September 20, 2011
In 1997 and again in 2007, Peter Hogg and Allison Bushell wrote about the benefits of the dialogue between Canadian courts and legislatures. This concept has been somewhat of a hallmark of Canadian jurisprudence, especially in the era of the Canadian Charter of Rights and Freedoms.
However, recent statements made by the Canadian Bar Association (“CBA”) and Chief Justice Beverley McLachlin after a controversial speech by Canada’s Minister of Citizenship and Immigration, Jason Kenney, reveal the emergence of a divide between the judiciary and the Harper Government. How may this divide affect the content of this dialogue between our courts and legislatures?
The Dialogue
Hogg and Bushell’s dialogue is characterized as the debate between Charter rulings by courts and democratic governance decisions by legislatures. This dialogue promotes the view that courts should legitimately undertake judicial review on Charter grounds, even rendering certain laws unconstitutional. However, by leaving room for a legislative response, these court decisions allow legislatures to respond by adapting the affected law. The first case to explicitly refer to this dialogue was Vriend v. Alberta, [1998] 1 S.C.R. 493, where the Supreme Court “read in” sexual orientation to Alberta’s former Individual’s Rights Protection Act.
The Speech
Last February at the University of Western Ontario, Minister Kenney delivered a speech entitled “Dialogue with the Courts: Judicial Actions and Integrity of Canada’s Immigration and Refugee System”. Minister Kenney said his comments on the judiciary were in “the spirit of constructive dialogue between the legislative branch and the judiciary”. However, Minister Kenney then went on to very publicly criticize the judiciary, in particular, its handling of cases from his department.
Minister Kenney pointed out instances where, in his opinion, Canadian courts were responsible for delays and failures in Canada’s immigration and refugee system. Using loaded phrases such as the “federal court’s indulgence of various appeals and reviews”, Minister Kenney challenged the judiciary to be more accommodating of the government and department’s decisions. The speech was seen as a public rebuke of the Canadian judiciary.
Canadian Bar Association Responds
In response to Minister Kenney’s remarks to the University of Western Ontario, the CBA President, Rod Snow, wrote a strongly worded public letter. In this letter, Snow commented that Kenney’s, “ public criticism of judges who follow the law but not the government’s political agenda is an affront to our democracy and freedoms.”
This statement was seen as a public and direct challenge to Minister Kenney’s speech. At several instances within the letter, Snow questioned Minister Kenney’s desire for a “constructive dialogue”, and emphasized the importance of judicial independence and the public reputation of the judiciary.
According to The Winnipeg Free Press, in a remarkable affront to the CBA, Minister Kenney’s Director of Communications, Alykhan Velshi, responded by accusing the CBA letter as being a statement made by Liberals, even going so far as to claim some federal judges “indulge foreign criminals who abuse Canada’s immigration system”.
Chief Justice McLachlin Enters the ‘Dialogue’
In a rare statement, Chief Justice McLachlin recently applauded the CBA’s criticism of Minister Kenney’s speech. A portion of her speech was published by the National Post:
“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. This goes beyond a general idea that we have good judges of integrity, it’s the confidence that brings litigants to choose the courts as a forum for resolving their disputes … and it is what allows them to accept the resulting judgments. 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 judgments in a particular way.”
The Outcome
It is undeniable there is currently a public skirmish between the legislature and the judiciary (and the CBA). However, is this debate/conflict part of the healthy dialogue which Hogg and Bushell wrote about? Is this “dialogue” constructive for rectifying the problematic refugee and immigration system? Or has the dialogue become too publicly toxic and antagonistic to benefit Canadian society?
Whether Minister Kenney intended his comments to provoke such a strong reaction from the CBA and the judiciary, it has and the damage has been done. A private Canadian citizen criticizing the judiciary for its decisions is one thing, but, public criticism of Canada’s judiciary from a current Minister is quite different. Even former Conservative Immigration Minister Ron Atkey likened the speech to a rant rather than a means of constructive dialogue.
In reality, Justices are charged with the complex and difficult task of upholding the rule of law in our society. Without public faith in the judiciary the justice system cannot be maintained, it is after all, a reactive mechanism. If faith is lost then the judiciary cannot respond as a dispute resolution mechanism given that citizens will not come to it for help.
It is for these very reasons most law societies have restrictions placed upon lawyers refraining them from doing things which would bring the legal profession or the administration of justice into disrepute (such as the Law Society of Upper Canada’s Rules of Professional Conduct Rule 3.01(2)(e) ).
While Minister Kenney’s speech allegedly had the intention of being within the “spirit” of a constructive dialogue, it appears to have had the opposite effect with the judiciary. Minister Kenney’s comments were perceived by many, such as the CBA and Chief Justice McLachlin, as comments which weaken public trust in the rule of law in Canada. Given the snowballing of public statements which have occurred between the two after the speech, has there been a shift in the traditional dialogue between the judiciary and the legislature or is it the same as ever?
3 Comments
Open debate and public information and education is wholly democratic whether a product of a speech and letter expressing the government's political agenda or those of the CBA and the Chief Justice of the Supreme Court defending the independence of the judiciary. For me, the real erosion of public confidence stems from the failure to expose and address the illegal immigration problems in a timely and cost effective manner where repeated abuses of legal process and procedures have been employed under the rule of law. Is this the beginning or the end of the dialogue? Sometimes rants and rebuttals can lead to meaningful and constructive discussions but only if posturing and ego's can be suspended long enough to adequately addressed the problems and the "principle of the thing". In the realm of public interest, under our functioning democratic system, there will continue to be "much ado about how things do and don't work" and this is a very good thing. I lend my voice to engaging the public in "dialogue central" where gov't and law makers can define their independent roles but work together to better serve the people who play by the rules.
This is a very well written piece, and is an example of why I have thecourt.ca bookmarked.
I was recently discussing the CBA's letter to Minister Kenny, as well as a National Post piece criticizing IRB Member Nupponen - http://natpo.st/mPZB4Z - with several other immigration lawyers.
Many raised the interesting argument that was is missing in the "dialogue" is the inability of judges and tribunal members to defend themselves outside of their formal written reasons. The public dialogue is thus incredibly unbalanced, as really only one side is allowed to do the talking.
As noted by one prominent immigration lawyer, the real reason for the delay in many of the examples that Minister Kenny cites as "illegal immigrants taking forever to be removed from the country" is because of delays at his Ministry. Of course, because no judge is able to come out and point that out, the one-sided nature of the dialogue often paints a very inaccurate picture of what is going on.
Steve, I appreciate your remarks and wonder if you and/or the immigration lawyers you spoke with have any suggestions on how to promote and facilitate better public dialogue on this important issue?
I would like to present a problem, inherent in the wider public perception, that the silence of the courts and our judges allows for the fertile development of misconceptions and suspicions which seem to thrive on one-sided dialogue. It is clearly unfair that a balance has not be brought between transparency and privacy which would allow our courts and judges the discretion to speak publicly about their work and collective concerns. No dialogue, no direction, no resolution and that's just no good.
Ajit, thank you for writing this article and contributing to the public dialogue.