Speaker's Corner: Forcing judges to judge old law erodes democracy

Immigration Minister Jason Kenney got into trouble last year over his criticisms of individual Federal Court decisions.

In a lengthy speech to the University of Western Ontario Law School, Kenney discussed the details of various court cases and the ways in which judges were hampering his immigration objectives.

He said he was doing this in “the spirit of constructive dialogue between the legislative branch and the judiciary.” The legal community begged to differ.

The Canadian Bar Association responded quickly, calling his encroachment on judicial independence “an affront to our democracy and freedoms” and noting that judges “cannot enter the public arena to respond.”

Then, in an unusual move, Canada’s Chief Justice Beverley McLachlin chimed in, thanking the CBA for its “powerful” rebuttal.

Last month, Kenney again invoked the courts, this time in a favourable light. As part of the proposed faster removal of foreign criminals act, the government codified a recent Federal Court of Appeal decision.

The ministry’s backgrounder to the law trumpeted this fact: “The legislation would codify the court’s decision.”

But neither the backgrounder nor the minister mentioned that the court decision in question is not final; it is under appeal before the Supreme Court of Canada to be heard in October. Kenney knew this when he announced the legislation in June. The Supreme Court had agreed to hear the appeal on Dec. 8, 2011.

The government’s proposal to codify a court decision that’s currently being challenged, without mentioning the ongoing appeal, disrespects the judicial process. Worse, it undermines the delicate dialogue between the courts and legislatures that Kenney so blatantly mischaracterized.

Columnist Andrew Coyne recently wrote that the court is “perhaps the only institution of accountability this government does not seem prepared to harass, intimidate, ignore or roll over.”

The Harper government may not be trampling over the courts, but this case and others suggest a more subtle process of eroding the judiciary’s role.

The case to be heard in October, Canada (Public Safety and Emergency Preparedness) v. Agraira, deals with the scope of ministerial relief from inadmissibility.

Muhsen Agraira, a Libyan national declared inadmissible for his alleged opposition to the Gadhafi regime, appealed to the minister for relief on the grounds that his presence in Canada “would not be detrimental to the national interest.”

A briefing note prepared for the minister recommended granting relief. The minister refused the request, but in doing so, ignored certain guidelines and did not consider any humanitarian or compassionate factors. As a result, Agraira argued in court that the refusal was unreasonable.

Eventually, the Federal Court of Appeal not only found the minister to be acting reasonably but went further. It held that the minister of public safety is no longer permitted to consider any humanitarian or compassionate factors in granting relief.

Such decisions may consider only public safety and national security. Some argue this narrows ministerial relief to the point of irrelevance.

The consequences are severe when we consider the overbreadth of our security inadmissibility laws that regularly exclude immigrants for remarkably minor roles in organizations opposing “by force any government.”

(In Agraira’s case, any government means Moammar Gadhafi’s Libyan dictatorship). Agraira appealed the decision. The public importance of the appeal is clear from the Supreme Court’s decision to hear the matter, one of only 70-odd cases it hears each year.

The proposed faster removal of foreign criminals act would enshrine this narrow ministerial discretion as law. If it becomes law before October, the Supreme Court will be in the unusual position of judging a law that basically no longer exists.

Its decision will resolve Agraira’s fate since the old law would still apply to him. But the constitutionality of the new law and the fate of current and future immigrants it applies to would be undetermined. This goes against the purpose of Supreme Court appeals, which is to decide questions of public importance beyond the interests of the parties.

It is not unprecedented for governments to legislate based on lower court decisions. The federal government did so following provincial appellate court decisions on same-sex marriage.

The difference is that in that case, the government lost on appeal and conceded the argument. Here, the government won the case. Knowing that the Supreme Court could reverse the Federal Court of Appeal’s decision and possibly declare its interpretation unconstitutional, Kenney now seeks to cement it as law.

Agraira would not be the only upcoming Supreme Court case deciding old law. In the DiVito v. Canada (Publicy Safety and Emergency Preparedness case, to be heard in January, the government has already amended the law in dispute.

The case looks at the factors the minister of public safety must consider when accepting prisoner transfer requests from Canadians abroad. As in Agraira, the key issue is the scope of the minister’s discretion.

Michael DiVito, convicted and sentenced in the United States, argues the broad discretion given to the minister fails to guard against violations of his mobility rights as a Canadian.

The government amended the law that sets out the minister’s discretion, the International Transfer of Offenders Act, in a little-discussed portion of the omnibus crime bill passed in March. It drastically expanded the minister’s discretion to refuse transfer requests.

In January, the Supreme Court will hear DiVito’s case, but its decision will have limited impact on other Canadians imprisoned abroad who are subject to the new law.

In both cases, the Supreme Court can give clearly worded guidance as to the constitutionality of the new laws.

For example, if the court strikes down the law in DiVito saying it gives too much discretion to the minister, it will be clear that the amended law, which only adds to this discretion, will similarly run afoul of the Charter of Right and Freedoms.

But the new laws will technically not be before the court. New Canadians imprisoned abroad and seeking transfer to Canada and new immigrants seeking relief from security inadmissibility will have to challenge the new laws all over again.

Why is this such a problem? Parliament is free to legislate, and individuals are free to challenge its laws in court. DiVito and Agraira will receive justice.

Yet the process in which the courts review legislation for Charter compliance is a delicate one described by constitutional law scholar Peter Hogg as a “dialogue” between the two branches of government. Legislative responses generally follow Charter decisions striking down laws.

Occasionally, second-look cases come before the courts for judicial review of the new legislation. When Parliament cements as law a judgment under appeal, it undercuts this dialogue.

Rather than waiting for the Supreme Court’s judgment on the existing law and thereby ensuring that its new legislation is constitutional and will not result in avoidable court challenges, Parliament jumps the gun.

There are other signs of the federal government’s disdain for Charter dialogue. When the Supreme Court ruled that Canadian officials co-operating with the United States had violated Omar Khadr’s rights, they stopped short of ordering Canada to request his repatriation and instead left it to the government to choose an appropriate foreign policy response.

Some suggest the court assumed the government would not outright ignore a finding that it violated (and continues to violate) the Charter rights of a Canadian citizen.

But the government did very little beyond a token gesture. Even now, when the power to repatriate Khadr is completely within the federal government’s hands, he remains in Guantanamo Bay, Cuba.

Thus far, prophecies of a Conservative crackdown on the courts have not materialized. Prime Minister Stephen Harper’s judicial appointments have garnered praise for their non-partisanship.

Speculation that Harper would invoke the notwithstanding clause to uphold opposite-sex marriage and abortion laws proved false. But most of these assessments date from a previous political reality.

It has been 14 months since the Conservatives won a majority government. The meat of their major policy reforms has yet to face the courts.    
As new mandatory minimum sentences come into effect, another Ontario judge recently struck down one such provision — three years for firearms trafficking — as unconstitutional. Kenney’s overhaul of the refugee system, notably its mandatory detention provisions, will face Charter challenges.

The same goes for the government’s spate of back-to-work laws that some predict will wind their way towards an eventual Supreme Court decision on the right to strike. Provincial court judgments on two hot-button social issues — prostitution and doctor-assisted suicide — are both bound to reach the Supreme Court.

The jury on this government’s relationship with the courts is still out but not for much longer. This year’s explosion of activity in Parliament will make next year a busy one for the courts.

Should the Charter frustrate federal laws on crime, immigration, labour, prostitution or assisted suicide, will the Conservative government invoke its Charter-enshrined override power? One thing is clear.

Hasty moves to legislate in two areas have undercut two constitutional appeals and in one case a minister derived legitimacy from the lower court’s judgment. This disrespects the judicial process and undermines the Supreme Court’s role.

Louis Century is a summer law student with the David Asper Centre for Constitutional Rights at the University of Toronto Faculty of Law.

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