`Quickie' law could lead to arbitrary detention, critics say

OTTAWA - The Canadian Council for Refugees has lashed out against an immigration department proposal to lock up some refugee claimants for months without frequent detention review hearings.

``They're trying to bring in a quickie piece of legislation to prove to the Reform party that they're tough,'' Janet Dench, executive director of the council, said yesterday.

``This is exactly the wrong time to bring in new legislation, when you're influenced by a particular situation which has caused a lot of headlines,'' she said. ``That leads to bad legislation.

At present, anyone held in detention by the immigration department is entitled to a hearing before an independent adjudicator within 48 hours of being held, again after seven days and then every 30 days until release.

``The whole of our justice system is in many ways tiresome and time-consuming, but it's what is necessary for justice,'' Dench added.

``If you don't give people an opportunity to be heard and just lock them up and throw away the key, the result is that people end up being detained unjustly.''

The refugee council was reacting to a report in The Star yesterday revealing the immigration department is considering a plan to lock up some refugee claimants for months at a time until their status is decided.

Immigration officials would do this by suspending the legal requirement for frequent hearings to review whether claimants should be held in jail or other detention facilities.

The proposed change to the Immigration Act would allow for groups of boat people to be held in detention until they are either granted refugee status or deported. The move is seen as a direct response to the outcry over the arrival this summer of four boatloads of migrants from China.

``If you're trying to contain the movement, you have to be able to detain people for the whole process, otherwise you've just created a bottleneck that will be opened up,'' said Greg Fyffe, the immigration department's assistant deputy minister for policy.

The proposal is to have only one detention hearing in which the immigration department would seek to detain a claimant for months for fear he or she wouldn't otherwise show up for hearings.

Dench said there is a grave danger such a change could lead to arbitrary detention.

``To say to someone you're locked up for the next six months or five months or whatever, and suppose a month later individuals can show their situation is a bit different from the group, what opportunity do they have to have that situation reviewed?

``We're very worried about giving enormous power to the department because if they don't like the looks of somebody or for their own peculiar reasons they can detain somebody,'' Dench said. ``That is the hallmark of arbitrary detention.''

Dench said such a change would not likely respect the Charter of Rights and Freedoms.

``Long-term detention without review is extremely disturbing and would seem to be potentially unacceptable to the courts under the Charter of Rights,'' she said. ``Everybody has the right to life, liberty and security of the person.''

Dench disputed the immigration department's reasoning that people who arrive in Canada by boat through trafficking operations are not likely to show up for their hearings.

``The fact that you have come to Canada through a trafficking operation in itself says nothing about whether you are a refugee or not. Refugees often have no other choice to get out of their situation of persecution,'' she added.

In the past 10 years, an average of about 30,000 refugees have sought asylum in Canada each year. Most arrive by land at the U.S.-Canada border or by plane.

Toronto immigration lawyer Geraldine Sadoway said the proposed legislation is against the United Nations convention for refugee protection and thus unlikely to stand up in a Charter of Rights challenge.

``Canada was the first to be outraged when the U.S. was stopping Haitians at sea. We didn't subscribe to that and it's the kind of xenophobia about this whole thing that's mind-boggling to me,'' she said in an interview yesterday.

The U.S. government sends refugee claimants to barbed-wire detention centres in desolate places, a practice condemned by Amnesty International, Sadoway noted.

``We don't have a huge problem here in Canada and the whole thing's simply being whipped up by the media, the Reform party and some anti-immigrant groups,'' she said.

Immigration lawyer Lorne Waldman conceded there may be refugee claimants who should have been detained for failing to prove they were not a danger to the public or for failing to guarantee their return to a refugee board hearing.

``Under the current process, a refugee claimant is given a form and told to fill it in and come back and the person is released,'' he said.

``That doesn't give me a lot of confidence that an immigration official has taken a serious look at who this person is, whether he's dangerous to the public or will appear in a hearing.''

Of the 600 Chinese migrants that arrived in B.C. this summer, more than 400 remain in custody.

Warrants have been issued for the arrest of at least 51 of the 86 people who were released from detention off the first boat.