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Wednesday, February 28, 2007

The Supreme Court of Canada leaves us in a quandary - Charkaoui v. Canada

The issues the Supreme Court had to decide in Charkaoui and the two appeals heard with it were pretty simple.

Is it just that foreigners living in Canada can be arrested without being given the full reasons for their arrest? Should they have to wait months or more before they can ask a judge to release them? If the answer to either of these questions is no, can the breach of the foreigners' rights be justified for security reasons? The issues have been widely canvassed in the media and no consensus has emerged. The Supreme Court reached a perfect consensus unanimously saying: No. No. No. But it did not keep it simple

Adil Charkaoui, a permanent resident, what used to be called a landed immigrant, and Hassan Almrei and Mohamed Harkat, refugees, had been arrested, in 2003, 2001 and 2002 respectively, under provisions of the Immigration and Refugee Protection Act that allow the Minister of Immigration or the Minister of Public Safety to issue a certificate declaring someone not a citizen of Canada "inadmissible". The certificate must be reviewed by a judge but the judge may determine that the certificate is reasonable on the basis of information or evidence heard in the absence of its subject or his lawyer, if persuaded by the minister that its disclosure would injure national security or anyone's safety.

The certificate has the immediate effect of an arrest warrant and after it is passed by a judge becomes an order for removal of the subject from the country. A review of the detention of a permanent resident must be commenced within 48 hours of an arrest. Others such as the refugees Harkat and Almrei must wait 120 days before they can apply to have their detention reviewed.

Charkaoui has been on conditional release since last year and Harkat since 2005. Almrei is still locked up.

The Court first considered Section 7 of the Charter:


7. 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.
It was not difficult to decide that the appellants had been deprived of their liberty. They had been locked up. That was enough to be getting on with. But Chief Justice McLachlin writing for the whole Court made heavy going of Section 7 by also considering the vague, catch all phrase "security of the person". Being called a terrorist may not be nice if you are innocent and the risk of return to the somewhat Hobbesian lands whence Charkaoui and the others came may be worse but the first is curable and the second hypothetical. The unnecessary disquisition on "security of the person" signals the Court's readiness to entertain strained and imaginative arguments in other cases.
Under Section 7 of the Charter you can be locked up "in accordance with the principles of fundamental justice". The court considered whether national security could affect the requirements of "fundamental justice". But not for long. The court has generally shown itself keen to find breaches of the Charter. Once it has done that it can consider whether the breach is a "reasonable limit" under Section 1, looking to whatever it pleases as "evidence" and drawing a "reasonable limit" wherever it sees fit.

Having decided that security concerns could not excuse the procedures under the Immigration and Refugee Protection Act, McLachlin then blathered on about "fundamental justice" for twenty pages, worrying for seven pages whether the reviewing judges can be perceived as independent and impartial before roundly concluding that they can, yanking in a completely irrelevant comment on the Arar affair and allowing that, after all, "societal concerns [including national security] formed part of the relevant context for determining the scope of the applicable principles of fundamental justice", before finally reaching the predictable conclusion that there was a breach of Section 7.

Consideration then of whether the breach could be justified came down to a decision that the breach was not a "minimal impairment" of Section 7 rights, that the government could do better, by providing for a special counsel who would have security clearance and see all the evidence but not disclose it to the detainee or take instructions from him. Such counsel used to be used by Canada's Security Intelligence Review Committee and are used in the United Kingdom in some immigration appeals. Perhaps they will be helpful. But it is not something that follows necessarily from the language of the Charter.

What follows necessarily from the language of the Charter is that the Court is free to second guess Parliament and impose its will on it. That is what law professors with solemn facetiousness call a "dialogue between the Court and Parliament". It is no fun having a power if you do not use it and use it the Supreme Court of Canada will.

The court briskly considered Section 9 and subsection 10(c) of the Charter:

9. Everyone has the right not to be arbitrarily detained or imprisoned.
10. Everyone has the right on arrest or detention
(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.
holding that security was a "rational foundation" for detention but that the ban on a review of the detention for foreign nationals such as Harkat and Almrei breached Section 9 and subsection 10(c) together. They like Charkaoui must have continuing opportunities for review of their detention and any conditions of release.

Finally the court considered Section 12 of the Charter:

12. Everyone has the right not to be subjected to any cruel and unusual treatment or
punishment.
which the court eyes as a blanket authority to let the Court decide how to make the punishment fit the crime. After ten pages of hemming and hahing the court decided that Almrei's indefinite detention was not "cruel and unusual treatment" while saying:
...this does not preclude the possibility of a judge concluding at a certain point that a particular detention constitutes cruel and unusual treatment or is inconsistent with the principles of fundamental justice, and therefore infringes the Charter...
just to keep us on our toes.

Reactions to the decision were far too excited. The judgment will not change much. Almrei will remain in detention indefinitely. Charkaoui and Harkat will remain on conditional release indefinitely. Security certificates can still be issued and foreigners can still be arrested without knowing the grounds for their arrest. Parliament will try to amend the Immigration and Refugee Protection Act to satisfy the Court. There will be more litigation and controversy. Whatever Parliament does will be challenged and it will be years before we know whether the Court is satisfied or whether it may change its mind in one direction or another.

The excited reaction was fuelled by the Court's pompous language and elaborate treatment of simple issues. McLachlin's reasons are full of invocations of liberty, justice, equality and so on that contribute nothing to the decision but signal the solemnity, importance and almost sacredness of the Court. Issues are dealt with briefly or at length with no rhyme or reason and whether or not they are necessary to deciding the appeals. Whether issues are dealt with at length or briefly, whether they are necessary to the decision or not, the reasons are studiously vague and qualified. Context, used thirty-six times, is all. The purpose of reasons for judgment is to clarify the law. If the Court were doing its work properly its reasons would bring clarity to the vague language of the Charter so that governments and people would know what to make of it. But that would limit the Court's freedom to do as it pleases.

The Immigration and Refugee Protection Act was passed in 2001 when we had already had almost 20 years experience with the Charter. The drafters and Parliament must have supposed that it would withstand Charter challenges. Several Federal Court judges dismissed Charter challenges. But it should have surprised no one that the Supreme Court, unanimously, had at the Immigration and Refugee Protection Act. The Charter licences it to do what it likes. We cannot know what it may like until we ask it. And its power would atrophy if not used. So it was predictable that the Court would do something, but predictable also that it would do nothing radical. The judges are not a bunch of radicals, whatever Stephen Harper may think. They are just nine fairly ordinary lawyers enjoying extraordinary eminence and power.

Most laws are effective because people know them and follow them. Occasionally the courts are drawn in to enforce them on the recalcitrant or sort out confusions but, while the authority of the courts is fundamental to the authority of the law, the courts remain largely in the background. The Charter is different. Its effect and reach result precisely from our not knowing what the courts may make of it, the readiness of people to find whatever they like in it, and the readiness of the Supreme Court to give it to them.

There is unusually little in the reasons on the facts and the proceedings that brought the appeals before the Court. For a full understanding of the appeals it is necessary to refer to some of the 46 reported Federal Court decisions running to about a thousand pages of reasons that the three appellants have generated.

The Court heard 15 intervenors; Amnesty International, Canadian Arab Federation etc., etc.. The practice of welcoming intervenors presents the Court as a public forum where all have their say. It is a false picture. In the end only the Court has its say and the intervenors did not represent all opinions but basically lined up with the appellants. The most impertinent intervenor was "University of Toronto, Faculty of Law — International Human Rights Clinic and Human Rights Watch", a clique of specially unctuous law professors, condescending to offer their learning to the Court knowing that they had already infested it with their annointed students serving as judges' clerks.

The underlying problem in all these cases is that the purpose of the impugned provisions of the Immigration and Refugee Protection Act is simply to get dangerous people out of the country but Charkaoui, Almrei and Harkat can all argue that they risk torture if sent back where they came from. The Minister can issue an opinion that the danger to the security of Canada justifies removal to a country where there is a risk of torture but in the case of Almrei such opinions have repeatedly been quashed by the Federal Court. We are left in a quandary. The Supreme Court has no better idea how to get out of it than the government does.

Thursday, February 1, 2007

EMINENT CANADIANS The Dictionary of Canadian Biography Volume XV 1921-1930

Dictionary of Canadian Biography
Volume XV 1921-1930
Ramsay Cook and Réal Bélanger editors
University of Toronto Press
1266 pages, $125.00 hardback
ISBN: 0-8020-9087-7

It is forty years since the first volume of the Dictionary of Canadian Biography was published. The continuation of the massive project has in latter years been a struggle. The imaginative bequest of birdseed millionaire James Nicholson, which made it possible, conservatively invested in times of high inflation, was inadequate to keep it going. Granting bodies did not always give it the priority it deserved. The first twelve volumes came out at about a two year clip up to 1990. The last three have taken fifteen years.

Money has been found for a CD-ROM of the first fourteen volumes, which has been distributed to schools and libraries across the country. Those volumes are also available free online, with a selection from this volume and samples as far ahead as the projected volume XXII - Rocket Richard, who died in 2000 - at
http://www.biographi.ca. These searchable digital media are a wonderful resource, but they raise a question whether the printed volumes should continue to be published. This sleek tome says yes.

Twelve hundred hardbound pages are not for the beach or bed. But for those with access to the  books, the CD-ROM or the website will seem just a handy index. Who would want to read 8800 words on Alexander Graham Bell on screen or would want to waste toner and paper on printing them out. Except for researchers, the shorter entries are best come upon turning the pages rather than on some Boolean basis. The geographical and occupational indexes and cross-referencing in the books are the best guides to dipping in. The Dictionary of Canadian Biography is Canada's finest and most important work of reference and history. We must hope that the pace of publication picks up, bringing us up to date by the 2020s.

Modern and post-modern historiography and the growth of the academic industry put new strains on the project. A dictionary of biography must be faithful to the logic of its project. It is a book of lives, which must be selected for their eminence, for their role in our history. It cannot be great man history. 600 great Canadians did not die in the third decade of the 20th century. Neither can it be a random sample of 600 Canadians who died in that decade about whom enough information survives to write a few hundred words. Modern historians may have distinguished careers with many publications hardly naming any people besides other academics they rely on or disagree with. But theirs is another endeavour. The compilers of a dictionary of biography must believe in the importance of individual lives in history, and not just as samples or representative cases, but in themselves.

And Volume XV includes many eminent lives. Bell is the most famous but there are also poet Bliss Carman (a brief entry, perhaps because of his long residence in the United States), longtime Quebec Premier Lomer Gouin, opera diva Emma Albani, painter James Wilson Morrice, CPR magnates Lord Shaughnessy and Lord Mount Stephen and banker and Maecenas Sir Edmund Walker.

The grounds for inclusion of many others are open to question. About Alikomiak nothing is known save that he murdered another Inuit and two white men and was hanged for the crimes. Consequently the entry for Alikomiak is a conspectus of relations between the Inuit and white authorities in the far north but not a biography. Jeanne Anctil was one of the first formal teachers of household science in Quebec. The entry for her, twice as long as that for former Governor General Lord Lansdowne, is a history of the teaching of household science in Quebec with passing references to Anctil.

Anne Quinlan, a catholic school teacher in New Brunswick in the late 19th century, is given a proper biography. But it does not appear what distinguishes her from perhaps hundreds of other teachers about whom enough is known to write about 900 words. Is she included as a representative or has the entry failed to explain her importance?

It is often difficult to descry just how important many of the lives treated were. The Dictionary has evidently been influenced by the keenness of post-modern historiography for digging up the putatively marginalised and making forced claims for them. That, and the sheer scholastic growth of Canadian historiography, in which more and more obscure topics are researched, feed back into the Dictionary's massive collaborative effort. Academics will naturally feel that people they have spent much time researching merit inclusion whatever the generalist or general reader may think.

The format and writing of the entries is often unhelpful. Generally, after the subject's name, there is an occupation. This should be a pointer to the subject's importance. But Charles Augustus Semlin is described as "teacher, miner, packer, hotel owner, rancher, politician, and school trustee". This is simply confusing. Semlin is in because he was briefly Premier of British Columbia. We may want to read about his other activities, but we should be told where we are heading. You might expect "politician" to trump all other occupations but you would be wrong. George Weston, "baker, businessman, and politician" is not in because he served four years as a Toronto alderman but because he founded the eponymous company, the parent of Loblaws.

If it is not always clear why some people are in, who may wrongly be out? Perhaps another school teacher, or a plumber, but I could not say. In Canadian art it is easy to find upwards of a dozen painters represented in the National Gallery, staples of the auction market and noted in the histories, but absent from the Dictionary. Frederick Arthur Verner is perhaps the most eminent. He is in The Canadian Encyclopedia. If Verner did not make the cut, many of the farmers, soldiers, teachers and the rest who did must be far more eminent than from their entries appears.

As the Dictionary moves into more recent times the challenge of selection becomes greater. For the decade 1851-1860, covered by Volume VIII, there were perhaps 70% fewer Canadians dying. The surviving sources are still less and roughly adhere to lives in proportion to their eminence. A right to fifteen minutes of fame had not been established by the 1920s but it was the heyday of newspapers and magazines and the chances of anyone getting noticed by a newspaper or getting a story or poem published were far higher than they are today. Many entries on obscurer lives are able to quote fulsome tributes in the local press and cite several magazine contributions.

The compiling of the Dictionary is a massive undertaking and the editorial team have evidently worked hard and intelligently at their task. But they could be stricter with the contributors. The writing could be crisper. In his biography of Alexander Graham Bell Lawrence Surtees writes: "In 1867 tragedy struck the family,...when Aleck's younger brother...died of tuberculosis." It would not be unfeeling to leave readers to judge for themselves the impact of the death.

There is a frequent vagueness, unsettling in a work extensively grounded in primary sources. Nurse Sibella Barrington "may have been influenced", "would have gone", "is credited with", all in 150 words. Other entries repeatedly use "reportedly" (Emma Albani, for whom the sources should be rich) leaving us to wonder who reported and why, if the source was reliable, whatever was reported is not simply stated as fact.

The standard format for an entry in a dictionary of biography, established in the Dictionary of National Biography in the late 19th century, is a straightforward account of the life followed by an appreciation, assessment of reputation and description of appearance, manner and character. This is generally followed in the Dictionary but some entries begin with strong claims for their subject, which are not always supported by what follows. H. V. Nelles calls Sir Adam Beck "the Prometheus of Canadian politics in the first quarter of the 20th century" in an effusive appreciation at the beginning of his life of Beck, but ends describing a raging authoritarian running a shambolic Ontario Hydro as a personal fiefdom with, no doubt, the best intentions. By the time Nelles was writing in his penultimate sentence that Ontario Hydro "had become an Ontario institution that would outlive changing governments and passing ideologies", it was in ruins.

We cannot get close enough to many of the subjects to make realistic claims about them. Lee Gibson say of Sir James Aikins "His strong work ethic and assiduous attention to detail were recognised in his election as a bencher of the Law Society of Manitoba in May 1880." Was Aikin's election as a bencher evidence in itself of his "work ethic". Was that notoriously the only basis on which benchers were elected? Is it recorded that that was the key to his election? Likely he was no slacker, but as a prominent, well-connected Winnipeg lawyer, his father in Macdonald's cabinet, might he not have been elected if he had been? An appreciation of the subjects' characters is wanted so far as it is possible. Dry details of life and career would be tedious. As tedious as bland encomiums.

The Dictionary of National Biography was largely written by independent scholars and men of letters, vanished breeds. With few exceptions, the contributors to the Dictionary of Canadian Biography are academics. Theory and special pleading for academic interests intrude. Marjorie Pickthall by Barbara Godard is only half biography and half defensively feminist critical study concluding with praise for Pickthall's "ability to construct the poetic process in female-centred forms".

Many of the subjects are presented as representative or typical. Missionary Jessie Munro "was typical of the hundreds of single, well-educated, middle class, and small-town women who pursued careers as missionaries in late 19th and early 20th century Canada." Logger and farmer William Henry Curran "typifies the resourceful 19th-century wanderer who did nothing outstanding, yet persevered and left an imprint in the form of numerous descendants. He exemplifies the generation of men who arrived in British Columbia during the gold rush of 1858–65...".

Despite the Dictionary's scholarly foundations, some entries raise too many questions. Janet Kennedy Smith, described as "servant, diarist, and alleged murder victim", was at the centre of a sensational case in Vancouver in 1924 involving anti-Chinese racism. Scott Kerwin quotes from Smith's diary. But the extent and history of the diary are not explained and the references give no clue as to where the diary is or whether Kerwin was able to consult an original copy.

Susan Marsden in her entry on Sganism Sm'oogit writes, without reserve, qualification or explanation, that "northwest coast peoples reincarnate within their own lineage....The biography of Sganism Sm'oogit then is that of countless generations of individuals...". By her account Sganism Sm'oogit has no place in this volume as he is still alive.

Any book will reflect the culture of its time. The new Oxford Dictionary of National Biography published in 2004 is a very different work from the Dictionary of National Biography of a century before. It was excoriated for factual errors and the editors replied that with computers it was easily corrected. The first two volumes of the Dictionary of Canadian Biography have been reprinted with corrections. But we are not likely to see a wholesale revision of the Dictionary of Canadian Biography, though no doubt the selection and treatment of lives in the early volumes would be different if they were done today.

The Dictionary of Canadian Biography should strive to be a work for long time. When we come to the volumes dealing with the recently deceased, the challenge of selection and objective treatment will be daunting. The editors will have to be true to their magnificent project.