When I read that Barbara Jackman, doyenne of the Toronto immigration bar, had complained that the SCC might not give her and her colleagues a fair hearing in the upcoming Charkaoui, Almrei and Harkat appeals, which involve the constitutionality of the security certificate system, I assumed it was a gaffe.
Apparently not. In today's Globe, a number of lawyers close to the appellants have again tried to argue that if the top court sides with the government, it will be showing it is not independent, and easily swayed by public opinion. It would appear that we are witnessing a strategically-planned public media campaign, and not just a frustrated lawyer mouthing off.
This is remarkable on a number of levels. First, the appellants argument would make almost anyone queasy: if they are right, then Canada must allow any apparent terrorist detained here, including those here illegally, access to everything the government knows about their group, and access to the dysfunctional refugee determination process. Second, if the top court is not independent if it rejects the immigration bar's argument, then the same has to be said about the lower courts, which have already upheld the constitutionality of the security certificate system. Finally, if we really accept that the courts are so easily swayed by news stories, why are we entrusting them with god-like powers in the first place?
It is a risky strategy: chances are good that it will really annoy the judges. The McLachlin court has shown itself willing to assert an essentially-unlimited jurisdiction, but it isn't substantively extreme. I doubt that the appeals will succeed.