When Immigration Minister Jason Kenney complained earlier this year that "intrusive and heavy-handed" Federal Court judges were frustrating the government's efforts to deport failed refugee and immigration claimants, the Canadian Bar Association fired back.
Following Kenney's February speech at the University of Western Ontario, Rod Snow, the CBA's president at the time, issued a stiffly worded letter rebuking the minister's comments as "an affront to our democracy and freedoms.
"Your public criticism of an entire court and specific judicial decisions that you think do not advance the government's agenda can only undermine the respect and public confidence upon which our system depends," Snow wrote.
Kenney's comments and Snow's response received widespread attention, as did Supreme Court Chief Justice Beverley McLachlin when she publicly applauded the CBA for its "powerful public letter" this summer. What has not been previously reported, though, is that the CBA president wrote the letter at the behest of Allan Lutfy, then chief justice of the Federal Court.
In an interview with the Citizen this month, Lutfy acknowledged that he contacted Snow and drew Kenney's remarks to his attention. "I made certain that Mr. Snow ... knew of the speech," Lutfy said, adding: "He penned the letter. He said what he said."
Asked whether he was concerned by the minister's criticism of the court, Lutfy - who stepped down as chief justice in September and is now a part-time judge on the Federal Court - offered a carefully worded reply.
"The executive should always have a right, at least generically, to criticize the work of other branches of governance - the legislative branch or the judicial branch," he said. "In either event, its discourse should be of a certain tone."
But when a cabinet minister targets individual judges and specific cases - as Kenney did in his speech - "that may be on the borderline of a blur between the independent functioning of the executive and the judiciary," Lutfy said. "In that context, I think the CBA said what it had to say."
Lutfy's comments, and his role in the CBA's letter, offer a rare glimpse beneath the cone of silence that invariably descends over the judiciary whenever it's targeted for criticism. As the former chief justice put it, "We can't enter the fray."
They also add texture to a growing debate over whether Prime Minister Stephen Harper's government is engaged in an effort to rein in the Federal Court, which reviews and regularly overrules decisions on refugee and immigration matters.
For some, Kenney's speech was a starkly visible element of that effort. So, too, was last month's abortive attempt by Conservative MPs to call Federal Court Justice Richard Boivin to answer questions about one of his decisions before a parliamentary committee. They dropped the unprecedented plan after the court issued a statement saying Boivin, appointed to the court by Prime Minister Stephen Harper in 2009, had declined the invitation.
As well, a new Citizen study of 480 Federal Court rulings found that judges appointed by Harper in the past three years were far less likely to quash decisions by government officers and tribunals on refugee claims, deportations, permanent residence and citizenship than judges appointed by Liberal prime ministers. Some see that as evidence the government is choosing judges it believes will be more compliant.
Following Kenney's February speech at the University of Western Ontario, Rod Snow, the CBA's president at the time, issued a stiffly worded letter rebuking the minister's comments as "an affront to our democracy and freedoms.
"Your public criticism of an entire court and specific judicial decisions that you think do not advance the government's agenda can only undermine the respect and public confidence upon which our system depends," Snow wrote.
Kenney's comments and Snow's response received widespread attention, as did Supreme Court Chief Justice Beverley McLachlin when she publicly applauded the CBA for its "powerful public letter" this summer. What has not been previously reported, though, is that the CBA president wrote the letter at the behest of Allan Lutfy, then chief justice of the Federal Court.
In an interview with the Citizen this month, Lutfy acknowledged that he contacted Snow and drew Kenney's remarks to his attention. "I made certain that Mr. Snow ... knew of the speech," Lutfy said, adding: "He penned the letter. He said what he said."
Asked whether he was concerned by the minister's criticism of the court, Lutfy - who stepped down as chief justice in September and is now a part-time judge on the Federal Court - offered a carefully worded reply.
"The executive should always have a right, at least generically, to criticize the work of other branches of governance - the legislative branch or the judicial branch," he said. "In either event, its discourse should be of a certain tone."
But when a cabinet minister targets individual judges and specific cases - as Kenney did in his speech - "that may be on the borderline of a blur between the independent functioning of the executive and the judiciary," Lutfy said. "In that context, I think the CBA said what it had to say."
Lutfy's comments, and his role in the CBA's letter, offer a rare glimpse beneath the cone of silence that invariably descends over the judiciary whenever it's targeted for criticism. As the former chief justice put it, "We can't enter the fray."
They also add texture to a growing debate over whether Prime Minister Stephen Harper's government is engaged in an effort to rein in the Federal Court, which reviews and regularly overrules decisions on refugee and immigration matters.
For some, Kenney's speech was a starkly visible element of that effort. So, too, was last month's abortive attempt by Conservative MPs to call Federal Court Justice Richard Boivin to answer questions about one of his decisions before a parliamentary committee. They dropped the unprecedented plan after the court issued a statement saying Boivin, appointed to the court by Prime Minister Stephen Harper in 2009, had declined the invitation.
As well, a new Citizen study of 480 Federal Court rulings found that judges appointed by Harper in the past three years were far less likely to quash decisions by government officers and tribunals on refugee claims, deportations, permanent residence and citizenship than judges appointed by Liberal prime ministers. Some see that as evidence the government is choosing judges it believes will be more compliant.
But Lutfy said Kenney's criticisms, and the attempt to have Boivin testify, were merely "anecdotal" incidents, and are no cause for alarm about the court's independence. "A reasonably informed public would not be concerned at all," he said.
The judiciary's independence from the executive branch of government is "so entrenched in our democracy" that statements made "in the heat of the moment" should be given little weight in assessing public concern about judicial independence, Lutfy said. "No executive and no judiciary attempts to unduly influence the other. It simply doesn't happen."
Independence, observed Federal Court Justice James O'Reilly, is a two-way street. "We expect the government to respect judicial independence, but we take responsibil-ity for being independent."
The Federal Court reviews thousands of decisions every year made by government and its agencies. "It would be rather surprising for there not to be, from time to time, expressions of concern about how the court has decided some of those cases," O'Reilly said.
When that happens, "A judge hears the comment, receives it, thinks about it, but the next morning sits down at his or her desk, opens a file, and decides a case on its merits. And that's it."
There would be cause for concern, O'Reilly said, if the court behaved differently after being criticized by a minister. But he said he'd be "astonished" if that were the case.
The Citizen study provides evidence of a minor shift following Kenney's criticism, though the differences are not meaningful enough to draw any conclusions.
Federal Court judges overturned about 41 per cent of the immigration and refugee decisions they ruled on in January and nearly 46 per cent in February, the month of the minister's speech. That fell to around 40 per cent the next two months, and bottomed out at 36.5 per cent in June.
Nevertheless, some worry that the government's tougher line, particularly on refugee claimants, is having an impact on ostensibly independent bodies like the Federal Court and the Immigration and Refugee Board.
Peter Showler, a past IRB chair, said some IRB members have "discreetly deferred" to criticism Kenney made in 2009 about refugee claims from citizens of Mexico and Roma applicants from the Czech Republic.
Now, Showler said, "we see the same tide of negativity seeping into the court itself. For anyone who values the independence of the IRB and the impartiality of the Federal Court, these are discouraging times."
Mitchell Goldberg, a prominent Montreal immigration lawyer, said Kenney's comments were certainly an attempt to influence judges on the Federal Court. "I'd like to think they're not intimidated by that kind of comment," he said.
The judiciary's independence from the executive branch of government is "so entrenched in our democracy" that statements made "in the heat of the moment" should be given little weight in assessing public concern about judicial independence, Lutfy said. "No executive and no judiciary attempts to unduly influence the other. It simply doesn't happen."
Independence, observed Federal Court Justice James O'Reilly, is a two-way street. "We expect the government to respect judicial independence, but we take responsibil-ity for being independent."
The Federal Court reviews thousands of decisions every year made by government and its agencies. "It would be rather surprising for there not to be, from time to time, expressions of concern about how the court has decided some of those cases," O'Reilly said.
When that happens, "A judge hears the comment, receives it, thinks about it, but the next morning sits down at his or her desk, opens a file, and decides a case on its merits. And that's it."
There would be cause for concern, O'Reilly said, if the court behaved differently after being criticized by a minister. But he said he'd be "astonished" if that were the case.
The Citizen study provides evidence of a minor shift following Kenney's criticism, though the differences are not meaningful enough to draw any conclusions.
Federal Court judges overturned about 41 per cent of the immigration and refugee decisions they ruled on in January and nearly 46 per cent in February, the month of the minister's speech. That fell to around 40 per cent the next two months, and bottomed out at 36.5 per cent in June.
Nevertheless, some worry that the government's tougher line, particularly on refugee claimants, is having an impact on ostensibly independent bodies like the Federal Court and the Immigration and Refugee Board.
Peter Showler, a past IRB chair, said some IRB members have "discreetly deferred" to criticism Kenney made in 2009 about refugee claims from citizens of Mexico and Roma applicants from the Czech Republic.
Now, Showler said, "we see the same tide of negativity seeping into the court itself. For anyone who values the independence of the IRB and the impartiality of the Federal Court, these are discouraging times."
Mitchell Goldberg, a prominent Montreal immigration lawyer, said Kenney's comments were certainly an attempt to influence judges on the Federal Court. "I'd like to think they're not intimidated by that kind of comment," he said.
"Those of us who do refugee law are astounded to hear the government saying that they're overturning far too many government decisions," Goldberg said. "It doesn't feel that way when you're a refugee lawyer."
With three current vacancies on the court, and four new judge positions slated to be added next year, the Conservative government has an opportunity to reshape the Federal Court if it wishes to do so.
"In the context of a majority government, where they don't have to be as concerned about justifying their appointments, all of us are very, very worried about that," Goldberg said of his fellow immigration lawyers.
After the new judges are appointed, Toronto lawyer Barbara Jackman expects the Federal Court to be "weighted toward deference toward the government. They're appointing judges that are very conservative in their approach to these areas of administrative law."
However, others argue that, despite Kenney's comments, there's scant evidence of any effort to erode the court's independence.
"I'm unwilling to conclude from the evidence I have that the government is actually aiming in the direction of stacking the bench with individuals who are not open to arguments," said Donald Galloway, a law professor at the University of Victoria.
"You're going to be selected because of your past history, and that past history will reflect an ideology," Galloway continued. "That's what the government is doing. They're not going to select individuals who they think of as extreme or radical."
Even if the government appoints judges it hopes will toe its line, that doesn't always happen, said Sean Rehaag, a professor at Osgoode Hall Law School in Toronto.
"Judges are a little hard to predict. When you give a person a position that you can't fire them from, it's hard to know how they're going to develop over the years."
Lorne Waldman, president of the Canadian Association of Refugee Lawyers, points out that some Conservativeappointed judges have made controversial decisions that run counter to the government's view.
In 2009, for instance, Federal Court Justice Russel Zinn, a Harper appointee, ordered the government to repatriate Abousfian Abdelrazik after it had blocked the Canadian citizen's return from Sudan because of supposed links to terrorism. And in September, Marshall Rothstein, then the only Harper appointee on the Supreme Court of Canada, endorsed that court's unanimous ruling in favour of Insite, the Vancouver drug injection clinic that the government had been trying to shut down.
The government can appoint judges who are more deferential, said Waldman, "and that's obviously what they're setting out to do. But even then, cases that are clearly egregious, these judges too will intervene."
Waldman said the message Canadians should take from all this is that it's time to depoliticize the judicial appointment process. "It's really disturbing that in a democracy like Canada, the process is still as political as it is."
With three current vacancies on the court, and four new judge positions slated to be added next year, the Conservative government has an opportunity to reshape the Federal Court if it wishes to do so.
"In the context of a majority government, where they don't have to be as concerned about justifying their appointments, all of us are very, very worried about that," Goldberg said of his fellow immigration lawyers.
After the new judges are appointed, Toronto lawyer Barbara Jackman expects the Federal Court to be "weighted toward deference toward the government. They're appointing judges that are very conservative in their approach to these areas of administrative law."
However, others argue that, despite Kenney's comments, there's scant evidence of any effort to erode the court's independence.
"I'm unwilling to conclude from the evidence I have that the government is actually aiming in the direction of stacking the bench with individuals who are not open to arguments," said Donald Galloway, a law professor at the University of Victoria.
"You're going to be selected because of your past history, and that past history will reflect an ideology," Galloway continued. "That's what the government is doing. They're not going to select individuals who they think of as extreme or radical."
Even if the government appoints judges it hopes will toe its line, that doesn't always happen, said Sean Rehaag, a professor at Osgoode Hall Law School in Toronto.
"Judges are a little hard to predict. When you give a person a position that you can't fire them from, it's hard to know how they're going to develop over the years."
Lorne Waldman, president of the Canadian Association of Refugee Lawyers, points out that some Conservativeappointed judges have made controversial decisions that run counter to the government's view.
In 2009, for instance, Federal Court Justice Russel Zinn, a Harper appointee, ordered the government to repatriate Abousfian Abdelrazik after it had blocked the Canadian citizen's return from Sudan because of supposed links to terrorism. And in September, Marshall Rothstein, then the only Harper appointee on the Supreme Court of Canada, endorsed that court's unanimous ruling in favour of Insite, the Vancouver drug injection clinic that the government had been trying to shut down.
The government can appoint judges who are more deferential, said Waldman, "and that's obviously what they're setting out to do. But even then, cases that are clearly egregious, these judges too will intervene."
Waldman said the message Canadians should take from all this is that it's time to depoliticize the judicial appointment process. "It's really disturbing that in a democracy like Canada, the process is still as political as it is."
Because ideology is considered when judges are chosen, the best candidates aren't always getting appointed, he said. "The ones the prime minister thinks are going to side with the government more often are going to get appointed. That's hugely problematic. It should be a process based on excellence."
Waldman points to the United Kingdom as a model. In 2006, it created an independent Judicial Appointments Commission to select candidates for judicial office in courts and tribunals in England and Wales through fair and open competition.
The Lord Chancellor, a senior minister in the British cabinet, still signs off on the candidates selected by the commission, but the process has been designed to ensure that appointments are meritbased.
Something similar in Canada would strengthen judicial independence and take politics out of the selection of judges, Waldman argues.
"The appointments process has been hugely problematic and subject to cronyism for a very long time. We have to, as a democracy, be concerned about this."
Origin Waldman points to the United Kingdom as a model. In 2006, it created an independent Judicial Appointments Commission to select candidates for judicial office in courts and tribunals in England and Wales through fair and open competition.
The Lord Chancellor, a senior minister in the British cabinet, still signs off on the candidates selected by the commission, but the process has been designed to ensure that appointments are meritbased.
Something similar in Canada would strengthen judicial independence and take politics out of the selection of judges, Waldman argues.
"The appointments process has been hugely problematic and subject to cronyism for a very long time. We have to, as a democracy, be concerned about this."
Source: Ottawa Citizen
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