The 'Danger to the Public' law: a dangerous injustice
It is the thesis of this paper that Subsection 70(5) of the Immigration act, which provides for the declaration of all non-citizens who are accused of criminal offences to therefore lose their rights of appeal to the appeal Division of the Immigration and Refugee Board, lose the statutory right of a stay of deportation order, and be arrested and confined pending removal, on the basis of posing a 'danger to the public', was enacted purely for the purpose of kicking racial, cultural and national minorities out of Canada. It is a violation of Section 15 of the Canadian Charter of Rights and freedoms, which states that every individual is equal before and under the law and has the right to the equal benefit and protection of the law without discrimination, particularly with regard to that based race, national or ethnic origin, color, religion, sex, age, or mental or physical ability.
However, courts do not see it that way. Canadian citizens who have committed greater and more violent offences do not automatically stand the chance of being declared a danger to the public and therefore incarcerated as a dangerous offender. Indeed, only a very small percentage of Canadian citizens are ever declared to be a danger to the public under the Dangerous Offender provisions of the criminal Code. Furthermore, before any Canadian citizen is declared as such, s/he has a right to a hearing before an impartial tribunal and a right to call and examine witness. S/he also gets a written notice. If s/he is declared to be a dangerous offender, that decision is revisable at regular intervals. A non-Canadian does not have any of these rights, procedures, and protections.
This treatment that non-citizens get is unequal and discriminatory based on national status and origin. So far, it has been young Caribbean men, particularly Jamaicans, who have received the worst application of the danger to the public law. Meanwhile non-citizens from countries like England, Scotland and Portugal are almost never similarly declared, and in the event that they are, they rarely ever get booted out. To elaborate, Richard Alexander McCormack, from Scotland has a long criminal record stretching from about 1982, having been convicted of offences ranging from cocaine trafficking to aggravated assaults and weapons offenses. He has been declared to be a danger to the public. Even Immigration Canada acknowledges that others with much shorter rap sheets than McCormack have been sent packing (Toronto Star, February 17th, 1997, pg.2) . However, Hopeton Scott. a Jamaican had only one conviction for possession of drugs for the purpose of trafficking. On the basis of one conviction, he was declared a danger to the public, and the Federal Court of Canada refused to grant leave to appeal the declaration (Reg. No. IMM 2633-95). William Harriot, another Jamaican man, had at one point been convicted of a common assault and a minor weapons charge and had been out of jail for several months, was working and taking care of his four children, when out of the blue, he was declared to pose a danger to the public. He also had the Federal Court deny him leave to appeal the declaration (Reg. No. IMM 3211-95). The are literally hundreds of examples one can give.
Even among those declared, procedures are not handled equally. Recently, a Portuguese man was declared a danger to the public, and was spared removal because of public outcry triggered by information that he was dying of AIDS. However, a Jamaican man who was found to be mentally incompetent from an early age was turfed out despite public outcry.
The preceding examples demonstrate that race and national origin play an important role in regards to who gets to be declared a danger to the public and who booted out. Subsection 70(5) was implemented in a climate of extreme hysteria and violence directly as a result of racist and ant-immigrant agitation by Metropolitan Toronto police union in 1994, following the fatal shooting of a white police officer, Todd Bayliss, by Clinton Gayle, a Jamaican man who had lived most of his life in Canada. This is one of many in which the Jamaican community was subjected to vile collective criminalization by the media and police. From its very inception, it can be argued that this clause has been an especially vicious chapter is a long book of anti-Black (specially anti-Jamaican) racism in Canada. The danger to the public law and its legacy must be struck down for being the dangerous injustice which it is.
UPDATE:
On February 27th, a very important precedent concerning S. 70(5) was set in the Federal Court. It was ruled that having one drug trafficking conviction is not enough to warrant being labelled as a 'danger to the public'. The case concerned Fouad Chedid, a Lebanese man who came to Canada in 1991, and two years later was arrested and charged with five counts of trafficking narcotics. Hew was out on bail for two years without incident, until he was sentenced to one year after pleading guilty to three of the charges. After doing four months in jail, he was paroled, and has not faced a single criminal charge since.
Despite this, and the fact that he had no priors before the trafficking charges, Citizenship and Immigration Minister Lucienne Robillard declared Mr. Chedid a danger to the public last year, as first step towards deporting him. He fought tooth and nail all the way to the Federal Court, resulting in this important of legal victories.
As much as this is to be celebrated, it still remains to be seen how much of a difference this is going to make for other classes of refugees and immigrants who get labelled, such as those who are detained upon arrival and are never able to interact with much of the Canadian public but yet are declared as dangers to it on the word of an adjudicator or jail guard (Mr. Chedid was a landed immigrant). Also. just getting this precedent to apply equally to Jamaicans and other African-Caribbeans, who have been the communities most targeted by this racist legislation, will be a whole struggle in itself.
At any rate, congratulations and respect is due to Foaud Chedid for his perseverance, and we hope this legal victory will truly serve to make a positive difference for the countless people throughout the system stuck in these aggravating situations.
Why no minorities on the Country’ s Highest Courts?
Judicial impression revisited
The recently announced retirement of Chief Justice Antonio Lamer of the Supreme Court of Canada and his possible replacement and another pending appointment to the Supreme Court, has again resulted in deafening silence about a possible appointment of a visible minority.
Qualified minority candidates include Juanita Westmoreland-Troare, former Ontario Employment Equity Commissioner and University of Windsor ‘s law school dean and now a Quebec provincial court Judge. There are others as well.
Why is it recognized that appointment of female judges is critically important to the enhancement of equality but nothing is said about the importance of appointing judges from minority communities?
In the November 1998 issue of Elm street, for example, Judy Rebick, former president of the National Action Committee on the Status of Women said this: 'There is no question that the Charter is the principle reason for more progressive decisions of our courts, but the contribution of the female judges has been critical.'
In that famous February 1990 speech. 'Will Female Judges Make a difference?' Justice Bertha Wilson said:' if women lawyers and women judges through their differing perspectives on life can bring a new humanity to bear on the decision-making process, perhaps they will make a difference. Perhaps they will succeed in infusing the law with an understanding of what it means to be fully human.'
Does the rubric 'women' include female judges minority communities? I don’ t think so. Rebick says that Justice Minister Anne McLellan has kept her promise to appoint more women judges. Of almost 1,000 federal judges, 19.25 percent are women compared to 12 percent in 1993. Thirty-seven percent of McLellan' s appointments have been women.
But neither Rebick nor anyone else has statistics for minority judges appointed. Why? Because there are hardly any and because no one cares. Some of us do. The omission of any mention of a possible minority appointment to the Supreme Court of Canada is troubling. Is Canada never going to set an example?
I go to a lot of courts and administrative tribunals. I have never appeared before a parole board panel that had a visible minority member. There is only one immigration adjudicator that I know of who is of African ancestry. There are handful of minority board members at the refugee Division and none at the appeal level of the Immigration and Refugee Board. There is no minority judge that I am aware of at the Ontario Courts and Superior Court of our province. There is none at the Supreme Court of Canada.
If female judges 'make a difference', why can' t it be recognized that minority judges can also make a difference? If the feminist impression is encouraged, required and celebrated, why can' t a minority impression on the judiciary be encouraged, required and celebrated?
