Minister scolds judges over delays, inconsistency in refugee cases
Joe Friesen, The Globe and Mail, Last updated Monday, Sep. 10 2012
Immigration Minister Jason Kenney launched a rare public criticism of Canada's judiciary in a speech to law students Friday.
Running through a litany of examples of long legal delays that prevented the removal of failed refugee applicants, Mr. Kenney said such cases undermine public confidence in the integrity of the immigration system.
He said the Conservative government has made efforts, through its refugee-reform bill, to address the procedural issues that can drag out the refugee removal process for several years. But those efforts will be for naught if the judiciary continues to permit such long delays.
"We legislators are not an island. We don't act alone," Mr. Kenney said, according to his prepared remarks. "We need the judiciary to understand the spirit of what we are trying to do."
Speaking to the law faculty at the University of Western Ontario, Mr. Kenney said he offered his criticisms in the spirit of "constructive dialogue between the legislative branch and the judiciary."
The speech focused on Canada's Federal Court, where immigration cases are heard. He described the way in which the courts have interpreted the laws passed by Parliament as "a recurring challenge to any attempt to reform Canada's immigration system."
Immigration lawyer Lorne Waldman was critical of Mr. Kenney's speech, saying it betrayed a fundamental misunderstanding of the legal system.
"This is something Canadians should be deeply concerned about because it really suggests that this minister doesn't fully appreciate the role the courts play in our constitutional process," Mr. Waldman said. "It's interesting that he says he wants to have a dialogue with the court. I don't think the role of the court is to have a dialogue with anyone. The role of the court is to interpret and apply the law."
Although just 1 per cent of federal refugee decisions are reversed at the Federal Court, more than half of the cases the court deals with are immigration or refugee related. Mr. Kenney said that concerns him.
"It suggests to me that the integrity of the decisions made by my department is being questioned too often without sufficient justification," he said.
Mr. Waldman pointed out that of the hundreds of thousands of immigration decisions taken every year in Canada, from refugee cases to visa applications, only a little more than 1,000 received leave to be heard by the Federal Court.
Ron Atkey, a former Conservative immigration minister in the government of Joe Clark, said he has great respect for Mr. Kenney, but he thought this speech went too far.
"It's fine to have a dialogue between the legislative branch and the judiciary, but this was more than that. This was a rant," Mr. Atkey said. "I'm disappointed in Jason because he's done great things but this was not his finest hour."
When he became minister in 2008, Mr. Kenney said it was clear aspects of the immigration system were broken. He cited the example of Parminder Singh Saini, a convicted hijacker who came to Canada under a false name and was admitted as a refugee. Once his identity was discovered, it took 15 years of court challenges, appeals and reviews before he was removed in January, 2010.
Then there was the case of Jothiravi Sittampalam, who asked for a dozen reviews from the Federal Court and the Federal Court of Appeal before being deported six years later. The court finally concluded that "at some point in the system, there has to be finality."
Mr. Kenney also highlighted inconsistencies in the interpretation of the issue of irreparable harm in two recent cases. In one, two teenagers from Guyana were forced to leave Canada before the school year ended. The court concluded leaving school early did not constitute irreparable harm. But in another case, of a Bangladeshi woman and her two children who were denied refugee status, the court concluded leaving Canada before the school year's end did constitute irreparable harm, Mr. Kenney said.
"Call me crazy, but I believe irreparable harm means something more substantial than having to repeat Grade Six," the Immigration Minister said.
"It is cases like this that frustrate Canadians. Cases in which, seemingly on a whim - or perhaps in a fit of misguided magnanimity - a judge overturns the careful decisions of multiple levels of diligent public servants, tribunals, and even other judges. I believe most Canadians share my despair at such decisions."
Sharryn Aiken, a Queen's University law professor, said although it will generate controversy, Mr. Kenney's speech is unlikely to influence Canadian judges.
"It's a lot of hot air in one sense because there's very little the minister can do to bend the judiciary," she said. "Individual judges won't be cowed by Kenney's remarks. More broadly it creates a chill in the political climate vis-a-vis respect for refugee rights."
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