Strengthening Canada's Immigration System and Borders Bill

Honourable senators, I had not intended to speak, but I felt, as I was listening, that there was a point that has to be made here, and it has to do with the premise of things that are ex post facto.

I’m going to say, on the record, that my daughter was recently accepted to the University of Oxford for her master’s degree, and she’s going to be studying ancient Roman law, which is why ancient Roman law is perhaps top of mind for me.

It is a principle dating back more than 2,000 years in the Western legal tradition that we do not change the rules on people ex post facto so that something comes afterwards. So if, for example, you’re going to criminally charge someone, the thing you’re charging them with must have been a crime at the time they allegedly committed the offence. You can’t change the law and then go back in history and retcon things so that you can punish them for an action that wasn’t a crime at the time it was performed.

This is known in law as retrograde temporal application, and we don’t have a time machine that allows us to punish people for things they couldn’t have foreseen. This is, I think, what Senator McPhedran’s amendment points to.

I understand Senator Dean’s point that you don’t want people suddenly racing to file claims as this law is passed, although presumably, if they had been thinking about this, they would have done that months and months ago, as these changes have been in the offing for some time. It seems to me, though, that it would not be unreasonable to carve out an exception for people who made good faith applications months and months ago under the existing rules.

Ex post facto is a fancy Latin term. In English, we would say, “Pull the rug right out from under them.” Changing the rules in the middle of the game is fundamentally unfair. It’s why our Canadian Charter of Rights and Freedoms enshrines in section 11 protection against being criminally charged for an action — and I grant you that we’re not talking about criminality here — that wasn’t a crime at the time you performed it. It’s also in Article 15 of the United Nations International Covenant on Civil and Political Rights.

It is understood as a fundamental underpinning of our legal system, dating back to the time of the Caesars, that it is unfair to change the rules on someone in the middle of legal proceedings, and that is what we’re talking about.

The other small genius of Senator McPhedran’s amendment is that it doesn’t affect the application of the bill going forward. It only affects a very small number of people who have been caught in this time warp. In honour of a fundamental principle of justice, it is manifestly unfair — as any child in the schoolyard knows — to change the rules halfway through the game. That is why I will be supporting Senator McPhedran’s amendment.