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Less than a
year ago the Inter-American
Commission on Human Rights issued a
Report which advised the United
States on
its Immigration procedures in the
light of international human rights
standards. (Inter-American Commission
on Human Rights, Report
on
Immigration
in
the
United
States: Detention and Due Process, OAS
Doc.,
OEA/Ser.L/V/II.Doc.
78/10, 30 December 2010.) The
Commission sets out
the
international standards for the United
States and other members of the
Organisation of American States, OAS:
Canada
shares the same treaty
obligations and the same
standards apply. The
major concerns are with
guarantees of due process. For
Bill C4, the
concerns
of the report about liberty are
the most relevant parts. These
follow.
2.
The
“presumption of liberty” With
respect to the right to
liberty the
Inter-American
Commission on Human Rights
advises the United States
first about
detention
prior to a criminal trial: “In
general, the paramount
principle where
the right
to personal liberty is
concerned is that pre‐trial
detention is an
exceptional
measure.” (para. 34) The
Commission then notes: “In the
case of
immigration
detention, the standard for
the exceptionality of
pre‐trial detention
must be
even higher because
immigration violations ought
not to be construed as
criminal offenses. The United
Nations Special Rapporteur on
the Human
Rights of
Migrant Workers wrote,
“Irregular migrants are not
criminals per se and
should not be treated as
such.” (para. 38) The
Commission concludes: “… to
be in
compliance with the guarantees
protected in Articles I and
XXV of the
American
Declaration, member States
must enact immigration laws
and establish
immigration policies that are
premised on a presumption of
liberty
‐‐the right
of the immigrant to remain at
liberty while his or her
immigration
proceedings
are pending‐‐ and not on a
presumption of detention.
Detention is only permissible
when a
case-specific
evaluation concludes
that
the measure is
essential in order to serve a
legitimate interest of the
State and to ensure that the
subject reports for the
proceeding to
determine his
or her immigration status and
possible removal. The argument
that the
person in
question poses a threat to
public safety is only
acceptable in
exceptional
circumstances in which there
are certain indicia of the
risk that the
person
represents…” (para. 39) “The
IACHR also
underscores the fact that the
detention review procedures
must respect
the
guarantees of due process,
including the defendant’s
right to an
impartial
hearing in decisions that
affect his or her fate, his or
her right to
present evidence
and refute the State’s
arguments, and the opportunity
to be represented
by counsel.”
(para. 40) These
statements of the
international
obligations surrounding
imprisonment or detention are
equally relevant
for any
member of the OAS and they
apply to
everyone under a State's
jurisdiction. Moreover,
the
Commission
sets
out special
measures which are applicable
to what it describes as
“vulnerable
groups.”
(para. 43). Asylum
seekers, under the 1951
Convention relating to the
status of
refugees are
one such vulnerable group. As
a general principle asylum
seekers should
not be
detained (para. 45), detention
should only occur after a full
consideration of
all possible alternatives
(para. 46), such detention
should not be an
obstacle
to pursuing an asylum
application and should have a
series of minimum
guarantees (para. 47) and the
longer preventive detention
occurs the
greater
the burden on the rights of
the person deprived of
liberty. (para. 48) Migrant
families and unaccompanied
children
are the second
vulnerable group considered.
The Commission observes:
“Under
Article V of
the American Declaration, ‘[e]very
person has the right to the
protection of
the law against abusive attacks upon
his…private and family life.’
Under Article
VII, ‘[a]ll women, during pregnancy
and the nursing period, and all
children
have the right to special
protection, care and aid.’ The need
to
guarantee
these rights has a direct bearing on
the appropriateness of detaining
migrant
families and children. Given the
provisions of Articles V and VII,
mandatory
detention of a child’s mother or
father must be considered on a
case‐by‐case
basis, analyzing whether the measure
is proportional to the end the
State seeks
to achieve and taking the best
interests of the child into
account.”
(para. 49) The
Commission finds it possible to
conclude that families and pregnant
women who
seek asylum ought not to be
detained ( para. 50) and finds that
“the
principle of exceptionality
governing deprivation of liberty in
general
and
deprivation of liberty for
immigration violations, carries even
more
weight
when children are involved. Only in
the most extreme cases could such a
measure
be justified.” (para. 51)
Bill C4: The proposed
legislation does not adopt the
international presumption of
liberty.
Rather, it requires incarceration
for a period of a year
if
a person is a member of a group
designated by the Minister. Bill C4
“authorises the Minister, in
certain
circumstances, to designate as an
irregular arrival the arrival in
Canada of a
group of persons, the result of which
is that some of the foreign
nationals in
the group become designated foreign
nationals.” The
legislation does not provide any
special
safeguards to
protect the liberty of especially
vulnerable groups, families with
children, children, and asylum
seekers.
2. The Obligation
to Have Fair and Objective
Procedures Under
Article XXVI of the American
Declaration, ‘[e]very person accused
of an
offense
has the right to be given an
impartial and public hearing….’ The
IACHR has pointed out that Article
XXVI applies to immigration
proceedings: “to
deny an alleged victim the
protection afforded by Article XXVI
simply
by virtue
of the nature of immigration
proceedings would contradict the
very
object of
this provision and its purpose to
scrutinize the proceedings under
which the rights,
freedoms and well‐being of the
persons under the State’s
jurisdiction
are established.”
(para. 56) The
Commission has found that Article 8
of the American Convention on Human
Rights reaffirms
the rights recognized in Article
XXVI of the American Declaration.
(para 57)
Moreover, the due process rights set
forth in Article 8 of the American
Convention ‘establish a baseline of
due process to which all
immigrants, whatever
their situation, have a right.’ Both
the Commission and the
Inter-American Court of Human Rights
find that
immigrants
are at a real disadvantage that can
adversely affect due process unless
special
countervailing measures are taken to
reduce or eliminate the procedural
handicaps with which immigrants are
encumbered. (paras. 58, 59) Thus
procedures which decide whether some
non-citizens are incarcerated or
not need
to have special safeguards.
Similarly, procedures for release
from
detention
require special safeguards compared
with others. Moreover,
there
must
be
effective
judicial
oversight: “…
In
the case of Rafael
Ferrer‐Mazorra and
in light of the rights protected
under the American Declaration, the
Inter‐American Commission emphasizes
the fact that access must be
provided to a
judicial review of the detention,
‘as it provides effective assurances
that the
detainee is not exclusively at the
mercy of the detaining authority’.”
(para.
62) Bill
C4:
Procedures
by which non-citizens are
incarcerated are discretionary
decisions of
administrative officials. Without
objective criteria in law, which
criteria are
necessary and reasonable or
proportionate to the goal of
responding to
smugglers, the incarceration will be
arbitrary and illegal by
international
norms. Habeas Corpus requires
that a
person be brought before a judge who
will decide the lawfulness of the
incarceration. The Immigration and
Refugee Protection Act, IRPA , does
not use judges, but uses a cohort of
officials – adjudicators. These
confirm or not an administrative
decision and
they are subject to judicial review.
This general procedure by which
asylum
seekers may be released from
incarceration under IRPA 2002 was
deemed
equivalent to Habeas
Corpus in the Reza
v
Canada decision of the
Supreme
Court. However,
even if equivalent to Habeas
Corpus,
the procedures in IRPA are not
reinforced by special measures,
referred to
by the Inter-American Commission, so
as to ensure that they function at
least as well as Habeas
Corpus for
a vulnerable group of non-citizens.
And there is no easy access to
judicial
review which the Commission
regards as required. Bill C4 appears to move in another direction – attempting to limit opportunities for court intervention and Habeas Corpus which ought to ensure the presumption of liberty.
In
sum,
the
Inter-American Commission Report on
Immigration Law in the United
States sets
out international standards for
liberty and for due process
involving
non-citizens and asylum seekers
which are equally relevant for
Canada,
also a
member of the OAS.
Bill
C4 is entirely at odds with the
international standards: the
presumption of liberty, the need for
special
measure to ensure due process in
procedures such as Habeas
Corpus and in particular, the
need for access to
judicial review of decisions to
incarcerate. Bill
C4 should be re-written to address
the human rights obligations
surrounding the presumption of
liberty, the
special needs of families and
children in the incarceration of
non-citizens, as
clearly set forth in the OAS
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