Ignore the fig leaf - nobody gets published in Canada
without the obligatory "Zundel is an obnoxious _______" You fill
in the blanks. That aside, there you have it, in a nutshell:
Between a police state and an easy mark
George Jonas - National Post
Wednesday, July 02, 2003
Not too many Canadians have heard of IRPA. The acronym
stands for the Immigration and Refugee Protection Act. Needless to say,
the Orwellian title doesn't protect immigrants or refugees. It only
enables the Immigration Minister and the Solicitor-General to sign a
document called a "security certificate" which declares a person
"inadmissible" in Canada on security grounds.
Security grounds are vaguely defined to let the
authorities cast as wide a net as possible. They include simply being a
"danger to the security of Canada."
IRPA became law on June 28, 2002. It didn't come out of
the blue. Bill C-11 had a complex legislative history going back to the
1970s. In essence, IRPA is a backlash. It's an effort to exempt Canada's
security authorities from the consequences of certain ultra-liberal trends
that prevailed in immigration laws and practices in the past 30 years.
The law -- which in its current form affects only foreign
visitors and permanent residents, but not Canadian citizens -- enables the
authorities to arrest, hold without bail, and eventually deport a person
by satisfying a single federal judge, on evidence that need not be
revealed to the suspect and his lawyer, at a hearing that neither the
suspect nor his lawyer are entitled to attend, that the detainee is a
security risk. Such a person may be deported even to a place where there's
a risk he may be tortured or killed.
This legislation, which on the face of it appears not only
Draconian but positively Kafkaesque, presents four easily identifiable
dangers.
One, since the accusation cannot be tested, the law may be
used against totally innocent people, for reasons ranging from mistaken
identity to a personal vendetta by some informer.
Two, it may be used against people of objectionable views
who pose no security threat even under the wide definitions of IRPA.
Officials have a lousy record when it comes to telling evil-thinkers (or
simply politically incorrect thinkers) from evil-doers.
Three, IRPA can be invoked as a political tool to gain
points with segments of the electorate. In my view, that's what happened
recently in the case of Ernst Zundel, the obnoxious Holocaust denier, who
may be a despicable nuisance but hardly a security threat under any
reasonable definition of the term.
Four, such a law may open the door to a general erosion of
due process. If secret hearings are allowed against suspected terrorist
aliens, soon they may be used against suspected terrorist citizens. There
is such a thing as a slippery slope.
In an article to be published in Maclean's magazine next
week, the criminal lawyer Edward L. Greenspan points out that "in
ordinary criminal cases, following a trial by judge and jury, after being
given a full opportunity to cross-examine one's accusers and question all
the government's evidence, mistakes are still made." It's an
essential point. Earlier this year Illinois Governor George Ryan felt
compelled to commute all death row sentences because newly available DNA
evidence revealed an alarming number of mistaken convictions. Though this
was grandstanding -- there was no evidence that any innocent person had
ever been actually put to death in Illinois, and even Gov. Ryan conceded
most of the 156 inmates whose lives he spared were guilty -- the outgoing
governor's gesture underscored the fact that our legal system isn't
sufficiently reliable.
It's easy to see how unreliable the system would be under
an IRPA-type regime, with most ordinary safeguards removed. As the late
Mr. Justice Campbell Grant put it once: "We hold these trials to get
at the truth." The plain-spoken Ontario jurist touched on the heart
of the matter. The main purpose of the legal process is to separate the
wheat from the chaff, the factual from the fanciful, the guilty from the
innocent. Justice isn't an abstraction of liberal philosophy, but
something purely practical: Canada's security won't be enhanced by the
incarceration or deportation of people who did nothing to jeopardize it.
Going on automatic pilot in defence of civil liberties
isn't enough, though. Pretending that we're not at war, that the enemy
isn't at the gates, and that special measures aren't required to combat an
acute and mortal threat, is to continue languishing in ostrich-land.
Sticking our heads in the sand won't protect us against the zealots of
anti-globalism, rabid nationalism, religious fundamentalism, or extreme
environmentalism. The self-righteous fanatics of the world, the masters
and instigators of suicide bombers, self-immolators, rioters, and
assassins -- in short, the terrorists -- have been making a concentrated
effort to infiltrate and destroy the liberal democracies of the West.
For years we've been turning Canada into a safe haven for
foreign terrorists, terrorist recruiters, terrorist bankers, and terrorist
fundraisers. The first thing we may have to do is to take a hard look at
our idea of extending every constitutional protection to aliens. In the
past few decades our tendency has been to reduce the unique status of
citizenship, just as we have been diminishing the unique institution of
marriage. By blurring the distinction between citizens and aliens, as we
have between common-law unions and marriage, we've given an edge to the
bad guys.
For instance, when nasty fanatics fight each other, as
they often do, they love setting up bases for themselves in liberal
democracies. The Iranian mullahs did it when fighting the Shah in the
1970s, and these days the self-immolating terrorists of the Mujahedeen
Khalq do it when fighting the mullahs. When an alien of this ilk is
apprehended in Canada, he'll plead that deporting him to Iran (or Sri
Lanka, or wherever) will expose him to torture or death -- as it well
might. This makes us feel obliged, at least as often as not, to let him
continue using Canada as a safe haven for his plotting. We shouldn't. We
should be able to say to such alien terror-suspects: "If you'll be
tortured, tough cheese. We won't put Canadians at risk by sheltering the
likes of you." Or, if we balk at sending even a terrorist to his
torture or death, we should be able to offer him a choice between
deportation and a life-time tenure in a colony established for his type
somewhere north of Frobisher Bay.
Taking a hard look at ideas such as dual citizenship,
reduced waiting periods, relaxed test requirements, and similar measures,
would be a step in the right direction. It would help ensure that the
privilege of citizenship is meaningful and is extended to people who are
content to abide by the responsibilities that go with it. It would reverse
the blurring of the distinction between aliens and citizens. If we
reserved, as a matter of course, certain constitutional safeguards to
citizens, the necessity for laws such as IRPA would be eliminated. Aliens
would know that a suspicion of being security threats might result in
their deportation, and that a suspicion of disloyalty might eliminate
their chances of acquiring citizenship, along with its constitutional
protection.
These are tough questions. They go against the social and
legal trends of the past few decades. But they need to be posed,
discussed, and answered if Canada is not to become either a police state
or a staging ground for international terror.
