Danger to the Public in Canada Under the Criminal Code and Immigration Act of Canada

Danger to the Public in Canada Under the Criminal Code and Immigration Act of Canada- L.L.M Thesis presented to Osgoode Hall Law School (2001) by Munyonzwe Hamalengwa.

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.

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 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]

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.

CHAPTER TWO: Being Set Up to Be a Danger to the Public: The Brutalization [top of page]

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.

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

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 8^th, 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:

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

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.

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 6^th, 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, 2^nd 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.

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]}

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]}

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

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.

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:

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

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;

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);

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

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.

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.

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 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?

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.

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.

(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 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. (4^th) 577 at p. 612 (S.C.C.).

[20] Re Eaton and Brant County Board of Education [1996], 142 D.L.R. (4^th) 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. (4^th) 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. (4^th) 1

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.

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 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”.

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

(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:

(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

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 10^th, 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)

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.

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.

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.

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.

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.

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:

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 9^th, 2001) (Bigelow, J., OC.J.).

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

[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.

CHAPTER SIX: Danger to the Public: Procedures Under the Criminal Code [ back to top of page]

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.

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

(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

(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:

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,

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

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.

(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