Law Times

LAW TIMES / APRIL 14, 2008 Certain categories need not apply C anada is getting a new immigration law. Prime Minister Ste- phen Harper wants to fast- track certain "categories" of people into Canada. He won't say who right now but he promises to publish a list eventually. Immigration Minister Di- ane Finley would be allowed to decide arbitrarily who gets in and who doesn't. Their applications would be tossed in the wastebasket without being considered. People the Conservatives want would be "fast-tracked" going to the head of the line. Right now Immigration and Refugee Board adjudica- tors dutifully give due con- sideration to each and every application. Nothing hits the wastebas- ket without being looked at. But it seems to take forever. There's a pile-up right now of 925,000 applications. It could take six years to get through that. Who knows how many more applications will have come in by then? Harper resisted pressure from immigration lawyers last year to hire more than 100 additional adjudicators. About 500 are needed. The backlog just grew. Now he is using that problem as an ex- cuse to change the law. The opposition is mount- ing against Harper; protests were being organized last week in major Canadian cities including Toronto. Immigra- tion lawyers say it's against the Charter of Rights to toss away immigration applications without looking at them. Refugee protection groups talk about a secret agenda to let in more wealthy investors at the expense of refugees. Harper provides few ex- planations — and fewer details. People are dreaming up nightmare scenarios. Mus- lims believe they are the target; Chinese-Canadian groups are mobilizing. Civil rights advocates say the plan is to bring in cheap labour from the Third World as farm help for Western Canada. Others say it's to provide temporary migrant workers to toil at minimum wage in Al- berta restaurants and hotels. Immigration lawyers have spotted a clause that elimi- nates several humanitarian and compassionate grounds being used by to bring rela- tives into Canada. Other lawyers point to a clause which used to say ap- plicants who met all the cri- teria "shall" be issued a per- mit to enter; it now would say "may" be issued a permit. Guess who gets to decide the "may" — why the minister of course! Section 87.3 allows the Immigration minister to set quotas on "categories" of peo- ple from certain countries of The Hill By Richard Cleroux origin. That frightens some people. They cry "racism" — something which Ms. Finley flatly denies. Immigration advocates look at Canadian immigra- tion history and say we have reason to worry. The Canadian government does not have a good record of dealing with immigration issues. Take the following: • the cabinet order of 1911 banning "any immigrant belonging to the Negro race"; • the Chinese Exclusion Act of 1923; • the 1923 exclusion of "any immigrant of the Asiatic race"; • the exclusion of Sikhs try- ing to land on the West Coast; • the refusal of the St. Louis refugee ship from landing Jews in Canada. They went back to Germany and were murdered by Nazis. Harper tells ethnic com- munities not to worry. He's not a racist and not anti- immigration. He just wants to whittle down the backlog and make good choices for Canada as to who should be allowed in. There is no secret agenda, no racism, no discrimination. Conservatives just want to clear up the backlog of appli- cations without having to hire more adjudicators to consider each and every application. Finley has been fac- ing howls and catcalls from opposition benches in the Commons. She insists she is not "anti-immigrant." To make sure his legisla- tion is adopted, Harper has tucked it into his budget- implementation bill, which means that to defeat it, the opposition has to vote against his budget, which means that if they defeat it, we go into an election, which is just what Harper wants. But Liberal Leader Sté- phane Dion doesn't want an election. So he'll have to let it pass, as much as he is against Harper's immigration legisla- tion and everything it stands for. So that's where we stand now — the Liberal Opposi- tion hates the legislation but it hates going into an election even more. So Harper will likely get his way, and Canada will get a new immigration law hidden inside a budget-implementa- tion bill. Welcome to Canada, Mr. and Mrs. Immigrant. LT Richard Cleroux is a freelance reporter and columnist on Parlia- ment Hill. His e-mail address is www.lawtimesnews.com COMMENT PAGE 7 tice system lately. Among many thoughtful commentators, Jus- tice Michael Moldaver has stat- ed in several speeches that the administration of justice is "on the verge of collapsing under its own weight." He has described an "urgent need to stem the tide" and to bring "balance and pro- portionality back into our system of justice." Recently, Moldaver, a re- Underfunding the real crisis T BY FRANK ADDARIO For Law Times here has been a lot of discussion about the so- called "crisis" in the jus- them, the delay entailed in ju- dicial review of police behav- iour outweighs the social cost of routinely approving police misconduct. But the country has long since resolved the debate over whether constitutional rights are "worth the trouble." By democratic process we have Speaker's Corner spected criminal lawyer and sea- soned appeal judge, described the problem as one created by our preoccupation with "pro- cess." He said that the answer lay in asking, "Where do we draw the line on freeing people whom we know to be guilty?" In other words, when the police have the evidence, are we wast- ing too much time scrutinizing how they got it? Is that the right question? Is the criminal justice system tee- tering on the brink of disaster because of "process?" Are Char- ter applications brought on be- half of "guilty" defendants really grinding the system to a halt? Or is the Charter being blamed for the failure of a chronically underfunded system to produce results quickly enough? The claim that the source of the problem is cases where the only issue is "freeing people whom we know to be guilty" bears inspection. Should we have legal motions challenging police behaviour where constitu- tional misconduct has produced evidence of guilt? Civil liber- tarians see this as a no-brainer: when the police misbehave and violate the Constitution, the courts should restore both the police and the citizen to their original positions. Section 24(2) of the Charter makes criminal defendants the surrogates for enforcing constitutional rights belonging to the rest of us. The criminal trial is the forum where this occurs. If a guilty defendant thus goes free, that's the price we pay for having constitutional civil liberties. This is fundamentally no different a price to pay than re- quiring the police to respect in- dividual rights from the outset. The Charter does not require the defendant to "unclutter" the criminal trial by pursuing his claim in a civil proceeding. Pragmatists think the criminal trial should primarily focus on the guilt of the defendant. For decided that they are. Polls show the citizens of this coun- try overwhelmingly support that choice. If it should be irksome to those who feel the guilty are only entitled to a spoonful of process, it's time to repeat Jus- tice David Doherty's memor- able observation in Regina v. Clayton: "The scope of individ- ual constitutional rights and the significance of the violations of those rights does not depend on whether the individuals' whose rights are violated turn out to be criminals or law-abiding citi- zens. Criminals do not have dif- ferent constitutional rights than the rest of the community." Usually, criminal-trial Char- ter applications relate to fairly straightforward violations of the right to counsel or the right to privacy. On occasion, the liti- gation will raise a novel issue. It can on occasion be complex or uncertain. Conscientious lawyers understand their duty to seek reasonable remedies fa- vourable to their clients. The most significant development in Charter litigation, the right to disclosure, has produced better justice and more timely guilty pleas. It was the result of a creative, novel Charter ap- plication by responsible defence counsel. Nurturing the "living tree" of the Constitution some- times consumes court time. To be sure, there have been some high-profile disasters in the administration of crim- inal justice. Some involve con- duct of defence counsel. Some of those counsel embarrassed themselves with time-wasting, merit-free Charter arguments. But no good law reform is ever balanced on the back of a couple of attention-grabbing examples. Indeed in social-sci- ence terms, the sample size is so small as to be meaningless. Important changes to public policy in the administration of justice deserve more evidence. The occasional unfair trial is not a basis for rethinking how much power trial judges have. No one argues that Canada's series of high-profile wrong- ful convictions would justify diminishing the independence of Crown prosecutors. A few even spectacularly unprofes- sional defence counsel are not a basis for discounting the important work that most de- fence counsel do to breathe life into the Charter. Governments at the prov- incial and federal level are interested in Moldaver's point. What has been mis- sing from the discussion is evidence showing that a "crisis" exists, and that this "crisis" can be traced to the "process" as- sociated with Charter applica- tions. Governments everywhere do one thing well and that is to collect data. In the three years since this debate began, I have never seen a public document proving that lawyers using the Charter to defend clients has contributed to anything that could amount to a system-wide crisis. Police charging decisions, Crown policies and Crown prosecution styles, in contrast, are obvious sources of system- wide delays. In any event, there is no ob- vious crisis in the criminal justice system that would not be fixed by a reversal of the business deci- sions made repeatedly by succes- sive provincial governments to underfund that system. Those who work in the system know that each year we are asked to produce the same high-quality results with less and less money. It's not surprising that a sys- tem under this kind of finan- cial and social pressure would start to bulge at the seams. It's also not surprising that people of good faith would look for solutions within. But it would be a shame if Charter litigation became warm clay in the hands of those who want to mould a new, more efficient trial. It's true that defence counsel ask judges to supervise police behaviour, including their compliance with the Constitution of Canada — in the middle of a criminal trial. That is our job. But we are the least able — among police, prosecutors, judges, and government — to influence the speed at which the system operates. Change to the system, though needed, should not start where it will be least effective. LT Frank Addario is president of the Criminal Lawyers' Association (Ontario) (www.criminallawyers. ca). He practises in Toronto with the law fi rm of Sack Goldblatt

• Cover