Imagine you have just heard of a close friend who has just had a serious accident. You rush over to the hospital to go and visit them and after spending a few hours talking with the family and doctors, you return to your parked car and see that you have a parking ticket. What? You had only exceeded your time for 10 minutes!
What does this have to do with immigration? Well in the eyes of the law a parking violation is considered a ‘strict liability’ offence. The concept of strict liability means you are guilty automatically for a particular action regardless of intent.
If you went in front of a justice of the peace to argue that you had a good reason for overstaying your time and that your ticket was not justified, you would be barking up the wrong tree. The simple fact that you car was parked past what you were permitted means that you were violating the law. (In fact parking offences are so predictable that there is a ‘robot-lawyer’ that can fight these tickets)
Thankfully, in the law there are very few offences that have such an automatic guilt associated with them. One area that has come up lately in the media is the issue of immigration fraud with extensive coverage of the situation facing Maryam Monsef, the federal Minister of Democratic Institutions.
Ms. Monsef has stated that her original birthplace was hidden from her and until recently she did not know that she was born in Iran. This revelation has ignited a storm of controversy regarding her immigration status and the practices of the government in treating cases of misrepresentation.
Coverage of Monsef’s Case
David Cohen has an excellent blog post on the situation facing Monsef, titled “Mother Knows Best”. He cogently and thoughtfully argues that a 10 or 11-year-old child who signs a form based on the knowledge that a parent provides should not be held vicariously liable. The humanitarian principle of not punishing children for the actions of their parents is sound and well established.
On the other end of the spectrum is Lorne Gunter’s recent polemic “Imagine if Just imagine if Monsef was a Conservative”. This article highlights the political nature of this case given Monsef’s position as a federal government Minister.
In this column Mr. Gunter references the concept of “bills of attainder”, also known as a “bill of pains and penalties”. This is ancient legal form where a monarch could target punishments towards a group of people who had no legal recourse. Mr. Gunter’s misapplies this principle to imply the prime minister could pass a bill to protect the citizenship of Ms. Monsef in this particular situation.
Ironically though, an argument similar is being made by Canadian Association of Refugee Lawyers regarding the practice of treating immigration fraud without the standards of natural justice that are applied to most cases in Canada. A fundamental principle of natural justice that is violated in a “bill of attainder” is audi alteram partem; literally to hear both sides. The right to a fair hearing requires that individuals should have an opportunity to answer charges made against themselves and the opportunity to present their own case.
Unfortunately, those applying to immigrate to Canada are generally not provided the protection of these this legal principle. The result is that an administrative decision on a case by an immigration official that there was misrepresentation can mean an almost automatic removal of status.
Retired IRB member Lloyd Fournier’s comments in his recent blog on the Monsef case highlight further why this has erupted into such as large issue. In his closing statement he states, “Fraud is fraud. To excuse fraudulent actions as mere inconveniences detracts from the integrity of the entire Immigration system and is an insult to thousands of others seeking admission to Canada who patiently file documents and wait in line for spaces grabbed by queue jumpers establishing bogus Refugee claims.”
It’s not that simple. Fraud – unlike parking violations as discussed above – is not an automatic, or strict liability, offence. In the law, the first hurdle is that of misrepresentation, a fact that was presented as true is found to be false. The next hurdle is intent to deceive.
The concept of innocent misrepresentation is well established in law, essentially if someone reasonably believes something to be true and it turns out to be false. For example, an example of innocent misrepresentation could be incorrectly filing out a birthdate on a form. This would be observed when an immigration application was compared against documentary evidence provided to support the case, such as a birth certificate.
Secondly, the attitude displayed by Mr. Founier that refugee claimants are ‘bogus’ and ‘queue jumpers’ highlights the attitude that needs to change. Refugee claims should not be seen as guilty until proven innocent. This cynical approach belittles the Canadian refugee system itself and the numerous international agreements upon which it is based.
The high profile case against Ms. Monsef has highlighted some of the harsh way that Citizenship and Immigration Canada has dealt with innocent misrepresentation. A full hearing of facts approached in an impartial way is the only way to address these more complex legal questions.