British Columbia·Analysis

Will Justin Trudeau keep fighting Stephen Harper's court battles?

After years of legal challenges to Stephen Harper's legislative agenda, prime minister-designate Justin Trudeau must decide which of his predecessor's battles he wants to keep fighting.

Conservative 'tough-on-crime' agenda and immigration changes drew flurry of charter challenges

Citizenship and Immigration Canada is trying to take Bahareh Esfand's permanent resident status because of a trip back to Iran to visit her mother. (Jason Proctor)

Bahareh Esfand couldn't vote for Justin Trudeau, but she sees the prime minister-designate's victory reflected in her own Federal Court battle

For the past year, the Coquitlam, B.C., woman has locked horns with a Conservative government bent on winning the right to remove her permanent resident status.

It's a complicated story: Esfand came to Canada from Iran in 2006 with her political refugee husband, but the minister of citizenship and immigration wants to strip her of refugee status for returning to see her ailing mother.

Regardless, the battle is almost pointless, because even if the government won, it's unlikely they could deport a hard-working, non-criminal mother of a Canadian-born child and wife of a newly minted Canadian citizen.

As if to put a fine point on all of that, Federal Court Judge George Locke sided with Esfand this week in a scathing decision that suggests the outgoing government was "more concerned with removing refugee status than granting it."

'They've got a lot of decisions to make'

Esfand claims Stephen Harper's government threw her life off balance in a bid to score an ideological point.

In that, she wouldn't be alone. Canada's courts are packed with claimants alleging their rights were violated by an agenda that purported to be tough on bogus refugees and tough on crime.

But her case also raises a question. What next? Even before Locke handed down his decision on Esfand, Ottawa announced plans to appeal if they lost.

But will Trudeau want to continue fighting Harper's battles?

Prime minister-designate Justin Trudeau has promised to revisit much of Stephen Harper's legislative agenda. (Adrian Wyld/Canadian Press)

"They've got a lot of decisions to make," said Josh Paterson, executive director of the B.C. Civil Liberties Association.

"They're going to have to take a good, hard look at the whole suite of laws that have been passed by the current government and the legal challenges that are out there and figure out what to do."

Broadly speaking, the cases in front of appeal or Federal Court judges involve either broad Charter of Rights challenges to legislation or specific cases where the application of policy allegedly undermines the intent of a law.

Issues range from mandatory minimum sentences, victim surcharges, the Fair Elections Act, refugee health care and Bill C-51 to the controversial niqab issue — just for a start.

'Is this where we want to put our resources?'

Esfand's lawyer, Douglas Cannon, says her situation is typical of the cases that have bogged down his immigration law practice.

She was identified as part of a Conservative policy to "cessate" refugee status for asylum seekers who no longer needed Canada's protection. Not a bad idea for scammers, but devastating when zealously applied to permanent residents caught unawares after years of building lives and families in a country they considered a new home.

In one case, a judge accused the government of "lying in the weeds" to pursue blameless refugees. Locke called Esfand's treatment "nonsensical" and "absurd." But Ottawa just kept appealing.

"A new government is going to have to step back and say: 'Is this where we want to put our resources?' " Cannon says.

"What's really offensive about it is how much money it costs to do this."

Vancouver lawyer David Fai has fought challenges to Harper laws before a variety of judges.

He just won a ruling in Vancouver provincial court calling mandatory victim surcharges cruel and unusual punishment. The Crown has filed notice to appeal.

And in January, the Supreme Court of Canada is set to hear Fai's appeal on behalf of Joseph Ryan Llloyd, an addict who claims mandatory minimum sentences for drug offences violate the Charter of Rights.

Trudeau has said he would rethink mandatory minimums except in extreme cases.

'A waste of public money'

Fai feels it would be "a waste of public money" to go ahead with appeals involving legislation the new government plans to repeal.

Prime Minister Stephen Harper's tough-on-crime agenda has frequently come under challenge in the courts. (Darryl Dyck/Canadian Press)

Like Cannon, he says the outgoing government seemed content to fight losing battles and then blame the judiciary for thwarting public will.

"These decisions by the previous government were not being made based on evidence," he says. "They were being made based on ideology or politics."

That was the allegation made by Edgar Schmidt, former general counsel for the legislative branch at the Department of Justice, who was suspended without pay in 2012 after becoming a whistleblower.

He claimed the federal justice minister was failing in his duty to tell Parliament when a proposed law is "consistent" with the charter. In fact, he claimed the government was approving legislation with "five per cent or less" chance of being upheld by the courts.

Paterson is hoping that might change under the new government, along with the reintroduction of a body like the Law Reform Commission, to independently assess legislation. The old one was scrapped by the Conservatives in 2006.

But he points out that the pre-Trudeau Liberals have also fought their share of losing court battles.

"I'm not sure everything will automatically change," he says. "There's no particular party that has had a monopoly on passing bad, unconstitutional legislation."

For now, Esfand hopes she has seen the inside of a Canadian courtroom for the last time. Stephen Harper has yet to remove her from Canada, but she feels she did her piece to get him out of office.

"I told people what happened to me because of the Conservative government," she says. "So I kept asking people: 'Go and vote.' "


Jason Proctor


Jason Proctor is a reporter in British Columbia for CBC News and has covered the B.C. courts and the justice system extensively.


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