Strong reaction to Kenney speech

A speech by Immigration Minister Jason Kenney to law students two weeks ago is still drawing fire in legal circles.

Kenney's Feb. 11 speech at the University of Western Ontario took aim at judges who, in Kenney's view, are allowing failed refugee claimants to avoid deportation through the courts, creating backlogs and undermining the government's attempts to toughen up Canada's immigration laws.

And he suggested that some judges were not interpreting Canada's immigration laws in the spirit of what the present government "is trying to do."

Immigration reform has been one of the themes of the Harper government of late, as Kenney and Public Safety Minister Vic Toews have pushed a bill to prevent mass migrations, of the sort seen last year with the arrival of the Thai vessel MV Sun Sea, or other human smuggling operations.

Kenney also successfully pushed through Bill C-11, also known as the Balanced Refugee Reform Act, which will fast-track some refugee claims, bring in more UN refugees and set up a new appeal division, but will also allow for the removal of failed refugee claimaints in a shorter period of time, particularly those from designated "democratic" countries, to cut down on the backlog of cases and ultimately save the government money.

Opponents argued that the bill's aim of speeding resolution of cases would mean applicants wouldn't get a fair hearing, particularly if they were from one of the designated countries - but the bill was adopted unanimously by Parliament last summer.

In his speech Feb. 11, Kenney noted these and other measures to reform the system - but then turned his attention, in "the spirit of constructive dialogue between the legislative branch and the judiciary," to "the role the courts play in shaping our immigration system."

Citing several cases where failed refugee claimants fought deportation through the courts, sometimes for years, Kenney seemed to call into question the judiciary's wisdom. And in case his audience missed the point, he summed up his arguments this way:

"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, highly trained public servants, tribunals, and even other judges. I believe most Canadians share my concern about such decisions. And I fear that such decisions do serious harm to the overall immigration system and prevent it from doing more good for deserving immigrants. And they undermine public confidence in the government's ability to enforce our laws as passed by Parliament, and therefore in the entire system."

Not surprisingly, the Refugee Lawyers' Association of Ontario (RLA), which advocates for refugees and opposed Bill C-11, denounced Kenney's speech a few days later as "inappropriate and indefensible." A press release said his remarks as "an attack on the independence of the Federal Court" and revealing "a shocking lack of understanding of the role of the courts in the Canadian democracy." The RLA also took exception to Kenney's language directed at the judge's decisions.

Now the Canadian Bar Association, a voluntary organization representing 37,000 lawyers, judges and law students across Canada, has responded, with an open letter to Kenney and Prime Minister Stephen Harper.

Calling Kenney's public criticisms of the judiciary "an affront to our democracy and freedoms," the CBA notes:

"Judges cannot enter the public arena to respond to criticism. Given that reality, your public invitation to the Federal Court to engage in a 'constructive dialogue' was either naïve or misleading. I fear that your comments were one-sided and unfair, given that the judiciary cannot respond.

"The concept of a 'dialogue' between the branches of government refers to the dynamic interaction between those branches. The executive branch has the power to appoint judges. It can propose and support legislation to implement its political agenda and address any needs, omissions or problems that it identifies in the law. The legislative branch can enact or amend legislation. The judiciary then interprets the law, according to its mandate in a free and democratic system like Canada's, without political pressure of any sort. If the executive believes that the law is not being interpreted as it intended, it has the option of further legislative amendment. It does not, however, have the option of publicly reprimanding the judiciary for not supporting its political agenda."

The CBA letter concludes:

"Other countries look to Canada's justice system as a model. Canadians expect their political leaders to build respect and public confidence in our judicial system. Your public criticism of an entire court and specific judicial decisions that you think do not advance the government's agenda can only undermine the respect and public confidence upon which our system depends."

Kenney may not get a dialogue with the judiciary, but he is getting an earful from the legal community.