Insufficiently Solicitous to Canada's Interests

The Chief Justice of the Supreme Court of Canada has given voice to her unease with what she views as a possible potential threat to the independence of the Canadian judiciary. As a verbal backlash to what she interprets as an attempt of interference by the Conservative government which has finally decided to become serious about ridding Canada of the presence of would-be immigrants and refugee applicants who just happen also to be human-rights abusers.

That is, people from abroad who are fleeing war situations in their home countries. People who have been identified by the Immigration and Refugee Board of Canada, after investigation, of being complicit in crimes against humanity, through their war criminal pasts, through having been a part of a government that is known for its oppressive abuse of its people as inadmissible for entry and landed immigrant status, their claims rejected.

Immigration Minister Jason Kenney had commented that Federal Court judges' determination with respect to rejected claimants appeared to run counter to the government's intention to remove them from Canada. The endless appeals launched by rejected would-be refugee claimants and those seeking immigrant status, however, seem to find favour with the courts.

Judges, once lawyers, now interpreting the law as befitting their judicial world view, exercising 'impartiality', are vulnerable to manipulation by other lawyers representing their clients; would-be immigrants and refugee claimants. Immigration lawyers and the head of the Canadian Bar Association seemed to take umbrage at the very suggestion that the Crown should seek to influence the Court.

"I was certainly - and I think all judges were - very pleased when an issue arose earlier this year when a Minister of the Crown seemed to suggest that some judges were insufficiently solicitous to government policy. We were very, very gratified to see your president writing a powerful public letter to the minister in question, reminding the minister of the importance of public confidence in an impartial judiciary, that bases its decisions on the law and not on government policy." Madam Justice Beverley McLachlin

Now it is an instance of the Court chastising the Crown. Minister Kenney, speaking to the law faculty at the University of Western Ontario, delivered his opinion that Federal Court judges in presiding over immigration issues were not assisting government to remove immigrants with alleged criminal pasts, and other unwanted refugees from Canada. On the basis of experience and reports in the press, one can only concur.

The chief justice would have it otherwise: "We live in a society with a strong commitment to the rule of law, and one of the elements of our commitment to the rule of law is a deep, cultural belief in and confidence in the judiciary." Trouble is, we have reason enough not to have enough confidence in the judiciary, based on some of the decisions that emanate from the judiciary. And among those decisions an evasiveness with respect to ridding the country of unwanted guests.

"Citizens have to have the confidence that whatever their problem, whoever's on the other side ... they will have a judge who will give them impartial justice and not be subject to pressures to direct their judgements in a particular way", insists the chief justice. We are not, however, necessarily speaking of "citizens", but rather of people with a dim past whose presence in Canada is an insult to human dignity.

The country's Immigration and Refugee Board in rejecting claimants and ordering them removed from the country are doing their job as they have been charged to do, obeying the laws of Canada and working in the best interests of the country. Canadians would dearly like to be assured that Supreme Court Justices are doing likewise.

Given the years that pass before the goal of removing rejected claimants can be achieved, as a result of appeals and counter-appeals, one must question why there is a deliberate and frigid distance between the Crown and the Court ... ? Government policy, after all, is not distanced from the law of the land, it seeks to uphold the law while discharging its obligation to the country and its citizens.

(Britain's judiciary, upon whose traditions Canada's are based, is impartial to the extent that, as has been reported: "British judges now consider that home burglary is an offence of little meaning, not much worse than illegal parking.")