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Paikin: “There’s a distinction that needs to be made…
This was not a great day for democracy in Toronto. I saw things I’ve never seen before, I saw things that shouldn’t have happened.”
Canadians, beware of Arizona Senate Bill 1070
How far can a government go to fight illegal migration? One government is flying right into uncharted territory if we are to judge by public reaction and media commentary. Arizona’s legislature is considering a bill that allows Arizona police to arrest people on a “reasonable suspicion” of their unlawful immigration status. Many groups ripped into the proposed law, and the head of the Los Angeles Roman Catholic archdiocese even compared it with “German Nazi and Russian Communist techniques.” Others defended the legislation citing high rates of illegal immigration in Arizona. The bill has several controversial provisions but let’s look closely at some detention powers it gives to the police. These changes can put Canadians lawfully travelling to Arizona at serious risk of detention.
Senate Bill 1070, also known as “Support Our Law Enforcement and Safe Neighborhoods Act,” allows the police to verify immigration status of a person, with whom they have “lawfully” come into “contact,” if they have a “reasonable suspicion” that the person is an illegal alien. The obvious interpretation of this provision is that the police will detain the person while they verify the status. This is clear from both the context of this provision and the purpose of the statute. The bill as a whole aims to ramp up enforcement of federal immigration laws. Its purpose is “attrition through enforcement.” The legislature hardly expects the police to release suspected illegals while they verify their status. Besides, the statute gives the police powers to turn illegal aliens over to federal authorities. It is hardly reasonable to expect Arizona police to let suspected illegals go while they check on their status. So verification will mean detention or arrest.
Bill 1070 sets out the following detention scheme. First, there must be a lawful contact between you and the police. Second, the police must form a “reasonable suspicion” that you are an illegal alien. Third, they must make a “reasonable attempt” to determine your “immigration status.” Fourth, if they can’t determine your status on the spot, they will contact the federal government. As you have already seen, the last stage will likely involve your arrest until the police hears from the federal immigration authorities.
A “lawful contact” with the police happens pretty much any time an officer can perceive you with his or her senses. If the officer can hear you, see you, or smell you, that’s a lawful contact, so it doesn’t even have to be a stop or a question. But if you’re driving, there are plenty of lawful opportunities to pull you over. Also, asking you a question is not unlawful but it’s a contact. All of that may give the officer enough information to form a “reasonable suspicion” that you are an illegal alien.
What information is enough for that “reasonable suspicion” is the crux of the matter. The proposed law prohibits relying solely on “race, color or national origin … except to the extent permitted by the United States or Arizona Constitution.” It means the police can rely on these factors as long as they are not the only factors. And what about accent? Dress? Religion? Apparently, these could be sole factors in forming a reasonable suspicion. Regardless of how the courts will interpret these provisions in the future, what matters is how front-line police officers will have the freedom to apply them. This article assumes you will be in the US lawfully, so if you are detained under this law, you will be eventually exonerated and released. But an extremely upsetting and arbitrary detention is bad enough so you should know the risks.
After detaining you on a “reasonable suspicion” of illegal status, the officer will make a “reasonable attempt” to determine your status. That’s also an interesting part. The bill lists IDs that will give you a presumption of lawful status on the spot. All of them (except maybe the “tribal” card) are US federal or state issued. Most Canadians, of course, do not require any US-issued ID like visas to travel to the US. So most Canadians in Arizona will have a Canadian passport or a Canadian province-issued enhanced driver’s license. That’s why most Canadians initially stopped under this bill will not be presumed to have lawful status in the US.
This will trigger a verification with the US immigration authorities and a potential longer, miserable detention of a Canadian who is in the US on a perfectly lawful basis. And all it takes is a “reasonable suspicion.”
Obviously, drafters of this proposed Arizona statute didn’t think about millions of Canadians who lawfully visit the US without any US-issued papers. They probably didn’t even know. And that’s why laws should be passed by or at least coordinated with people with relevant jurisdiction and expertise. Immigration should be the sole competence of the US Congress and the US federal executive. They would know about Canadians, but how long will random Canadians have to spend in Arizona custody before state authorities get hold of the feds, if this bill is passed? Perhaps, Foreign Affairs Canada should monitor this proposed legislation and issue an appropriate warning to Canadians if Arizona Senate Bill 1070 becomes law.
(Post sponsored by AdviceScene)
Follow-up: Reply Letter from Foreign Affairs Minister regarding Omar Khadr
On July 15, I posted a letter that I had written to Prime Minister Stephen Harper regarding Omar Khadr’s continued detention at Guantanamo Bay, Cuba.
The letter was signed by myself and 10 other law students.
On September 16, 2008, I received a reply letter from the Prime Minister’s Office indicating that the letter would be passed along to the Minister of Foreign Affairs who would “certainly be interested in [our] views” regarding Omar Khadr.
I looked upon that letter as a Prime Ministerial brush off. I thought it would be the end of the matter.
To the government’s credit, I today received a follow-up letter from The Honorable David Emerson, Minister of Foreign Affairs.
The entire text of the letter is reproduced below:
September 24, 2008.
Dear Mr. Gridin and Co-signatories:
The office of the Right Honourable Stephen Harper, Prime Minister, has forwarded to me on September 16, 2008, a copy of your letter (Folder: 664583) concerning the case of Mr. Omar Khadr, Canadian citizen detained at the U.S. military prison at Guantanamo Bay, Cuba.
I understand your concerns and I can assure you that the Government of Canada has an interest in Mr. Khadr’s case and in his treatment. Canadian observers have been present at his hearings before the Military Commission in Guantanamo Bay and the Court of Military Commission Review in Washington D.C. Furthermore, officials of Foreign Affairs and International Trade Canada have carried out several visits with Mr. Khadr and will continue to do so. The visits allow access to Mr. Khadr to assess his welfare and treatment, and to obtain information about his mental and physical condition.
Although Mr. Khadr is no longer a juvenile, he was 15 years old when he was alleged to have committed crimes in Afhanistan. Canada has sought to ensure that the treatment of Mr. Khadr is consistent with internationally recognized norms and standards for the treatment of juvenile offenders, and that his age at the time the alleged events occurred is considered in all parts of the process. Canada has also consistently sought to ensure that Mr. Khadr receives the benefits of due process, including access to Canadian counsel of his choice. The Canadian government has received unequivocal assurances from U.S. authorities that Mr. Khadr will not be subject to the death penalty, and indeed the charges against him were referred to the Military Commission on a non-capital basis.
In keeping with Canada’s long-standing policy, the Canadian government strongly believes that the fight against terrorism must be carried out in compliance with international law, including established standards of human rights and due process.
With respect to Mr. Khard’s repatriation to Canada, it is premature to discuss this issue since his case is still before the courts.
Thank you for taking the time to write and share your concerns.
Sincerely,
[sgd]
The Honourable David L. Emerson, P.C., M.P.
While I do appreciate the reply from Mr. Emerson, I do not accept that the government is doing enough.
Omar Khadr has been in detention for 6 years. The “several visits” during this period to check up on his well being are virtually meaningless. He has been the victim of serious psychological and possibly physical abuse at the hands of his captors.
The extreme isolation of growing up inside a military prison is unimaginable. Omar Khadr’s development from a child to an adult has been stifled, and at this point, it is unlikely that he will ever be a normal, adjusted individual.
The assurances of due process are also hollow. Omar Khadr is being tried by a kangaroo court, in proceedings that have been the subject of problems and numerous complaints. Most recently, a military prosecutor at the Guantanamo Bay tribunals resigned over “ethical qualms.”
Lt. Col. Darrel Vandeveld quit, allegedly after the government withheld exculpatory evidence from the defence.
The U.S. government denies this allegation. But internal documents obtained by the Associated Press indicate that Col Vandeveld declared to the tribunal that that “potentially exculpatory evidence has not been provided.”
He is the fourth prosecutor to quit.
In the Khadr case specifically, there have been claims that the government “manufactured evidence” against the accused.
The culture of secrecy and political implications of this case are reasons why ultimately, the military tribunal is not the appropriate forum to hear Omar Khadr’s case. Mr. Khadr needs to be repatriated to Canada immediately to face trial at home. This should be a trial subject to Canadian legal protocols and consistent with the values that we hold dear, including those enshrined in the Charter of Rights and Freedoms.
Law students across the country are organizing to put further pressure on the government on this issue. Stay tuned for more.
