REFUGEE LAWYERS’ ASSOCIATION OF ONTARIO, Media release, Feb. 18, 2011

TORONTO – The Refugee Lawyers’ Association of Ontario (RLA) today spoke out concerning the ill-advised speech Jason Kenney, the Minister of Citizenship and Immigration, gave to the Law Faculty of the University of Western Ontario on February 11, 2011. Minister Kenney’s criticisms of the Federal Court for its judgments in immigration and refugee cases are inappropriate and indefensible. “The independence of the judiciary is an essential element of democracy,” said RLA President Geraldine MacDonald. “The Minister’s comments are an attack on the independence of the Federal Court. The remarks reveal a shocking lack of understanding of the role of the courts in the Canadian democracy.”

Mr. Kenney’s claim that his remarks were made in a “spirit of constructive dialogue between the legislative branch and the judiciary”, cannot be accepted. There can be no such dialogue: the Minister should be well aware that the Court cannot discuss or debate in public the merits of its decisions, nor consult with the government on how it should adjudicate cases. The two branches of government are separate and distinct. The conclusion to be drawn is that the Minister is trying to influence the Court to decide cases in the Minister’s favour, which is untenable.

The thrust of the speech is to encourage the Court to rubber-stamp decisions made by the Ministry’s appointees and officials, contrary to the concept of an independent judiciary. “The role of the judiciary is to interpret the law as enacted by Parliament and apply it to the facts, in order to ensure the proper administration of the law. It is an important check on the power of the Government and its decision-makers, to ensure they follow the law and do not abuse their authority,” observed Ms. MacDonald.

Furthermore, the Minister’s assertions that judges act on “whim”, “indulgence”, “fantasy”, or a “fit of misguided magnanimity”, contribute nothing to constructive dialogue.

As disturbing as their intemperate tone is the fact that the Minister’s criticisms appear to demonstrate a cavalier attitude towards facts and logic. As an example of delay caused by court proceedings, the Minister cited one case where it took 15 years to deport one man. However, it was pointed out by his lawyer, Lorne Waldman, that the Minister failed to mention a delay of 6 ½ years because the file lay dormant in the Department. There are many factors involved when there are protracted legal proceedings that are no fault of the Court. The reality is that sometimes government decision-makers do not properly apply the legislation, government policy and decisions from the Court. Federal Court judges have a responsibility to act when they find this to be the case.

It is difficult to understand the Minister’s complaint that the Federal Court “indulges” appeals, reviews and “dubious” claims, in light of his statement that a mere 1% of refugee decisions are overturned on judicial review. The basis for this statistic is unclear, but it leaves the impression that the Minister expects that the courts must rule entirely in his favour. This is a dangerous and undemocratic attitude for a Minister of the Crown to hold.

Moreover, when it comes to refugees, even 1% of decisions overturned is a significant number when the consequences for the concerned refugees could be removal to persecution, torture or death.

Minister Kenney’s lack of respect for the rule of law and judicial independence extends beyond criticism of the Federal Court in which he is a litigating party. He also attacked the criminal courts for passing sentences of two years less a day, which have the effect of preserving the right of a permanent resident to appeal to the Immigration Appeal Division (IAD) against a deportation order. The Minister says these sentences are passed “with a view to thwarting Canada’s immigration system”. But an appeal to the IAD is an integral component of Canada’s immigration system, not a “thwarting” of it. The Minister’s opportunistic approach to independent decision-making is reflected in this regard when he refers elsewhere in his speech to the IAD as a “specialized tribunal” – when lauding one of its decisions in favour of the government.

It seems likely that the Minister’s speech is an attempt at political grandstanding and an early search for scapegoats to blame for the widely anticipated problems in the upcoming new refugee system. Nonetheless, as a Minister of the Crown, he should refrain from unseemly attacks on the Canadian judiciary.

Contact: Geraldine MacDonald, RLA President, Tel: (416) 408-1910
Clifford Luyt, Tel: (647) 896-3672
The Refugee Lawyers’ Association of Ontario is a non-profit organization of more than 200 lawyers who practice refugee and immigration law. Website: www. rlaontario.com