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| Lorne Waldman |
A Canadian woman was detained at the U.S.-Mexico border because, according to a U.S. Immigration and Customs Enforcement (ICE) agent, she did not have the proper documentation. She spent two weeks in appalling conditions, transferred between detention centres in chains, before being deported to Canada.
Dr. Rasha Alawieh, a kidney transplant specialist and a professor at Brown University’s medical school, was summarily deported to Lebanon despite having a valid visa. The U.S. Immigration authorities said she was a supporter of a terrorist group — Hezbollah. She denied being a supporter of terrorism but was deported before she could defend herself, despite the court issuing an order staying her deportation. Immigration officials claimed they only learned of the court order after the deportation had been effected. The doctor was travelling to Boston to work in transplants because there was an acute need for her services.
Mahmoud Khalil, a legal permanent resident of the United States, was detained and is facing deportation under an obscure rule that allows for the deportation of a person if the secretary of state believes their presence will have serious negative consequences for U.S. foreign policy.
Three planeloads of alleged Venezuelan gang members were deported to El Salvador, where they were detained in inhumane conditions. The deportations occurred despite a court order prohibiting the planes from taking off. When confronted with the decision of the court, President Donald Trump called for the judge to be impeached.
This unprecedented statement by a president of the United States forced the chief justice of the U.S. Supreme Court to issue a statement noting that impeachment is not an appropriate response to the judge’s decision. And now the Trump administration has announced it will target persons on student visas and green card holders if they express views contrary to those of the administration. In effect, the U.S. government is using immigration enforcement as a means of silencing free speech.
The blatant defiance of the Trump administration of the rule of law is of grave concern to all of us. We must also ask ourselves how things reached this point, and how we can ensure it does not happen here. It is important to remember that the rule of law is fragile. It is held together by a series of threads — respect for constitutional conventions; respect for the division of powers; a robust and independent judiciary. As we sit back and watch as these events unfold in the United States, we should not delude ourselves into thinking that this could not happen here.
We need only recall events like the public criticism in 2011 by Immigration Minister Jason Kenney of judges who issued stays of deportation. The same minister enacted s. 22.1 of the Immigration and Refugee Protection Act, legislation similar to that invoked against Mahmoud Khalil, which allows the minister to declare any foreign national inadmissible to Canada on undefined public policy grounds.
We must also remember the controversy in 2014 when Prime Minister Stephen Harper criticized the chief justice of the Supreme Court, an act that led the International Commission of Jurists to issue a letter of concern due to the improper interference by the executive in the judiciary.
In immigration matters, the Canada Border Services Agency (CBSA) officers in Canada have broad enforcement powers. In some cases, they can arrest without a warrant. They have broad powers of search and seizure. The CBSA was created in 2003 and yet it was only with the enactment in October 2024 of Bill C-20 (which established the Public Complaints and Review Commission) that an independent oversight mechanism was created to deal with potential abuses by CBSA officers.
Groups representing the interests of immigrants and refugees had been lobbying since 2003 for oversight. Only time will tell whether the new commission is an effective mechanism for ensuring that CBSA officers are held accountable.
Of course there were oversight mechanisms in the United States, but the Trump administration has dismantled them through executive fiat. It will be up to the courts and civil society in the United States to resist the Trump administration’s assault on the rule of law. But as we watch from the “51st state,” we should not be complacent.
As lawyers, we must continue to be vigilant and must always defend our democratic institutions. We must ensure that all persons have equal access to competent counsel, that our clients’ rights are protected and that the division of powers is respected. If there is one lesson we can learn from what is happening south of the border, it is that we can never take the rule of law for granted.
Lorne Waldman has been practising exclusively in the area of immigration and refugee law since 1979, the year he opened his own law practice, Waldman & Associates. He was co-counsel to Maher Arar at the Commission of Inquiry into his deportation into Syria. He has also been appointed by the Minister of Justice as a Special Advocate. Waldman is the author and editor of Immigration Law and Practice, a two-volume, loose-leaf service published by LexisNexis in 1992. He has appeared very frequently at all levels of the courts in Canada, including the Supreme Court of Canada, the Federal Court and the Federal Court of Appeal where he has argued many of the leading cases in immigration and refugee law. He was made a Member of the Order of Canada for his contribution to immigration and refugee law.
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