In a democracy, it is not enough for laws to be interpreted fairly. They must also be applied and enforced fairly. Simply speaking, everyone should be treated the same.
For example, if two people were to be found speeding, the government shouldn’t treat one more harshly than the other for political reasons.
Based on my former experience as an immigration officer and based on my 23 years of experience practicing exclusively in immigration law I can’t help but conclude that this is exactly what is going on in Vancouver right now with the 492 Tamil refugees who arrived off the shores of British Columbia on Aug. 13 aboard the MV Sun Sea.
Our government was criticized for not steering this ship away from Canadian shores which, of course, could have further risked the lives of the 380 men, 63 women and 49 children aboard the migrant ship.
Accordingly, having suffered embarrassment, our government has decided to play hardball and dole out “special” treatment for these particular refugees for the entire world to see.
Very few Tamil claimants who appear at a Canadian port-of-entry by air or land are detained, and if so, only for a few days while their identity is confirmed. The chances of Tamil women with accompanying children and genuine identification documents being detained on arrival are very small. Yet each and every man, woman and child aboard the Sun Sea, without exception, was ordered detained. This clearly contradicts the department’s own policy manual which mandates an “individual assessment” of each case and instructs officers “to consider all reasonable alternatives before ordering the detention of an individual.” The manual concedes that even those with criminal convictions “might not be a menace to public safety” and can be released.
It took a month for the first Tamil, a pregnant mother of three, to be released. Since then the Immigration and Refugee Board has agreed to the release of four more women. According to Toronto immigration lawyer Robert Blanshay, who represented one of these women, his client produced an original national ID card and an original birth certificate which the CBSA examined and confirmed were probably genuine. Nonetheless, our government opposed her release. After the immigration judge ordered her release, Blanshay, who is very experienced in representing such claimants, was “shocked” to learn that the government had appealed the Board’s ruling.
Vancouver lawyer Douglas Cannon represented three other women in front of the IRB last Tuesday who were in the same boat…literally and figuratively. A relative of one of the women offered to post a $1,000 bond to secure her release. Board Member Marc Tessler easily, and quite rightly, ordered all three women released without even requiring a single dollar to be posted to ensure their compliance with his terms. He strongly suggested that “the Minister is holding the ‘Sun Sea’ arrivals to a higher standard with respect to identification….than somebody who would arrive by plane.” Tessler saw the duplicity of the government’s position and confirmed that when Tamils arrive by air “the Minister, in general, consents to release” when there are no obvious problems with their identification documents.
The ink on these release orders was barely dry when about an hour later, Cannon was interrupted in the middle of another immigration hearing by a Department of Justice lawyer who knocked on the hearing room door and served him with a notice of appeal. Cannon, also a very seasoned immigration lawyer, told me he has never seen a release order of the IRB judicially reviewed except in high profile cases or those involving criminality or national security issues.
On Friday, Justice de Montigny of the Federal Court refused to adopt a single argument the government put forward for blocking the release of these three women and their five children, some of whom “have had no schooling for almost a year” and who “have already gone through a gruelling journey which could leave them with severe emotional and psychological scars.”
According to Cannon, the whole Sun Sea affair has been politicized. He added that “low-key people don’t raise the concerns of the CBSA. But high-profile cases get handled in a high-profile way.”
Lorne Waldman, a veteran and respected immigration lawyer of 30 years experience who has handled some of the most celebrated immigration cases in the country, agrees that very few Tamils arriving in Canada by air or land would be treated this way.
“There is a distinction being made for this boat, for sure, for political reasons.” He too cannot recall a release order which did not involve criminality or national security issues being appealed by the government.
Neither can I.
There is no qualitative difference between a claim of persecution made by an individual arriving by air or car and a claim made by someone arriving by sea with others. Those who believe that the government’s decision to detain all of these people and to appeal these four release orders in order to ensure our safety and the attendance of these claimants in court are plain wrong. What they are seeing is a political show and payback. Nothing more and nothing less.
That is not how a democracy, or our legal system, is supposed to work.
Guidy Mamann practices law in Toronto at Mamann, Sandaluk and is
certified by the Law Society of Upper Canada as an immigration
specialist. For more information, visit www.migrationlaw.com or email metro@migrationlaw.com
