McGill Law Professor, the allegation about Mengele may have been a catalyst in prompting the government to do something that ought to have been done some forty years ago. But Mengele was not just another Nazi War criminal. He was a metaphor for evil, for those monstrous crimes of which the Prime Minister spoke'' [21]. After the war, Mengele fled to South America and never to be heard from again. The combination of the images of ''Mengele'' and ''Auschwitz'' is explosive. It is the worst possible combination of evil, combustible enough to trigger a moral panic, the panic that caused the Mulroney government to convoke a Commission of Inquiry.

Legislation was needed to ensure that justice must be done to war criminals, even if the crimes they committed were committed a long time ago and in a foreign land and even if these old war criminals never posed any danger to the public in Canada.

This is the uniqueness of the war crimes legislation as it was initially designed, it was moral panic invoked by unrequited distant occurrences. Almost all moral panics are caused by contemporary events.[22] To a great extent, the Mengele panic is inexplicable because those alleged war criminals in Canada never appear to have posed any danger in Canada in the past or presently.

This is unlike South America where moral panic associated with Nazi War Criminals could be justified because the escaped war criminals joined, supported or led repressive and genocidal regimes in South America. A study by Yossi Schwartz,[23] indicates that former Nazis found useful employment in South American regimes. In Chile for example, Walter Ruaff who was responsible for the death of 250,000 prisoners in the Ukraine during the war, was appointed by Augusto Pinochet as Chief Advisor for the Board investigating communist activities. Pinochet was later found to be a war criminal by the House of Lords in England and therefore extraditable[24].

Klaus Barbie, a notorious Nazi escaped to Bolivia via and with the assistance of the U.S. government. There, under his leadership the storm troopers were trained in secret camps at Sanda Cruez de la Sierra, later to take part in the military coup conducted by General Garcia Meza in July 1980. In Paraguay, Alfredo Stroessner, the military dictator of several decades, hosted Joseph Mengele, former Gestapo Chief Heinrich Muller Pavelic, the leader of Nazi Croatia among others.

In Brazil, Alfred Boettcher who as an SS Officer served in Holland, and whom the Hague war crimes tribunal sentenced in Absentia, became a Director of the Atomic Board and a Coordinator of Nuclear Treaty with South Africa. South Africa was a state that systematically committed war crimes and crimes against humanity.[25]

Thus war crimes legislation would be necessary to curtail the continuing danger posed by former Nazi war criminals[26]. There are no studies of what danger Nazi war criminals presently cause or caused since their alleged immigration to Canada. Irwin Cotler justified the enactment of war crimes legislation on the basis of five principles: (1) Fidelity to the rule of law; (2) respect for Canadian Citizenship; (3) Fidelity to our international obligations; (4) Fidelity to Holocaust remembrance, and (5) Fidelity to our children[27]. I need not elaborate on these principles.

On the other hand calls for war crimes legislation has historically been dismissed as ''foreign baggage'' by Prime Minister Pierre Trudeau;[28] that it would not “be advisable to start having trials in Canada on actions that occurred in other nations'' according to Jean Chretien;[29] Robert Kaplan thought legislation was not necessary because it would ''upset people'';[30] the United Kingdom developed a program in 1948 which Canada followed that ''it was now necessary to dispose of the past'';[31] that it was pandering to ''Jewish revenge'' to deal with Nazi war criminals;[32] that the issue of Nazi war criminals was an ''ethnic quarrel between Jews and Ukrainians''[33] and that Canada should do what is in the interests of Canada. It was also argued that war crimes legislation was “an exercise in selective discrimination” because it appeared to deal only with Nazi war criminals and not others.[34]

Historic Opportunities and International Climate

Shane Kelleher provides a quote from an Irish Minister of Justice, Nora Owen which is also apt to our study here. She stated that “there are moods and there are times when certain proposals will gain credence with the public. It is not a cause of politicians not doing it”.[35].

There have been historic opportunities and the international climate has been repeatedly ripe since at least 1942 for the enactment of war crimes legislation in Canada. In the 1940s alone the international community developed and engaged in war crimes legislation and prosecution of Nazi war criminals and also designed international human rights instruments and treaties in response to the atrocities of the Nazi-inspired war. The following were the most significant developments that could have influenced Canadian legislation on war criminals[36]:

The Declaration on the Punishment for Crimes Committed during the War: St. James, 13 January 1942;

The Declaration on German Atrocities: Moscow, 30 October 1943;

The Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis: London, 8 August 1945;

United Nations General Assembly Resolution 3 (I): 13 February 1946;

United Nations General Assembly Resolution 170 (III): 31 October 1947.

Canada took the following position:

Canada is not a party to the ''Declaration of Hitlerites'' [Sic} or the ''Regulations of the International Military Tribunal'' and is not bound by them. Canada views U.N. Resolutions as recommendations only and not binding legal obligations.[37]

The 1942 St. James' Declaration was issued by nine governments whose countries were occupied by Nazi Germany. Canada was an observer. The Declaration takes note of Nazi violence against civilian populations, declares as one of the principal war aims the punishment of those guilty for such crimes and expresses the international determination that judgements be passed and sentences be carried out.

The 1943 Moscow Declaration is a declaration of policy on the part of the United Kingdom, the U.S.A. and the U.S.S.R., which provided for the return and trial of war criminals. The 1945 London Agreement was the basis for the Nuremberg trials and signed by the U.K., the U.S.A., the U.S.S.R. and France. Nineteen became members but Canada never did become a member.

The United Nations resolutions called for the punishment of war criminals.

Canada did seize the opportunity and enacted the War Crimes Act, which was limited to trying war criminals who had engaged in atrocities against Canadian personnel. These trials were conducted in Europe between 1945 and 1948. Thereafter, Canada abided by the advice of the United Kingdom in 1948 that ''it is now necessary to dispose of the past as soon as possible''. Minister of Justice Ramon Huatyshyn explained Canada's subsequent inactivity in the field of war criminals,''during the fifties and subsequently as individuals and nations moved to put the trauma and horror of the second world war behind them, the pursuit of war criminals became less of a priority in many countries''.[38]

Did however individuals and nations move to put the trauma and horror behind? Or was it Canada and a few nations that did this for other reasons?

Indeed the efforts to pursue war criminals waned in all the major western countries immediately after the war to compel the Commission of Inquiry to note that ''Canadian policy on war crimes during that long period was not worse than that of several Western countries which displayed an equal lack of interest''.39] The most prevalent activity took place from 1945 to 1949 and lessened or ceased in all major countries by 1952. Only socialist countries and the Federal Republic of Germany continued the effort against war criminals. The Socialist Countries included Poland, the German Democratic Republic and the Soviet Union.

Paradoxically at the level of the International Community, especially at the United Nations, the rhetoric against war criminals never stopped as reflected by a phalanx of conventions and resolutions. In 1948, the United Nations passed the Convention on the Prevention and Punishment of the Crime of Genocide and in 1949 the Geneva Conventions relative to the Treatment of Prisoners of War and Relative to the Protection of Civilian persons in Time of War were adopted. They all provided for the prevention and punishment of war crimes.

In 1966, after a lengthy gestation period, the UN adopted the International Covenant on Civil and Political Rights, which set the stage for passing retroactive laws to punish previous wrongs like war crimes. The European Convention on Human Rights was adopted in 1958 with similar retroactive legislative features. In 1968, the UN adopted the Convention on the Non-applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, which required state parties not to limit the period within which war criminals could be tried. And over the period, particularly from 1969 to 1973, the UN passed numerous resolutions in which the need was reiterated to punish those persons responsible for both war crimes and Crimes Against Humanity. The mood to punish war criminals has always been there.

Canada never signed the convention on the Non-Applicability of Statutory Limitations and its objections during the preparations of the Civil and Political Rights Covenant led the commission to remark that ''Canada's position was not glorious at all''.[40]

However, it cannot be stated that there was no atmosphere for the apprehension and punishment of war criminals. The international atmosphere was conductive but another ''panic'' had broken out. The spectre of communism.

In February 1946, it was made known to the unsuspecting public that a Russian spy ring had been operating in Ottawa and this was only exposed as a result of the defection of a Russian cipher clerk, Igor Gouzenko. The RCMP raided several homes in Ottawa on the morning of February 15th, 1946. The media headlines during and the following days, weeks, months and years were unrelenting. The panic of a Russian spy ring with the potential of stealing atomic secrets and spreading soviet communism resulted in the convocation of a Commission of Inquiry. Posters graced Parliament Hill, ''we want no Iron Curtain here''.[41]

Hadn't it been for the enormity of the just concluded war in Europe, the cold war panic may have eclipsed the pursuit of war criminals. In many respects, in the long run, the cold war relegated the pursuit of war criminals to the back burner. The Commission of Inquiry into war criminals accepted the conclusion from a study: [42].

The central factor to consider in understanding why most countries have not sought out, prosecuted and punished Nazi war criminals to their full ability throughout the past forty years is the other issues have taken precedence (e.g., national rebuilding or the ''Cold War'') over bringing war criminals to justice which has been shifted, deliberately (as in France) or inadvertently to a lesser priority in their national agendas. The immediate post-war search for justice found and punish a considerable number of obvious big-name war criminals. This crusading spirit has been difficult to sustain for a long period of time especially as most of the remaining war criminals were low in rank and importance.

The panic over communism in the post war era was immediately reflected in the flurry of legislation, particularly in the field of Immigration law. After decades of dormancy, the Immigration Act was overhauled in 1952. Most of the changes dealt with preventing communists or perceived communists from entering Canada. The concern over the entry of suspected war criminals waned, as a matter of fact, suspected war criminals were preferable to communists. The security net against war criminals was lowered, while that against communists was heightened.

Between 1945 and 1953, the Immigration Act as amended prohibited the following classes from entering Canada:

d) persons guilty of crimes involving moral turpitude;

n) persons advocating the overthrow by force of the Government of Canada or the assassination of public officials;

o) persons affiliated with organizations which preach such doctrines;

p) enemy aliens or persons who have been alien enemies and who were or may be interned on or after the 11th day of November 1918;

q) persons guilty of espionage;

r) persons guilty of high treason or who assisted His Majesty's enemies in time of war.

In June 1953, spies and saboteurs were added. The prohibition of ''enemy aliens'' became synonymous with ''communists''. Remarkably in September 1950 prohibition against nationals of Germany was lifted but maintained against the nationals of Japan and others.

The shift in concern for communists as against war criminals becomes meaningful if one considers that on October 14, 1946, the Allied Control Council in Directive Number 38 sought to track down the following individuals: 1) major offenders, 2) offenders (activists, militarists, and profiteers, 3) lesser offenders, 4) followers, 5) persons exonerated. Major offenders included ''war criminals''.[43]

The following categories of individuals continued to be rejected by Canada in 1949;

1) member of SS or German Wehrmacht or a person found to bear mark of SS blood group (non-Germans);

2) member of Nazi party;

3) evasive and untruthful under interrogation;

4) Failure to produce recognizable and acceptable documents as to time of entry and residence in Germany;

5) false presentation or use of false or fictitious name.

Canada issued a series of Cabinet Directives in 1949, 1950, 1951 and 1952 classifying and reclassifying individuals who could be rejected for entry. A government therefore does not need specific legislation in order to address specific issues. Problems and issues can be and are addressable by bureaucratic methods and procedures. The Cabinet Directive of October 28th, 1949 for example stated that a visa is to be refused to ''Communists, members of the Nazi or Fascist parties or of any revolutionary organization, 'collaborators' and users of false or fictitious names or documents''.[44]. A circular by the Department of Citizenship and Immigration issued as No. 72A pursuant to Order-in-Council 4364 of September 14th, 1950 stated that ''German nationals could now be dealt with on the same basis as any other European nationality''.[45] “Membership of the Nazi Party will not in itself be a cause for exclusion.”[46] Members of the Nazi Party or Waffen SS who were assessed to pause security risks continued to be denied entry in Canada. But Canadian resolve was waning.

There was a clear shift from concern for war criminals to concern for individuals who would cause a security threat to Canada. All individuals who came to Canada passed through a security check system, including members of the infamous Galicia Division, who were alleged to be war criminals. Members of the Galicia Division were actually Ukrainians who volunteered to serve in the German Army. Members of this Division were repatriated to the UK after the war. These members wanted to come to Canada and statements were made that they were acceptable. The Canadian Jewish Congress severely opposed the intention of the government to accept the members of the Galicia Division to settle in Canada.

This group as individuals was thoroughly examined for security and criminality reasons and was found not to pause any security risks to Canada and was cleared of any commission of war crimes during their service in the German army. The Commission of Inquiry concluded that ''changes of war crimes against members of the Galicia Division have never been substantiated, either in 1950 when they were first preferred, or in 1984 when they were renewed, or before this commission.''[47] The Galicia Division joined the Nazis in order to fight against the Communists in Russia. After the war, members of this Division feared Communist persecution.[48]

Concern continued to accumulate, especially in Jewish circles that the security screening employed by Canada Immigration in the post-war era allowed Nazi war criminals to enter Canada. International episodes, like the kidnapping of Adolf Eichmann from Argentina by Israel in 1961 and his trial, conviction and execution and other events, would occasionally bring renewed interest and coverage of the alleged war criminals in Canada. Reports that Josef Mengele had applied to enter Canada in the early 1960s also revived interest and so did the intermittent requests of East European countries for the extradition of alleged war criminals resident in Canada. International conventions and UN resolutions also ensured that the topic of war criminals would not die in Canada or in other major countries.

The Haralds Puntulis case exemplified the inactivity of the Canadian government in assisting with the apprehension of known war criminals in Canada. Puntulis was convicted in absentia in Latvia in 1965 for treason. But he was already in Canada, having entered Canada in 1948. The Soviet Union tracked him down to Canada and asked for his extradition in 1965. Canada refused on the grounds that the countries did not share an extradition treaty. Canada made no effort to initiate an extradition treaty with the Soviet Union in order to ensure that Puntulis would be extradited. Nor did Canada initiate domestic legislation so that Puntulis could be tried from within Canada. Puntulis died of natural causes in Toronto in 1982, ''undisturbed by a Canadian government that preferred to turn the other cheek to the allegations against him''. [49]

However, when Germany made a request for the extradition of war criminal Hemult Rauca in 1973, Canada could not refuse the request on account of lack of an Extradition Treaty with Germany - there was one. The only problem was that there was no documentation with which Rauca could be apprehended. He was eventually arrested for Extradition in June 1982,

almost ten years after Germany had requested for his extradition. The Rauca case aroused a lot of interest and possibilities as to how to deal finally with War Criminals in Canada.[50]

By the time Rauca was arrested and tried for extradition, the political and legal climate had begun to somewhat shift and intensify. After 1982, the political and legal pressure to do something about war criminals shifted completely. The following table shows the reports on numbers from various individuals of war criminals in Canada. The issue could no longer be ducked by Canada.

Statements in chronological order[51]

Alleged number of war

Criminals living in Canada

1971, 19 May Simon Wiesenthal Toronto Star Several hundred

1975, 26 Dec. Unidentified groups Montreal Gazette Over 50

1976, 1 Dec. Michael Hanusiak Toronto Star At least 50

1977, 11 Nov. Ian Adams Weekend Magazine 800

1979, 6 March Robert Kaplan House of Commons Over one dozen

1979, 6 March Maurice Dupras House of Commons Some 15

1979, 25 March Olivia Ward Toronto Star Over 1,000

1980, 28 April Meir Halevi Globe and Mail 200

1981, January Interdepartmental Report to Government 500-100

Committee

1981, 24 Feb. Sabina Citron Globe and Mail 1,000

1981, 29 May Abraham Cooper Regina Leader-Post 1,000

1981, 13 July Irwin Cotler Ottawa Citizen At least 100

1981, 15 Sept. Adalbert Rueckerl Vancouver Sun 500-1,000

1982, 18 June David Matas Toronto Star 50-60

1982, 12 Oct. Charles Kremer Windsor Star Over 2,000

1982, 6 Nov. Dept. Of Justice Toronto Star Handful

1982, 6 Nov. RCMP Toronto Star 80-100

1982, 6 Nov. Irwin Cotler Toronto Star 75-100

1983, 13 March Robert Kaplan Toronto Sun Over 100

1983, 13 April Irwin Cotler La Presse Maybe 1,000

1983, 5 July Jewish Defence Globe and Mail Maybe 1,000

League

1983, 21 July Adalbert Rueckerl Globe and Mail 1,000

1983, 21 Nov. Solicitor General Globe and Mail 100

Department

1983, 21 Nov. Edward Greenspan Globe and Mail 2,000

1984, 24 Jan. Sol Littman London Free Press 2,000

1984, 8 Nov. Sol Littman Toronto Star 3,000

1985, 16 Jan. Simon Adler London Free Press 1,000

1985, 25 Jan. Sol Littman Toronto Star 3,000

1985, 7 Feb. John C. Crosbie House of Commons Relatively few

1985, 23 August Sol Littman Report to Solicitor 2-3,000

General

1986, 16 May Simon Wiesenthal New York Daily 6,000

Several events and issues towards the end of the 1970s and early 1980s conspired to drive the issue of Nazi war criminals in Canada to the forefront of the political agenda despite governmental reluctance. The events and issues are not presented in any order of importance or chronology. The first event was that the German Statute of Limitations came to an end, which meant an end to further war crimes prosecutions in Germany. A world-wide protest convinced West Germany to extend its deadline indefinitely, and Canada's ambassador to West Germany spoke vociferously on the issue.[52]

The second event was the Elizabeth Holtzman Amendment in the House of Representatives in the U.S.A., which promised to strip war criminals of their U.S. citizenship and to be extradited or deported to various countries. A number of people were denaturalized and extradited or deported, including to Israel. The U.S. developments energized the political debate in Canada to do the same. The U.S. established a special unit within the Department of Justice with a single mission: to track down and investigate alleged Nazi war criminals in the United States and where evidence warranted it, to bring actions to expel them.

The third event was that Robert Kaplan, of Jewish background, became the Solicitor-General of Canada during the second Trudeau government that was re-elected in 1980. Robert Kaplan had been intensely lobbied by Jewish individuals and organizations, and had brought a private member's bill in 1978 to do something about Nazi war criminals. That bill did not pass. Now in 1980, he was Solicitor General, in charge of the R.C.M.P., which are responsible for investigation of cross-border and International crimes. According to Sol Littman, ''as a representative of a Toronto riding whose constituency is one-third Jewish and includes many Holocaust survivors, Kaplan found some spiritual ease and considerable political advantage in criticizing the government for allowing Canada to be a haven for war criminals.'' Kaplan became the epi-centre of activity for Canada to do something about war criminals.[53] However, despite Kaplan's strong personal commitment to taking measures against Nazi war criminals, and a surge of optimism on the part of the public, the Trudeau cabinet remained indifferent.[54] It was left to the Brian Mulroney government, which assumed office in 1984 to do something about Nazi War Criminals.

The forth event was the debates surrounding the repatriation of the Canadian constitution to Canada. An amendment was passed to the Charter of Rights and Freedoms which facilitated

retroactive legislation to deal with those guilty of crimes against humanity. The Criminal Code was accordingly amended to provide for the prosecution of war criminals.

As all chairs of Commissions of Inquiry, the method with which Justice Jules Deschênes was chosen is not known. It is the prerogative of the Prime Minister. There are no confirmation hearings or special legislative measures taken to appoint such a person. Justice Deschênes just received a telephone call, inviting him to head such a commission.[55]

The Commission was invited to advise the Governor-in-Council as to ''what further action might be taken in Canada to bring to justice such alleged war criminals who might be residing within Canada, including recommendations as to what legal means are now available to bring to justice any such person in Canada or whether and what legislation might be adopted by the Parliament of Canada to ensure that war criminals are brought to justice and made to answer for their crimes.''

The setting up of the Deschênes Commission of Inquiry into war crimes is an example of a successful case of interest group or pressure group influence on governmental formation of significant legislative and policy changes. The most significant interest or pressure group that forced the government to embark on the war crimes Inquiry was the Canadian Jewish Congress. Behind the Canadian Jewish Congress was Simon Wiesenthal, a Nazi hunter since the end of the war.

On July 4, 1950, Mr. Samuel Bronfman, the then National President of the Canadian Jewish Congress (CJC) sent a telegram to the Minister of Citizenship and Immigration protesting the government's decision to admit members of the 14th Grenadier Waffen SS Division (Galicia), (Halychyyna SS Division) to Canada. The government, in deference to Mr. Bronfman and the members of the CJC, delayed approval until further investigations could take place.

Requested to supply further information, the CJC submitted a list of 94 Ukrainian names accompanied by a brief description of their alleged offences. But the government did not act. Instead the government accepted the Galacia Division.

Lists of names forwarded by Simon Wiesenthal had consistently gone astray or remained unacknowledged.

According to Littman,[56] the attempt to identify persons who had allegedly committed war crimes was scoffed at throughout the 1950s, 1960s and 1970s. The RCMP, according to evidence presented to the Commission Enquiry on War Criminals in Canada (Deschênes Commission), did not begin systematic investigation of war criminals until 1982. From 1945 to 1962, the RCMP had no policy of any kind on the identification and apprehension of war criminals. Therefore, it did little if anything in this field. From 1962 to 1982, the force's policy was negative, namely that it had no responsibility to investigate those accused of war crimes. As a consequence, it did even less than before. Had Robert Kaplan not been appointed Solicitor General in 1980, perhaps the issue of war criminals would have lain dormant a lot longer.

Kaplan, in a February 1983 interview, said that the RCMP was examining a list of approximately 125 names to determine whether there were any cases that would lend themselves to the denaturalization and deportation procedures employed by the Office of Special Investigations of the U.S. Justice Department. The results, he confided, were not very promising.

The government's ineptitude or, indeed, its reluctance to pursue the war crimes issue is particularly evident in the 1979 correspondence between the Canadian Jewish Congress and the Justice Department. That year, the Congress forwarded a short list of twelve alleged war criminals to John Roberts, M.P. Roberts, in turn, passed on the list to then Solicitor General Jean-Jacques Blais, asking that the list be presented to the RCMP for investigation. The RCMP apparently checked the names against the Citizenship Registry to determine whether these men were, in fact living in Canada. The reply was that the Citizenship Department had been unable to find any of them. Yet, it was well-known that most, if not all the persons on the list were in Canada and there should have been no difficulty in locating them.

It is therefore not surprising that the Canadian Jewish Congress was one of the four pressure groups that were given standing to appear and make representations before the Commission. The others were the Brotherhood of veterans of the 1st Division of the Ukrainian National Army in Canada; League for Human Rights of B'nai Brith Canada and the Ukrainian Canadian Committee.

These organizations were represented by very powerful and articulate lawyerly ''organic intellectuals'' to use a gramscian term. The Brotherhood was represented by Fraser Berrill, Y.R. Botiuk and Clay Powell. The Canadian Jewish Congress was represented by Irwin Cotler, Charles Dalfen, Joseph Magnet, Morris Manning and M.J. Silverstone. The League for Human Rights was represented by Susan Charendoff, Jules Kronis, Marvin Kurz, Israel Ludwig, David Matas and Bert Raphael. The Ukrainian Canadian Committee was represented by Sean Dumphy and John Sopinka, who was later appointed to the Supreme Court of Canada. All counsel were highly accomplished lawyers or professors of law. Other groups that were not granted standing were also allowed to participate in public hearings. They were also represented by highly accomplished lawyers and professors. The Government of Canada was represented by Ian Binnie, who was later appointed to the Supreme Court of Canada, Judith McCann and I.G. Whitehall.

The Commission also appointed a working group of eight professors and practitioners across Canada to report to the Commission on legal problems. Sharon Williams and Ronald Bryk were asked to advise on legal questions concerning denaturalization and deportation of war criminals. Jacques Bellemare and John Laskin (who later became a Judge) were asked to study whether there exists the possibility of criminal prosecutions in Canada against war criminals under present legislation, by virtue of some international instrument or otherwise. Neil McKelvey and George Neuspiel were asked to study whether there can exist a legal basis for request for extradition when there is no treaty between Canada and the requesting state. Gowan Guest and Michel Proulx were asked to study what legislation, if any, should be adopted to allow for prosecution of Nazi war criminals in Canada.

The Commission travelled across the country conducing hearings and collecting evidence. Many witnesses from diverse groups and backgrounds gave oral testimony. Counsel made oral as well as written submissions. The Commission also benefited from extensive commissioned studies. The report is perhaps the most comprehensive report on war criminals anywhere.

After the Commission submitted its report, a special parliamentary committee debated the draft government Bill. The end product is the amendments to Section 7 of the Criminal Code popularly known as the ''war crimes legislation'' which defines what a ''war crime'' and a ''crime against humanity'' is. Subsection 7 (3.76) reads in part:

''crime against humanity'' means murder, extermination, enslavement, deportation, persecution or any other inhumane act or omission that is committed against any civilian population or any identifiable group of persons, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission, and that, at that time and in that place, constitutes a contravention of customary international law or conventional international law or is criminal according to the general principles of law recognized by the community of nations;

''war crime'' means an act or omission that is committed during an international armed conflict, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission, and that, at that time and in that place, constitutes a contravention of the customary international law or conventional international law applicable in international armed conflicts.

Subsection 7 (3.71) confers jurisdiction on Canada over the person if,

a) at the time of the act or omission,

I) that person is a Canadian citizen or is employed by Canada in a civilian or military capacity,

ii) that person is a citizen of, or is employed in a civilian or military capacity by, a state that is engaged in an armed conflict; or

iii) the victim of the act or omission is a Canadian citizen or a citizen of a state that is allied with Canada in an armed conflict; or

b) at the time of the act or omission, Canada could, in conformity with international law, exercise jurisdiction over the person with respect to the act or omission on the basis of the person's presence in Canada, and subsequent to the time of the act or omission the person is present in Canada.

Once legislation was passed, the political process moved into judicial hands. A forty year political struggle did not have auspicious beginnings in the judicial system.

The Deschênes Commission, including many counsel who appeared before it, favoured prosecution in Canada, rather than denaturalization, deportation, and extradition. The government itself took initially no steps to follow up the recommendations of the Deschênes Report to improve the Canadian processes of denaturalization, deportation and extradition.

Elizabeth Holtzman[57] of the USA had feared that the decision to prosecute Nazi war criminals in Canada for their crimes instead of deporting them while having a theoretical appeal, might actually be counterproductive. Holtzman went on to explain:

In choosing not to deport but to prosecute, the original wrong may be compounded. First, there is no basis for assuming - as the policy of a ''Canadian solution'' does - that Canada's system of justice is better than that, say, in France, Holland, or West Germany. Second, there is no compelling reason to deny the victims of the Holocaust the right to try Nazi war criminals. The evidence and the witnesses are near at hand, and the legacy of the Holocaust is part of the victimized nations' consciousness. Third, in cases in which there is enough evidence for extradition or deportation but not enough to warrant prosecution, the made-in-Canada solution would preclude deportation and the Nazi war criminals would remain in Canada. In this category of cases, the Canadian solution would provide no solution at all, and the continued presence of these Nazi war criminals in your country would make a mockery of your efforts. Finally, the Canadian solution presumes that juries will be able to properly assess the full significance of Nazi war crimes. But if the experience in the United States is any example, there are many people, particularly younger people, who are badly informed about the Second World War and ignorant of the Holocaust. For some jurors, the war crimes may be too remote in time and place to have the full weight they deserve. On the other hand, the defendant's connections to Canada might seem more vivid

and real in contrast. In a way, then, the cards may be stacked for acquittal, and juries may acquit even when there is full evidence of guilt.[58]

Indeed, the very first case of war crimes prosecution ended up negatively for the government. The Supreme Court of Canada set such a high standard for the conviction of war criminals and criminals against humanity that it will be virtually impossible to prosecute and convict a war criminal or criminal against humanity stemming from the Nazi and subsequent eras.[59] In Finta,[60] the Supreme Court ruled that the prosecution must prove beyond a reasonable doubt that the accused had mens rea to commit a war crime and crime against humanity and that obedience to superior orders was a defense, even though the war crimes legislation removed the defense of obedience to superior orders.

Denaturalization and deportation has also proved elusive at the present time. For example, in the case of Dueck,[61] the Federal Court ruled that people who came after the Second World War were subjected to security checks and were asked questions pertinent to whether they were security risks to Canada and did not obtain Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances. Such interpretation of the scheme of legislation places a high burden for the government to climb.

After a forty-year political struggle, the Canadian Jewish Congress and allied organizations and individuals forced the government to bring in war crimes legislation for the prosecution of past and future war criminals in Canada. This is an example of successful, albeit lengthy struggle by a pressure group to induce a government to bring in specific legislation to address that group's specific concerns. There are currently numerous groups pressuring the government to do the same. Current examples include victims' rights groups like Mothers Against Drunk Driving (M.A.D.D.); CAVEAT and others. Other groups have pressured the government not for legislation but for compensation. Japanese Canadians have been compensated after a forty-five year struggle.[62] Japanese Canadians were interned and some deported during the Second World War. Ukrainians and Chinese who suffered past injustices have not yet convinced the government to compensate them.

However, what the political process achieves, does not necessarily lead to or mean judicial success as well. The failures of the war crimes legislation to achieve the original objectives so far, is a case in point.

The dynamics of criminal and immigration legislations are politically driven with significant racist over and undertones. The strength of the lobbying process determines to some extent whether the desired results will be achieved.

For the immediate past, one needs only to look at the reception of the Commission on Proceedings Involving Guy Paul Morin [63] and the Report of the Commission on Systemic Racism in the Ontario Criminal Justice System [64] .

It is already known that there have been direct impact on the government, judiciary, defence, crown counsel, and media and so on of the two Commission of inquiry. The government has initiated reforms pertaining to several recommendations of the Guy Paul Morin Inquiry. The judiciary have specifically cited the Guy Paul Morin Inquiry in their judgments. Defence Counsel as represented by the Criminal Lawyers' Association have organized conferences and panels specifically geared to addressing issues raised by the Guy Paul Morin Inquiry. The Crown has been conducting an inventory of how to do things differently as a result of the Guy Paul Morin recommendations. The public and the media have reacted positively to the Guy Paul Morin Inquiry.

The reverse is the case for the Commission on Systemic Racism. The government has entirely ignored the report and recommendations of the Commission. The judiciary has not recommended or cited the report and recommendations to any great extent. Defence counsel have not organized conferences on the report or urged judges to take into account the findings of the Commission. Crown counsels have not conducted their business any differently. The public and the media have on the whole been hostile to the report and recommendations.

There are significant reforms in the criminal law engendered by the Guy Paul Morin e.g. in the law of evidence. [65]

What are the reasons for the difference in the reactions to and impact of, the two reports? Is the explanation based on the nature of the two Commissions - one based on an individual case while the other dealt with an amorphous group? Is the explanation based on the fact that one dealt with strictly criminal law as understood in a liberal democracy and one dealt with racial underpinnings to criminal law and therefore a subject difficult to handle by the majority?

Is the explanation that the stakeholders in the system were affected and offended by the miscarriage of justice against Guy Paul Morin and they could relate to it, while they are not directly affected or offended by the maladministration of justice because they are not Black?

Is it because of the nature and issues of the different commissions?

Is it because of political reasons? Is responding to Morin politically safer than to respond and admit to the existence of racism in the criminal justice system?

Is it easier to implement the recommendations in Morin than to implement the recommendations on racism?

Is it because Blacks are marginal to the political process in Ontario and Canada?

Is it because racism is historically endemic in Ontario and on one really wants to address it? Are the government and the other stakeholders racially insensitive?

Is it because a respected jurist conducted the Guy Paul Morin Inquiry with established lawyers as commission counsel and the Commission on Systemic Racism was not?

Is it because of the imbalance in power, strength and numbers of Blacks as government officials, judges, lawyers, crown counsel and media personalities that explains why the Commission on Systemic Racism was not ventilated?

Is it the style of advocacy that got one and not the other commission to be taken seriously?

Is it a combination of the above factors and others?

The government of Canada has been silent on the protest by African Canadians and others against the danger to the public law which is shown to be disproportionately affecting African-Canadians.

The following chapters discuss the treatment of non-citizens in immigration law in comparison to the treatment of Canadian citizens and non-citizens under the Criminal Code.

[1] Ralph Blumenthal, New York Times, Jan. 23, 1985, A4.

[2] See Infra notes 13 and 15.

[3] Commission of Inquiry on War Criminals (Ottawa, 1996)(The Jules Deschênes Report).

[4] Ibid, p. 17.

[5] Working paper 37, (Ottawa, 1984).

[6] Ibid, p. 83.

[7] S.C. 1946, C. 73.

[8] R.S.C. 1970, C. G-3.

[9] Note 3, Supra, pp. 67-82.

[10] Quoted in Irwin Cotler, ''Response to the Deschênes Commission of Inquiry on War Criminals'' in Cotler (ed.) Nuremberg: Forty Years Later (Kingston: McGill-Queen's Printer, 1987) p. 74.

[11] Ramon Hnatyshyn, ''Domesticating the Nuremberg Principles: The Canadian ''War Crimes'' Legislation'' in Cotler, ibid, p. 35.

[12] Incorporated in Section 7 of the Criminal Code of Canada.

[13] Stanley Cohen, Folk Devils and Moral Panics: The Creation of the Mods and Rockers, (London: Basil Blackwell, 1972, 1990 Edition).

[14] Ibid, p. 9.

[15] Stuart Hall et al. Policing The Crisis: Mugging, The State, and Law and Order, (London: Methuen, 1978, 1979 Edition).

[16] Ibid, p. 16.

[17] Deschênes Report, p. 68.

[18] Ibid.

[19] Ibid, p. 76.

[20] Ibid, p. 68.

[21] Cotler, Supra, note 10, p. 74.

[22] Note 13 and 15, Supra.

[23] ''Nazi War Criminals and The Death Penalty'' in Munyonzwe Hamalengwa, (ed.) Political Halley's Comet, The Death Penalty in Global Comparative Perspective (Forthcoming), pp. 222-234.

[24] Exparte Pinochet (unreported) House of Lords, March 1999.

[25] See Munyonzwe Hamalengwa, ''The Death Penalty in the Context of the Commission of the Crime of Apartheid'' in Hamalengwa (ed.) note 23 supra and ''Prospects for the Prosecution of Apartheid Criminals in Canada'' unpublished paper prepared for Sharon Williams' class, Osgoode Hall Law School, 1988.

[26] Schwartz, note 23, supra.

[27] Note 10, supra, p. 86.

[28] Svend Robinson, ''Nuremberg Forty Years Later: Bringing War's Criminals to Justice In Our Time'', in Cotler, note 10, supra, p. 48.

[29] Ibid.

[30] Ibid.

[31] Deschênes Report, p. 27.

[32] Cotler, note 10, supra, p. 75.

[33] Ibid.

[34] Ibid, p. 77.

[35] Shane Kelleher, ''Moral Panic: Crisis in Civil Liberty'' paper prepared for a course for LLM, Osgoode Hall Law School, contained in Criminal Law course materials by Professor Hay and Beare 1999, p. 579.

[36] See Deschênes Report, p. 101.

[37] Ibid.

[38] Supra, note 11, p. 46.

[39] Deschênes Report, p. 33.

[40] Deschênes Report, p. 143.

[41] See Reg Whitaker, Cold War Canada. The Making of a National Insecurity State, 1945 - 1957, (Toronto: University of Toronto Press, 1994) cover and pp. 27-81.

[42] Deschênes Report, pp. 32-33.

[43] Deschênes Report, p. 181.

[44] Ibid, p. 182.

[45] Ibid.

[46] Ibid.

[47] Ibid, p. 261.

[48] John Sopinka, Submission to the Deschênes Commission on behalf of the Ukrainian Canadian Committee. May 5, 1986.

[49] On the Puntulis case and Canada's general disinterest, see David Matas and Susan Charendoff, Justice Delayed: Nazi War Criminals in Canada (Toronto: Summerhill Press, 1987), p. 143.

[50] Federal Republic of Germany v. Rauca (1982), 41 O.R. (2nd) 225.

[51] Reprinted from Deschênes Report pp. 246-7.

[52] See Matas and Charendoff, note 49, supra, p. 79.

[53] Sol Littman, War Criminal on Trial: Rauca of Kaunas (Toronto: Key Porter Books, 2nd ed. 1998), pp. 140-142.

[54] Matas and Charendoff, note 49, supra, p. 80.

[55] Jules Deschênes, ''Toward International Criminal Justice'' (1994)(2-3) Criminal Law For UN, 249 at pp. 253-254.

[56] Litman, note 53, Supra.

[57] Holtzman, ''Nuremberg and its Legacy'', in Cotler, note 10, supra, p. 32.

[58] Ibid.

[59] Raman Venkata, ''The Future of the Nuremberg Promise'' (1994) 28 C.R. (4th) 392.

[60] R.V. Finta (1994), 28 C.R. (4th) 265.

[61] MCI v. Dueck, T-938-95, Dec. 21, 1998.

[62] Roy Miki and Cassandra Kobayashi, Justice In Our Time: The Japanese Canadian Redress Settlement (Vancouver et al: Talon Books, 1991).

[63] (Toronto: Queen's Printer, 1998).

[64] (Toronto: Queen's Printer, 1995).

[65] See for example, Dianne L. Martin, ''When the Rules Are Wrong: Wrongful Convictions and the Rules of Evidence'' Paper presented to the Annual Conference of the Criminal Lawyers' Association, Toronto, November, 1999.

The Common Law, Fundamental Justice and Equal Protection and Benefit of the Law

At common law no alien has any right to enter this country except by leave of the Crown; and the Crown can refuse leave without giving any reason. See Schmidt v. Secretary of State for Home Affairs, [1969] 2 Ch. 149 at 168. If he comes by leave, the Crown can impose such conditions as it thinks fit, as to his length of stay, or otherwise. He has no right whatever to remain here. He is liable to be sent home to his won country at any time if, in the opinion of the Crown, his presence here is not conducive to the public good; and for this purpose, the executive may arrest him and put him on board a ship or aircraft bound for his won country: See R. v. Brixton Prison (Governor), ex parte Soblen, [1963] 2 Q.B. 243 at 300, 301. The position of aliens at common law has since been covered by the various regulations; but the principles remain the same.[1]

While the Federal Courts of Canada and the Supreme Court of Canada have affirmed the common law principle as noted in the opening quote, they have also recognized that enforcement conditions and policies against non-citizens ''may … offend the Charter in two ways: either the conditions are in themselves discriminatory (breaching thereby the right of all landed immigrants under section 15 of the Charter to equal treatment under the law); or their implementation in particular cases is not made with full regard for the rules of fundamental justice (thus breaching the right of everyone under section 7 of the Charter not to be deprived of liberty except in accordance with the principles of fundamental justice.''[2]

As this study will attempt to show, despite these judicial sentiments that these sections of the Charter could assist non-citizens in the vindication of their rights upon a showing that these rights have been violated, non-citizens have not so benefited. As will also be shown, the Charter still has great promise to conferring the enjoyment of Charter rights upon non-citizens in the same manner as enjoyed by citizens and or those dealt with under the Criminal Code.

This chapter discusses the short-comings and critiques of the courts in their application of the Charter jurisprudence under the Immigration Act with respect to non-citizens and also identifies the potentials of the Charter jurisprudence articulated by the courts in other contexts, particularly in relation to section 15 of the Charter.

The Federal Court of Canada, which is competent to deal with immigration matters, has lagged lamentably in its Charter analysis of immigration law. After a major Charter decision by the Supreme Court of Canada in Singh[3] which provided that once a person was inside Canada, whether as a refugee (or something else), he/she was entitled to an oral hearing and could avail himself of the protections of the Charter, no Charter-based decision of significance has issued from the courts. After this breakthrough decision, it was downhill from there. No major substantive decision has come through that has recognized the Charter rights of applicants caught up in the immigration quagmire. The path-breaking Baker [4]decision on the best interests of the children avoids the Charter. Immigration adjudicators' decisions also sidestep the Charter. Davies Bagambiire an immigration lawyer has attempted to analyze the lag in Charter interpretation in immigration matters:

At the time of its entrenchment, the expectations were that the Charter would be a great weapon in the attempt to change laws that had historically been perceived as unfair. Unfortunately, this does not seem to have been the case, at least in the area of immigration and refugee law. In that area the Charter has been rendered almost ineffectual as a ground of review of government action. This has come about partly because of the reluctance of the courts to impose stringent constitutional standards in an area that continues to be perceived as involving privileges as opposed to rights, and one that also continues to be viewed as something that would rather be left to the ‘wisdom’ of the executive arm of government.[5]

The upholding or recognition of Charter rights by the Federal Court when this has happened, it has been either contextually attenuated or deliberately postponed. For example, in the case of Sahin [6], the Federal Court ruled that the Adjudicator is bound to consider Charter issues when deciding whether or not to order the continued detention of someone and that it would be a violation of a person’s Charter rights if the length of his detention could not be determined. The Court then enumerated a non-exhaustive list of indices that the adjudicators must look for as guidance to possible constitutional violations.

Adjudicators have avoided this ruling by stating in their reasoning simply that they have considered the Charter issues raised by the applicant and no Charter rights have been violated. Detention would be ordered continued. The Federal Court has not laid down any Charter yardsticks to guide counsel and adjudicators. This is perhaps because the Federal Court itself is weak in Charter issues. The criminal courts are different in that regard. When the Federal Court decides Charter issues, it is always or mostly to deny them.[7]

The Federal Court has postponed the application of the Charter in context where the Charter should have been made to apply immediately and inexpensively. In the case of Nguyen [8], for example, the Federal Court reasoned that it was not a violation of the Charter to deport someone to the country of his origin even if that country was barbaric. But it would be a violation to try to implement the deportation order. The applicant therefore, has to go back twice to the Federal Court. The Immigration authorities and the Federal Court know that if a deported person comes from Vietnam, this person won’t be deported to Great Britain but to Vietnam. In the case of Suresh [9], the Federal Court of Appeal has ruled that it is not a violation of the Charter to refoul a person who is a danger to the security of Canada to a place where he fears torture. In context therefore, the Federal Court tries very hard to avoid quashing decisions on Charter grounds. Instead the Federal Court decisions are based on procedural or other technical grounds or the common law. The Charter is hardly helpful to refugees and other immigrants caught up in the immigration web. Bagambiire states:

The effectiveness of the Charter as a ground of review of government action in immigration matters has been rendered minimal. Generally this has occurred because of interpretive techniques which have been restrictive, truncated and perfunctory, and which have interpreted the Charter in a textual fashion. Specifically, there has been an overweighing of considerations against the subjects. As an example, in the area of removals, there has been an overemphasis on the purpose and principles of deportation over effects, and on the national security interests of the state, [or danger concerns] as against the interests and rights of the individual.

The reluctance of the courts to impose stringent constitutional standards in the area, the preparedness of the courts to quickly defer to the executive arm of government, the lack of sophistication in Charter issues on the part of most members of the immigration bar and academy, and the vulnerability and lack of resources on the part of those who would benefit directly from Charter challenges in the field, have all conspired to make the Charter a hollow promise in the immigration and refugee area.[10]

The Charter however if applied equally to citizens and non-citizens alike as it is in relation to individuals charged under the Criminal Code, would have tremendous positive impact on non-citizens when they are dealt with under the Immigration Act.

The operation of subsection 70(5) of the Immigration Act shows in stark terms the unequal treatment of non-citizens under the Immigration Act which should not be the case under the Charter. This study is an examination of how the Charter should apply equally to citizens and non-citizens following a conviction or convictions under the Criminal Code.

Subsection 70(5) of the Immigration Act is in violation of Sections 15 and 7 of the Canadian Charter of Rights and Freedoms. The violations are both procedural and substantive.

Subsection 70(5) of the Immigration Act is in violation of Section 15 of the Canadian Charter of Rights and Freedoms, in that every convicted non-Canadian (permanent residents and non immigrants) stands the risk of being declared to be a danger to the Public and therefore removable from Canada on that basis, when a Canadian citizen who has committed a greater or more violent offences does not automatically stand the chance of being declared a danger to the public and therefore incarcerated a s a dangerous or long term offender. Indeed, only a very small percentage of Canadian citizens are ever declared to be a danger to the public under the dangerous or long-term offenders provisions of the Criminal Code. A Canadian citizen, with only one conviction, no matter how heinous, would never automatically be declared a dangerous or long term offender. Further, before a Canadian citizen is declared to be a dangerous or long term offender he has a right to a hearing before an impartial tribunal and to call and examine witnesses. He has a right to psychiatric examination. He also gets a written decision. If he is declared to be dangerous or long-term offender, that decision is reviewable at regular intervals. He also has a right to appeal that decision. A non-Canadian does not have any of these rights, procedures and protections. The right to equal protection and equal benefit of law is denied to non-Canadians to their disadvantage.

The present legislation under discussion discriminates on the basis of national origin and national status, and principally due to race contrary to section 15 of the Charter. Every non-citizen who has committed an offence could be declared a danger to the public, lose his or her right of appeal, lose the statutory right of stay of a deportation order, be arrested and confined pending removal, merely because they are not citizens. While a Canadian citizen with a criminal record does not necessarily stand a chance to be declared a dangerous or long term offender, does not lose any rights of appeal, does not stand the chance of being arrested and confined after serving their sentence merely because they have committed certain offences. The distinction in treatment here goes beyond that of citizen and non-citizen distinction which has been recognized as constitutional by the courts in Kindler[11] and Chiarelli [12]. Previously a deported permanent resident still had vested rights. A deportation was not contrary to section 15 of the Charter. Under subsection 70(5), a deported permanent resident loses a sleuth of rights that a Citizen does not lose under similar conditions. The critical distinction is that one can be perfunctorily declared to be a danger to the public because of his non-citizenship status, while another person - a citizen does not necessarily stand a chance of being declared a dangerous or long term offender, merely by committing a criminal offence.

The designation of “danger to the public” that is potentially only applicable to all non-citizens who have committed offences without subjecting similarly situated citizens to the same scrutiny leads to an unequal application of the laws of Canada in violation of section 15 of the Charter. As his Lordship Marceau J. stated, section 15 of the Charter is engaged and violated if law or practice affecting all landed immigrants is shown to be discriminatory. The issue of disproportionate impact arises here.[13]

Further the practices of the Minister with respect to the danger opinion under the Immigration Act is discriminatory, contrary to Sections 7 and 15 of the Charter when compared to the procedures under the Criminal Code pertaining to the declaration or finding that a convicted person is a dangerous or long term offender, under the Criminal Code. Convicted persons have the right to the equal application, benefit and protection of the law without discrimination on the basis of sex, race, gender, national origin, national status, citizenship, disability and so on pursuant to subsection 15(1) of the Canadian Charter of Rights and Freedoms. However, the procedures pertaining to the declaration that a person poses danger to the public under the Immigration Act and that a person is a dangerous or a long term offender under the Criminal Code, lead to discriminatory distinctions in that under the Criminal Code, the person who is to be declared to be a dangerous or long term offender, has a right in law to create evidence in his defence i.e. be examined by a psychiatrist and produce medical or other evidence before he is declared. He is also given a longer time to create this evidence so that he can put in a good answer and defence. Under the Immigration Act as already indicated, the person is declared to be a danger without having been given an opportunity to create helpful medical evidence if he or she chooses, he or she is not given an opportunity to await the availability of this evidence, even though the implementing legislation stipulates that that medical and other evidence should be considered. Further the person concerned under the Immigration Act is only given 15 days to make submissions. This is not sufficient time to create favourable or supporting medical or psychiatric evidence if one wants to. The procedure under the Immigration Act would not pass constitutional muster if subjected to constitutional scrutiny under the Criminal Code. The discrimination arises because the possible declarations under both statutory schemes originate from the fact of a criminal conviction under the Criminal Code. But the procedures then begin to differ because the individuals are processed through two different statutory schemes by virtue of the fact that one deals with non-citizens (national origin, national status etc.) and one deals with citizens or pursuant to criminal law. To comply with subsection 15(1) of the Charter, the procedures must be the same in terms of the creation, availability and consideration of medical and other evidence. Under the Criminal Code, all the possible evidence is available. Under the Immigration Act, this procedure is flouted. The Charter applies to everyone in Canada, especially when individuals face peril because of a criminal conviction, this fact alone should ensure that they are treated especially equally.

Section 15 of the Canadian Charter of Rights and Freedoms states that:

(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.

(2) Subsection (1) does not preclude any law, program or activity that has its object the amelioration of condition so disadvantaged individuals or groups including those that are disadvantaged because of race, mental or physical disability.

The treatment non-citizens who have committed criminal offences are given is unequal treatment and that unequal treatment is discriminatory and this discriminatory treatment is discrimination based on national status and national origin and race.[14]

The unequal application of the danger to the public law, under subsection 70(5) of the Immigration Act has imposed a disadvantage on non-citizens and has also denied them access to advantages available to others. As McIntyre J. stated in Andrews, unequal treatment is:[15]

a distinction which, whether intentional or not but based on grounds relating to personal characteristics of individual or group, has the effect which imposes disadvantages not imposed upon others or which withholds or limits access to advantages available to other members of society.

It is argued that the treatment accorded to non-citizens is an example of stereotyping and prejudice, which is used to justify denying them their rights under the Charter. This stereotyping and prejudice against non-citizens because of their race and national origin and background result in their being unequally treated. As Huggessen J., stated in relation to the Section 15 inquiry:

The inquiry, in effect, concentrates upon the personal characteristics of those who claim to have been unequally treated. Questions of stereotyping, of historical disadvantagement, in a word, of prejudice, are the focus.[16]

Canada is prejudiced against non-citizen convict immigrants unjustifiably when those offences are ordinarily committed even by citizens. Non-citizens who commit offences are stereotyped as posing a danger to the public and therefore removable with dispatch and without any rights. This is an appropriate case for focusing on the meaning and effect of stereotyping and prejudice against non-citizens.

The Supreme Court of Canada has now developed a schema to indentify discriminatory unequal treatment:

The Court must first determine whether the claimant has shown that one of the four basic equality rights has been denied (i.e., equality before the law, equality under the law, equal protection of the law and equal benefit of the law.). This inquiry will focus largely on whether the law has drawn a distinction (intentionally or otherwise) between the claimant and others, based on personal characteristics.

Next, the Court must determine whether the denial can be said to result in “discrimination”. This second inquiry will focus largely on whether the differential treatment has the effect of imposing a burden, obligation or disadvantage not imposed upon others or of withholding or limiting access to opportunities, benefits and advantages available to others. Furthermore, in determining whether the claimant’s s 15(1) rights have been infringed, the Court must consider whether the personal characteristic in question falls within the grounds enumerated in the section or within an analogous ground, so as to ensure that the claim fits within the overall purpose of s. 15; namely, to remedy or prevent discrimination and political and social prejudice in Canadian society.[17]

In Andrews, Mr. Justice McIntyre for the Supreme Court of Canada defined discrimination as:

… a distinction, whether intentional or not, but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations or disadvantages on such individual or group, not imposed on others, or which withholds or limits access to opportunities, benefits and advantages available to other members of the society. Distinctions based on personal characteristics attributed to the individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual’s achievement and capabilities will rarely be so classed.[18]

Since Andrews , the Supreme Court of Canada has consistently recognized that section 15 is to be applied generously and purposively interpreted. In the Eldridge decision, the Court stated that the provision “expressed a commitment – deeply ingrained in our social, political and legal culture – to the equal worth and dignity of all persons.” Section 15 also provides a mechanism for rectifying and preventing discrimination against particular groups “suffering social, political and legal disadvantage in our society.” [19]

The Supreme Court of Canada has unanimously found that:

… the purpose of s. 15 of the Charter is not only to prevent discrimination by the application of stereotypical characteristics to individuals, but also to ameliorate the position of groups within Canadian society who have suffered disadvantage by exclusions from mainstream society.[20]

The Supreme Court of Canada has agreed as already indicated upon a “general analytical framework” for determining whether a law, or its application, breaches section 15 of the Charter. This framework involves what has been described as a two step approach:

a) The first step: To determine whether a law or governmental action creates an inequality. Inequality is created if the law draws a distinction (either on its face, in its application or effects) between the claimant and others, on the basis of certain personal characteristics, with the effect of denying the claimant equality under the law, equality before the law, equal protection of the law or equal benefit of the law.

b) The second step: To determine whether the distinction is discriminatory. A distinction is discriminatory, and thereby engages the purpose of s. 15(1), if:

i) the distinction was or is made on the basis of personal characteristics protected by section 15(1) of the Charter either because the relevant personal characteristics are enumerated; and,

ii) the distinction has the effect on the claimant of imposing a burden, obligation or disadvantage not imposed on others or of withholding or limiting access to benefits or advantages which are available to others.[21]

Discrimination can arise both from the adverse effect of rules of general application, which may appear facially neutral, as well as from express distinctions flowing from the distribution of benefits. It is well established that a discriminatory purpose or intent is not a necessary condition of a section 15(1) violation. It is sufficient that the effect of the legislation is to deny someone the equal protection of the law.[22]

The Supreme Court of Canada has recognized that in the section 15 Charter analysis, it is important to look to the larger social, political and legal context. As Madam Justice Wilson explained in Edmonton Journal v. Alberta (Attorney General):

The contextual approach attempts to bring into sharp relief the aspect of the right or freedom which is truly at stake in the case as well as the relevant aspects of any value in competition with it.[23]

Recently the Supreme Court of Canada has clarified and elaborated upon its equality analysis under section 15 in the Law v. Canada [24]case.

Applying the guidelines provided by Justice Iacobucci in that case to the treatment of non-citizens, the following analysis would emerge:

A purposive and contextual approach to the issue is to be preferred, in order to permit the strong remedial purpose of the equality guarantee to be realized. The purpose of section15(1) is to prevent the violation of essential human dignity and freedom, the imposition of disadvantage, stereotyping and social prejudice. The goal of the guarantee is to promote a society in which all persons enjoy among other things, equal recognition at law as human beings and members of Canadian society, being equally capable and deserving of concern, respect and consideration. While in some circumstances this may require different treatment of different persons in order to achieve substantial equality, in other cases, it will require the same treatment, that is formal equality.

In assessing the treatment of non-citizens in Canadian law under discussion, a full view of the context in which the treatment occurred is necessary. The focus of the inquiry is both subjective and objective. One important contextual factor influencing whether s. 15(1) has been infringed is pre-existing disadvantage and vulnerability experienced by the individual or group at issue. A citizen would not be declared a dangerous offender under the circumstances in which a non-citizen would be declared to pose a danger to the public. Non-citizens are declared to be a danger against an evident backdrop of historical disadvantagement of racial and national minorities. The treatment perpetuates this disadvantagement:

… probably the most compelling factor favouring a conclusion that differential treatment imposed by legislation is truly discriminatory will be, where it exists, pre-existing disadvantage, vulnerability, stereotyping, or prejudice experienced by the individual or group: see e.g. Andrews, supra, at pp. 151-53, per Wilson J. p. 183, per McIntyre J., pp. 195-97, per La Forest J.; Turpin, supra, at pp. 1331-33; Swain, supra, at p. 992, per Lamer C.J.; Miron, supra at paras. 147-48, per McLachlin J.; Eaton, supra, at para. 66. These factors are relevant because, to the extent that the claimant is already subject to unfair circumstances or treatment in society by virtue of personal characteristics or circumstances, persons like him or her have often not been given equal concern, respect, and consideration. It is logical to conclude that, in most cases, further differential treatment will contribute to the perpetuation or promotion of their unfair social characterization, and will have a more severe impact upon them, since they are already vulnerable.[25]

How have the courts applied this developing Charter jurisprudence to non-citiznes under the Immigration Act, if at all?

This chapter has sketched out both the short-comings or reluctance of the courts to apply the principles of equality embodied in the Charter to non-citizens as well as potentiality of the Charter in conferring rights on non-citizens pursuant to sections 7 and 15 of the Charter.

The following chapters will discuss in turn how the government and courts of Canada have dealt with the dangerous and long term offender law under the Criminal Code and danger to the public law under the Immigration Act, under the superimposition of the Charter.

[1] R. v. Governor of Pentonville Prison ex parte Azam, [1973] 2 All E.R. 741 at 747 (per Lord Denning). This is an oft quoted statement, see 2000-20001 Immigration Act of Canada by Frank Marrocco and Henry Goslett (Toronto: Carswell, 2000) p. vii from which I quoted.

[2] Nguyen v. Canada (M.E.I.) (1993) 18 Imm. L.R. (2d) 165 at 171 (F.C.A.).

[3] Singh v. Canada (M.E.I.) (1985) 1 S.C.R. 177.

[4] Baker v. Canada (M.C.I.) (2000) 1 Imm. L.R. (3d) 1.

[5] Davies Bagambiire, Canadian Immigration and Refugee Law (Aurora: Canada Law Book, 1996) p. 365.

[6] Sahin v. Canada (M.C.I.) (1994), 30 Imm. L. R. (2d) 33.

[7] See Suresh v. Canada (M.C.I.) A-415-99 (F.C.A.), leave to the Supreme Court of Canada has been granted, [2000] S.C.C. A No. 106 (File No. 27790) (May 25, 2000).

[8] Nguyen v. Canada (M.C.I.), (1993), 18 Imm. L.R. (2d) 165.

[9] Suresh (supra) note 7. When this involves Canadian citizens who would be executed if extradited, the Supreme Court has now held that this is a constitutional violation, see U.S. v. Burns (2001) S.C.C.7 (S.C.C.).

[10] Bagambiire, (supra) note 5, p. 391.

[11] Kindler v. Canada (Minister of Justice) [1991] 2 S.C.R. 779.

[12] Chiarelli v. Canada (M.E.I.) [1992] 1 S.C.R. 71.

[13] Nguyen v. Canada (Minister of Employment and Immigration) [1993], 18 Imm. L.R. (2d) 165 at p. 171, see also Law v. Canada [1999] 1 S.C.R. 497, discussed below.

[14] Andrews v. Law Society of B.C. [1989] 1 S.C.R. 143.

[15] Andrews supra.

[16] Smith, Kline and French Laboratories Ltd. v. Canada (A.G.) [1987] 2.F.C. 359 (F.C.A.).

[17] Andrews supra note 14; R. v. Turpin (1989), 69 C.R. (3d) 97 (S.C.C.); R. v. Swain (1991), 63 C.C.C. (3d) 481 (S.C.C.).

[18] Andrews v. Law Society of British Columbia, (supra note 14).

[19] Eldridge v. British Columbia (1997) 151 D.L.R. (4th) 577 at p. 612 (S.C.C.).

[20] Re Eaton and Brant County Board of Education [1996], 142 D.L.R. (4th) 385.

[21] Andrews supra note 14, at pp. 23-34.

[22] Simpson-Sears v. O’Malley [1985] 2 S.C.R. 536; B.C. Public Service Employees Relations Commission v. B.C. Government and Service Employees’ Union, [1999] S.C.J. No. 46.

[23] Edmonton Journal v. Alberta (Attorney General) [1989] 64 D.L.R. (4th) 577 at 583-584; R. v. Turpin [1989] 1 S.C.R. 1296.

[24] Law v. Canada [1999] 1 S.C.R. 497.

[25] Law, supra, note 24 at 534-535; Corbiere v. Canada, [1999] 173 D.L.R. (4th) 1

Danger to the Public Law

Before discussing the purpose of the dangerous or long-term offender law, it is useful to discuss the purpose of criminal law in which the dangerous or long-term offender law is subsumed.

It will be clear from discussing the purpose of criminal law, that the dangerous or long-term offender law is exceptional. It is over and above the claimed purpose of criminal law and particularly sentencing.

The principal purpose of the criminal law, and particularly sentencing is the protection of society[1]. The principal purpose of criminal law was never spelt out in the Criminal Code, until the recent amendments of 1996 which stated that the fundamental purpose of sentencing is to encourage respect for the law and maintenance of a just, peaceful and safe society by I posing just sanctions[2]. The new conditional sentencing regime pursuant to Section 742.1 allows the serving of a sentence in the community if the person so sentenced would not be a danger to the safety of the community.

The Parole Board is empowered to release an offender on parole ahead of completion of a sentence if society would not be endangered.

Section 101 for example of the Corrections and Conditional Release Act states as follows:

101 – Principles guiding parole boards – The principles that shall guide the Board and the provincial parole boards in achieving the purpose of conditional release are:

(a) that the protection of society be the paramount consideration in the determination of any case.

(b) the parole board must consider all relevant available information including reasons for sentence, information from the trial, information from correctional authorities etc…

(d) that parole boards make the least restrictive determination consistent with the protection of society.

Section 102 states:

Criteria for granting parole – The Board or a provincial parole board may grant parole to an offender if, in its opinion,

(a) the offender will not, by reoffending, present an undue risk to society before the expiration according to law of the sentence the offender is serving.

Society is already presumptively protected before the dangerous or long-term offender law is involved. I now turn to the purpose of the dangerous or long-term offender law. Given that the purpose of criminal law and sentencing is to protect society, what is the purpose of the dangerous of long-term offender law?

The Purpose of the Danger to the Public Law: Criminal Law

The danger to the public law or dangerous and long term offender law was established for the purpose of designating certain offenders as “dangerous offenders” and for sentencing such offenders to a penitentiary for an indeterminate or determinate period of detention. This is subject to occasional reviews. The Lyons[3] decision of the Supreme Court of Canada has reviewed comprehensively the history of the dangerous offender law.

This law is the product of frequently amended legislation that has existed in Canada in one form or the other since 1947. Its origins are however, traceable to English law, which it is not necessary to delve into. The legislation dealing with “habitual criminals” was first introduced in Canada in 1947. Section 18 of an “Act to amend the criminal code” 1947 (can), C.55, permitted the preventative detention “for the protection of the public” of “habitual criminals” defined essentially as persons having a record of three indictable offences, and who were persistently leading a criminal life.

Additional amendments (1949, c. 39, s. 43) provided for the sentencing in the same manner of “criminal sexual psychopaths” defined as “persons who by a course of misconduct in sexual matters have evidenced the lack of power to control their sexual impulses, and who as a result are likely to attack or otherwise inflict injury, loss, pain or other evil on any person”.

The habitual criminals and criminal sexual psychopaths law was subject to severe criticism.

The Ouimet Report of 1969 examined these laws and declared them to be too inclusive by applying to non-dangerous offenders and too exclusive by requiring a recidivist history as a pre-condition of their application. The Commission went on to recommend better tailored “dangerous offender” legislation as reflected in Hatchell V. The Queen [4] where the Chief Justice stated:

Habitual criminal legislation and preventive detention are primarily designed for the persistent dangerous offender and not for those with a prolonged record of minor offences against properties. The dominant purpose is to protect the public, when the past conduct of the criminal demonstrates a propensity for violence against the person and there is real and present danger to life and limb.

The legislation enacted in 1977 confined its application to those habitual criminals who are dangerous to others. The 1977 law was further amended in 1997.

The dangerous offenders and long-term offenders legislation under the Criminal Code is now provided for under Part XXIV of the Criminal Code. The relevant section is reproduced below.

In brief, section 753 provides that where a person has been found guilty of “serious personal injury offence” the court may, upon application find the offender to be a “dangerous offender” and “impose a sentence of indeterminate detention in lieu of any other sentence the offender might have received for the offence”.

The key provision is subsection 753.(1) which reads in part as follows:

753. (1) An application of finding that an offender is a dangerous offender- The court may, on application made under this part following the filing of an assessment report under sub-section 752.1 (2) find the offender to be a dangerous offender if it is satisfied

(a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well being of other persons on the basis of the evidence establishing

(i) a pattern of behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and likelihood of causing death or injury to other persons, through failure in the future to restrain his or her behaviour.

(ii) a pattern of persistent aggressive behaviour by the offender of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonable foreseeable consequence to other persons of his or her behaviour, or

(iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by the normal standards of behavioural restraint, or

(b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph(b) of that expression in section 752 and the offender by his or her conduct in any sexual manner including that involved in the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses.

Parliament has given definitive definitions and guidelines as to who must be declared to be dangerous offenders. This is not the case under the Immigration Act as will be seen later. The law is also to be applied by a judge in a court setting under adversial poles.

The law was enacted to protect society from offenders, who have been declared to be dangerous offenders, because of their past behaviour and because of fear and suspicions of possible future criminal proclivities.

It was legislated in, based on the consensus that society would be better protected if it were not continuously subjected to the type of offences committed by those offenders who have been declared to be “dangerous offenders”. These offences invariably cause serious personal injuries. The offences falling within this category are, very serious violent crimes defined in section 752 of the Criminal Code as follows:

(a) an indictable offence (other than high treason, first-degree murder or second-degree murder) involving

(i) the use or attempted use of violence against another person

(ii) conduct endangering or likely to endanger the life or safety of another person, or inflicting or likely to inflict severe psychological damage upon another person and for which the offender may be sentenced to imprisonment for ten years or more, or

(b) an offence or attempt to commit an offence mentioned in sections 271(sexual assault) 272 (sexual assault with a deadly weapon, threats to a third party or causing bodily harm) 273(aggravated sexual assault).

This designation of dangerous offender was approved in R. v. Lyons [5] by the Supreme Court of Canada where it was stated that the law “is a diligent attempt to carefully define a group of offenders whose personal characteristics and particular circumstances militate strenuously in favour of preventative incarceration”. This decision dealt with the major constitutional challenge to the law.

The legislation applied has been functionally defined so as to ensure that persons within this group evince the very characteristics that render such detention necessary.

The imposition of an indeterminate sentence on a dangerous offender could be profoundly devastating, in that the uncertainty of eventual release, or continued incarceration, could be an incentive or disincentive for the offender to rehabilitate him or herself.

The first review for a dangerous offender is now seven years after the imposition of the detention; the National Parole Board does this review. It is done every two years afterwards. This is well in advance of an offender who is serving a life sentence, whose first review is based on recommendation made by the Court at the time of sentencing or upon application after 15 years of incarceration.

The significant difference between an indeterminate sentence and a determinate sentence is that:

(a) the offender who is incarcerated for an indeterminate sentence has little or no incentive to confer with institutional and other available programs, even though these programs are designed for the purpose of identifying and assisting the offender to address his or her problem areas, which is generally felt to be the first step on the road to rehabilitation.

(b) the offender serving a fixed sentence, other than a life sentence, knows what is the maximum time of his or her incarceration. He or she can choose to actively affect the length of his or her detention by abiding with their Correctional Plan, which includes all recommendations that would ultimately be beneficial to the offender upon review by the Parole Board.

The availability of parole is not as important in a determinate sentence as it is in an indeterminate sentence, this is because in the context of determinate sentence the availability of parole represents an additional protection of the liberty interest of the offender, as opposed to a dangerous offender whose detention is never complete until it is factually complete. Thus the parole process assumes the utmost significance, for one on an indeterminate sentence since it is the process that is the sole mechanism for terminating his or her detention, or rendering it certain.

Under Part XXIV the dangerous offender is provided with periodic reviews in accordance with section 761, which provides in part as follows:

761.(1) -Subject to sub-section (2) where a person is in custody under a sentence of detention in a penitentiary for an indeterminate period, the National Parole Board shall, as soon as possible after the expiration of seven years from the day on which that person was taken into custody and not later than every two years after the previous review, review the condition, history and circumstances of that person for the purpose of determining whether he or she should be granted parole under Part II of the Corrections and Conditional Release Act and, if so, on what conditions.

(2) Where a person is in custody under a sentence of detention in a penitentiary for an indeterminate period that was imposed before October 15, 1977, the National Parole Board shall, at least once every year, review the condition, history and circumstances of that person for the purpose of determining whether he should be granted parole under part II of the Corrections and Conditional Release Act and, if so on what conditions

Prior to the enactment of section 761 the reviews for “dangerous offenders” as previously stated were three years from the first day in custody and once every two years from the date of the last review.

The criteria in light of which an application for parole was considered in the past and which has not changed in the present were specified in s. 10(1) (a) of the Parole Act , R.S.C. 1970, C.P-2:

10(1) The Board may;

(a) grant parole to an inmate, subject to any terms or conditions it considers desirable if the Board considers that

(i ) in the case of a grant of parole, the inmate has derived the maximum benefit from imprisonment,

(ii) the reform and rehabilitation of the inmate will be aided by the grant of parole

(iii) the release of the inmate will not constitute an undue risk to society.

The law is now embodied in section 101 of the Corrections and Conditional Release Act.

The listed criteria are a pertinent reflection of society’s concern with regards to releasing dangerous offenders. The fact that dangerous offenders are less likely to satisfy these requirements is primarily a function of their dangerousness, not the punishment imposed.

If a person is not found to be a dangerous offender, he may be found to be a long-term offender under subsection 753.(5). If this were the case, the offender will be given a determinate sentence, with long-term supervision in the community upon parole.[6]

The Purpose of the Danger to the Public Law: Immigration

The danger to the public law pursuant to subsection 70(5) of the Immigration Act was enacted for the purpose of denying non-citizens with criminal convictions the right of appeal against a deportation order to the Immigration Appeal Division. It was expected to speed up the removal of dangerous alien criminals[7].

This provision was contained in Bill C44, which was proclaimed into law on July 10th, 1995. This proclamation removed the statutory right of appeal as articulated in the below stated subsections.

70(1) Subject to subsection (4) where a removal order or conditional removal order is made against a permanent resident or against a person lawfully in possession of a document provided to that person pursuant to section 10.3 and in accordance with the regulations, that person may appeal to the appeal division on either or both of the following grounds.

a. On any ground of appeal that involves a question of law or fact, or mixed law or fact, and

b. On the ground that, having regard to all the circumstances of the case, the person should not be removed from Canada.

70(3) An appeal to the appeal division under subsection (2) may be based on either or both of the following grounds:

a. On any ground of appeal that involves a question of law or fact, or mixed law and fact, and

b. On the ground that, having regard to the existence of compassionate or humanitarian considerations, the person should not be removed from Canada.

This right of appeal to the Appeal Division was removed with the introduction of subsection 70(5), which states:

70(5) No appeal may be made to the appeal division by a person described in subsection 1 or paragraph (2)(a) or (b) against whom a deportation order or conditional deportation order is made where the Minister is of the opinion that the person constitutes a danger to the public in Canada, and the person has been determined by an Adjudicator to be

a. a member of an inadmissible class described in paragraph 19(1)(c), (c1), (c2) or (d)

b. a person described in paragraph (27)(1), (1), or

c. a person described in paragraph (27)(1)(d) who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of ten years or more may be imposed.

Unlike under the Criminal Code sections that deal with dangerousness, there is no definition whatsoever on what or who constitutes a danger to the public, nor is the procedure to be used defined in the Act or Regulations [8]. Under the Criminal Code, a judge determines whom is a dangerous or long term offender using the standard of “beyond a reasonable doubt”, while under the Immigration Act, the Minister of Citizenship and Immigration determined in his or her opinion (i.e. no legal standard applies) who constitutes a danger to the public[9].

Instead of the Appeal Division deciding the humanitarian and compassionate circumstances of a person the Minister now pre-empts this avenue if he or she is of the opinion that a person constitutes a danger to the public in Canada. In this way, one potential obstacle to the speedy removal of dangerous criminals from Canada is removed[10].

A person is directed to seek leave in the Federal Court’s Trial Division, which Court has no jurisdiction to decide humanitarian and compassionate circumstances.

As will be clear later, this law has spawned vociferous constitutional challenges similar to those mounted against the dangerous and long-term offender sections of the Criminal Code.

There are three sections of the Immigration Act which deal with a danger opinion, each has different consequences.

1. A person found to be a danger pursuant to section 46.01 loses his or her right to have his or her refugee claim heard.

2. A person found to be a danger under subsection 53(1) may, in spite of being recognized as a convention refugee, and a permanent resident be deported back to the country of his or her nationality.

3. A person found to be a danger pursuant to subsection 70(5) loses his or her opportunity to pursue an appeal before the Appeal Division of the Immigration and Refugee Board.

As already stated unlike under the Criminal Code where definitions and criteria are provided for by Parliament, no such criteria or definitions as to who constitutes a danger under the Immigration Act are provided. There is also no intermediary category under the Immigration Act as there is with a long-term offender under the Criminal Code.

Pursuant to subsections 70(1) and (3), a permanent resident has a right to appeal the issuance of a deportation order to the appeal division of the Immigration and Refugee Board. The filing of an appeal of this nature stays the execution of the deportation order pending the determination of the appeal. There is no automatic stay for a person determined to be a danger to the public. He or she could be removed precipitously or detained until removal.

In enacting subsection 70(5) it would seem that Parliament was mainly concerned with the involvement of non-citizens in criminal activity in Canada. These non-citizen criminals who are targeted turn out to be proportionately African-Canadians. This is discrimination on the basis of race as has been pointed out above and will be further discussed below.

As previously stated the declaration of dangerousness, or that the Minister or Minister’s delegate is of the opinion that the offender is a danger to the public in Canada removes the statutory right of appeal to the appeal division, but instead of speeding up the removal, entangles the offender in the mire of the judicial process. [11] This will be discussed in detail later.

To deny the offender (non-citizen) under the Immigration Act the same protections that are accorded to the offender under the Criminal Code, is to deny him or her the equality rights that are guaranteed by Section 15(1) of the Charter, which states as follows:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

The threshold of evidence necessary to satisfy the evidentiary burden in a dangerous offender application under the Criminal Code is set so high, that invariably only a small percentage of these applications succeed.

Additionally, under the Criminal Code, those that do succeed are those offenders who are mainly dangerous sexual offenders, or other offenders, who by their past and present conduct have demonstrated their callousness and lack of empathy for other persons. Also, that these offenders have all been convicted of serious personal injury offences as defined in the Criminal Code.

Thus, the importance placed on expert assessments in the field of psychiatry, psychology, criminology, and other areas, which would assist the court, by its determination of the mental and emotional state of the offender. Since it is abundantly clear that the results of any, or all of the required assessments is the crucial, and most important factor necessary to satisfy the court, that the offender by his or her conduct in any matter, or matters, past or present, has demonstrated all requisite standards necessary to satisfy the court that the designation of the offender as a dangerous offender is warranted.

The requisite standard to be met under the Immigration Act is that the offender (non-citizen) must have been convicted of an offence, or offences, that carries a sentence of six months or more, or could have been sentenced to ten years or more. This standard has already been met, prior to seeking the Minister’s opinion that the offender should be declared to be danger to the public. That is why it is a foregone conclusion that the offender (non-citizen) would be declared to be a danger to the public in Canada.

An analysis of the danger to the public designation under the Criminal Code and the Immigration Act, its procedures, evidentiary burdens, and the resulting burdens imposed on the offenders under the Code and the Act, clearly shows that the Danger to the Public designation under the Immigration Act does not afford the recipients of such declaration all the relevant procedural safeguards of a fair adversarial or judicial process, as that, which is guaranteed to offenders under the Criminal Code.

It is argued that he or she (non-citizen) who has been declared a danger to the public under the Immigration Act is denied the protections of sections 7 and 15 of the Charter.

Discrimination is a distinction based on grounds relating to personal characteristics of the individual or group.

It is apparent that the introduction and implementation of subsection 70(5) of the Act denies the non-citizen the protection that was or is supposed to be enshrined in the Charter.

Before we venture further into the constitutional considerations, let us first compare the tests that have to be met in a dangerous offender application under the Criminal Code and the Immigration Act.

Preliminary Steps Under the Criminal Code

After an offender has been convicted of a serious personal injury offence but before sentencing, the court is advised of the Crown’s intention to bring an application to have the offender declared a dangerous offender.

The following are protections afforded the offender under the Criminal Code:

a. The Attorney General must consent to the Dangerous Offender application.

b. The application to the court must be supported by all the relevant evidence that would satisfy the evidentiary burden required by section 753(1) of the Code.

c. If the Court is of the opinion that there are reasonable grounds to believe that the offender might be found to be a dangerous offender, the Court remands the offender for psychiatric, psychological, criminological and any other assessments for a period not exceeding sixty days.

d. The assessment report must be filed with the Court, not later than fifteen days after completion of the assessment.

e. Seven days notice must be given by the Crown, to the offender, outlining the basis on which the application is being made.

f. The offender has a right to nominate one of the experts, who will conduct the assessment.

g. The right to submit evidence of character at a hearing.

h. The offender is afforded all the safeguards, which are fundamental rights, and essential to a fair trial, including the right to cross-examine witnesses.

i. The right to be present at the hearing, regardless of whether they are in custody or not.

Preliminary Steps Under the Immigration Act

a. The Minister’s opinion on danger to the public, is sought while the offender is serving his or her sentence, and in some cases after the completion of the sentence.

b. The Minister’s opinion is sought regardless of the offence, but based on the sentence imposed after conviction.

c. The offender is notified that the Minister’s opinion is being sought, as to whether, he or she is a danger to the public in Canada.

d. The offender is provided with copies of the evidence that would be presented to the Minister, and advised that he or she has fifteen days to make written submissions as to why he or she is not a danger to the public in Canada, and if there are any humanitarian and compassionate reasons as to why he or she should not be removed from Canada.

e. There is no hearing.

It is clearly evident that both procedures could result in the declaration of the offender as a dangerous offender. However, as previously outlined, the offender under the Criminal Code is accorded all the relevant protections with due process guarantees available in criminal proceedings. These include:

a. The right to a full judicial hearing before an impartial tribunal.

b. The right to have counsel present.

c. The right to cross-examine any witness, or witnesses.

d. The right to be present at the hearing regardless of whether or not the offender is in custody.

It should be noted that prior to the introduction of subsection 70(5) of the Immigration Act, in July 1995, non-citizens with criminal records were granted all the protections as guaranteed by the relevant sections of the Immigration Act and the Charter . Thus, it can only be construed that the enactment and implementation of subsection 70(5) was designed specifically to target non-citizens who have run afoul of the law. In addition, the declaration of a non-citizen as a danger to the public weighs more heavily in favour of detention, after a non-citizen who is a danger to the public, has been paroled.

As already highlighted in the reasons to declare an offender to be a dangerous offender under the Criminal Code are vastly different to the declaration under the Immigration Act. The general public is aware that under the auspices of the Criminal Code, the offences leading to the declaration of dangerousness are invariably serious personal injury offences that have been committed by offenders who are repeat offenders with the same modus operandi, and who have been, or were diagnosed as having severe character, emotional and, or mental problems.

Under the Immigration Act, and having made comparisons, it becomes even more evident that what Parliament intended, when it enacted and implemented section 70(5) of the Immigration Act, was to assure the general Canadian public of Parliament’s resolve to remove the alleged menace presented by non-citizens, who have been convicted of criminal offences in Canada, by declaring them to be dangerous.

This labelling of a non-citizen as a danger to the public was also designed for the sole purpose of creating fear and hysteria in the minds of Canadian citizens, and to justify the steps taken by the relevant authorities towards non-citizens with criminal convictions. It was as well a response to public fear and hysteria to the perceived criminality of non-citizens.

Even though the criteria to declare an offender, a dangerous offender under the Criminal Code and a danger to the public under the Immigration Act are vastly different, the general public who might not, or are not familiar with the requisite standards under the Code and the Act, would react in fear to any person who has been declared to be dangerous, thus justifying whatever route the relevant authorities have chosen, to deal with these offenders.

The next chapter discusses in detail the procedures involved in declaring an offender, a dangerous or long-term offender under the Criminal Code.

[1] See Morrisette and Two Others (1970), 1 C.C.C. (2d) 307 at 309.

[2] R.S.C. 1985, c. C-46, as am. Section 718.

[3] Lyons v. The Queen (1987), 37 C.C.C. (3d) 1. This part borrows a lot from this case.

[4] Hatchwell v. the Queen (1974), 21 C.C.C. (2d) 201 at 206 (S.C.C.)

[5] R. v. Lyons (1988), 37 C.C.C. (3d) 1

[6] Her Majesty the Queen and Lee Marvin Payne Court Files 2596/99 and 2609/99 (Jan. 12, 2001) (Hill, J., O.S.J.C.) and Her Majesty the Queen and Orell Gallant (March 9th, 2001) (Bigelow, J., OC.J.).

[7] Canada (M.C.I.) and Sunil Bhagwandass A-850-99, (March 7th, 2001) (F.C.A.) pp. 11 and 12.

[8] Ibid p. 7.

[9] Section 70(5) of the Immigration Act, Williams v. Canada (M.C.I.) [1997] 2 F.C. 646 (F.C.A.).

[10] Canada (M.C.I.) v.Bhagwandass, A-850-99, March 7, 2001.

[11] See, David Gambrill, “Immigration Act Changes Called ‘Draconian’. Limited Deportation Appeal For Non-Citizens Sentenced to Two-Plus Years” Law Times April 9, 2001, pp. 1 and 2.

Danger to the Public: Procedures Under the Criminal Code

The procedure for the declaration of a person’s dangerousness is specified in subsection 752.1(1) of the Criminal Code. This is reproduced here.

752.1 (1) Where an offender is convicted of a serious personal injury offence referred to in paragraph 753.1 (2) (a) and, before sentence is imposed on the offender, the crown advises the Court that it will be seeking the consent of the Attorney General,

in accordance with section 754(1) which provides that no dangerous offender application shall be heard unless,

(1)(a) the Attorney General of the province in which the offender was tried has, either before or after the making of the application, consented to the application.

It further states that, on application by the prosecution, if the Court is of the opinion that there are reasonable grounds to believe that the offender might be found to be a dangerous offender under section 753 or a long- term offender under section 753.1, the court may, by order in writing remand the offender, for a period not exceeding sixty days, to the custody of the person that the court directs and who can perform an assessment, or can have an assessment performed by experts.

The assessment is to be used as evidence in an application under sections 753 or 753.1.

Subsection 752.1(2) states that the person to whom the person is remanded shall file a report of the assessment with the court not later than fifteen days after the end of the assessment period and make copies of it available to the prosecutor and counsel for the offender.

Under subsection 753. (1) the court may, on an application following the filing of an assessment report under subsection 752.1 (2), find the offender to be a dangerous offender if is satisfied:

(a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to life, safety or physical or mental well being of other persons on the basis of evidence establishing

(i) a pattern of behaviour by the offender, for which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and likelihood of causing death or injury to other persons, or inflicting severe psychological damage to other persons, through failure in the future to restrain his or her behaviour,

(ii) a pattern of persistent aggressive behavior by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonable foreseeable consequences to other persons of his or her behaviour, or

(iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender's behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint, or

(b) that the offence for which he or she has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses.

Under subsection 752.1(2) an application under section (1) must be made before sentence is imposed on the offender unless

(a) before the imposition of sentence, the prosecution gives notice to the offender of a possible intention to make an application under section 752.1 and an application under subsection (1) not later than six months after that imposition; and

(b) at the time of the application under subsection (1) that is not later than six months after the imposition of sentence, it is shown that relevant evidence that was not reasonably available to the prosecution at the time of the imposition of sentence became available in the interim.

As a general rule, the dangerous offender applications follow conviction of a serious or serious personal injury offences sexual offences are separately delineated.

Section 752 defines “serious personal injury offence” as meaning:

(a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving

(i) the use or attempted use of violence against another person, or

(ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person, and for which the offender may be sentenced to imprisonment for ten years or more, or

(b) an offence or attempt to commit an offence mentioned in section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm), 273 (aggravated sexual assault), and within the meaning of subsections 753(1)(a)(i), (ii) and (iii) of the Criminal Code.

The Court is asked to make such a finding and impose a sentence of detention in a penitentiary for an indeterminate period.

The Court is given all the background evidence, convictions and any other relevant information that would satisfy the requirements as set out in 753.(1) that the offender is a dangerous offender.

This evidence must establish beyond a reasonable doubt that the offender constitutes a threat to the life, safety and physical or mental well being of other persons.

As already stated in accordance with subsection 752.1 (1), if the Court is of the opinion that there are reasonable grounds to believe that the offender might be found to be a dangerous offender under section 753, the Court may, by order in writing remand the offender, for a period not exceeding sixty days, to the custody of the person that the Court directs and who can perform an assessment, or can have an assessment performed by experts.

Psychiatrists, psychologists and any other expert, or experts in the field of criminality perform the assessment.

The assessment results are based on several tests that the offender is subjected to, such as the Psychopathy Checklist-Revised ("PCL-R"), Violence Risk Appraisal Guide ("VRAG") and any other test or tests that the experts think are necessary.

The person who performs the assessment has to file his or her report with the Court, not later than fifteen days after the end of the period of assessment and make copies available to the prosecutor and counsel for the offender.

Also, this person is required to testify as an expert at the forthcoming hearing.

According to established law there are several separate tests to be met in accordance with subsection 753.(1):

(a) the offence for which the offender has been convicted is a serious personal injury offence as described in paragraph (b) of section 753.1

(b) a pattern of repetitive behaviour

(c) a pattern of persistent aggressive behaviour

(d) behaviour by the offender that is of such a brutal nature as to compel the conclusion that the offender's behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint

The Crown is allowed to call witnesses and submit as many exhibits as necessary, to satisfy the burden of proof required to establish each of the various tests, beyond a reasonable doubt.

The burden of proof that must be met for dangerous offenders has been stated in the following case law.

In R. v. Jackson[1], the court stated that the onus is on the prosecutor to establish beyond a reasonable doubt all the necessary elements to constitute the defendant a dangerous offender.

In R. v. Currie [2] the Supreme Court of Canada stated that in deciding whether the defendant is a dangerous offender, a judge is required to consider the following:

i. the facts constituting the predicate offence

ii. the defendant's criminal record, and

iii. the expert testimony of psychiatrists

This is a watered-down version of the provisions of the Criminal Code.

The following example demonstrates the procedure and crown onus on an application that a person is a dangerous or long-term offender.

Lee Marvin Payne pleaded guilty to three crimes of sexual assault. The Crown applied to have Payne declared a dangerous offender.

As the Court put it, the basis of the application tracked the statutory grounds set out in paragraphs 753(1)(a)(i)(ii)(iii) and (b)[3]:

1. LEE MARVIN PAYNE has been found guilty of the offences of sexual assault causing bodily harm and sexual assault which are serious personal injury offences as defined in Section 752(a) of the Criminal Code and LEE MARVIN PAYNE constitutes a threat to the life, safety, physical or mental well-being of other persons on the basis of evidence establishing a pattern of behaviours by LEE MARVIN PAYNE, of which the offences for which he has been convicted form a part, showing a failure to restrain his behaviours and likelihood of causing death or injury to other persons, or of inflicting severe psychological damage on other persons, through failure in the future to restrain his behaviour.

2. LEE MARVIN PAYNE has been found guilty of the offences of sexual assault causing bodily harm and sexual assault which are serious personal injury offences as defined in Section 752(a) of the Criminal Code and LEE MARVIN PAYNE constitutes a threat to the life, safety, physical or mental well-being of other persons on the basis of evidence establishing a pattern of persistent aggressive behaviour by LEE MARVIN PAYNE, of which the offences for which he has been convicted form a part, showing a substantial degree of indifference on the part of LEE MARVIN PAYNE respecting the reasonably foreseeable consequences to other persons of his behaviour.

3. LEE MARVIN PAYNE has been found guilty of the offences of sexual assault causing bodily harm and sexual assault which are serious personal injury offences as defined in Section 752(a) of the Criminal Code and LEE MARVIN PAYNE constitutes a threat to the life, safety, physical or mental well-being of other persons on the basis of evidence establishing any behaviour by LEE MARVIN PAYNE, associated with the offences for which he has been convicted, that is of such a brutal nature as to compel the conclusion that LEE MARVIN PAYNE’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint.

4. LEE MARVIN PAYNE has been convicted of the offences of sexual assault causing bodily harm and sexual assault which are serious personal injury offences as defined in Section 752(b) of the Criminal Code and LEE MARVIN PAYNE, by his conduct in any sexual matter including that involved in the commission of the offences for which he has been convicted, has shown a failure to control his sexual impulses and a likelihood of causing injury, pain, or other evil to other persons through failure in the future to control his sexual impulses.

Because of the serious implications that a declaration of dangerousness can have on an offender, a number of safeguards have been provided including as already stated,

i. the Attorney General must consent to the application

ii. at least seven days notice must be given to the offender by the prosecutor, following the making of the application, outlining the basis on which it is intended to found the application

iii. the right to be present at the hearing

iv. the right to nominate one of the psychiatric witnesses, and

v. the right to submit evidence of character as stated in section 757 which provides as follows:

“Section 757. Without prejudice to the right of the offender to tender evidence as to his or her character and repute, evidence of character and repute may, if the court thinks fit, be admitted on the question of whether the offender is or is not a dangerous offender or long term offender.”

As already stated the offender who is subject to a dangerous offender application is afforded all the fundamental rights essential to a fair trial, including the right to call witnesses on his or her behalf and the right to confront and cross examine the witnesses against him or her, and the right to be present at the hearing of the application, in accordance with section 758.(1).

Section 758.(1) states that he offender shall be present at the hearing of the application under this part and if at the time the application is to be heard

(a) he is confined in a prison, the court may order, the person having custody of the accused to bring him before the court, or

(b) he is not confined in a prison, the court shall issue a summons or a warrant to compel the accused to attend before the court.

It is in the best interests of the offender to attend in person for this hearing.

The court, however may:

(a) cause the offender to be removed and to be kept out of court, where he misconducts himself by interrupting the proceedings so that to continue the proceedings in his presence is not feasible, or

(b) permit the offender to be out of court during the whole or any part of the hearing on such conditions as the court considers proper.

After the crown has made the application for a declaration that a person is a dangerous offender, the offender is psychiatrically examined. After the examination, there is a formal hearing of the evidence and counter-evidence. During and after the psychiatric examination has been done, risk assessment is underscored by the Judge to determine whether the person is a dangerous or long-term offender. PCLR, VRAG and RRAS (Registrant Risk Assessment Scale) are three main tests used for risk assessment for reoffence and danger to the public.

In the case of Payne [4] who pleaded guilty to three crimes of sexual assault the Court had three options:

1. find the accused to be a dangerous offender and sentence the offender to a period of indeterminate detention (s. 753(1)(4)),

2. in the absence of finding Mr. Payne to be a dangerous offender, the court may treat the application as an application to find the offender to be a long-term offender, with section 753.1 applying to the application and the court may find the offender is a long-term offender and impose a long-term supervision order (ss. 753(5)(a), s. 753.1(1)(2)(3)); or

3. the court may impose determinate sentences for the offences for which the offender has been convicted.

The court has to be satisfied beyond a reasonable doubt that there is a present likelihood that the offender will inflict future harm on society before declaring an offender to be a dangerous offender. If there is any possibility through treatment of eventual control of the risk of reoffence in the community, the court is not obliged to find a person to be a dangerous offender. The court my instead find him to be a long-term and not dangerous offender, or may sentence him or her to a determinate sentence.

Should the offender be declared a dangerous offender, and sentenced to detention in a penitentiary for an indeterminate period, additional protections are provided for under Section 761.

Section 761.(1) provides that subject to sub-section (2), where a person is in custody under a sentence of detention in a penitentiary for an indeterminate period, the National Parole Board shall, as soon as possible after the expiration of seven years from the day on which that person was taken into custody and not later than two years after the previous review, review the condition, history and circumstances of that person for the purposes of determining whether he or she should be granted parole under Part 11 of the Corrections and Conditional Releases Act and, if so, on what conditions.

Where a person is in custody under a sentence of detention in a penitentiary for an indeterminate period that was imposed before October 15, 1977, the National Parole Board shall, at least once in every year, review the condition, history and circumstances of that person for the purpose of determining whether he should be granted parole under Part 11 of the Corrections and Conditional Release Act and, if so, on what conditions.

The Parole Board would in any case have been familiar with the offender because of the provisions of Section 760 which provide that where a court finds an offender to be a dangerous offender or a long term offender, the court shall order that a copy of all reports and testimony given by psychiatrists, psychologists, criminologists and other experts and any observations of the court with respect to the reasons for the finding, together with a transcript of the trial of the offender, be forwarded to the Correctional Service of Canada for information.

The National Parole Board is required to consider all of the information that is in the possession of Correctional Service of Canada, the Progress Summary Reports, the completion of any recommended programs and then determine, whether the release of the offender would constitute an undue risk to society, whether he or she has derived the maximum benefit from imprisonment and whether the granting of parole will aid the reform and rehabilitation of the offender.

Should an offender be declared to be a dangerous offender he or she has the right of appeal in accordance with subsection 759.(1) which states that:

759.(1) an offender who is found to be a dangerous offender under this Part may appeal to the Court of Appeal against that finding on any ground of law or fact or mixed law and fact.

(3) on appeal against a finding that an offender is a dangerous offender, the court of appeal may

(a) allow the appeal and

(i) find that the offender is not a dangerous offender, find that the offender is a long term offender, impose a minimum sentence of imprisonment for two years, for the offence for which the offender has been convicted, and order the offender to be supervised in the community, for a period that does not, subject to subsection 753.1(5), exceed ten years, in accordance with section 753.2 and the Corrections and Conditional Release Act,

(ii) find the offender is not a dangerous offender and impose sentence for the offence for which the offender has been convicted, or

(iii) order a new hearing, or

(b) dismiss the appeal.

The most important constitutional protection is that there is a right of appeal.

The next chapter deals with the procedures under the Immigration Act and the stark differences in procedural protections will be immediately apparent.

[1] R. v. Jackson (1981), 23 C.R. (3d) 4, 61 C.C.C. (2d) 540 (N.S.C.A.).

[2] R. v. Currie (1995), 103 C.C.C. (3d) 281 (Ont. C.A.); reversed (1997), 7 C.R. (5th) 74, [1997] 2S.C.R. 260, 115 C.C.C.(3d) 205

[3] Her Majesty the Queen and Lee Marvin Payne Court Files No. 5296/99 and 2609/99 (January 12, 2001) (Hill, J. O.S.C.J.) pp. 13 and 14.

[4] Ibid p. 4.

Danger to the Public: Procedures Under the Immigration Act

Subsection 70(5) of the Immigration Act removes any right of appeal to the Appeal Division of the Immigration and Refugee Board. There is no right of appeal either to the Federal Court.

Subsection 70(5) states that no appeal may be made to the Appeal Division by a person described in subsection (I) or paragraph (2) (a) or (b) against whom a deportation order or conditional deportation order is made where the Minister is of the opinion that the person constitutes a danger to the public in Canada and the person has been determined by an adjudicator to be

(a) a member of an inadmissible class described in paragraph 19(l)(c),(c)(1), (c.2) or (d);

(b) a person described in paragraph 27(l)(a. 1); or

(c) a person described in paragraph 27(l)(d) who has been convicted

of an offence under any Act of Parliament for which a term of imprisonment of ten years or more may be imposed.

The road to the declaration that a person constitutes danger to the public is commenced by a section 27 Report: An immigration officer or peace officer is mandated to forward a written report to the Deputy Minister setting out the details of any information in the possession of the immigration officer or peace officer indicating that a permanent resident is a person who

(d) has been convicted of an offence under any Act of Parliament, other than an offence designated as a contravention of the Contraventions Act, for which a term of imprisonment of more than six months has been, or ten years or more may be, imposed;

The Minister seems to be more interested in the sentence than the offence unlike under the Criminal Code where the offence is the determining factor.

The procedure is that the non-citizen is provided with copies of materials that would be presented to the Minister for his consideration as to whether it is his or her opinion that the person concerned constitutes a danger to the public in Canada.

The following is included in the evidence:

(a) immigrant visa and record of landing

(b) a notification of criminal conviction under section 27 of the Act

(c) a narrative report under subsection 27(l) of the Act

(d) criminal record

(e) certificate of conviction

(f) indictment relating to the charge or charges

(g) warrant of committal

(h) a detention order under section 103(l), or

(i) a deportation order, if already issued

The non-citizen has fifteen days to make submissions and present evidence, including humanitarian and compassionate factors, to the Minister, as to whether he or she presents a danger to the public in Canada.

In the fifteen days allotted the non-citizen has to apply for legal aid or retain private counsel, who in most cases would request the following:

(a) letters of support from family members

(b) community support

(c) character references from former employers and any other person,

or persons who might know the non-citizen

(d) if presently incarcerated, copies of Correctional Services Canada, Initial Assessment and Progress Summary Reports

(e) if paroled, type of parole and recommendations

(f) affidavit of the non-citizen, and any other information that is relevant

Counsel then has to make submissions, as to why the non-citizen should not be declared a "danger to the public" in Canada, which includes the humanitarian and compassionate factors, any relevant jurisprudence, and submit these along with other documents to Citizenship and Immigration Canada.

Within the fifteen days, it is almost impossible to retain counsel and to obtain psychiatric or other assessments that would constitute evidence to rebut the presumption of dangerousness. Counsel may request for an extension of time, but there is no guarantee that this will be granted.

This declaration of dangerousness, in accordance with subsection 70(5) of the Immigration Act eliminates the right of appeal to the Immigration Appeal Division. The only recourse then is for the non-citizen to make an application for leave to the Federal Court for judicial review of the Minister's decision.

If the leave application is denied, that is the end of the matter. There is no personal attendance for a hearing. The process is by written documentation only.

If leave were granted, a hearing date would be scheduled. The court could either grant or refuse the application.

The danger to the public law applies to convictions dating prior to the enactment of the law. This would not apply under the Criminal Code.

Bill C-44 provided that subsection 70(5) of the Immigration Act, applied to an appeal that had been made on or before the coming into force of that subsection and in respect of which the hearing had not been commenced, but a person who had made such an appeal may, within fifteen days after the person had been notified that, in the opinion of the Minister, the person constituted a danger to the public in Canada, could make an application for judicial review under section 82.1 of the Act with respect to the deportation order or conditional deportation order that had been issued against him or her.

It would appear that from the above stated, that non-citizens, who prior to the enactment of subsection 70(5) of the Act, had been ordered deported, and had appealed the deportation order to the Appeal Division, and were awaiting the scheduling of their hearings were now subjected to the danger to the public opinion of the Minister.

The case of Thompson v. M.C.I. [1] exemplifies the retrospectivity of the danger to the public law and is pertinent here.

The applicant was charged in January 1991, convicted in March 1992 and sentenced to two years in prison. He was paroled in June 1994. On October 26 1995 he was informed of the possible issuance of a Ministerial Opinion pursuant to subsection 70(5) of the Act. This subsection as already stated came into force on July 10th, 1995.

Counsel for the applicant made submissions. The opinion was nevertheless issued on December 29 1995 declaring him to be a "danger to the public" and an arrest warrant was executed on January 4 1996. The stay application was denied on January 12 1996, and he was subsequently deported.

The danger to the public opinion was quashed on August 16, 1996 by Justice Frederick E. Gibson who stated that "I am satisfied that the phrase ‘danger to the public’ has a plain meaning, and I find that meaning to be a ‘present or future danger to the public’”.

Justice Gibson continued: “For the respondent to reach the opinion that a person constitutes a danger to the public in Canada, there must be some evidence of the person being a present or future danger to other persons in Canada." Further that, "the applicant's conviction occurred nearly four years before the danger opinion, and there was no evidence of criminal activity in the interim".

As already seen, under the Criminal Code, criminal conduct must be repetitive.

As is evident in Thompson, the danger to the public opinion was the criteria used to affect his arrest and his deportation. He had been paroled and released into the community in June 1994 and remained free of involvement in any criminal activity, yet the Minister did not take this into consideration when forming his or her opinion.

It is argued that under the strictures of the Criminal Code, this would not have been possible. This is clearly discrimination against non-citizens, when a statutory scheme is enacted which treats them differently from the way citizens are treated under the Criminal Code when they commit comparable offences.

After the introduction of subsection 70(5), the procedures implemented

were somewhat inconsistent, in that, there has been numerous times when immigration officials have implemented danger to the public proceedings against non-citizens shortly after sentencing. The person would not have had the time to do all the recommended programs in the penitentiary or reformatory, if any and to show rehabilitation. The danger to the public procedure, unlike the procedure under the Criminal Code, is a trial by ambush. The following cases illustrate the point.

In the case of Wishart v. Canada [2] the following took place. He was convicted and sentenced in June 1997, and transferred to Millhaven Assessment Unit, where he was assessed as having a GSIR of + 18 which is the lowest rate of recidivism (four out of five offenders in this group will not reoffend upon release) and transferred to Beaver Creek Institution which is a minimum security camp. On September 6, 1997 he was advised that the Minister's opinion was being sought as to whether he was a danger to the public in Canada, and advised that he had fifteen days in which to make submissions as to why he should not be declared a danger to the public in Canada and, also to state whether there were any humanitarian and compassionate factors. The submissions were sent within the fifteen days as requested. On March 3, 1998 a hearing was held at Beaver Creek Institution, where he was advised that on the December 5 1997 he was declared to be a "danger to the public" in Canada, and he was ordered deported. This process was completed within nine months of a seven-year sentence. Wishart was paroled on October 27, 1999, released into Immigration custody, and was granted bail on October 29, 1999. The Parole Board and an Immigration Adjudicator determined that Wishart did not pose danger to the public. The Minister had however, determined that he was a danger to the public.

There are many such cases in the system, where the above scenario is repeated. As the Federal Court of Appeal has stated in Bhagwandass [3], the procedures for declaring a person a danger are not spelt out in the Immigration Act. It is at the whim of the Minister and her or her delegate.

As noted in Williams v. MCI [4], "there is no legislatively required decision making process for subsection 70(5) decisions. As a matter of practice, departmental officials have taken to sending a notice to an individual who may become the subject of a subsection 70(5) decision, together with the documentary evidence on which a decision may be made.” The procedure can commence any time. Sometimes even after the Federal Court had already quashed the previously issued opinion.

The procedure under the Criminal Code is spelt out like a mini Code.

After the expiry of the fifteen day period within which the subject is to make submissions, a recommendation form is then filled in by a departmental official and sent to his or her manager who checks one of two boxes on the form, either the box concurring with the recommendation or that rejecting it. The ultimate decision maker is yet a third person that is described as the Minister's delegate. No reasons are ever given for the decision.

While the decision-making authority is given by statute to the Minister, it is not in fact the Minister that renders the decision. When there exists only a single decision-maker, one may assume a consistency in decision-making because of that fact. This assumption is more difficult to make when a number of different decision-makers are involved, and where there is extensive discretion given to those decision-makers. Under the Criminal Code, the decision on dangerousness is made by a judge under a strict legal regime or code.

Under the Immigration Act there is no indication that these individuals who make decisions have any legal training yet the concept of "a danger to the public", involves, at least in part, the application of a legal standard, which application results in an opinion that affects a person's liberty and other rights.

Under the Immigration Act apparently, the Minister's delegate is the final decision-maker, even though there is no way of verifying whether he or she considers any of the materials submitted, or if his or her decision is based on the recommendation prepared by the first level official.

Under the Criminal Code, only one judge makes the decision as to dangerousness. The Immigration and Refugee Board of Canada Guidelines on "Danger to the Public”[5] has attempted to set out the standard for danger to the public but it is not clear if it is ever applied. It states:

(a) The meaning to be ascribed to "danger to the public" is that there is present and future danger to the public. (This is derived from case law).

(b) It is not unreasonable to draw inferences from a person's criminal record in determining whether that person is likely to be a danger to the public. (This is also derived from case law.)

(c) Where a person has been convicted of an offence and served the related sentence, a conviction alone is not sufficient to support a finding that that person is likely to be a danger to the public. (This is also derived from case law)

(d) The phrase "danger the public" must refer to the possibility that the person who has committed a serious crime in the past may seriously be thought to be a potential “re-offender”. (This is as well derived from case law.)

These criteria however are not set out in the Immigration Act or Regulations.

When a non-citizen is declared to be a danger to the public in Canada, he or she has fifteen days in which to seek Judicial review in the Federal Court. Under the Criminal Code, the period is thirty days. There is a right of appeal under the Criminal Code. There is no such right under the Immigration Act.

It is difficult to get leave in Federal Court, in the experience of the present author. If leave is granted, it is very difficult to get the decision set aside. Most times, the applicant would already have been removed from Canada. The non-citizen may bring a motion for a stay of removal. To succeed, the non-citizen has to satisfy the tripartite test that is extremely difficult to meet.[6]

If the application for judicial review be dismissed the non-citizen has no other

recourse. The court may allow a question of general importance to be certified for the Federal Court of Appeal to consider. The non-citizen may however have been removed already.

The non-citizen appears to have no protection or equal benefit under the law.

[1] Thompson v. Canada (M.C.I.), 37 Imm. L.R. (2d) 9.

[2] Wishart v. Canada (M.C.I.), Imm. No. 64-00 (F.C.T.D.).

[3] Canada (M.C.I.) v. Bhagwandass A-850-99 (March 7th, 2001) (F.C.A.).

[4] Williams v. Canada (M.C.I.) [1997] 2 F.C. 646 (F.C.A.)

[5] “Guidelines on Detention” , Immigration and Refugee Board, Ottawa, 1998.

[6] That there is a serious issue to be tried, that there will be irreparable harm and that the balance of convenience favours the applicant, see Toth v. Canada (M.E.I.) (1988), 6 Imm. L.R. (2d) 123.

Evidence Under the Criminal Code Concerning Dangerous Offenders

This area has already somewhat been covered in the chapter on procedure. Repetition is necessary however, for the sake of completeness, continuity and immediacy.

Some wording may sound the same but they are included in different sections of the Criminal Code and closer attention is required to comprehend this.

Section 755(l) of the Criminal Code governs the admissibility of evidence in respect of a dangerous offender application.

As a general rule the 'dangerous offender application" follows conviction of a serious personal injury offence, but before the imposition of sentence. But an application can also be made after sentencing but within six months and after appropriate notice. This depends on whether new evidence has been uncovered after sentencing.

The Crown's application must satisfy the requirements as set out in section 753.(l), of the Code, and must be supported with all relevant documentary evidence that would support a finding, that the offender has met the requisite standard of section 753.(l), and the offender should be declared a dangerous offender.

On the hearing of an application, the Court must hear all relevant evidence that in its opinion is relevant to the application.

As already stated if the Court is of the opinion that there are reasonable grounds to believe that the offender might be found to be a dangerous offender under section 753.(1), of the Code, the Court may remand the offender for a psychiatric, psychological and criminological assessment pursuant to section 755.1(1) of the Criminal Code.

The Court is asked to make such a finding that the offender is a "dangerous offender" and impose a sentence of detention in a penitentiary for an indeterminate period.

The evidence submitted must establish beyond a reasonable doubt that:

(a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well being of other persons

(i) there is a pattern of behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and likelihood of causing death or injury to other persons, or inflicting severe / psychological damage to other persons through failure in future to restrain his behaviour,

(ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonable foreseeable consequences to other persons of his or her behaviour, or

(iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender's behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint, or

(b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses.

The Court is given all the background evidence, convictions and any other relevant information that would satisfy the requirements as set out in section 753.(I). The evidence submitted will include:

(1) the facts constituting the offence, or offences for which the offender has been convicted, and must establish that the offence is a serious personal injury offence described in paragraph

(a) that the offender constitutes a threat to the life, safety or physical or mental well-being of other persons, or

(b) that the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in future to control his or her sexual impulses of the definition of that expression in section 752 which states “serious personal injury offence" means:

(a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving

(i) the use or attempted use of violence against another person, or

(ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person,

and for which an offender may be sentenced to imprisonment for ten years

(b) an offence or attempt to commit an offence mentioned in section 271 (sexual assault), 272 (sexual assault with a weapon, threats of a third party or causing bodily harm) or 273 (aggravated sexual assault).

The following cases highlight some of the evidence that the Crown will introduce to satisfy the evidentiary burden that the offence or offences (and previous offences) for which the offender has been convicted satisfies the initial requirements of section 753, which are:

(a) a pattern of repetitive behaviour showing a failure by the offender to restrain his or her behaviour, and a likely of causing future harm, or

(b) a pattern of persistent aggressive behaviour by the offender showing substantial indifference to the consequences of his or her behaviour or of any behaviour associated with the offence for which he or she has been convicted that compels the conclusion that his future behaviour is unlikely to be inhibited by normal standards of behavioural restraint.

Since this application to declare the offender, a dangerous offender is in the general nature of a sentencing hearing, the rules of evidence permit the admissibility of certain hearsay evidence for the truth of its content. [1]

In Talbot [2] the Court stated that the rules of evidence permit the introduction of all credible and trustworthy evidence, regardless of the hearsay rule.

In Regina v. Dawson [3], it was stated that, there is no need to prove a conviction beyond the substantive one. What is relevant, inter alia, is the conduct of the person in any sexual matter. It is now settled that the Crown has to prove its case on sentencing beyond a reasonable doubt, should any facts on sentence be disputed.

Here the accused was convicted on February 7, 1968, of an indecent assault on one Higdon, this was the substantive offence. At the hearing under the relevant section the Crown adduced the following evidence:

Conviction on April 23,1956, of contributing to the juvenile delinquency of one Gislason. No details were given.

Conviction on June 21, 1956, of contributing to the juvenile delinquency of one LeClarc, by forcing him to expose his private parts and to handle the private parts of the offender.

Conviction on May 4, 1959, on three charges of contributing to the juvenile delinquency of Olund, Krogstad and Hall, all in connection with indecent acts.

Conviction on December 17, 1962, of indecent assault on a male.

Conviction on December 17, 1962, on a charge of contributing to juvenile

delinquency. No details were given.

Conviction on March 6, 1964, of indecent assault on a male. No details were given.

Conviction on October 29, 1964, of an act of gross indecency. No details were given.

Conviction on October 23, 1967, of an act of gross indecency with a boy named Callow. Callow was called by the Crown and gave details of the unsavoury circumstances of the offence against him.

The disputed offences were admitted, nevertheless. The offence of gross indecency was repealed in 1983.

In Stockwood [4] the Court admitted evidence pertaining to charges of gross indecency, even though the offence of gross indecency had been repealed. The Court stated that the evidence was relevant and that section 753:(i)(b) of the Code permitted consideration of conduct in any sexual matter and did not require that there be a likelihood that the accused would cause physical injury and that a danger of psychological injury would suffice.

It was submitted in the case of Dawson[5], that the introduction of the prior criminal record lends weight to the other evidence, that the offender's behaviour in the past, including the offence for which the offender had been convicted, was a serious personal injury offence or offences as defined in section 752 of the Criminal Code, and could justify the conclusion that had been reached, showing a pattern of either "repetitive behaviour" or “persistent aggressive behaviour".

The evidence of past conduct of the offender must demonstrate that there is likelihood of causing death or injury or severe psychological damage to other persons through failure in future to restrain his or her behaviour. The comparable Immigration Act section on danger to the public is devoid of such standards.

It is not necessary for the Crown to prove that the offender will commit crimes in the future, but it must prove that the offender is very likely to continue a pattern of conduct that may result in the endangerment to the life, safety and physical or psychological well being of other persons.

Psychiatric assessment is obligatory, and will be used as evidence in an application for a finding of dangerousness.

Martin J.A. of the Ontario Court of Appeal said in Sullivan[6] that "the psychiatric evidence indicates that the appellant suffers from an ongoing personality disorder, that he has low impulse controls, and that his conscience is defective in regulating his sexual behaviour. In my opinion, the trial judge was entitled to rely on the psychiatric evidence against the background of the appellant's sexual offences on this issue. It warranted her conclusion that the appellant in future is likely to similarly fail to control his sexual impulses".

In Williband[7] Mr. Justice Fateaux of the Supreme Court of Canada said, "the evidence in this case, indicates that to form an opinion according to recognized normal psychiatric procedures, the psychiatrists must consider all possible sources of information including second hand source information, the reliability, source and accuracy of which are within the recognized scope of his professional activities, skill and training to evaluate. Hence, while ultimately his conclusion may rest, in part, on second hand source material, it is nonetheless an opinion formed according to recognized normal psychiatric procedures".

In Carleton,[8] McGillivray C.J.A. said that "the Criminal Code requires a court to have the benefit of psychiatric evidence before making a determination of whether a man is a dangerous offender, and before determining what is the appropriate sentence. That psychiatric evidence may bear on whether the nature of past sexual conduct may give rise to the likelihood of causing injury in the future. It should be quite plain to a judge that if a man has been convicted of rape on five occasions that conduct clearly shows a likelihood of injury to others. Yet, if the offences consisted of, say, kissing, pinching or fondling, psychiatric evidence might be valuable in enabling a judge to determine whether this conduct shows a likelihood of the offender causing injury, pain or other evil to others through his failure in future to control his sexual impulses of causing death, injury or severe psychological damage through failure in future to restrain his or her behaviour.”

Evidence that is remarkably similar and establishes a pattern of past conduct that demonstrates the offender cannot restrict his or her behaviour; can be supported by the introduction of:

(a) Prior conduct[9], where evidence of the appellant's conduct between the ages of 11 and 16 was ruled relevant and admissible.

In the case of Newman,[10] the Court held that offences, which had not been the subject of prior criminal charges, could be included in the behavioural pattern under s.753 if proven beyond a reasonable doubt.

(b) Record of convictions[11] is also a potent yardstick of future recidivism.

(c) Testimony of victims and witnesses.[12]

(d) Conduct derived from court records and court proceeding transcripts.[13]

(e) exhibits

(f) previous psychiatric, psychological or criminological assessments, if any

(g) extensive background materials, including victim impact statements

The expert opinion evidence in the areas of psychiatry, psychology and criminology should be comprised of:

(a) qualifications of expert

(b) oral and, or affidavit testimony outlining the type of tests done

(c) summary of assessment evidence and conclusions reached

(d) risk assessment

This evidentiary foundation is completely lacking in relation to the danger to the public under the Immigration Act.

It is also crucial that the Court hear evidence of at least two psychiatrists and all other evidence that in it's opinion is relevant to the elements necessary to establish the required pattern of behaviour, and that the evidence be introduced in accordance with the rules of evidence.

Where the Court receives psychiatric or other opinion evidence, which is stated to be on certain facts, these facts must be proved to the satisfaction of the Court, i.e. beyond a reasonable doubt.

Evidence showing that the offender has emotional problems of an extreme nature and evidence of callousness and lack of empathy is also required.

The evidence of past and present conduct, as well as expert opinions must satisfy beyond a reasonable doubt that an offender poses a future threat to society, and there exists the potential for future harm to others. The best predictor of future behaviour is to study the past.

Section 757 provides that without prejudice to the right of the offender to tender evidence as to his or her character and repute, evidence of character and repute may, if the court thinks fit, be admitted on the question of whether the offender is or is not a dangerous offender or a long-term offender.

Even if the person may meet the criteria that he or she is a dangerous offender, he or she may instead be found to be a long-term offender. This was the case in the recent case of Orell Gallant [14].

Gallant’s prior criminal record was as follows:

1974-06-21 Mischief Conditional Discharge and

Toronto, Ontario one-year probation

1988-03-17 1) Sexual Assault 2 years & probation for 3

Alberton, P.E.I. years

2) Sexual Assault 4 months consecutive and 3

years probation

1991-02-14 1) Assault Causing Bodily 3 months

Deer Lake, Nfld. Harm

2) Possession of a Weapon 1 month consecutive and 18

months probation and 5 year

firearms prohibition

1992-02-04 Sexual Interference 5 months

Saith John, N.B.

1994-02-11 Sexual Assault 30 months

Fredericton, N.B.

1997-09-02 Possession of a ScheduleII 1 day (time served 5 days)

Toronto, Ont. Substance

Because of prospects for treatment, he was found instead to be a long-term and not a dangerous offender. He was given a determinate sentence with a ten-year community supervision afterwards.

The offender, if declared dangerous or long-term offender, can appeal the decision.

This chapter has examined the evidence that must be tendered before a court can declare someone to be a dangerous or long-term offender. This evidence must meet the standard of proof beyond a reasonable doubt. This means that the Crown must prove that the past conduct of the criminal including the current offence shows that the criminal is likely to reoffend. The evidence has to include psychiatric reports.

As will be clear in the next chapter, the evidence required under the Immigration Act before a person can be declared to be a danger to the public is not spelt out.

[1] Regina v. Gardiner (1982), 68 C.C.C. (2d) 477, at p. 514 (S.C.C.).

[2] Regina v. Talbot (Jan. 23, 1995), 26 W.C.B. (2d) 609 (Ont. Ct. Gen. Div.).

[3] Regina v. Dawson (1969) 3 C.C.C. 212 (B.C.C.A.).

[4] R. v. Stockwood (1990), 83 Nfld. & P.E.I. 91, 260 (Nfld. S.C.T.D.).

[5] Dawson, supra note 3.

[6] R. v. Sullivan (1987), 37 C.C.C. (3d) 143 at p. 157 Ont. (C.A.).

[7] R. v. Willband (1967), 2 C.C.C. 6, S.C.R.

[8] Regina v. Carleton (1981), 69 C.C.C. (2d) I (Alta. C.A.)

[9] R. v. Lyons (1984), 15 C.C.C. (3d) 129 (S.C.C.).

[10] R. v. Newman (1994), 115 Nfld. & P.I.E.R. 197.

[11] R. v. Dawson (1969) 3 C.C.C. 12 (C.A.).

[12] R. v. Read (1994), 47 B.C.A.C. 28 (B.C.A.C.); R. v. Teskey (1995), 176 A.R. 4, (Alta. Q. B.).

[13] R. v. Knight (1975), 27 C.C.C. (2d) 343 (Ont. H. C.).

[14] Her Majesty the Queen and Orell Gallant (March 9th, 2001) (Bigelow, J. O.C.J.).

Evidence of Danger to the Public Under the Immigration Act

The evidentiary basis under the Immigration Act is a far cry from that under the Criminal Code. Under the Criminal Code the evidence has to establish beyond a reasonable doubt that a person is a dangerous offender. The evidence is incontrovertible.

The documents used as evidence that is submitted to the Minister, or the Minister's delegate when seeking an opinion concerning the danger to the public, in accordance with subsection 70(5) of the Act, may consist of:

1. Report from an Immigration Officer

2. Record of landing

3. Copy of letter/ notice to person concerned and acknowledgment of receipt

4. Statutory declaration of Immigration Officer

5. Citizenship search

6. Report under section 27 of the Immigration Act

7. Warrant or warrants of committal

8. Record of conviction or convictions

9. Pre-sentence reports

10. Judge's reasons for sentence

11. Criminal profile report

12. Record of arrest and synopsis

13. CPIC printout

14. NCIC printout

15. Psychiatric evaluations or certificates

16. Victim impact statements

17. Police occurrence reports

18. Interpol reports

19. National Parole Board reports

20. Probation and Parole Officer reports

21. Correctional Services Canada reports

22. Adjudication detention decisions

23. Any other documents, which would support a finding of danger to the public

Most of these documents, especially the crucial ones from the point of view of the person concerned are not available when the decision declaring someone a danger is made. These include items number 15, 19, 20, 21, 22 and 23. These are usually only available later.

A fatal procedural practice is that the Minister initiatives the danger to the public process shortly after a person has been sentenced and before he has accumulated evidence of rehabilitation. This is what happened in the case of Rolston Moffatt [1], a case that went all the way to the Supreme Court of Canada where leave was denied. The Trial and Appeal Divisions of the Federal Court all dismissed the application.

The Appellant was declared to pose danger to the public at the “front end” of his sentence i.e. at the beginning of his sentence. That was in January 1996. After he was declared to be a danger, he continued to serve his sentence until November 1999 when he was paroled for deportation. Between the time that he was declared to be a danger to the public in January 1996 to the time he was paroled in November 1999, he participated in numerous educational, upgrading, work and rehabilitative programs. This evidence was obviously not available when the appellant was declared to be a danger to the public. This evidence accumulated later. The Federal Court of Appeal refused to admit the new evidence of rehabilitation.

It was submitted in the Supreme Court of Canada that the Federal Court of Appeal erred in law in not admitting this evidence of rehabilitation which had only become available after Moffatt had been declared to be a danger prematurely. The test for “danger to the public” has now and repeatedly been stated as constituting, not only past but a “present and future” danger. The mere fact of a criminal conviction is not sufficient. The evidence upon which the Appellant was declared to be a danger in 1996, constituted present danger in 1996, or past danger, but in November 1999, that evidence no longer constituted present danger. The evidence of rehabilitation that accumulated between January 1996 and November 1999 overtook the past or present danger evidence existing in 1996. This evidence of rehabilitation indicated that the Appellant no longer presented a future danger to the public. By dismissing evidence indicating that the Appellant no longer posed a future danger, the Federal Court of Appeal erred in law in ignoring the totality of what constitutes a danger to the public under the Immigration Act which is, a person who poses present and future danger. In November 1999, evidence had accumulated indicating that the Appellant would not be a recidivist.[2]

It was further submitted in the Supreme Court of Canada that in declaring a person to pose danger to the public at the front end of his sentence, rather than at the “back end” of his sentence, the Respondent had violated procedural fairness which was not in accordance with principles of fundamental justice as required by section 7 of the Canadian Charter of Rights and Freedoms. At the end of his sentence, the Appellant may no longer be considered to pose danger to the public. But then he had already been declared to pose danger. And the courts, as happened in Moffatt, would refuse him to adduce evidence of his rehabilitation. He is therefore precluded from putting in a good answer and defence to the Respondent’s opinion, after leave had been granted and the application for judicial review is heard. Such procedure and practice is prejudicial to the Appellant and is not in accordance with principles of fundamental justice. His rights to life, liberty and security of the person are violated contrary to section 7 of the Charter. The Court should not participate in the violation of individuals’ rights.[3]

As much as the above stated list of documentary and other evidence seems overwhelming, the majority of it is not applicable in all of the cases submitted for the Minister's opinion.

Additionally, there has been several cases where it was blatantly clear that the Minister, and or the Minister's Delegate had totally ignored evidence, which was available as in the following selected cases:

In Rampersaud v. Canada (M.C.I.) [4] , the Court ruled that evidence concerning an applicant's risk to the public should be placed before the Minister. In this case the Parole Board decision should have been considered. The applicant was released from prison because the risk of recidivism was low. The danger opinion was set aside.

In Ashton v. Canada (M.C.I.)[5] the Court ruled that the recommendations were made without giving any regards to the evidence that was submitted by the applicant. The danger opinion was set aside.

In Thai v. Canada (M.C.I.)[6] the Court ruled that for the Minister or Minister's delegate to form an opinion of danger to the public pertaining to the applicant, the evidence must have a substantial basis and be supported by the facts. The danger opinion was set aside as this evidence was not supported by the facts.

In Holmes v. Canada (M.C.I.) [7] the Court ruled that the evidence manifestly required a different result. The danger opinion was set aside.

In Chedid v. Canada (M.C.I.) [8] the Court ruled that the Parole Board's positive decision was evidence as to the unlikelihood of recidivism. This evidence was not considered. The danger opinion was set aside.

In Thompson v. Canada (M.C.I.) [9] the Court ruled that consideration should have been given to the fact that there was no evidence of criminal activity for nearly four years.

The danger opinion was set aside. The fact of a criminal conviction alone was not sufficient to found an opinion that a person constitutes a danger to the public.

The requisite standard for an offender to be declared a danger to the public under subsection 70(5) of the Act, is to be a non-citizen who has been convicted of an offence or offences for which he or she was sentenced to six months or more, or a sentence of ten years or more could have been imposed.

A first time offender would fall prey to be considered a danger to the public under this test.

It is abundantly clear from the case law that the Minister or the Minister's delegate does not see the completed submissions of the offender.

The documentary evidence submitted by the offender, which would support his or her contention that he or she is not a danger to the public and should not be removed from Canada may consist of:

1. Compassionate or humanitarian considerations

a. length of time in Canada

b. ties to the community

c. family in Canada

d. degree of establishment in Canada

e. dependants and dependency

2. Reasons why he or she is not a danger to the public in Canada

a. efforts at rehabilitation

b. future plans, job opportunities and any other factors that are relevant to maintaining a pro-social life.

It is clearly evident that the Minister or Minister’s delegate never considers the evidence, which supports the submissions made by the offender. There is no commentary as to why it was rejected. This is a breach of procedural fairness, and a denial of a fair adversarial process.

There is no personal attendance for a hearing as under the Criminal Code. There are no reasons given for the decision[10]. It is invariably easy to speculate that the decision was made without taking into account the requisite evidence of the person concerned. Under the Criminal Code, a written decision is given and it is easy to assess the rationale for the decision.

There are severe consequences on someone’s life, liberty and security of the person when that person gets declared to be a danger to the public in Canada. If that person had been ordered out of Canada when he gets declared to be a danger to the public, he stands a chance of being arrested and detained as a dangerous person. The whole idea of declaring a person to be a danger is to remove that person from the Canadian community. That person should either be outside Canada or if still in Canada, he should be in immigration detention. This is what happened in the case of William Simeon Harriott [11]. He was declared to be a danger to the public after his release from provincial reformatory. He was arrested, released by an adjudicator and then rearrested and eventually deported from Canada. Derar Kidane was detained for thirty-three months after the termination of his sentence because the minister had declared him to be a danger to the public. He was eventually released because he could not be sent to either Ethiopia or Eritrea.[12]

This chapter has discussed the issue of the sparse evidentiary basis that is available for the declaration that a person is a danger to the public. It is a far cry from the kind of evidence that is required to find someone a dangerous or long-term offender. Yet the consequences for a declaration that someone is a danger to the public are severe. They may include loss of liberty and certainly, separation from family, friends and removal from a country that one may have grown up in.

[1] Moffatt v. Canada (M.C.I.) Court File No. 27895 (S.C.C.) leave to appeal denied on March 22nd, 2001.

[2] Williams v. Canada (Minister of Citizenship and Immigration) [1997], 2 F.C. 646 (C.A.).

Thompson v. Canada (Minister of Citizenship and Immigration) (1996), 37 Imm. L.R. (2d) 9 (F.C.T.D.).

[3] R. v. Stinchcombe (1991), 1 S.C.R. 754.

[4] Rampersaud v. Canada (M.C.I.) (1998) 44. Imm. L.R. (2d) 32.

[5] Ashton v. Canada (M.C.I.) (1998), 142 F.T.R. 97 (Fed. T.D.).

[6] Thai v. Canada (M.C.I.) (1998) 42 Imm. L.R. (2d) 28 (Fed.T.D.).

[7] Holmes v. Canada (M.C.I.) (1997), 41 Imm. L.R. (2d) 241 (Fed.T.D.).

[8] Chedid v. Canada (M.C.I.) (1997) 127 F.T.R. 81 (Fed. T.D.).

[9] Thompson v. Canada (M.C.I.) (1996) 37 Imm. L.R. (2d) 9, F.T.R. 269 (Fed. T.D.).

[10] Justice Reed of the Trial Division has ruled that reasons are required, see Williams v. Canada (M.C.I.) Imm.-3320-95 (October 18, 1996). The Federal Court of Appeal overturned this decision, see Williams [1997] 2 F. C. 646 (F.C.A.). This in turn has perhaps been overturned by the Supreme Court of Canada in Baker v. Canada (M.C.I.) [2000] 1 Imm. L.R. (3d) 1.

[11] William Simeon Harriott v. Canada (M.C.I.) Imm. No. 3211-95.

[12] For a review of similar cases, see Munyonzwe Hamalengwa “Reducing Derivative Costs to Ontario’s Criminal Justice Process and Other Related Issues” submission made to the Criminal Justice Review Committee of Ontario, April 1998.

Appeals and Reviews Under the Criminal Code Concerning Dangerous Offenders

A person designated as a dangerous offender or long-term offender has a right to appeal that designation to the Court of Appeal and further to the Supreme Court of Canada, if leave is granted.

Subsection 759.(1) provides that “An offender who is found to be a dangerous offender under this Part may appeal to the Court of Appeal against that finding on any ground of law or fact or mixed law and fact.”

Subsection 759.(2) provides that “The Attorney General may appeal to the Court of Appeal against the dismissal of an application for an order under this part, or against the length of the period of long-term supervision of a long-term offender, on any ground of law.”

Subsection 759.(3) provides as follows: “On an appeal against a finding that an offender is a dangerous offender, the Court of Appeal may

(a) allow the appeal and

(i) find that the offender is not a dangerous offender, find that the offender is a long term offender, impose a minimum sentence of imprisonment for two years, for the offence for which the offender has been convicted, and order the offender to be supervised in the community, for a period that does not, subject to subsection 753.1(5), exceed ten years, in accordance with section 753.2 and the Corrections and Conditional Releases Act,

(ii) find that the offender is not a dangerous offender and impose sentence for the offence for which the offender has been convicted, or

(iii) order a new hearing, or

(b) dismiss the appeal.”

Subsection 759.(4) provides that “On an appeal against the dismissal of an application for an order that an offender is a dangerous under this Part, the Court of Appeal may

(a) allow the appeal and

(i) find that the offender is a dangerous offender,

(ii) find that the offender is not a dangerous offender, find that the offender is a long term offender, impose a minimum sentence of imprisonment for two years, for the offence for which the offender has been convicted, and order that the offender be supervised in the community, for a period that does not, subject to subsection 753.1(5) exceed ten years, in accordance with section 753.2 and the Corrections and Conditional Releases Act, or

(iii) order a new hearing, or

(b) dismiss the appeal.”

It is stated under Subsection 759 that “A judgment of the Court of Appeal finding that an offender is not a dangerous offender or a long-term offender, or changing the length of the period of long term supervision ordered, has the same force and effect as if it were a finding by or judgment of the trial court.”

The standard of review of a dangerous or long term offender applied is one of reasonableness. This was stated by the Supreme Court of Canada in Currie [1]:

Reasonableness is the appropriate standard of review in this case because, as much as dangerous offender status is a part of the post-conviction process, the application of general standards of sentence review is not warranted given the broad language of s. 759…

Given this provision, I do not find the “manifestly wrong” or “demonstrably unfit” general sentencing standards … to be applicable to this situation. However, it is equally true that s. 759 cannot be interpreted as calling for the equivalent of a trial de novo on the dangerous offender application. Some deference to the findings of a trial judge is warranted.

The Supreme Court of Canada has had occasion to pronounce on the constitutionality of the dangerous offender legislation.

In Smith [2] LaForest J. made the following comments:

1. “Part XXI as it then was applies only to persons convicted of serious personal injury offences.

2. Before an accused can be found to be a dangerous offender, it must be established to the satisfaction of the court that the offence for which the accused has been convicted is not an isolated occurrence, but part of a pattern of behaviour that has involved violence, aggressive, or brutal conduct, or a failure to control sexual impulses.

3. It must be established that the pattern of conduct is very likely to continue and to result in the kind of suffering against which this section seeks to protect, namely, conduct causing injury , pain, or other evil to other persons.

In addition the Court must be satisfied that the pattern of conduct is substantially intractable.”

The finding may be reversed if the above criteria are not satisfied.

In Lyons [3], the accused was declared a dangerous offender after pleading guilty to four offences, including, breaking and entering a dwelling house and committing an indictable offence and unlawfully using a weapon in the commission of a sexual assault. An appeal to the Nova Scotia Court of Appeal was dismissed. Then an appeal to the Supreme Court of Canada which considered two constitutional questions and in particular whether the provisions of Part XXI of the Criminal Code as amended dealing with an application for finding and sentencing an individual as a dangerous offender infringed ss. 7, 9, 11 and 12 of the Canadian Charter of Rights and Freedoms. The Charter challenges were four-fold. First, it was contended that the dangerous offender provisions violated s. 7 of the Charter on the basis that both the concept of preventive detention and the procedures designed to enforce it offended principles of fundamental justice. Second, it was argued that because the dangerous offender application did not have to be heard before a jury, this contravened ss. 7 and 11(f) of the Charter. Third, the legislation was attacked on the basis that it was cruel and unusual punishment contrary to s. 12 of the Charter. Fourth, the legislation was challenged on the grounds that it resulted in arbitrary detention contrary to s. 9 of the Charter, in part because of the broad scope of prosecutorial discretion afforded the Crown. The appeal was dismissed. The Supreme Court of Canada decided in Lyons that:

[T]he legislation narrowly defines a class of offenders with respect to whom it may properly be invoked, and prescribes quite specifically the conditions under which an offender may be designated as dangerous … the criteria … are anything but arbitrary in relation to the objectives sought to be attained; they are clearly designed to segregate a small group of highly dangerous criminals posing threats to the physical or mental well-being of their victims. [Emphasis added.]

Another reason was that judicial discretion was preserved in deciding dangerousness. According to Justice La Forest:

Finally the Court has the discretion not to designate the offender as dangerous or to impose an indeterminate sentence even in circumstances where all of these criteria are met[4]

Wilson J., dissenting in part, stated:

It was not necessary to decide in this case whether or not the accused was a person charged within the meaning of section 11 since his rights under section 7 of the Charter were infringed because he was not informed prior to his election and plea of the Crown's intention to seek an order under Part XXI of the Criminal Code. It is a principle of fundamental justice as guaranteed by s. 7 that an accused knows the full extent of his jeopardy before he pleads guilty to a criminal offence for which a term of imprisonment may be imposed. Since the Court can probably conclude that this accused would not have pleaded guilty had he known that the Crown would be seeking an order of preventative detention, then the accused is entitled to the protection of s. 7, unless knowledge of his exposure to such an order under Part XXI can properly be attributed to this accused. The Criminal Code expressly contemplates that notice will be given to the accused of the Crown's intention to make a Part XXI application, albeit such notice may only be given following the conviction. Further, the fact that such applications are rare and particular rare in the case of an offender of the age of this accused, 16 years of age, it would be unrealistic to attribute such knowledge to the accused's counsel and through him to the accused. In the result, it was open to the accused , either to challenge the order under Part XXI, as he did in this case. Accordingly, the appeal should be allowed, the order quashed and the matter remitted back to the trial judge for imposition of a determinate sentence[5]

Justice Lamer also dissented as he found that lack of jury determination in a dangerous offender application violated Section 11(f) of the Charter:

… the purpose of s. 11(f) of the Charter is to guarantee that anyone in jeopardy of being sentenced to imprisonment for five years or more as a result of a determination of guilt has the right to have that determination made by a jury. To say that an application under Part XXI is not a charge of an offence violates, in my respectful view, the spirit of the Charter and leaves without that protection offered most persons in jeopardy when charged with an indictable offence those put in one of the most serious jeopardies our law has created … Section 689(2) of the Code which provides that an application under Part XXI shall be heard and determined by the court without a jury, clearly restricts this right and must be declared inoperative …[6]

In Milne [7], the applicant was declared a dangerous offender, after pleading guilty to five counts of gross indecency. The term “gross indecency” was repealed shortly thereafter. An appeal to the Ontario Court of Appeal, prior to the amendment was dismissed. So was an appeal to the Supreme Court of Canada. Estey J. dissented stating:

It has, however, long been an element of criminal law of this country that sentences must be proportionate to the offence committed. Parliament has now found that the indeterminate sentence is no longer appropriate in respect of violation of s.157 and presumably so because such imprisonment would be disproportionate, in the view of Parliament, to the offence of gross indecency. It might be said therefore, that the appellant's continued imprisonment would in these circumstances be a deprivation of liberty otherwise than in accordance with the principles of fundamental justice. It might also be that the continued imprisonment of the appellant is "arbitrary" and hence contrary to s. 9 of the Charter. Once the indefinite holding of a person convicted of gross indecency is no longer authorized in criminal law, such incarceration becomes capricious or arbitrary and, of course, if so imposed after the amendment of Part XXI, would be illegal. Accordingly, the continued incarceration of the appellant may be said to have become capricious or arbitrary in the ordinary sense of that term as employed in s. 9. There can hardly be a rational basis or a justifiable basis for the continued retention of the appellant.

In all the circumstances I would conclude that the continued imprisonment of the appellant more clearly offends the right of the appellant under s. 12 of the Charter which provides

12. everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

I conclude that whatever may be the case in respect to ss. 7 and 9, the continued imprisonment of the appellant under an indeterminate sentence is a violation of the appellant's constitutional right under s. 12 of the Charter.

The Court of Appeal for Ontario in Currie [8] offered a generous interpretation of the dangerous offender designation. The Supreme Court of Canada took an opposite view on a further appeal by the Crown. The judgement of the Court of Appeal read in part:

It is my view that the finding of dangerous offender was not justified in fact or law in this case. Even if it was, an indeterminate sentence was not merited. The appellant has been incarcerated since his conviction in April 12, 1989, of the predicate offences and spent a further two years and five months in pre-trial incarceration. Having regard to the nature of the offences for which he was convicted, it is obvious that he has served a term that is more than justified as a determinate sentence. Accordingly, I would allow the appeal, quash the order for an indeterminate sentence and substitute a sentence of time served.

It is apparent that as the years go by, and the escalation of different types of criminal offences occurred, that parliament became even more concerned with the protection of society, as a whole. Thus, the introduction and implementation of new legislation which was inherently designed to protect the public, by the removal of those offenders who, by the very nature of the offences, have shown a total disregard for the physical, mental and psychological well-being of other persons, in the pursuit of their own self-satisfaction. Albeit, that these offenders are in the minority.

The nature of the offences committed has made it necessary for those offenders, who fall within the legislative guidelines, to be declared dangerous offenders and removed from society, which to some extent reassures the public that the justice is not only being done, but is appears to being done. And that the law protects not only the accused persons, but victims of crime as well.

As is obvious in the aforementioned cases there are a number of guidelines in place to guarantee that justice is maintained, by granting the dangerous offender all the relevant protections of a fair adversarial process, including rights of appeal as well as the protections of the Charter, particularly sections 7, 9, 11 and 12.

The right of appeal under section 759. (1) of the Code is fundamental, bearing in mind that the appeal process is for the correction of any errors made during the judicial process.

Throughout the process, trial and appeal, the accused is represented by counsel who is retained privately or paid by the state.

Having reviewed a number of cases, some of which have been referred to, it becomes apparent that the majority of offenders who have been declared to be dangerous offenders, are dangerous sexual offenders, and the threshold set for the declaration of dangerousness, is very high indeed.

The case of R. v. Mitchell McArthur [9], is instructive. In dismissing the Crown application to declare McArthur a dangerous offender, Justice La Forme stated:

No one argues that armed robbery in and of itself is not a crime of violence but, in order to meet the test of violence required to meet the standard dictated in dangerous offender applications, it must, in my opinion, be more. The repeated conduct must be the reason for the harm caused such as the actual shooting of people in virtually all of the authorities presented to me, the offences which made up the pattern of violent behaviour were by themselves the cause of injury. In general, the crimes were one of rape and sexual assault which, in my view, form, although not exclusively, the essence of what parliament intended to confront with dangerous offender proceedings.

He further stated that

Parliament intended that dangerous offender proceedings and their dire consequences be used very sparingly and in the most obvious cases. We must be ever observant to, and recognize that, these provisions are not provided solely to reflect and vent anger and loathing of virtually any offender's conduct, even where one is seriously tempted to do so in the wake of the abundant hurt and misery the criminal behaviour has left behind. Courts must always take extra care to invoke these most extreme sentencing powers only where it is absolutely clear and obviously appropriate.

When evaluating a dangerous offender application, a declaration of dangerous offender and the grounds on which the appeal is premised, despite it's complexities, the single most important fact is that all of the offenders have been subjected to extensive psychiatric, psychological and criminological assessments. In each and every case, the experts conclude that all these offenders have severe emotional, mental and psychological problems, which manifest itself in their conduct, their inability to control their impulses, their hostility towards society in general, their callousness and lack of empathy for others.

However, all the opinions, conclusions, and evidence itself all point to the fact that when Parliament introduced and implemented the present dangerous offender law it's prime motive, as stated in Lyons [10] was " a diligent attempt to carefully define a group of offenders whose personal characteristics and personal circumstances militate strenuously in favour of preventative incarceration".

And as Justice La Forme said in McArthur [11]:

in general the crimes were one of rape and sexual assault which, in my view, although not exclusively, the essence of what Parliament intended to confront with dangerous offender proceedings.

The danger to the public law under the Immigration Act as will be clear in the next chapter, has not benefited from such discerning constitutional scrutiny.

This chapter has examined appellate judicial pronouncements on the standard to be met before a convicted person is declared to be a dangerous or long-term offender. Thus under the Criminal Code not only is a convicted person entitled to exacting evidentiary foundations before he or she is declared to be a dangerous or long-term offender, he or she is also accorded the right, to a complete appellate review that looks at the evidence upon which a finding of dangerousness was based. As will be seen in the next chapter, the standard of reviews in the immigration context merely looks to some extent if there were omissions in the finding and not if there were constitutional problems with the evidence.

[1] The Queen v. Currie (1997), 115 C.C.C. (3d) 205 (S.C.C.).

[2] R. v. Smith, (1987), 34 C.C.C.(3d) 97.

[3] R. v. Lyons, (1987), 37 C.C.C.(3d) 1.

[4] Ibid p. 29.

[5] Ibid p. 12.

[6] Ibid pp. 10 and 12.

[7] Milne, (1987), 38 C.C.C.(3d).

[8] R. v. Currie, (1995), 103 C.C.C.(3d) 281 (Ont. C.A.)

[9] R.v. Mitchell McArthur, File No. 8206A/95 Ontario Court of Justice (General Division) (unreported).

[10] R. v. Lyons, (1988), 37 C.C.C. (3d) 1., supra note 3.

[11] McArthur, supra note 9.

Appeals and Reviews Under the Immigration Act

Prior to the enactment of subsection 70(5) a non-citizen who had been issued with a deportation order, or a conditional deportation order, had the statutory right to appeal the deportation order to the Appeal Division on either or both of the following grounds:

a. on any ground of appeal that involves a question of law of fact, or mixed law and fact, and

b. on any ground that, having regard to all the circumstances of the case, the person should not be removed from Canada.

The statutory right of appeal to the appeal division was removed and non-citizens who fell under subsection 70(5) of the Act had to seek judicial review of that finding in the Federal Court.

It should be noted that the Federal Court could only quash the finding of the Minister or the Minister’s Delegate, and remit back the case for redetermination or if the opinion was quashed, the person concerned could go to the Appeal Division of the Immigration and Refugee Board. Under the Criminal Code as we have seen, there is a right of appeal. There is no right of appeal under the Immigration Act. The Federal Court has now extensively commented on the danger to the public law.

A few select cases will do here to exemplify judicial commentary on the danger to the public law.

In Rampersaud v. Canada (M.C.I.) [1], the Minister’s Delegate ignored relevant information, such as the police officer’s arrest reports and the applicant’s explanation with regard to his drug conviction. Also the Parole Board decision that the applicant could leave prison because the risk of recidivism was low. The danger opinion was set aside.

In Ashton v. Canada (M.C.I.) [2] where the court noted that the Minister’s decision was so profoundly unresponsive to the evidence that it was on its face perverse. The evidence manifestly required a different result. Further, there were no reasons to explain the Minister’s opinion or how it was reached. The Court also found that the reviewing officer’s recommendation to be a remarkably unfair interpretation of the evidence and further that the recommendation was given without regard to the evidence that was submitted by the applicant. The danger opinion was set aside.

In Thai v. Canada (M.C.I.) [3] the Court like in other cases decided that a danger to the public opinion involves an assessment of present or future danger. The commission of one offence is not evidence of recidivism. Even though all that is required in these cases is some evidence to support a decision of the delegate, that evidence must have a substantial basis, and be supported by facts. The danger opinion was set aside as it did not meet the test.

In Ip v. Canada (M.C.I.) [4] the court observed that the fifteen-day time limit is too short for an applicant to make submissions and this creates an unfair imbalance with respect to an individual’s right to put material before the Minister’s delegate. In this case counsel requested an extension and received no answer. Thus, the failure to respond was a breach of procedural fairness. The opinion was set aside.

In Nguyen v. Canada (M.C.I.) [5], the immigration officer who prepared the Report did not believe that the subject was a danger to the public. His manager did not concur, and without explaining his reasons, the opinion was issued. The court noted that in forming an opinion the possibility or likelihood of re-offending is only relevant to the extent that the re-offending is likely to represent a danger to the public, and concluded that the decision rendered was perverse, and in the absence of reasons, could find no rational reason for the opinion formed. The opinion was set aside.

In Frances v. Canada (M.C.I.) [6] the court noted that no consideration was given to the seven-year period during which the applicant had no criminal convictions. The opinion was set aside.

As is obvious in the previously mentioned cases there may be a variety of reasons for the Minister’s or Minister’s Delegate to form the opinion that someone is a danger to the public. But given that no reasons are given for the decision, no one knows why a person was declared to be a danger. However, the predominant criteria is that that person must be a non-citizen who has been convicted of an offence, or offences that satisfy section 27 (1)(d) of the Immigration Act . The fact of a conviction is the only criterion.

The standard of proof is not beyond a reasonable doubt as under the Criminal Code but merely if the Minister or his delegate is of the opinion that a person constitutes a danger to the public.

It was aptly summed up in Williams v. Canada, [7] where the court noted that

The test is not whether the permanent resident is a danger to the public but whether the Minister is ‘of the opinion’ that he is such a danger. Such opinions can only be reviewed on the grounds that the decision-maker acted in bad faith, erred in law, or acted on the basis of irrelevant consideration. The Court is not being asked to affirm the correctness of the Minister’s opinion but only to determine whether there is any lawful basis for its review.

Under the Criminal Code, appellate courts can affirm or quash the trial judge’s finding as to dangerousness. The standard of review is reasonableness.

With reference to the lack of reasons for the Minister’s opinion, the court in Williams [8] went on to say that

It is preferable that both courts and tribunals give reasons for their decision. The Court noted many advantages in issuing reasons, they enable the parties to know why they have won or lost, the articulation of reasons imposes a discipline upon a court or tribunal, reasons assist a court later in disposing of an appeal or exercising powers of judicial review.

The Federal Court of Appeal despite this reasoning, went ahead and concluded that reasons are not required unless statutorily mandated. The Trial Division had set aside the danger opinion because no reasons among others, had been given[9].

The established grounds for judicial review are:

a. Error of law

b. Bad faith

c. consideration of irrelevant factors

d. failure to consider relevant factors.

The Federal Court in quashing the Minister’s opinion in the afore-mentioned cases made it even more apparent that the requisite standard to be met for one to be declared a danger to the public is not a standard at all. The Court ruled in one case that the mere fact of convictions on one or more criminal offences does not itself support a determination that a person is, may be or is likely to pose a danger to the public. The Court concluded that the Minister based her determination on the mere fact of the Applicant’s convictions without regard to other circumstances of the case. [10]

Thus, if the court has ruled that regard must be given to other circumstances of the case, the question then, that must be asked is what are the guidelines or safeguards in place to create that balance that the Canadian Charter is premised upon.

a. A fair adversarial and procedural process.

b. The right to confront and examine witnesses.

c. Equal protection and equal benefit of the law.

d. Right to legal representation.

e. Right to appeal.

The courts have made it quite clear that evidence of conviction, or convictions is not enough for one to be declared a danger to the public. However, the requisite standard set by the Immigration Act is conviction or convictions of an offence or offences that has resulted in a sentence of six months or more, or where a sentence of ten years or more could have been imposed. A mere conviction or convictions is not the yardstick under the Criminal Code.

If the court has stated that evidence of conviction is not enough, then on what do the Minister or his or her delegates base the decisions? Is it duration of sentence, or other attendant circumstances, such as for example, nature of the offence?

There is quite a contradiction between the reasons used for the danger opinion and the grounds on which the courts make their findings.

In the seminal case of Thompson v. Canada (M.C.I.) [11], the Court stated that “The circumstances of each case must over and above the conviction indicate a danger to the public.” The Court, however, refused to expand on the criteria for declaration that someone poses a danger to the public, content in stating: In subsection 70(5) Parliament chose not to narrow the scope of the Respondent’s discretion by a ‘reasonable grounds’ standard or by specific factors to be considered. It would be wrong in law to judicially impose criteria or considerations where Parliament has not. [12] (Emphasis added).

What Parliament says has never stopped courts from striking down legislation. It is argued that courts are reluctant to strike down legislation pursuant to the Charter because the subjects are non-citizens.

Would it be fair to assume that the above-emphasised is indicative that the court is of the opinion that subsection 70(5) is not judicially clear but it is not the Court’s duty to impose criteria even though lack of criteria results in vagueness which could result in lack of clarity thus making it difficult to defend, since there are no established guidelines, other than the facts of non-citizenship, conviction and sentence? When the Minister’s opinion is being sought the offender has already satisfied the criteria set out in the Act.

So if the court has repeatedly ruled that this is not enough, what is enough?

Just like the dangerous or long-term offenders sections of the Criminal Code, the danger to the public law under the Immigration Act has faced critical constitutional challenges. So far, just like under the Criminal Code constitutional challenges, the courts have denied all constitutional challenges under the Immigration Act.

The constitutional challenges have been argued pursuant to sections 7, 12 and 15 of the Charter. I have already elsewhere surveyed the constitutional issues arising out of section 15 of the Charter. Section 12 of the Charter is not that relevant and I will not discuss it. It will limit the discussion to some of the issues arising out of section 7 of the Charter[13].

The following is a composite of the constitutional and other challenges to the danger to the public law under the Immigration Act.

It has been submitted that it is a fundamental precept of administrative law that where an individual is at risk of losing a right or privilege, that he be advised of the case he must meet and given time to make submissions. In the case of Nicholson v. Haldimand-Norfolk Police Commrs. Bd.[14], His Lordship, Mr. Justice Laskin who was then the Chief Justice of the Supreme Court of Canada, cited with approval the following from the case of Selvarajan v. Race Relations Bd. [1975] 1 W.L.R. 1686:

The fundamental rule is that, if a person may be subjected to pain or penalties, or be exposed to prosecution or proceedings, or deprived of remedies or redress, or in some such way adversely affected by the investigation and report, then he should be told the case made against him and be afforded a fair opportunity of answering it...

Likewise, in Mensinger v. M.E.I.[15], Mr. Justice Rouleau of the Federal Court, Trial Division commented on the issue of fairness in the exercise of Ministerial discretion. At issue in that case was the Minister's decision to remove an individual to the United states and not Great Britain as the individual had requested. His Lordship was of the view that the common law duty of fairness applied even in cases dealing with highly discretionary actions.

At page 71 of the reported case as above cited, the Justice had this to say:

In determining whether the Applicant in this case has been treated fairly, it is necessary to bear in mind the basic objective of the doctrine of fairness. That basic objective is to ensure that individuals are entitled to the degree of participation necessary to bring to the attention of the decision maker any fact or argument of which a fair minded official or authority would need to be informed in order to reach a rational decision.[16](underline added)

Additionally, the Federal Court of Appeal in Koo Shew Wan v. M.E.I. [17]observed on the need for sufficient information to allow an individual a fair opportunity to dislodge the burden. Mr. Justice Jackett stated that:

...when it is proposed to base action on a specific fact, the onus of disproving it does not arise until the person against whom it is alleged is given sufficient indication of what is alleged to be in a position to disprove it.

It has further been argued that it is trite law that in effecting the removal of a person legally in Canada, the onus is on the Minister to show that the individual is to be removed. Indeed, in the case of a landed immigrant who has a right of appeal to the Appeal Division and is then determined to be a danger to the public, that individual loses the right to have his case examined for humanitarian and compassionate factors by an impartial Tribunal. [18]

With respect to the procedure as to whether the Applicant knew what factors he had to meet in order to make a fair representation, it is submitted that in every case the Applicant did not know what the Minister required in order for him to be better informed. To be advised that the Minister is considering whether an individual constitutes a danger to the public does not lend any kind of specificity to the definition of being a "danger." Is it the nature of the crimes committed or the length of the sentence received? Would an offence involving property rights be considered as casting one under the cloud of being a danger? Does the fact that the individual was released on bail have any bearing on the Minister's consideration?

It has been submitted that given that fairness dictates that the Applicant be advised as to what burden he must dislodge and given that it is not clear as to what exactly the Minister relies upon in arriving at his opinion, the determination that the Applicant is a danger to society cannot be sustained. The Minister, without lawful justification dislodges the onus from himself of showing the basis for his finding that a person is a danger to the public, and surreptitiously places it onto the person concerned.

It is submitted that this reverse onus is contrary to principles of fundamental justice, as the person concerned is made to disprove a fact which has not yet been demonstrated. Or he is made to disprove a fact as if a fact has already been determined. Then he is told that he has not disproved that fact.

It has been further submitted that the determination of "danger to the public" is fraught with arbitrariness. As the Supreme Court of Canada observed in R. v. Hufsky [19], arbitrariness is governed by unstructured discretion. The Court went on to say that "discretion is arbitrary if there are no criteria, expressed or implied, which govern its exercise." Subsection 70(5) gives the Minister arbitrary power or empowers the Minister to act arbitrarily. This should not be so.

It was also submitted that the Minister has not set up any criteria that allows the Applicant to know what exactly the determination of being a "danger" involves. Given the fact that the liberty of the Applicant could well be affected through detention and deportation, it is submitted that the Minister's determination should be consistent with principles of fundamental justice in accordance with section 7 of the Charter.[20]

It was further submitted that the provision pre-emptying the rights of landed immigrants to appeal is not just arbitrary but is also vague. The Supreme Court of Canada stated that:

A vague provision does not provide an adequate basis for legal debate, that is for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria. It does not sufficiently delineate any area of risk, and thus can provide neither fair notice to the citizen nor a limitation of enforcement discretion. Such a provision is not intelligible, to use the terminology of previous decisions of this court, and therefore it fails to give sufficient indications that could fuel a legal debate. It offers no grasp to the judiciary.[21]

The Court also went on to say that:

Vagueness can be raised under s.7 of the Charter, since it is a principle of fundamental justice that laws may not be too vague.…

It also stated:

...(It) applies to all enactments, irrespective of whether they are civil, criminal, administrative or other. The citizen is entitled to have the state abide by constitutional standards of precision whenever it enacts legal disposition.[22]

The issue of lack of reasons is among the dominant constitutional challenges, it has been submitted that it is not sufficient that the Minister issues a decision without accompanying reasons as to how he or his designate arrived at the determination of the Applicant being a danger to the public.

The submission is made that the label "danger to the public" has far reaching consequences. The implication of being deported to another country under such label should not be underestimated. Hence, it was submitted that such determination cannot be made surreptitiously or arbitrarily. There should be clear criteria so that the Court could properly and effectively carry out its role, that is, to scrutinize the Minister's exercise of discretion. The Federal Court has held that the lack of a paper trail does not allow the Court to properly exercise its jurisdiction.[23]

It is also worth repeating that other provisions where determinations are made with respect of criminality and the protection of the public, clear procedures are employed. For example, under sections 39.1 - 40.1 of the Immigration Act, there is a process that ensures that the evidence in question and the determination is at least reviewed by an independent body, the Review Committee and then the Courts. More importantly, the Criminal Code (sections 752 -761) which, like Bill C-44 is geared to the long term protection of the public by determining whether the individual is a danger to the Canadian Public (dangerous offender provisions), sets out clear guidelines and procedure as to how such determination should be made. There is procedure for calling evidence including Psychiatric evidence before an independent and impartial Tribunal, with rights of appeal and periodic reviews.

It has also been submitted that a determination that a person is a danger to the public which effectively leads to detention and deportation, or permanent banishment from this society is tantamount to a curtailment of a person's liberty as in the case of a dangerous offender. Once banished as a danger to the public in Canada, a much heavier burden is placed on the Applicant who seeks to return to Canada even after rehabilitation. It has been submitted that given the implications of a danger to the public determination by the Minister, the process should be transparent and not precipitously prejudicial to the designated individual..

The Rolston Moffat [24]case whose application for leave was dismissed by the Supreme Court of Canada on March 22nd, 2001 had challenged subsection 70(5) of the Immigration Act as discrimination against a non-citizen who happened to be black and from Jamaica contrary to section 15 of the Charter.

In the Federal Court of Appeal, Moffatt [25] stated the following:

The Applicant, Rolston Ricardo Moffatt, (1) is a black person of Jamaican origin; (2) was found guilty after a trial and sentenced to 10 years imprisonment in 1995. He was paroled after 4 years; (3) was declared to be a danger to the public but was not given any written reasons as to basis of the opinion/decision that he constituted a danger to the public; (4) Correctional Services Canada had placed the applicant in a low security institution and provided positive reports on him, and (5) while he was in custody he did numerous rehabilitative programs and participated in rehabilitative activities.

The Federal Court of Appeal dismissed Moffatt’s constitutional challenge. The case was taken to the Supreme Court of Canada with the result that has already been indicated.

It was submitted in the Supreme Court of Canada that the Federal Court of Appeal erred in dismissing the constitutional question arguments of the Appellant. In light of the volume and merit of the documents proving discrimination against the Appellant and similarly situated persons, and without giving any reasons whatsoever for the dismissal and in the context of serious consequences to the Appellant for the decision, it was submitted that the Supreme Court should intervene as it was not clear as to why the serious and important constitutional arguments based on solid social science and political and legal commentary evidence were dismissed. Was this evidence considered or not? The presence of a constitutional issue in the form of a challenge to a statute, a common law rule or a government practice is a strong indication of public importance. Cogent reasons should have been given for dismissing constitutional issues raised in the case. [26]

The Appellant had argued that he was discriminated against because he is a non-citizen and a black man of Jamaican origin. Further that citizens who would have committed similar offence or worse offences would not have been declared to be dangerous or long term offenders under the circumstances. [27]

The documentary evidence submitted was to provide in part the social framework, social context or commonsense framework, in which the constitutional arguments were being made. It is now common knowledge by the informed public that people of Jamaican origin are stereotyped as criminals. Some of the documents, document this perception conclusively. That Jamaicans are stereotyped is now documented. That Jamaicans in Canada suffer adversely from this stereotyping is also now documented. This perception of Jamaican criminality has been imbibed by the legislature leading the legislature to enact subsection 70(5) of the Immigration Act and this in turn has consciously or subconsciously influenced the decision makers to declare Jamaicans as posing danger to the public more than other nationals.[28]

It was submitted that courts are now more prepared than ever to take social context or societal conditions into account without requiring proof of the impugned phenomenon. Discrimination against Jamaicans in the criminal and immigration context is so notorious that judicial notice should also apply. Here the Appellant produced documentary evidence to prove this. Further, the existence of racism in Canada is no longer disputable and has been judicially noticed in other contexts as requiring no proof. Here there was proof.

The Ontario Court of Appeal recognized the prevalence of societal conditions such as anti-black racism and took judicial notice of in affirming challenge for cause on the basis of race in Parks [29]. This approach of judicial notice of racism was affirmed by the Supreme Court of Canada in Williams [30]. The documentary evidence showed conclusively the prevalence of anti-Jamaican hysteria and the Supreme Court of Canada was called upon to take judicial notice of that fact, following Parks and Williams in the criminal context. The Federal Court of Appeal should not have dismissed the constitutional challenge underpinned by such strong documentary evidence.[31]

In Williams [32], the Supreme Court of Canada conclusively established that it is not necessary to duplicate effort if there are studies establishing widespread prejudice in a community. Judicial notice should apply according to the Supreme Court of Canada. The documentary studies establish wide spread prejudice against immigrants particularly of Jamaican origin.

The Supreme Court of Canada in R. v. R.D.S. [33] used social context judging. “The history of anti-black racism in Nova Scotia was documented recently by the Marshall Inquiry. It suggests that there is a realistic possibility that the actions taken by the police in their relations with visible minorities demonstrate both prejudice and discrimination.” The majority of documentary evidence demonstrate anti-Jamaican discrimination. “Judicial inquiry into context provides the requisite background for the interpretation and application of the law” the Court decided. This context can be provided by experts, academic studies properly before the court or from a judge’s personal understanding and experience in the community.

Moffatt’s massive constitutional challenge to the danger to the public law was dismissed as have all the others. The courts are safe to rely on common law principles which are not as broadly based in the age of the Charter.

[1] Rampersaud v. Canada (M.C.I.) (1998), 44 Imm. L.R. (2d) 32.

[2] Ashton v. Canada (M.C.I.) (1998), 142 F.T.R. 97 (Fed. T.D.).

[3] Thai v. Canada (M.C.I.) (1998) 42 Imm. L. R. (2d) 28 (Fed. T.D.).

[4] Ip v. Canada (M.C.I.) (1997), 136 F.T.R. 34(Fed. T.D.).

[5] Nguyen v. Canada (M.C.I.) (1997), 40 Imm. L. R. (2d) 103.

[6] Frances v. Canada (M.C.I.) (1997), 44 Imm. L.R. (2d) 202 (Fed. T.D.).

[7] Williams, [1997] 2 F.C. 646 (F.C.A.).

[8] ibid supra.

[9] Williams v. Canada (M.C.I.) Imm.-3320-95, per Reed, J. (October 18, 1996).

[10] Chedid v. Canada (M.C.I.) (1997), 127 F.T.R. 81 (Fed. T.D.).

[11] Thompson v. Canada (M.C.I.) (1996), 37 Imm. L.R. (2d) 9.

[12] ibid.

[13] I wish to thank lawyers Osborne Barnwell and marshall Drukarsh for sharing information and factums on their constitutional and other challenges to subsection 70(5) of the Immigration Act.

[14] Nicholson v. Haldimand-Norfolk Police Commrs Bd., [1979] 1 S.C.R. 311 (S.C.C.) at 327-328. See latest pronouncements on fairness, Baker v. Canada (M.C.I.) (2000), 1 Imm. L. R. (3d) 1.

[15] Mensinger v. M.E.I., [1987] 1 F.C. 59 (F.C.T.D.) at 71.

[16] Ibid. p. 71.

[17] Koo Shew Wan v. M.E.I. [1973] F.C. 578 (F.C.A.) at 584.

[18] Neg. v. M.E.I. (F.C.A., A-261-82); Anderson v. M.E.I., (1981) 2 F.C. 159 (F.C.A.).

[19] R. v. Hufsky (1988), 40 C.C.C. (3d) 398 (S.C.C.) at 407.

[20] Reference Re Section 94(2) of the Motor Vehicle Act (1983), 4 .C.C.C. (3d) 243 (S.C.C.).

[21] R. v. Nova Scotia Pharmaceutical Society (1992), 74 C.C.C. (3d) 289 (S.C.C.) at 311.; R. v. Fosseneuve (1996), 43 C.R. (4th) 260 (Man. Q.B.). One of the certified questions in Suresh deals with vagueness. Thus the Supreme Court of Canada has an opportunity to revisit this doctrine, Suresh, Court File No. 27790 (S.C.C.). See previous decision on vagueness, R. v. Morals [1992] 3 S.C.R. 711.

[22] Ibid. at 302 and 313.

[23] Marques v. Canada (1995) 27 Imm. L.R. (2d) 209 (F.C.T.D.).

[24] Moffatt v. Canada (M.C.I.) Court file 27895 (S.C.C.).

[25] Moffatt v. Canada (M.C.I.) A-679-97.

[26] Baker v. Canada (M.C.I.) (2000), 1 Imm. L.R. (3d) 1; John Sopinka, J. “The Supreme Court of Canada” in Crane and Brown, Supreme Court of Canada Practice (Toronto: Carswell, 2000) at 340.

[27] African Canadian Legal Clinic, No Clear and Present Danger: The Expulsion of African-Canadian Residents from Canada (Draft 1999).

[28] African Canadian Legal Clinic, ibid.

[29] R. v. Parks (1993), 84 C.C.C. (3d) 353, (Ont. C.A.).

[30] R. v. Williams [1998] 1 S.C.R. 1128, (S.C.C.).

[31] R. v. Wilson (1996), 29 O.R. (3d) 97 (O.C.A.).

[32] Williams, supra, note 30.

[33] R. v. R.D.S. [1997] 3 S.C.R. 484, paragraphs [149] of Cory, J. and [43] and [44] of L’Heureux-Dube and Mclachlin J.J.

Towards Equal Application and Benefit of the Law

It is my conclusion based on researching the dangerous offender proceedings under the Criminal Code and the danger to the public law under the Immigration Act, that Parliament intended under the Criminal Code to clearly define and isolate from the public, those offenders, who by their very conduct had demonstrated that they do pose an unacceptable risk to the health, well-being and security of the public. This is less so under the Immigration Act where the declaration of danger to the public was a mere vehicle for a speedy removal from Canada of serious criminals.

Under the Criminal Code, the offenders who are subject to a dangerous offender application are granted a variety of safeguards as previously stated in relevant Chapters above, prior to, and after the commencement of the application. Additional protection is provided after such a finding, by the granting of periodic detention reviews by the National Parole Board. There is also a right of appeal of the dangerous offender designation.

It is very important that, when we think of a dangerous offender under the Criminal Code, that we remember that the onus is on the prosecution, to prove beyond a reasonable doubt that the offender has met all the requisite standards, as set out in the Criminal Code.

Under the Immigration Act all that is required is that the offender be a non-citizen who has been convicted, and sentenced to a term of imprisonment of six months or more, or where a sentence of ten years or more could have been imposed.

There is no clarity to subsection 70(5) of the Immigration Act, thus the recipient of such a declaration is left wondering in the dark as to what are the tests he or she has to meet in order to avoid being declared a danger to the public in Canada.

Despite numerous rulings by the Federal Court, setting aside the Minister’s opinion, for a variety of reasons, non-citizens who have been convicted and sentenced, are continually being subjected to this legislation which is so vague that the Court in its findings have unsuccessfully tried to set some standards by which the Minister, or Minister’s delegate should function. In Thompson [1] the court stated:

In subsection 70(5) Parliament chose not to narrow the scope of the Respondent’s discretion by a ‘reasonable grounds’ standard or by specific factors to be considered. It would be inappropriate and wrong in law to judicially impose criteria for consideration where Parliament has not. (Emphasis added).

However, until subsection 70(5) of the Immigration Act is struck down, based on its violation of constitutional standards, non-citizens with criminal convictions will continue to be deprived of the rights that the Charter guarantees.

It is my argument that subsection 70(5) of the Immigration Act, was Parliament’s way of re-enacting the habitual criminal legislation, only this time it was to be used to target non-citizens with criminal convictions, and in place of indeterminate detention, deportation. It would seem that Parliament has ignored the fact that the Ouimet Report, which deemed it to be too inclusive in some cases, and too exclusive in others, caused the repealing of the habitual criminal legislation.

Under the Criminal Code, prior to the findings of the Ouimet Report, for an offender to be declared a habitual criminal, he or she had to have been convicted of three or more indictable offences, for which, sentences of five years or more could have been imposed.

Under subsection 70(5) of the Immigration Act, all that is required to be declared to be a danger to the public in Canada is being a non-citizen who has been convicted, even of one offence and sentenced to a term of imprisonment of six months or more, or a sentence of ten years or more could have been imposed. One conviction that may not even be of a violent nature suffices.

This is the most poignant of the similarities of the past and present legislation, the sentencing. Albeit, that a non-citizen could be declared a danger to the public based on one conviction. The Court has repeatedly stated that one conviction is not evidence of habitual criminality, or evidence of recidivism.

In Chedid [2] for example the Court stated:

Absent evidence of a likelihood to commit further offences as may be established through a pattern of violent or criminal behaviour or an individual’s criminal lifestyle or values, deciding that a person is likely to pose a danger to the public by reason of a previous conviction is perverse.

Despite these pronouncements, the legislation still stands, so far.

Should my conclusions be correct, that subsection 70(5) of the Act is designed along the same lines as the habitual criminal legislation, it is imperative that non-citizens, who fall under subsection 70(5) of the Act, be accorded the same rights at the minimum that were accorded to habitual criminals, which are the rights of due process and procedural fairness. With the introduction of the Charter, non-citizens should also be entitled to the protections of the Charter as is the case under the Criminal Code in relation to dangerous offenders or long-term offenders.

Fauteux C.J. in Duke v. the Queen articulated the right to procedural fairness [3], where he said:

Under s. 2(e) of the Bill of Rights, no law of Canada shall be construed or applied so as to deprive him of a ‘fair hearing in accordance with the principles of fundamental justice’. Without attempting to formulate any final definition of those words, I would take them to mean, generally, that the tribunal which adjudicates upon his rights must act fairly, in good faith, without bias and in a judicial temper, and must give to him the opportunity adequately to state his case.

This is the only way that a non-citizen could be guaranteed the protection that is granted to citizens who have been convicted of similar, or worse offences.

It has become even more apparent, based on the relevant statistics, that this legislation was enacted and implemented for the sole purpose of targeting specific minorities, who have run afoul of the law.

Subsection 70(5) of the Immigration Act is not only biased, but it is a breach of the principles of fundamental justice.

In Singh v. Minister of Employment and Immigration, [4] Justice Wilson of the Supreme Court of Canada established that section 7, at a minimum, requires that government procedures depriving persons of their life, liberty or security of the person, be procedurally fair. Also, the protection afforded by section 7 must apply to every human being who is physically present in Canada.

Also, it is discrimination, by creating a distinction based on grounds relating to personal characteristics, (non-citizens etc.) of the individual or group and has the effect of imposing burdens, obligations and disadvantages on non-citizens who have been convicted of criminal offences, that is not imposed on citizens who have been convicted of similar, or worse offences.

The disadvantages that this legislation has created for non-citizens with criminal convictions, is obvious, in that citizens who have been convicted of similar or worse offences are not subjected to additional detention, or deportation, after they have served their sentence imposed as a result of their conviction. This is a clear violation of a non-citizen’s right to equal treatment and equal protection of the law in accordance with section 15 of the Charter.

Justice McIntyre of the Supreme Court said when considering the concept of equality that:

The main consideration must be the impact of the law on the individual or the group concerned, recognizing that there will always be an infinite variety of personal characteristics, capacities, entitlements and merits among those subject to a law. There must be accorded, as nearly as may be possible, an equality of benefit and protection and no more of the restrictions, penalties, or burdens imposed upon one than another.[5]

It has been argued that the purpose of this legislation is not to impose additional punishment on non-citizens, who have been sentenced as a result of criminal convictions. However, in Smith v. The Queen, [6] McIntyre J. stated that:

legislation which provided an essentially random process for determining punishment divorced from any consideration of the relationship between the punishment and the social objective to be achieved would be cruel and unusual, even if the punishment actually imposed were proportionate to the offence. If two offenders have identical histories and characteristics and have committed the same offence in the same circumstances, legislation could not mandate that they be given different punishments. One of the necessary consequences of imposing sentences in accordance with standards which are rationally connected to the object of the legislation is that similarly situated offenders will, to the extent practicable, be treated alike. (Emphasis added).

The implementation of subsection 70(5) of the Immigration Act, directly contradicts what the Supreme Court of Canada has stated in Smith v. the Queen, [7] and support my contention that it also violates non-citizens’ (with criminal convictions) rights by subjecting them to this labelling process (danger to the public) which, can only be interpreted as a sentencing process and outcome, but disguised as non-punitive.

However, one must remember that the non-citizens, who fall under subsection 70(5) of the Immigration Act, have already been punished for the offences they had committed and the declaration of danger to the public results in additional detention and deportation. This clearly is not in accordance with section 12 of the Charter, since non-citizens, who fall under subsection 70(5) of the Act are being punished again, not only for the offence, but also for being non-citizens. This is cruel and unusual punishment or treatment.

The legislature could simply have removed the right of appeal of non-citizen criminals, without the additional label of “danger to the public” which has severe consequences for those so labelled.

Subsection 70(5) of the Immigration Act, has all the indications of discrimination, by stereotyping and exploiting the disadvantages and vulnerability of non-citizens who have been convicted and sentenced to periods of incarceration in excess of six months, for criminal offences in Canada.

In Smith [8] Justice McIntyre of the Supreme Court of Canada has said that:

Discrimination is unacceptable in a democratic society because it epitomizes the worst effects of the denial of equality, and discrimination enforced by law is particularly repugnant. The worst oppression will result from discriminatory measures having the force of law. It is against this evil that s.15 provides a guarantee.

Subsection 70(5) of the Act is repugnant and oppressive because the harm it causes outweighs the good, and its impact creates a disadvantage for non-citizens (with criminal convictions) which section 15(1) is supposed to prevent.

To be able to challenge the constitutionality of subsection 70(5) of the Immigration Act, an analysis must be done to demonstrate that the enactment and implementation of subsection 70(5) of the Immigration Act is a violation of the equality rights of non-citizens, (who have been convicted of a criminal offence(s)) by creating a distinction in its purpose and effect. This is what this study has done.

It is constantly said, that in Canada the Charter was, or is designed to protect the democratic rights of all individuals. Thus, it becomes questionable as to whether Parliament is committed to guaranteeing to all individuals in Canada the protection that is supposed to be enshrined in the Charter. This is begging the question, as subsection 70(5) of the Immigration Act is enacted to deny non-citizens the equal protection and benefit of the law.

The equality rights afforded by subsection 15(1) of the Charter, include the rights to equality under the law. These rights are generally accepted as broadly inclusive, offering widespread protection given the overall purpose of subsection 15(1) of the Charter which is to prevent discrimination against persons or groups subject to stereotyping, historical disadvantage and political and social prejudice in Canadian society.

Madame Justice McLachlin of the Supreme Court of Canada in Miron v. Trudel[9] succinctly outlined the purposes of the equality guarantee provided for in the Charter when she stated that the purpose of subsection 15(1) of the Charter is:

To prevent the violation of human dignity and freedom by imposing limitations, disadvantages and burdens through stereotypical application of presumed group characteristics rather than on the basis of individual merit, capacity, or circumstances.

One can only hope that members of the judiciary are not only concerned with the reasons for Parliament’s enactment and implementation of subsection 70(5) of the Act but will approach any such legislation and make rulings on the correctness of the law, the legality of the implementation of the legislation and the correctness of the application of the Charter, as it relates to all individuals who are physically present in Canada. The Charter does not permit the courts to defer to Parliament.

In the case of Andrews v. The Law Society of British Columbia, [10] concerning the scope and application of subsection 15(1) of the Charter, Mr. Justice McIntyre of the Supreme Court of Canada held that

equality is a comparative concept the condition of which may only be attained or discerned by comparison with the condition of others in the social or political setting, in which the question of equality arises.

He went on to establish a framework for analysis where equality rights have allegedly been infringed by legislation.

A decision maker must consider whether the impugned legislation has drawn a distinction, based upon personal characteristics.

If such a distinction is identified then a decision maker must go on to ascertain whether it amounts to discrimination.

A comparative analysis of the danger to the public law under the two statutes has demonstrated that discrimination against non-citizens is deliberately fostered through legislative enactments.

An additional framework for analysis was provided by the Supreme Court of Canada in R. v. Oakes [11] where chief Justice Dickson held that there are two essential requirements for justification under section I of the Charter of legislation that infringes equality rights.

The legislative object of the impugned legislation must be sufficiently important to warrant infringement of these rights.

The means chosen to attain the legislative objective must be appropriate for its purpose.

The second requirement leads to three inquiries:

Is the impugned legislation carefully designed to achieve the legislative objective?

Does it impair the Charter right or rights as little as possible?

Does it trench upon the Charter right or rights in a manner which does not outweigh the legislative objective.

Subsection 70(5) of the Immigration Act has drawn a distinction based on personal characteristics, in that, by being a non-citizen who has run afoul of the law and sentenced to custody in excess of six months is declared to be a danger to the public for being a non-citizen, not because of the sentence, since Canadian citizens with similar or worse sentences are not declared to be a danger to the public unless they fall within the guidelines as set out in section 753 of the Code. Being a non-citizen is, and of itself a distinction, in that it distinguishes a non-citizen from a citizen.

This in turn allows subsection 70(5) of the Immigration Act to discriminate against a non-citizen, because he or she falls within the group of non-citizens who as a result of a conviction(s) has been sentenced to incarceration in excess of six months.

It must be remembered, as so aptly put by McIntyre J. in Smith v. the Queen [12] that

one of the necessary consequences of imposing sentences in accordance with standards which are rationally connected to the object of the legislation is that similarly situated offenders, will, to the extent practicable, be treated alike.

Thus it is discrimination where a citizen and non-citizen are convicted of similar offences, sentenced to incarceration in excess of six months, but only the non-citizen is declared to be a danger to the public.

In another disposition Madame Justice Wilson, speaking for the Supreme Court of Canada in R. V. Turpin [13] held that:

In determining whether there is discrimination on grounds relating to personal characteristics of the individual or group, it is important to look not only at the impugned legislation which has created a distinction that violates the right to equality but also at the larger social, political and legal context. Accordingly, it is only by examining the larger context that a court can determine whether differential treatment results in inequality or whether, contrariwise, it would be identical treatment that would in the particular context result in inequality or foster disadvantage. A finding that there is discrimination will, I think, in most but perhaps not all cases, necessarily entail a search for disadvantage that exists apart from and independent of the particular legal distinction being challenged.

It is further submitted that since non-citizenship has already been found to constitute an analogous ground of discrimination under section 15(1) of the Charter, the treatment of non-citizens pursuant to subsection 70(5) of the Immigration Act is discrimination. The courts have in other contexts struck down legislation that unjustifiably made a distinction and thus discriminated based on non-citizenship. The courts should apply the same logic in striking down subsection 70(5) of the Immigration Act.

In the case of Andrews v. Law Society of British Columbia[14] the Supreme Court of Canada ruled that section 42 of the Barristers and Solicitors Act, R.S.B.C. 1979, c. 26 which restricted admission to the Bar of British Columbia to Canadian citizens, infringed subsection 15(1) of the Charter in a manner that could not be justified under s. 1. A rule which bars an entire class of persons from certain forms of employment solely on the grounds of a lack of citizenship status and without consideration of educational and professional qualifications or the other attributes or merits of individuals in the group infringed equality rights. Non-citizens constitute a discrete and insular minority who come within the protection of this section . The Court reasoned that the requirements of citizenship is not carefully tailored to achieve the objective of ensuring that lawyers have a sufficient knowledge of local affairs and instructions for the competent practice of law. Nor can it be said that a citizenship requirement ensures a real attachment to Canada. Finally, even assuming that the practice of law involves the performance of a governmental function, the requirement that they be citizens does not provide any guarantee that they will honourably and conscientiously carry out their public duties.

In the case of Austin v. British Columbia (Ministry of Municipal Affairs, Recreation and Culture) [15], the Supreme Court of British Columbia decided that Section 12 of the Public Service Act, S.B.C. 1985, c. 15, infringed subsection 15(1) of the Charter in requiring that the government of British Columbia appoint only Canadian citizens to the provincial public service, and could not be justified under s.1. Having regard among other things to the fact that in Canada only British Columbia and the Yukon require citizenship as a prerequisite to becoming a public servant, it was not demonstrated that the objective of the requirement was sufficiently pressing and substantial to warrant overriding constitutionally protected rights. Even if it could be said that symbolic value of citizenship for civil servants was a pressing and substantial concern, there was no rational connection between that objective and the means adopted to achieve it since the legislation applied to all civil service positions and did not attempt to distinguish between positions involving the actual process of government and those involving ordinary services indistinguishable from those provided by the private sector. The legislation also failed to impair equality rights as little as possible. It would for example, have been possible not to exclude permanent residents altogether from job opportunities with the province’s largest employer, but to permit them to take a public service position provided that they took steps to acquire citizenship. Finally, what little symbolic value might be achieved by the restriction could not be said to outweigh the interference with an important fundamental right. The discrimination effected by the statute was of the worst king, since it limited the right to pursue the career of one’s choice on the basis of status rather than merit or achievement.

Similarly in the case of Steward v. Law Society of New Brunswick [16], the Court of Queen’s Bench ruled that section 9(1)(b) of the Law Society Act, S.N.B. 1973, c. 80, providing that Canadian citizenship is a prerequisite for admission to the Bar, infringes the rights guaranteed under subsection 15(1) and is not justified by s. 1. of the Charter. Section 9(3) of the Act, which permits permanent residents who are not citizens, but who declare under oath an intention to apply for citizenship to seek admission to the Bar, does not save the legislation.

The case of Pearkes v. Canada [17] is also on point. It held that the regulation adopted by the Social Sciences and Humanities Research Council (S.S.H.R.C.) permitting permanent residents to hold an S.S.H.R.C. grant abroad only if they have a full-time faculty appointment at a Canadian University for at least two years, and would be returning to Canadian academic appointment at the end of the fellowship period, discriminated on the basis of citizenship contrary to this subsection, since Canadian citizens who applied for an S.S.H.R.C. grant may hold it in Canada or abroad without restriction. No basis was shown for the apparent assumption by the S.S.H.R.C. that permanent residents are less likely to return to Canada if they study abroad. Nor was there any evidence that the fundamental objective of the doctoral funding program, the development of highly qualified personnel in the social sciences and humanities, distinguished between permanent residents and Canadian citizens in a manner that could provide s. 1 justification for discrimination.

It is clear that the legal framework for striking down subsection 70(5) of the Immigration Act exists. The law has existed this far due to judicial resistance in accepting or determining serious constitutional challenges.

The next chapter discusses whether if the court determined that there are serious constitutional problems with the danger to the public law, could the violation be justified in a free and democratic society.

[1] Thompson v. Canada (M.C.I.) (1996), 36 Imm. L. R. (2d) 9.

[2] Chedid v. Canada (M.C.I. (1997), 127 F.T.R. 81 (F.C.T.D.).

[3] Duke v. the Queen, (1972) S.C.R. 917.

[4] Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177 (S.C.C.).

[5] Ibid.

[6] Smith v. the Queen. (1987), 34 C.C.C. (3d) 97 (S.C.C.).

[7] Ibid.

[8] Ibid.

[9] Miron v. Trudel [1995] 2 S.C.R. 418.

[10] Andrews v. The Law Society of British Columbia. [1989] 1 S.C.R. 143.

[11] R. v. Oakes.

[12] Smith v. the Queen. supra note 6.

[13] R. v. Turpin. [1989] 1 S.C.R. 1296.

[14] Andrews v. Law Society of British Columbia [1989] 1 S.C.R. 143.

[15] Austin v. British Columbia (Ministry of Municipal Affairs, Recreation and Culture (1990), 66 D.L.R. (4th) 33.

[16] Steward v. Law Society of New Brunswick (1990), 100 N. B.R. (2d) 178 (Q.B.).

[17] Pearkes v. Canada (1993), 72 F.T.R. 90 (F.C.T.D.).

Is Discrimination on the Basis of Non-Citizenship Justified Pursuant to Section 1 of the Charter?

One of the central arguments of this study is that since Canadian citizens commit more and probably more violent crimes than non-citizens and that the criminal law does not generally differentiate between Canadian citizens and non-citizens, the differential and discriminatory treatment against non-citizen criminals in the immigration law context is unjustified. It has also been argued that the discrimination against non-citizen criminals has occurred because in the main these criminals are Black.

According to the African Canadian Legal Clinic, the common denominators among those deemed to pose danger to the public are members of racialized groups including an overwhelming number of persons of African descent with previous drug-related offences.

The numbers of those declared are only available in the Ontario region up to 1998, so far, and among these over 60% involve people of African descent. Of people under active consideration for the danger opinion at any given time, over 50% involve people of African descent. These figures when considered in the context of African Canadians only constituting about 4% of the population of Ontario, disclose that the danger to the public law is racist and has a disproportionate and discriminatory impact on African Canadians.[1]

If recent immigrants and particularly African-Canadians were committing more crimes than Canadian citizens and with severe identifiable societal disruptions, one could venture that the danger to the public law and deportations of criminal immigrants including Blacks is justifiable. But this is also hardly the case. In an editorial in the Toronto Star entitled “Immigrants Do Not Commit More Crimes”,[2] which came shortly after Bill C-44 (the danger to the public law i.e. subsection 70(5) of the Immigration Act) was introduced in parliament, on the hills of public outcry because of the alleged criminality of immigrants, particularly Black Jamaicans, it was recognized that immigrants do not commit more crimes than Canadian citizens. In fact it was the other way around. Canadian-born citizens commit more crimes. Because of the importance of that editorial to the point of this study, I reproduce it entirely here.

Immigrants do not commit more crimes

It is part of our mythology that immigrants commit more crimes than others. Yet virtually every empirical study done in Canada, the United States and Australia – the three biggest immigrant nations other than Israel –has debunked the myth.

The latest to do so is one by the federal immigration department which gives a clean bill of behavior to all immigrants except two groups – those born in the Caribbean and Latin America.

It studied the 20,399 criminals convicted of serious crimes and sentenced to two years or more (12,000 in jails and the rest out on conditional release). It found that the foreign-born were “very significantly under-represented” among the criminals – about half their percentage in the population (see chart).

Not only that, but immigrant crime is less serious crime; the foreign-born commit fewer murders and rapes. And their rate of recidivism – how many times they’re back in prison – is lower than that of the Canadian-born.

Visible minorities, the latest of immigrants, also commit fewer crimes than the Canadian-born.

“The most likely explanation is that the foreign-born are simply less disposed to crime,” the study says.

The conclusions were the same for 1989 and 1991, and held true for all age groups and in every region. In fact, the percentage of foreign-born inmates in British Columbia had actually declined despite heavy immigration there.

That prompted the study’s author, Derrick Thomas, to suggest that one way to reduce the crime rate is to have more immigrants!

Behind this bright over-all picture, though, is a non-too-pleasant peep into two groups who wound up in jails in numbers greater than their proportion in the population: 18 out of every 10,000 Caribbean-born people and 14 out of 10,000 of the Latin-born, compared with 10.55 for Canadian-born and only 5.5 for all immigrants.

But when the illegals (drug couriers, perhaps) were factored out, the picture for the Latin group improved dramatically. Permanent residents from Latin America were less likely than even the Canadian-born to end up in jail.

As for the Caribbean-born in jails – most are from Jamaica and Haiti – Thomas ventures some explanations.

Many arrived illegally and sought refugee status or endured underground for years. Many who came legally were sponsored by single moms – low-income domestic workers toiling long hours with little time to attend to teenage children. Their offspring and other Jamaicans suffer a high rate of unemployment, low incomes and low rates of home ownership.

What lessons are we to draw from this research? That immigrants, over-all, commit fewer crimes than others, and that there is a co-relationship between crime and education or income, but not between crime and race or ethnicity or even geography. After all, 9,982 out of every 10,000 Caribbean-born are not in jails. The overwhelming majority of law-abiding Caribbean Canadians are not responsible for the criminals.

But we do need stiffer border controls to screen out trouble-makers. As for those already here, we had better find ways of integrating them into society rather than subsidizing them in jails.

But that challenge is no different than the one we face with Canadian-born criminals, regardless of their color or ethnicity.

The Toronto Star [3] then tabulated the origins of criminals in Federal Prisons as follows, statistics which are still applicable or relevant, ten years later:

Immigrants* and crime (1991)

% of population % of criminals**

CANADA 20.2 11.9

Ontario 29.7 20.1

Visible minorities 8.5 6.3

By place of birth

Of the 20,000 convicted criminals in federal jails:

18,003 born in Canada

420 in Caribbean (240 Jamaica, 70 Haiti)

239 in Latin America

230 in U.K.

204 in Italy

199 in U.S.A.

92 in Germany

92 in India

85 in Portugal

68 in China

49 in Hungary

* Adults over age 15

** Sentenced to two or more years.

SOURCE: The Foreign Born in the Federal Prison Population, Toronto Star, July 23, 1994.

These figures add another dimension, which is that White immigrants from the United Kingdom, Italy, the United States, Portugal, Germany and Hungary (Russia should be included) combined, commit more offences than people identified as coming from countries with significant populations descended from Africa. Among the non-citizen criminals who were declared to be a danger to the public, the majority were African-Canadians, even though as the tabulated statistics show, White immigrants constitute the majority of the criminal population. The overwhelming number of Black Jamaicans being declared to pose danger can be explained by their being disproportionately criminally profiled, arrested, charged and convicted.[4]

Thus the only basis for the declaration that a person poses danger to the public and therefore justifying deportation cannot be explained in terms of a person’s criminality or propensity to criminality since there are more Canadian criminals proportionately and further the danger to the public and the deportation cannot be justified in terms of non-citizenship, since non-citizen White criminals commit more offences but are not labelled a danger to the public, as readily. The explanation has to be located in the underlying racism that is hidden but prevalent when the immigration law and policies are deconstructed to reveal the real results of the immigration law and policies.

Is however, discrimination on the basis of race, a prohibited ground pursuant to section 15 of the Charter, justifiable under section 1 of the Charter? The problem in posing a question like this is that, a court must find that there has been discrimination and then move on to determine whether that discrimination is justifiable in a free and democratic society.

There has not been any cases where the court have pronounced that there has been racial discrimination contrary to section 15 of the Charter and then moved on to consider a section 1 of the Charter balancing of interests analysis. Citizenship has been considered in the purely immigration law and policy context.

The case of Okadia v. Minister of Employment and Immigration [5] challenged the differential treatment by Canadian immigration law of certain citizens of some countries as opposed to certain citizens of some countries. The law required citizens of some countries to apply for a visa before coming to Canada, but did not require citizens of other countries to obtain a visa before coming to Canada.

The Appellant argued that this distinction was discrimination. For some reason, the appeal was based on section 1(b) of the Canadian Bill of Rights [6] rather than the recently enacted Charter. The case was argued sometime in 1983 and the decision was rendered on December 15th 1983. It is possible that the case arose before the coming into force of the Charter and certainly before the coming into operation, of section 15 of the Charter, which began operating in April 1985.

However, section 1(b) of the Bill of Rights was almost the same as section 15 of the Charter. It reads: “1. It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely, (b) the right of the individual to equality and the protection of the law.”

It appears that this section referred to Canadian citizens or people who were already in Canada. The Immigration Act of 1976 [7] in section 3 had also removed discrimination on any basis as a ground for deciding who should be allowed into Canada. It principally had declared that all immigrants to Canada would be equally treated. The requirement however, that some citizens of certain countries require visas to visit Canada while others did not, indicated that discrimination was permitted and that equality was not the underlying cornerstone of Canadian immigration law and policy. The Immigration Act of 1976 and subsequent amendments have not removed the distinction in treatment between Canadian citizens and non- citizens or between some citizens of certain countries and those of others. The former has even been constitutionalized in section 6(1) of the Charter.

The court’s decision relied on the dictates of national sovereignty as is currently and always has been the case. The court stated: “There seems to be no doubt that this enactment constitutes a valid exercise of federal legislative authority for the purpose of the regulation and control of immigration pursuant to the Constitution Act.”[8] The Court went on to say that the applicant failed to show that “discrimination by reason of national origin” had occurred and that the law when enacted by “Parliament was not seeking to achieve a valid federal objective”[9]

It has been argued in this study that the danger to the public law has been based on racial discrimination particularly against non-citizen Black criminals and there has not been any valid federal objective. Parliament has not enacted similar legislation to deal with Canadian citizen criminals. The dangerous and long-term offender provisions of the Criminal Code are much more elaborate and are only invoked when dealing with very serious criminals. Only a small number of Canadian citizens are declared to be dangerous or long-term offenders. For the rest of Canadian criminals, nothing is ever done against them after they have gone through the normal criminal procedure. Further non-citizens commit less and fewer offences proportionately than Canadian citizens or Canadian-born citizens. The enactment of the danger to the public law therefore has no valid legislative objective. It would have a valid legislative purpose if the removal of non-citizen criminals resulted in less crime in Canada. This is not the case.

The government of the day has not in fact tried to justify this law or the new reference to “serious criminality” (substitute to “danger to the public”) in Bill-C11[10] on any lofty principles but platitudes.

The governments of the day have justified immigration law changes on the basis of “popular demand that Canadian immigration laws not provide technical barriers that could prevent or delay the exclusion or removal of criminals.”[11] The news release accompanying Bill C-44 stated that among changes the Bill effected to immigration law included the following:[12]

§ it prohibits those convicted of serious crimes … from claiming refugee status in order to delay their removal from Canada …;

§ it removes the authority of the Immigration Appeal Division (IAD) … to stay or overturn the deportation of serious criminals …

§ it cancels the right of appeal to the Immigration Appeal Division by non permanent resident certified … to be a security risk …

§ it will provide that when a permanent resident under any removal order (deportation order or departure order) leaves Canada, that person relinquishes permanent residence; …

In commenting on Bill C-11 on February 26th, 2001 in the House of Commons, the Minister of Citizenship and Immigration stated the following in relation to criminality and related concerns:

Bill C-11 remains a tough bill. However, I want to emphasize that it is tough on criminal abuse of our immigration and refugee protection systems. The bill creates severe new penalties for people smugglers and for those caught trafficking in humans. These are deplorable activities. There will be fines of up to $1 million and sentences of up to life in prison for persons convicted of smuggling and trafficking in humans. It will also allow our courts to order the forfeiture of money and other property seized from traffickers.

The bill clarifies our existing grounds for detention and our criteria for inadmissibility to Canada. It provides immigration enforcement officers with the tools they need to see that serious criminals, threats to national security, violators of human rights, participants in organized crime and members of terrorist organizations are barred entry to Canada.

Bill C-11 will introduce front end security screening of all refugee claimants, fewer appeals for serious criminals and suspension of refugee claims for those charged with crimes until the courts have rendered a decision. This is what Canadians want and this is what we have delivered.[13]

One could peruse all the speeches and questions and answers on Bill C-11 and find no justification for targeting non-citizen criminals other than for the purpose of their immediate removal. Their removal would not make or leave Canada pristine. There is no problem in excluding prospective entrants; the real issue is justifying the labelling as danger to the public, and deportation of long-term residents of Canada who commit crimes. The Bill does not attempt to justify their removal at all.

As has already been demonstrated throughout this study, there is paucity of case law where the issue of discrimination pursuant to section 15 of the Charter has been litigated with a section 1 of the Charter analysis. One important case has reached a section 1 stage.[14] In Halm v. Canada (Minister of Employment and Immigration), [15] the applicant had been ordered deported because there were grounds to believe he had been convicted of sodomy in the United States, an offence which, if committed in Canada, would constitute an offence punishable by a maximum term of imprisonment of ten years or more. The Act requires a finding of inadmissibility where a person has committed a specified type of offence outside the country when there is an equivalent offence in Canada. The applicant argued that section 159 of the Criminal Code, which makes anal intercourse an offence, was unconstitutional and that, therefore, there was no equivalent offence in Canada. Reed J. accepted the argument of the applicant’s counsel that the section had a disparate impact on gay men and therefore, discriminated against them. She found that the section could not be salvaged under section 1 of the Charter.

This case is squarely on all fours with this study. The danger to the public law has a disparate impact on Black criminals and as such should be struck down.

Scholars and commentators have argued that in order to nudge the Canadian government and the courts to move in the direction of ceasing to deport non-citizen long- term residents of Canada, a panoply of strategies employing international and supranational law apparatuses should be deployed. One is to file complaints against the Canadian treatment of non-citizens to international institutions like the United Nations Human Rights Committee and the InterAmerican Commission among others.[16] The aim would be to shame Canada into protecting its non-citizens in conformity with international human rights standards.

Another strategy is to forcefully urge international law norms and standards in domestic courts all the way up to the Supreme Court of Canada.[17] The other is political and legal action within the Canadian context including community education, lobbying the governments, advocacy and litigation.[18]

International human rights law according to Simon Young can be used to attack the barriers erected by the Canadian courts in their holding that it is a matter of state sovereignty to make a distinction in treatment between citizens and non-citizens. International human right treaties are the limitations on state sovereignty.[19]

Supranational jurisprudence from the European Court has emerged which could point the way to the Canadian courts and governments how to protect the rights of non-citizen long-term residents, even those with criminal convictions. The oft –cited cases are those of Berrehab [20]; Mostaquim [21] and Beldjoudi v. France.[22] The Berrehab case involved the deportation of a long-term resident of the Netherlands who had born a daughter who was a citizen of the Netherlands. Article 8(1) of the European Convention on Human Rights provides that “everyone has the right to respect for his private and family life.” This right is limited by Article 8(2) that mirrors section 1 of the Charter. In weighing personal and state interests, the court came on the side of the giving more weight to the personal circumstances of the applicant. The court found that the applicant’s family rights were not properly balanced against the interests of the state; that there was a disproportion between the state means employed and the legitimate aim pursued.[23]

Mostaquim involved the deportation of a non-citizen of Belgium who had been there since an early age. His close relatives resided there. The European Court prevented the deportation because it would have disrupted the applicant’s family life and the state interests could not outweigh that value.[24]

Beldjoudi involved serious criminality – a very long criminal record. The Court found that the applicant’s circumstances, that he had a wife and close relatives of French nationality, had lived in France all his life, had no links with Algeria apart from nationality, outweighed the legitimate aim of preventing disorder and crime.[25]

It is argued however, that because Canadian courts have already stated that international legal norms or supranational law are of persuasive value but not binding on Canadian courts as long as the Canadian government has not incorporated them, reference to international human rights law or bringing complaints against Canada to the international foray may have very little impact.[26] It should be a question of continuing advocacy and litigation. The Suresh [27] case in the Supreme Court of Canada contains a number of constitutional issues which call for justification analysis under section 1 of the Charter, may point to the future of how the issues of Danger to the security of the state, the doctrine of vagueness, the return of refugees to the country where they fear torture and so on may be addressed. The decision may also discuss conclusively, the role of international human rights law in the interpretation of domestic law. The decision will also influence how the government will henceforth deal with non-citizen criminals or those who are held to pose danger to the security of Canada.

Or the decision may rest on the principles already enunciated by the Federal Court of Appeal or the previous Kindler and Chiarelli decisions of the Supreme Court of Canada that have already been discussed elsewhere.

The courts have however, been chipping away at the danger to the public law without resort to the principles of the Charter. In the recent case of Bhagwandass,[28] the Federal Court of Appeal set aside the danger opinion because the procedure followed did not accord with principles of procedural fairness. The immigration department had created two ministerial reports before the danger opinion was rendered but had not shared those reports with the appellant.

In the case of Harris [29] and Wishart [30] the court quashed the danger opinions that had been issued pursuant to section 46.01 of the Immigration Act. This section prevents a person who had been declared to pose danger to the public from claiming refugee status. The problem was that these two individuals never claimed refugee status at all. In Wishart, the court ruled that the declaration that Wishart posed danger was an “improper exercise of authority” and that the exercise was not for a “bona fide” purpose.

As already indicated elsewhere, the court has struck down the danger opinions on many other grounds. It is argued however, that the law should have been struck down on constitutional grounds. This study was an attempt to explain why that should have been so. And why it has not happened.

This chapter has attempted to show that because of the framework the courts have adopted in deciding immigration law cases, it is difficult to get to section 1 of the Charter stage of justification. The courts have so far ruled that the distinction between citizens and non-citizens prevalent in immigration law, policies and practices is constitutional and is pursuant to the dictates of state sovereignty and does not constitute discrimination. It has also been argued that international and supranational law standards may be accepted not only as persuasive but also binding by Canadian courts, in which case, Canadian courts may in reliance on international jurisprudence be more receptive to the protection of the rights of long-term residents. Developments in this direction will have to be awaited. At present the picture is bleak.

The next concluding chapter will discuss the problems and prospects for race litigation in the courts, for essentially the issue of danger to the public as it disproportionately affects African Canadians, is a race issue.

[1] African Canadian Legal Clinic, No Clear and Present Danger: The Expulsion of African Canadian Residents From Canada, (Toronto, 1999) p. 3. (Background paper); Julian Falconer and C. Ellis, “Colour Profiling”, a paper presented to the American Association Annual Conference, Toronto, August 1998; Colin Rickards, “Bill C-44 Condemned as Anti-Jamaican” Pride November 11, 1998.

[2] Toronto Star July 23, 1994 p. B2.

[3] Ibid.

[4] Falconer and Ellis, “Colour Profiling” supra note 1; Frances Henry, The Caribbean Diaspora in Toronto: Learning to Live With Racism (Toronto: U. of T. Press, 1994); Henry et al The Colour of Democracy. (Toronto: Harcourt, 1995).

[5] [1985] 55 N.R. 16 (F.C.A.).

[6] R.S.C. 1970, App. 111.

[7] S.C. 1976-77 C.52.

[8] Okadia supra note 5 at p. 117.

[9] Ibid pp. 117 and 118.

[10] An Act Respecting Immigration to Canada and the Granting of Refugee Protection to Persons Who Are Displaced, Persecuted or in Danger 49-50 Elizabeth 11, 2001, February 21, 2001.

[11] Donald Galloway, Immigration Law (Toronto: Irwin Law, 1997) p. 20.

[12] Citizenship and Immigration Canada, News Release, “New Immigration Legislation Receives Royal Assent” 15 June 1995. Quoted in Galloway ibid p. 21.

[13] Hansard, House of Commons Debates, Volume 137, No. 021 Monday, February 2001 p. 1171.

[14] Culled from Galloway, supra note 11 p. 67.

[15] [1995] 2 F.C. 331 (TD).

[16] See S. Aiken and T. Clark, “International Procedures for Protecting the Human Rights of Non-Citizens” in A Guide to the International Procedures for Protecting the Human Rights of Non-Citizens (Toronto: Inter-Church Committee for Refugees, 1994).

[17] See Simon Young, “International Human Rights Law and the Protection of Non-Citizens in Canada” in (1996) 32 Imm. L. R. (2d) 7.

[18] See African Canadian Legal Clinic, No Clear and Present Danger supra note 1.

[19] Young, supra note 17 p. 18.

[20] (1988), Eur. Ct. H.R. Ser. A; No. 138.

[21] (1991), Eur. Ct. H.R. Ser. A; No. 193.

[22] (1992), Eur. Ct. H.R. Ser. A; No. 234.

[23] Quoted and extracted from Young, supra note 17 p. 14.

[24] Ibid p. 15.

[25] Ibid, p. 15.

[26] See Anne Bayefsky. International Human Rights Law: Use in Canadian Charter of Rights and Freedoms Litigation (Toronto: Butterworths, 1992).

[27] Suresh v. M.C.I. and the Attorney General of Canada File No. 27790 (S.C.C.).

[28] Bhagwandass v. Canada (M.C.I.) A-850-99 (March 7, 2001). See also Grandison v. Canada (M.C.I.) 2001 F.C.T. 300; Imm.-6308-98 (April 6, 2001) where the result was the same.

[29] Harris v. Canada (M.C.I.). Imm-5500-99 November 22, 2000.

[30] Wishart v. Canada (M.C.I.) Imm. 64-00, February 16, 2001.

Revolutions and Counter-Revolution: Problems of Litigating Race
in Criminal and Immigration Cases In Canada

A certain conspiracy of silence is binding the entire Canadian criminal, civil and immigration systems of justice. A conspiracy of silence prevails when it comes to dealing with issues involving systemic racism and racial discrimination in Canada’s criminal, civil and immigration courts and tribunals. When silence does not work, discrimination when it exists and is documented, is denied[1]. This study has documented this conspiracy of silence.

When denial no longer works and racism and discrimination is acknowledged, this acknowledgement is decontextualized and removed from the adversial system, which prevents the immediate litigant or the community at large from benefiting from the acknowledgement. When it has to help a particular litigant as well as the community at large, racism and discrimination issues are avoided. In some cases, the requested finding that discriminatory laws or practices led to disparate impacts on racial minorities is postponed to be decided in another “more appropriate” case in the future. Given the history of racism and discrimination in Canada, this future day may never come.

The aim of this chapter is to discuss how the issue of racism and discrimination has been decontextualized in the litigation process so as to have no immediate impact on the litigants and the broader community and how using the critical race theory framework, race litigation may be prosecuted so as to obtain the desired positive impact outcomes. I will discuss a few cases to illustrate these issues. By positive impact outcomes, I do not mean necessarily an acquittal of a client or an award of monetary damages, but in its larger framework, including public or societal education. It could be in terms of deterring the practitioners of racial discrimination, individually or systemic. In this study, the aim has been to show how discrimination against African-Canadians has operated and to argue for its elimination on constitutional grounds.

Of all the enumerated grounds prohibited for discrimination by Section 15 of the Canadian Charter of Rights and Freedoms, only the ground of race has not been directly litigated at the Supreme Court of Canada as we have seen, to confer an advantage to a racialized minority or community. All the other enumerated prohibited grounds of discrimination have been there, some repeatedly. Even some un-enumerated but analogous grounds in their various consequences have been litigated at the Supreme Court of Canada[2]. This is the larger picture in which race litigation must take place.

It is in the explosion of equality cases and some quite fundamental outcomes and benefits that this concluding chapter is entitled “Revolution” because some of the areas were impossible to litigate at the Supreme Court of Canada before the advent of the Charter, particularly Section 15. It is also entitled “Counter-Revolution” because the backlash from the critics of the Charter and particularly its Section 15 jurisprudence has unleashed a counter-revolution. In the immigration law context, particularly dealing with racial discrimination, there has not been any revolution at all.

Lost in the revolution of the equality jurisprudence is the fact that one of the major apexes of discrimination has not been litigated and benefited from this revolution - i.e. race, while at the same time, the counter-revolutionary backlash has assumed that racial equality has been promoted by the equality section of the Charter [3]. Race litigation is the missing link in this “Revolution” and “Counter-Revolution” that has been permitted by the advent of the Charter.

It is my thesis that race litigation has not made its way to the Supreme Court of Canada and the lower courts because among other grounds, the issue of race has been silenced, denied or decontextualized if and when initially raised in a case. Immigration law has been stunted as a result.

It is quite astounding how such a potent issue as race has been missing in action in the Supreme Court of Canada when it has been virtually documented as a major point of inequality and discrimination throughout Canada’s history both in the criminal and immigration law contexts as this study has shown. For example, the Report of the Commission on Systemic Racism in the Ontario Criminal Justice System[4], has documented that discrimination against blacks is usually found in systemic form and concealed in system, practices, policies and laws that may appear neutral on their face but have a serious detrimental effect on people of colour. Immigration law, policies and practices have been informed fundamentally by racial over-tones and under-tones.

The report also notes that black males were significantly more likely than whites or Chinese to be stopped by police, that a disturbingly high percentage of blacks perceived that judges treat blacks worse than they do whites. Black areas are over-policed. Blacks were less likely to receive police bail or judicial interim release than whites. Further a person who was not given bail was more likely to be convicted and sent to gaol than a person who was on bail. The report noted that prosecutors were more likely to proceed by indictment when they tried a black defendant than when they tried a white defendant. A sample of defendants, which included both whites and blacks, found that 49% of Blacks who were convicted of possession of drugs, compared with 18% of White offenders were incarcerated[5]. Those who have been declared to pose a danger under the Immigration Act have been overwhelmingly Black.

According to Mosher, this data by the Commission on Systemic Racism validates what has been the usual practice in Canada historically. The incarceration rate for Blacks in federal prisons in 1911 for example was eighteen times that of whites, relative to their representation in the population. Further Mosher shows that throughout Canada’s history, race was a determining factor in differential treatment accorded to diverse racial groups with deleterious effects on Blacks and Chinese[6]. Criminal and immigration laws have had a discriminatory impact on Blacks and Asians, according to Mosher[7].

A recent study by the Toronto law firm of Hinkson, Sachak, Mcleod used in a criminal defence case, found that Canada Customs, stopped and searched a disproportionate number of Black Jamaicans disembarking from Jamaica at Pearson International Airport than Whites. Inevitably, if they are searching for drugs, they are more likely to find it on more of the people they search - Blacks coming from Jamaica[8].

Nor is this revelation a new one, Canada’s immigration has been based on selective discriminatory exclusion of Blacks, Chinese, Indians and other racialized minorities[9].

A new law under the Immigration Act brought about by Bill C-44, otherwise popularly known as the “Danger to the Public” law as has been documented in this study, has been shown to have a disparate impact on Black Jamaicans and other Blacks in Canada. This study has shown that this law was brought into being with Black Jamaicans as its alleged principal trigger but also as its main target[10].

The culture of racism has also been documented as pervasive in the media. A recent study by Ryerson Polytechnic University Professor, Frances Henry entitled, The Racialization of Crime in Toronto’s Print Media [11] documents how Blacks in general are criminalized in the media, particularly, Black Jamaicans. This criminalization has extended to police stoppages of Black motorists for no other reason than that someone was driving while black (DWB)[12] and more seriously to disproportionate shootings of Blacks by White police officers. The declaration that Blacks pose danger to the public in Canada follows suit.

Section 15 of the Charter requires the equal protection and benefit and application of the law. Clearly the evidence marshalled in this study about racial discrimination against Blacks under Canada’s criminal and immigration systems demonstrate that Blacks do not benefit equally and that the law does not protect and apply equally to them. Blacks are systematically discriminated against. The courts as shown in this study have completely ignored or sidestepped this issue while interpreting section 15 quite liberally in other contexts and pronouncements.

With all that evidence of discrimination, why hasn’t an earth-shattering case reached the Supreme Court of Canada challenging the unequal application of the laws and the disparate impact of these laws on Blacks in Canada? The opportunities and possibilities abound to challenge racial discrimination in Canada. But these opportunities and possibilities are blunted by the courts as we have seen in this study.

However, the obstacles abound as well as already alluded to, above. The obstacles are both individual and systemic, interacting at various levels: Historically, politically, economically, socio-culturally. Most intractably, the courts including the Supreme Court of Canada have affirmed racial discrimination in the past. So the institution that one could run to in order to seek solace and protection has been historically implicated in the affirmation of racial inequality, exclusion and discrimination. James Walker, a professor of history at Wilfred Laurier University in his path breaking book, entitled, “Race”, Rights and the Law in the Supreme Court of Canada [13] has demonstrated how the Supreme Court of Canada had given a legal imprimatur to racial discrimination in the past. He chose four cases for detailed examination. Quong Wing v. The King [14] involved a Chinese-Canadian who was charged under a Saskatchewan statute preventing Chinese men from employing White females. The Supreme Court of Canada upheld the statute. Christie v. York Corp[15] involved a Black Canadian who was refused service in a tavern because of his race. The Supreme Court upheld the prohibition. Noble and Wolfe v. Alley [16] involved a Canadian Jew who was denied the right to purchase a cottage because of a restrictive covenant preventing owners from selling to Jews. The covenant survived. Narine-Singh v. Attorney General of Canada [17] involved an East-Indian Trinidadian who was excluded by the Immigration Act because he was of the “Asian race.” The Supreme Court upheld the exclusion on racial grounds. Professor Nancy Backhouse of the University of Western Ontario, in her book Colour-Coded: A Legal History of Racism in Canada 1900-1950 [18]

supplements this analysis. She details numerous cases where courts have upheld discriminatory laws and practices.

During this same period, the legislatures were enacting laws against immigration of racial minorities, they were sending back a ship carrying Jewish refugees from Nazi Germany; they were interning Japanese Canadians; they were constructing apartheid-type reserves for Native Canadians; schools were segregated along racial lines; the Klu Klux Klan was allowed to exist and so on. One can say that this politico-judicial conspiracy to validate racism is a long-standing and complex one.

How much has the picture changed? As already alluded to, the laws and practices as well as outcomes are now subtler and quite systemically embedded. Section 15 of the Charter and human rights codes prohibit discrimination. Institutions cannot openly practice it.

Professor Carol Aylward of Dalhousie University in her widely acclaimed book, Canadian Critical Race Theory: Racism and the Law [19] has attempted to catalogue the explanations for the paucity of race litigation in Canada compared to the United States. There is no overarching litigation group in Canada as is the case historically in the U.S. with the National Association for the Advancement of Coloured People (NAACP) or similar in singular purpose to the Canadian women’s Legal Education and Action Fund (LEAF). There is a paucity of Black lawyers willing and capable of engaging in race-litigation. Black lawyers (and judges) are of recent vintage in Canada. Black lawyers or groups have no organization and/or financial largesse to mount race litigation. It is also proffered that the critical race theory has not been transplanted into Canadian legal discourse and it is just now beginning to flourish.

The opportunities for race litigation however have presented themselves abundantly in Canada. The numerous shootings of Blacks by police have raised the issue of the motive of race. Racial discrimination in the immigration law context is another opportunity. According to Aylward, all the criminal cases were prosecuted by White prosecutors who never brought up the possibility of the issue of racial motive in the shootings of Blacks by police. The police officers who have shot these Blacks have overwhelmingly been White.

It is stated therefore that the colour or race of the prosecutors has consciously or unconsciously prevented the airing of racial motives for commission of offences against Blacks. At a conference sponsored by The Nelson Mandela Academy of Applied Legal Studies in November 1996 on the then delay by the Ontario government to implement the recently released report of the Commission on Systemic Racism in the Ontario Criminal Justice System [20], Susan Mulligan, a White lawyer candidly admitted that as a defence lawyer, bringing the issue of racial animus in a criminal case will alienate the judge, police, prosecutors and the jury, all of whom are most likely White, and will likely ensure a conviction. Aylward points out that White lawyers have been unwilling or unable to inject the issue of race in the courts resulting in the “conspiracy of silence” that I started out with in this chapter - White judge, White prosecutor, White juror, White police officer and White defence lawyer. And the lone Black accused. Critical race theory cannot assist given this constellation of forces.

Aylward mentions another obstacle to the success of critical race theory. In all the police shooting cases, the jury was entirely White. Juries are ordinary folks. The police, prosecutors, and defence counsel came from the same racial and cultural background. It is unlikely that even if the issue of the racial motive for a shooting were to be ventilated, that it would receive a welcome reception. Judge Maryka Omatsu’s observation that “the Canadian judiciary is a homogeneous institution that is overwhelmingly middle-class, White and male and that greater racial, cultural and gender diversity is required on the bench in order to ensure justice reflects and is seen to reflect Canadian society,”[21] applies as much to the needed composition of the jury pools and panels as well as the mix of prosecutors and defence counsel.

As recent as 1989, Clayton Ruby, a renowned criminal lawyer would write:

We need to identify the kind of judiciary that is best suited to guide the province into the 21st century. This process necessarily entails taking a hard look at the present judges against the background of an increasingly diverse, multicultural and multiracial community.

Judges play an important role in expounding upon, preserving and protecting constitutional rights. These demands call for a different kind of judiciary. Ontario deserves candidates for the provincial court who better reflect the multicultural nature of the province of Ontario than have appointments in the past. Sexual composition is equally important. We have not shown ourselves willing to address this fact. [22]

Twelve years later, the picture in the composition of the judiciary has not changed a bit. The Federal Court, which is competent to adjudicate on immigration matters among others, has absolutely no African Canadian on it. This is the same as the Supreme Court of Canada. There is also no African Canadian on any provincial Court of Appeal in the country.

The composition of the participants in a criminal trial is key to the success or failure of race litigation. Professor David Cole of Georgetown University Law Centre has commented in his book No Equal Justice: Race and Class in the American Criminal Justice System [23] on studies conducted by the National Law Journal that show that in a sample of 800 jurors, 42% of White jurors compared to 25% of Black jurors would believe a police officer’s version of the story rather than that of the defendant. In race litigation cases, it goes without saying that a Black accused is trying to “indict” either a white police officer, a white immigration or customs officer or a white adjudicator and must likely, before an all-white jury.

David Cole goes further to say that jury studies consistently show that jurors are in general more sympathetic to victims of their own race and are more forgiving of defendants of their own race. [24]

It is therefore, not surprising that one of the first critical points of attack in race litigation both in the U.S. and Canada has been on the exclusion of Blacks from juries or composition of the jury pools. It was stated that equality in the administration of justice would only result if jurors were racially mixed. It was no secret that white juries routinely convicted Black defendants even on flimsy evidence or acquitted White defendants even when evidence for conviction was overwhelming.

In the U.S., race litigation has engaged the criminal justice system much more broadly than just in jury exclusion or composition. There, they have litigated among other issues selective prosecution[25]; differential punishment[26]; excessive force[27]; racist discrimination[28] and challenged airport and roadside stoppages of Blacks by police officers. These are the same issues that arise in Canada that cry out for race litigation using the critical race framework.

In Canada, race litigation however, is just in its infancy, for reasons already given above.

Canadian lawyers zeroed in on challenges for cause on racial grounds in the late and early 1990s. In the case of Parks[29] a trial judge had in keeping with judicial tradition and precedent, refused to allow a Black drug dealer of Jamaican origin to challenge the jury on grounds of potential racial prejudice. The accused was convicted. On appeal, the Ontario Court of Appeal allowed the appeal and sent the matter back for retrial where the accused would be permitted to challenge the jury for cause on racial grounds.

Judge Doherty’s statement about the prevalence of racism in Canada has been quoted ad infinitum. He stated: “Racism, and in particular anti-Black racism, is a part of our community’s psyche. A significant segment of our community holds overtly racist views. A much larger segment subconsciously operates on the basis of negative racial stereotypes. Furthermore, our institutions, including the criminal justice system, reflect and perpetuate those negative stereotypes”[30].

This case opened the floodgates to challenges for cause on racial prejudice. It is now settled that in the majority of cases, one need not prove by empirical evidence the need to challenge the prospective jurors for cause on racial prejudice. Judges can take judicial notice of the probable existence of racial prejudice and allow the challenge for cause on this basis[31].

While these jury cases have been important in weeding out overtly racist jurors who have had no trouble in openly stating that they had racial biases and for the education of the populace, these cases have had no effect on the actual end result of the composition of a jury that tries a case. For example, in Toronto, if the jury pool is 100% White, all the jurors at the end of the challenge for cause will be White. I have already alluded to the studies that show that jurors prefer the evidence of police officers and are sympathetic to victims and defenders from their racial background.

Furthermore, the composition of the jury has no effect on the prior decision outcome that led to the arrest or charge of a person. For example, a person may have been stopped at the airport or street because he is Black. The decision to exclude the evidence obtained as a result of an improper motive or conduct by the police is not made by a previously challenged jury, but by a judge in the absence of the jury.

Challenges for cause have no impact on the decisions made well before i.e. the decision to grant or deny bail, the decision to proceed by summary procedure or indictment and so on.

In the end, this much-litigated area while it has injected equality of some sort in the administration or justice, has had no impact on substantive equality in the administration of the broader system of justice.

When litigants wanted to take the issue of racial prejudice to the next level i.e. the substantive level, the courts have rebuffed them.

Clifton Richards, a Black resident of Jamaica was stopped by a White police officer for an alleged traffic violation. At trial, he alleged that he was stopped because of his race. The arresting police officer’s notes contained detailed racial descriptions of Mr. Richards. The trial judge ruled among others, that if he accepted that the police officer was racist, that would end the police officer’s career. The end result was that he convicted Mr. Richards.

On appeal, Mr. Richards alleged that he was stopped because he was driving while Black (DWB) and the court stated that “the real matter of contention in this case is whether Constable Aikman’s investigation was racially motivated…”[32]. However, the Court of Appeal completely avoided delving into the grounds central to the appeal i.e. racial motive in the arrest of the Appellant, but instead, reversed the conviction because the trial judge made errors in his rulings on credibility. The trial judge did not want to ruin the officer’s career if he ruled that he had stopped Mr. Richards because of his racial background. The Court of Appeal completely avoided this issue of race. Many cases would have been affected if they ruled in favour of Mr. Richards on the issue of race. The Appellant had submitted a great deal of documentation to show that Mr. Richards was stopped because he was driving while Black.

There is voluminous anecdotal evidence of Black people being stopped just because of their colour. When a person is stopped, the police are likely to find something with which to charge the person. Further, Black and White lawyers in their discussions among themselves detail numerous cases where judges have simply avoided the issue of race that has been brought up by the litigant.

The limited helpfulness of the jury selection cases in the furtherance of equality in the administration of justice was revealed in the Dudley Laws case[33]. Dudley Laws, the head of the Black Action Committee (BADC) was charged with a slew of offences. He challenged the composition of the jury and wanted specifically a mixed race jury to be empanelled in order to have a possibility of a fair trial. The Court of Appeal summarily dismissed that ground of appeal. There would be a real advance if this ground of appeal were granted.

The present author was also rebuffed on two occasions when he demanded a jury pool that was reflective of the racial make-up of Toronto. The jury pool that was brought into the courtroom to be selected to try a Black defendant was 100% White[34]. So have many defence counsel been rebuffed on the same issue.

The present author also challenged in Federal Court the constitutionality of subsection 70(5) of the Immigration Act on the ground that people who are declared to pose danger to the public and therefore lose their right of appeal are disproportionately of Black ancestry and principally Black Jamaicans. Both the trial division and appeal division of the Federal Court of Canada dismissed this constitutional challenge and the case headed to the Supreme Court of Canada[35]. Many lawyers have met a similar fate despite presenting the courts with voluminous documents as evidence of the disparate impact of the danger to the public law on Black criminals particularly those from Jamaica.

In some of these cases, the appellants have tried to rely on “social context” or “social contextualization” of race to advance their cases. The Supreme Court of Canada ruled in R.D.S.[36] that the social context in judging a case must be taken into account. These would encompass for example, taking into account the prevalence of racism in a particular context. In R.D.S., the trial judge had taken into account the social context in which a Black teenager encountered a White police officer in Halifax where allegations of police racism are legendary. The acquittal of the Black youth by a Black judge resulted in a crown appeal alleging racial bias on the part of the Black judge. The next two appeal levels composed of White judges sided with the crown and reversed the acquittal. On further appeal to the Supreme Court of Canada, the Court sided with the decision of the trial judge.

However, while the approach and theory of social contextualization is sound and good on paper, when it comes to actually deciding a concrete case where racism is alleged, judges and adjudicators demur.

It is also possible that R.D.S. may never have arisen had it not been for the fact that at trial, the Black youth appeared before a Black judge and he was represented by a Black lawyer. The court reporter was also Black. The tables were turned, as only the police officer was White.[37] This validates the contention that equal justice for all races composing Canada requires a judiciary, prosecutorial service, police cadres, and juries reflective of the racial diversity of Canada.

The next stage in race litigation is to crack open the judicial armour. This may have been made possible by the acceptance of challenge for cause on racial grounds and the social contextualization of cases in which judging is to take place.

The test had come when the present author sought leave in Moffatt to argue the danger to the public law in the Supreme Court of Canada or when the firm of Hinkson, Sachak, Mcleod argued its case in the Superior Court of Justice on the disproportionate stoppages and searchings of Black Jamaicans by Canada Customs at Pearson Airport.[38]

Immigration law needs extensive race litigation. There is however no sympathetic judiciary among other issues.

The ground-breaking Supreme Court of Canada Immigration decision in the case of Mavis Baker [39] has left unremarked by the Supreme Court of Canada Justices and other commentators some of the most pressing issues of the day which without their resolution will act as a break rather than a gigantic positive development in the use of law by disempowered immigrants. In Baker, the Supreme Court decided among others, that: (a) a decision maker has to take into account the best interests of the children whose parent(s) are facing deportation consequences, (b) that the standard of review of a humanitarian and compassionate decision is not of simple reasonableness, rather than the higher standard of patently unreasonable, and (c) that international treaties that Canada has ratified but not incorporated into domestic law are not binding on Canada but are of persuasive interpretative force.

No equality rights issue had been certified in Baker, a major lost opportunity for litigating a race specific equality issue. Baker however, dealt mainly with the best interests of the child.

The Baker decision is the most important Supreme Court of Canada Immigration decision since that of Singh [40] handed down in 1985. Singh decided that refugee claimants had a right to an oral hearing rather than being subjected merely through the paper process, since issues of credibility were involved. You cannot negatively decide someone’s credibility without affording them an opportunity to be personally heard by personal appearance.

The Baker decision has brought to the fore but without being remarked upon by the Supreme Court Justices and other commentators some of the most vexing question of our time.

The first question is: why are immigrants denied access to justice in Canada given that in a lot of cases, the central issue is what are the best interests of the Canadian born children – to remain in Canada or to be removed from Canada along with their parents? How is it that Baker is the first immigration case to reach the Supreme Court dealing with the issue of best interests of children?

How is it that race has not been litigated in the immigration context in the Supreme Court of Canada?

Immigrants are denied access to justice in the following way and the recent decision has not provided any solutions whatsoever. There is not right of appeal to a court of law when a negative decision in an immigration context is handed down. There is a right of appeal in criminal cases, except to the Supreme Court of Canada, where leave is required except if a judge of the Court of Appeal dissented.

In the immigration context, an immigrant has to seek leave from the Federal Court of Canada. A very small percentage of leave applications are ever granted. No reasons for a negative decision are given. Seeking leave simply means one is asking a court to allow him or her a foot in the door of the court. It is left to judicial discretion to grant leave. The ground is staked against immigrants in this process.

If leave is granted but judicial review is denied, there is no right of appeal to the Federal Court of Appeal. In some cases the very judge who denied the application for judicial review may be persuaded to certify a question for the applicant to take to the Federal Court of Appeal. Certification is not a right. It involves asking a judge to allow an applicant to proceed further. Certification of questions to the Federal Court of Appeal is rare. Mavis Baker got through.

If the certified question or other issues in the Federal Court of Appeal are dismissed, there is no right of appeal to the Supreme Court of Canada. One has to seek leave. The Supreme Court grants even less leave applications. No reasons for a negative decision are given.

With these hurdles to surmount, it becomes clear that Mavis Baker through her lawyers, waged a tenacious struggle to proceed. By the same token, because of the denial of access to justice, which this process engenders, it can be imagined how many worthy cases were or are lost in the process. People have been turfed out of Canada or went underground because they were denied access to justice as a result of this process. The criminal process is entirely different. There is a right of appeal to the Court of Appeal where the majority of cases end.

So the fundamental question in an immigration context is: How can access to justice be accessed or opened up? In the United States of America, access to Justice has been recognized as a fundamental interest worthy of constitutional protection. [41] In Canada not only is this not recognized, a person has no right of appeal or to a written decision. Access to justice ought to be recognized as a fundamental interest worthy of constitutional protection.

Access to justice is further denied because of poverty or economic circumstances of the majority of immigrants affected by negative immigration decisions. While legal aid is generally accessible in criminal appeals, it is not available to prosecute immigration appeals. A lot of good cases go nowhere because immigrants cannot afford to hire lawyers. A lawyer cannot fight a case all the way to the Supreme Court of Canada without a retainer. And it is very expensive. The Department of Justice will fight any appeal process with all their mighty, using public resources.

So not only are immigrants denied access to justice because there is no right of appeal, they are also denied access because they are not given financial means to prosecute these cases even when they could have a chance to secure leave or to have their questions certified for higher courts.

It is therefore not surprising that the Supreme Court of Canada, the most progressive court in the land is rarely seized of otherwise good cases, because cases rarely, if ever, reach there.

Immigrants are deprived of the otherwise progressive decisions of the Supreme Court of Canada because their cases never make it there. Immigrants may be better off if their issues were ventilated before the highest court in the land. This is not only good for immigrants, it is also good for the development of the culture of the rule of law and enhancement of Canada’s international reputation.

The second vexing question of our time is: should Canada be bound by the provisions of the international treaties it has ratified but not yet incorporated into domestic law? The Supreme Court of Canada has stated that international treaties that Canada has ratified are only of persuasive but not binding value.

This interpretation is a dumper. There is no justification to interpreting international treaties that way. There are two perspectives on this issue. One perspective – called the dualist view holds that a ratified treaty is not binding if it is not incorporated into domestic law. The other view is the monist view, which holds that by ratifying a treaty, a country is thereby bound by its provisions. The European Court of Human Rights (ECHR) compels member states to be bound by the treaties they have signed.

If the Supreme Court of Canada adopted the monist view, like the European Court of Human Rights, then Canada would perforce be bound by the international treaties it has signed. The Supreme Court of Canada has deferred to Canada’s posture, that is, even though Canada ratified international treaties, it is not necessarily bound by these treaties. Canada, in turn can hide under the rulings of the Supreme Court of Canada, which has given imprimatur to its very practices.

Race litigation is increasingly becoming a fertile ground in the advancement of equality rights in the administration of justice in Canada. However, race litigation is hobbled by the conspiracy of silence binding the judiciary, prosecutors, police, jurors, defence counsel, Canada customs, immigration and prevailing precedents. This conspiracy of silence is being challenged in the courts. It is cracking up as evidenced by the successes of the challenge for cause cases and the admission of social contextualization in the judging process. The racial and gender composition of the judiciary and tribunals should be encouraged to be more reflective of the society and localities. As more lawyers become familiar with the critical race theory and on how to litigate race cases, the possibilities of success will increase[42].

[1] See for a useful analysis of discrimination and denial in Clayton James Mosher, Discrimination and Denial: Systemic Racism in Ontario’s Legal and Criminal Justice Systems (Toronto: U. of T. Press, 1998).

[2] See LEAF, Equality and the Charter: Ten Years of Feminist Advocacy Before the Supreme Court of Canada (Toronto: Emond Montgomery, 1996).

[3] See F. L. Morton and Rainer Knopff, The Charter Revolution and the Court Party (Peterborough: Broadview, 2000).

[4] (Toronto: Government Printers, 1995).

[5] Ibid.

[6] Mosher, supra note 1 pp. 26 and 119 - 137.

[7] Ibid pp. 119 - 137.

[8] Scot Wortley, An Analysis of the Airport Study (1999) (unpublished litigation document).

[9] See Sherene Razack, Looking White People in the Eye: Gender, Race and Culture in Courtrooms and Classrooms (Toronto: U. of T. Press, 1998).

[10] See Julian Falconer and C. Ellis, Colour Profiling, a paper presented to the American Bar Association Annual Conference, Toronto, August 1998 and Colin Richards, “Bill C-44 Condemned as Anti-Jamaican” Pride November 5-11, 1998; see also Danger to the Public, A Play (Toronto, 2001).

[11] (Toronto: Ryerson Polytechnic, August 1999.)

[12] See allegations in R. v. Richards Docket: (29243 (May 1999)) (Ontario C.A.)

[13] (Toronto: Osgoode Society, 1997).

[14] ((1914), S.C.R. 440).

[15] ([1940] S.C.R. 139).

[16] ([1951] 92 S.C.R. 64).

[17] ([1955] S.C.R. 395).

[18] (Toronto: Osgoode Society, 1999).

[19] (Halifax: Fernwood, 1999).

[20] Supra, note 4.

[21] In “The Fiction of Judicial Impartiality” and “On Judicial Appointments: Does Gender Make a Difference” as quoted in Charles Smith, “Addressing Racism and Equity in Canada Today: Now More Than Ever” Law Society of Upper Canada, Race, Courts and Tribunals: Emerging Doctrines and Their Impact (Toronto: LSUC, 2000).

[22] Clayton Ruby, Toronto Star November 6, 1989. I have also written articles on this issue that have appeared in the Toronto Star; Lawyers’ Weekly and Osgoode Hall Law School’s Obiter Dicta: See also Hamalengwa, For the Equal Benefit, Equal Application and Protection of the Law (Manuscript).

[23] (New York: The New Press, 1999), p. 123.

[24] Ibid.

[25] U.S. v. Armstrong 116 S. Ct. 1480 (1996).

[26] The State v. Russell, 477 N.W. 2nd 886 (Minn. 1991).

[27] The People v. Powell et al, 1991, 232 Cal. App. [3d].

[28] O.J. Simpson BA 097211 [Cal S. Ct.] 199 and 1995 WLS 16132.

[29] R. v. Parks (1993), 84 C.C.C. (3d) 353.

[30] Ibid p. 369.

[31] R. v. Williams [1998], 124 C.C.C. (3d) 481 (S.C.C.).

[32] R.v. Richards File C29243, April 1999, paragraph 21 (Ont. C.A.).

[33] R. v. Laws (1998) 128 C.C.C. (3d) 516.

[34] R. v. Eric Kusi April 1998, (Ont. Ct. Gen. Div.). and R. v. Challenger, April 3, 2001 (Superior Court of Justice).

[35] Rolston Ricardo Moffatt v. Minister of Citizenship and Immigration A-679-97, April 7th, 2000 (F.C.A.). The author has another case at the Trial Division of the Federal Court of Canada on the same issue, see, Grandison v. MCI IMM File No. 6308-98; leave to appeal in Moffatt was denied by the Supreme Court of Canada on March 22nd, 2001, File No. 2786.

[36] R. v. R.D.S. (1997) 118 C.C.C. (3d) 353.

[37] See Aylward, supra note 19, p. 94.

[38] See also an interesting article, Julian Falconer, “Litigating Race in the Criminal Courts” in C. Boyle, M. MacCrimmon and Dianne Martin, The Law of Evidence: Fact Finding, Fairness and Advocacy (Toronto: Emond Montgomery, 1999).

[39] Baker v. Canada (M.C.I.) (2000) 1 Imm. L.R. (3d) 1.

[40] Singh v. Canada (M.E.I.) [ 1985] 1 S.C.R. 177.

[41] See Griffin v. Illinois, 351 U.S. 12 (1956).

[42] See Law Society of Upper Canada seminar materials, Race, Courts and Tribunals: Emerging Doctrines and Their Impact, March 22nd, 2000.