Wednesday, April 12, 2006

Singhing for my Supper: Part Deux

OK. Enough procrastination. I promised I would do a five-part blgoathon on the Singh decision (by which everyone means Madam Justice Wilson's reasons), and that means I'd better get busy.

The first order of business was to explain why the argument the literatus tells me the righties are fond of -- to wit, that the SCC ought never to have included refugee claimants among the persons owed rights under the Charter-- must be wrong. And I was to do it without engaging in politically correct balderdash, or using too much Latin.

The hard part is explaining how the process worked. Back in the day (pre-1985) refugee claimants were not automatically entitled to an oral hearing before the Immigration and Refugee Board. First, they had to appear before a federal government official, where they were asked questions under oath, and a transcript was taken. The transcript was then reviewed by a committee, which decided whether to grant the claimant permission to reside in Canada for the time it took, even in those relatively halcyon days, to get a refugee hearing done. If the committee said "no" (as it did to Mr. Singh), then there was an opportunity to apply in writing to have the Board reconsider the decision. But that application was in writing (i.e. just with the transcript) and the onus was on the claimant to show that he or she would more than likely prevail.

If you think that was complicated, you don't want to be practicing immigration law today.

Anyway, the SCC had to figure out whether this process was consistent with section 7 of the Charter (which Justice Scalia once explained to some law students, including me, was sufficiently "foofy" that any country stupid enough to put it in their constitution deserved the inevitable judicial tyranny that would follow):

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

(Actually, technically, the Court dodged this question, but let's leave that for another part of the blogathon.)

Lawyers love to divide simple sentences up into "tests" and "stages" and no lawyers liked to do that more than the 1980s SCC. So they started with who is included in "Everyone." According to the righties, this is where they went wrong. "Everyone" only means Canadians or maybe landed immigrants.

Sorry, but that cannot be right. Because when the Charter means citizens, it uses "citizen" (Section 3: Every citizen of Canada has the right to vote...), and when it means citizens and landed immigrants, it uses "citizen" and "person who has the status of a permanent resident of Canada" (Paragraph 6(2)(a): Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right [...] to move to and take up residence in any province.).

So, when it says "everyone", it means "everyone" (bracketing controversies about fetuses, corporations, sentient robots and so on).

That doesn't mean that Wilson's at logical home plate yet. She's only gotten past one word: she still has to get through the rest of section 7, and then section 1. Each of the moves she makes on each of these points is one that a reasonable person could dispute, and, to give it its due, the DOJ did.

But before we get there, a theoretical intermission: the Pithlord is oddly comforted by his sense of certainty on even the first stage. Like most quibblers, he has had his dark nights of the soul when he doubted that the law really meant anything, other than what some damn fool judge preferred it to mean. Back in law school, he read the "Realists" who made an ideology of this doubt, and liked to argue their side when classroom participation marks were being dangled. But there is *something*, however underdetermining, to the technical canons of the profession. The DOJ didn't try to argue that Mr. Singh was outside the category of "Everyone" and Wilson dispensed with that issue in a paragraph, for reasons that I think almost all lawyers would agree with. In some ultimate sense, these certainties may be the folkways of the guild, but they are certainties nonetheless, and that they could be taken advantage of by somebody as far from the obvious sources of power as Mr. Singh gives the quibblers something to be proud of.

OK, the literatus reasonably, if impatiently objects, but it can hardly be possible that everyone in the world is owed the same concern and attention of the Canadian government as those here and paying taxes. How can "everyone" really mean everyone on Earth?

It works, but just so long as the Charter is a classically liberal document creating negative obligations on government. To make this doable, we need a strong act/omission distinction, and we have one in the Dolphin Delivery doctrine. All rights have correlative obligations, and, for the Charter those obligations are all on the government, and (although the SCC hasn't always been consistent here), they are all either negative or conditional obligations. The Charter is not violated when criminally-minded Canadians deprive others of their life or liberty, nor even when the state fails to effectively prevent this.

There are very few classically liberal ("libertarian") Canadians, thank God, and certainly none of those responsible for the Charter answered to that description. But, as I suggested previously, the Charter was intended to preserve that consensus between classical liberalism and social democracy. It allows, but does not require, affirmative action to redress social inequality. It allows, but does not lift a finger to defend, a free market economy based on private property and contractual freedom.

So, when it is said that "everyone" means everyone, no positive obligation has yet been created. The Canadian government cannot kill anyone, even a foreigner, without going through some more hurdles. But it need not save anyone's life. We expect it will do something for the literatus and myself when we are in trouble, but our basis for that expectation is a political one.

OK, but then how do we get to a positive and costly obligation to refugee claimants, which an oral hearing certainly is? Here Wilson makes a move that I must approve of in principle. She says that entry into the country is a pure Crown prerogative, but that the Crown and Parliament has substantively defined what a refugee is through the Executive's agreement to the relevant Convention and the latter's use of that definition in legislation. So while Canada had no constitutional obligation to do this, once it has created this substantive right, it has a constitutional obligation to have adequate procedures to determine whether the substantive right exists or not.

One possible response would be that if the federal government could, constitutionally, allow no refugee applicants at all, how can it be in trouble if it allows them, but doesn't give them all oral hearings? I'm not sure Wilson squarely addresses this thought, other than to say that such a privilege/right distinction was exactly the kind of thinking that made the Diefenbaker Bill of Rights such a joke.

The counter-argument that I think is right is that section 7 was intended to do something, and what it was intended to do was to allow the courts to look at procedures affecting people's vital interests and make sure those procedures were adequate. The framers of the Charter knew that section 7 was a bit "foofy" in its wording, but thought that the procedure/substance distinction would keep it under control. The evidence that this was what they intended is overwhelming: unfortunately, the SCC didn't listen.

But if they had listened, then this would have justified this part of Singh. Parliament would have free reign to decide what substantively constitutes a refugee, or whether we should even have such a category: the judges could then determine whether the procedures for assigning this status are fair. This division of labour -- which was genuinely intended -- would require the courts to take a look at procedures even where the status sought is, in some sense, a "privilege."

Defining procedures is a more modest task for courts, but it is the one that the authors of the Charter really did mean to give them. The Pithlord is OK with that, particularly since the political system has the notwithstanding clause -- and, more importantly in practice, the ability to bring social policy issues into play under section 1.

All of which just gets us to the legitimacy of the Court considering the real questions: Is an oral hearing required to determine fairly whether a person is truly a refugee? Is the extra stress on the immigration system of requiring such a thing really worth it? The actual consequences of the decision put the Court's judgment on these matters in doubt. But that's the subject of the next post.

Picture of Bertha Wilson from Supreme Court of Canada collection. Credit: Michael Bedford.

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