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Audrey Macklin, Lorne Waldman
Audrey Macklin, Lorne Waldman

Macklin and Waldman

When cabinet ministers attack judges, they attack democracy Add to ...

In a speech to the University of Western Ontario's law faculty last week, Immigration Minister Jason Kenney launched an attack on Federal Court judges for rendering decisions he didn't agree with. He suggested the judges were preventing him from properly administering the immigration program.

What's wrong with that? After all, lawyers, academics and the media freely comment on judicial decisions, so why not government ministers? Well, what makes it wrong is that judges are supposed to be independent of government, and government is supposed to respect that independence. The executive appoints our judges. But once they're appointed, our democracy requires that they render their decisions free from government influence or pressure.

When a government minister criticizes judges for how they've decided past cases, they're sending a message to judges about how they want future cases to be decided. Indeed, Mr. Kenney was quite explicit about this. After presenting highly selective, incomplete and misleading accounts of a few cases, he complained that judges were deciding these cases "seemingly on a whim," and declared his belief that "most Canadians share my despair at such decisions." Whether Canadians would share his despair is an interesting question, but, in any event, his remarks seemed directed at undermining public confidence in the judiciary.

The judges do not work, and should not be seen to work, for Prime Minister Stephen Harper or his immigration minister. And because of their special role in society, they aren't expected to participate openly in the political process. Indeed, you haven't heard the Federal Court respond to Mr. Kenney, despite his misrepresentation of cases, jurisprudence and statistical evidence. Judges don't reply because they understand the importance of not becoming politicized.

When Mr. Kenney publicly criticizes judges for interpreting the law in a manner that diverges from his own preferred outcome, he shows contempt for judicial independence. That's not to say the minister can't take action when he disagrees with a court's decision. As a member of cabinet, he has the power to introduce into Parliament amendments to any federal law. The cabinet may also pass regulations implementing existing law. The government possesses the unique jurisdiction to change the law to conform to his views. But using an address to a law school - of all places - to take potshots at judicial decisions the government doesn't like is an inappropriate exploitation of political office.

To add further discredit, some of the anecdotes cited by Mr. Kenney were just plain wrong. He mentioned the case of Parminder Singh Saini as an example of a person allowed to remain in Canada for years as a result of judicial interference. What he fails to note is that Mr. Saini was found by a Citizenship and Immigration Canada official in 2003 to be at risk of torture. A ministerial review of his case then took more than six years. Meantime, Mr. Saini, a convicted hijacker, had respected Canada's laws and received two university degrees. When Mr. Kenney, who became the immigration minister in 2008, decided in 2009 that Mr. Saini should be deported, a request for a stay was summarily dismissed. By suggesting that the delay was the fault of judicial interference, Mr. Kenney misrepresents the facts.

In the same speech in which Mr. Kenney attacked the Federal Court, he mentioned the new cadre of bureaucratic decision makers who will decide refugee claims under the Balanced Refugee Reform Act. These decision makers will be government employees, ultimately answerable to the minister. Yet, Mr. Kenney also referred to them as "independent public servant decision makers." But those decision makers do work for the minister.

Based on this government's practices, criticism (or even the threat of criticism) by the minister may well cause these decision makers to reasonably fear for their livelihoods if they make decisions that the minister finds politically unpalatable. All Canadians have reason to be concerned whether these decision makers will be genuinely independent.

Audrey Macklin is a law professor at the University of Toronto. Lorne Waldman is an immigration lawyer.

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