Penny Collenette is an adjunct professor of law at the University of Ottawa and a former director of appointments in the Prime Minister's Office under Jean Chrétien; Adam Dodek is a professor of law at the University of Ottawa.
Long campaigns can be dangerous moments in time. Britain's Harold Macmillan is reported to have said when asked what it was that a prime minister most feared: "Events, dear boy, events."
The tragedy of the Syrian refugee crisis is one such event.
On Thursday in Geneva, the United Nations High Commissioner for Refugees' top international expert, Volker Turk, warned of growing risks to people fleeing war and persecution, and said a renewed spirit of commitment from governments worldwide to the core human rights and rule of law principles on which the international refugee system is based is becoming urgently needed. "Push-backs, building walls, increasing detention and further restricting access, combined with few legal avenues to safety, will never be the answer," he said.
On the same day, The Globe and Mail reported that the Prime Minister's Office ordered a halt to refugee processing. Given that from January to August of this year, only 308 refugees referred by the UN to Canada were accepted, it seemed rather a dramatic revelation – not only dramatic, but unprecedented. Did the Prime Minister not trust his minister and the minister's department to do the job? Did other ministers know of this turn of events? And what about the public service? Did the clerk of the Privy Council acquiesce without a peep at this unusual happening? We have no idea.
As the day progressed, questions were raised about why the PMO interfered and who did the actual vetting. In the normal course of things, experienced Immigration and Citizenship officers, sometimes in combination with the Canada Border Services Agency or the Canadian Security Intelligence Service, would make decisions, based on established criteria, free from political interference. Conservative Leader Stephen Harper flatly denied that any political staff were involved, so if they weren't the final arbiter, who was?
Aside from the machinery of government operations, legal and ethical issues deserve to be raised.
In 2015, we are celebrating the 800th anniversary of Magna Carta, which marked the beginning of the ascendancy of the rule of law: It subjected the powers of the king to limits defined in law. Over eight centuries, the rule of law became entrenched both in England and in Canada. While there is controversy over the scope of the rule of law, there is consensus on its core components.
It means, first, that we live in a society governed by law, not by arbitrary whims of leaders. Canada is not a Game of Thrones.
Second, it means that everyone is subject to the law – from the highest public official in the land to the rest of us. This was confirmed in the 1959 celebrated case of Roncarelli v Duplessis, in which the Supreme Court of Canada found that the premier of Quebec had acted without legal authority when he revoked a restaurateur's liquor licence because of his religious beliefs.
Finally, the actions of all public officials must find their foundation in law. There is no such thing as inherent power for government officials, cabinet ministers or the prime minister.
Thus, the rule of law leads us to ask by what legal authority the prime minister and his office would have any involvement in the refugee-approval process. Normally, it is the responsibility of the House of Commons to hold the government to account, usually through Question Period. But these are not normal times.
Further confusion arose over the confirmation of a third-party audit by the Danish Refugee Council. Its website states that it is an independent humanitarian organization, founded in 1956, whose aim is to protect refugees in the world. They have a supreme authority made up of various representatives of different organizations and are funded by the Danish public and project grants. In addition, revenues come from consulting work.
Again, questions arose. Why an audit by a non-Canadian non-governmental organization? Why not an audit by the Auditor-General's Office? Why not an audit by an accounting firm? Audits are generally ordered for efficiency purposes and to check expenses. What was this audit looking for? What were the terms of reference? Was there a written report? Will it be made public?
And then there are the refugees. They have been through the hell of a civil war only to now face the bureaucracy of uncertain political decisions. No one would argue that security concerns are a very important part of that decision-making, but so is certainty, clarity and transparency.
Kate White, president of the United Nations Association in Canada, says that "it is fair to say there is real surprise on the changes to the refugee-selection process at such a transitional point, especially with a caretaker government in a writ period."
It is incumbent on Mr. Harper to reduce this alarm, to answer questions in a forthright fashion and to assure our global partners that Canada remains a fair, tolerant and safe country.