A Point of LawKevin Grace is beating the anti-immigration tom-tom as loudly as ever over at the Ambler. He singles out my cross post to the Shotgun for special attention,
For all Harper’s rage against Canada’s "refugee-determination boondoggle," he is talking through his hat. Harper knows very well, even if Jay Currie does not, that the implementation of Canada’s immigration policy—not merely its refugee policy—rests in the hands of our courts, not our Parliament. Immigration and refugee reform would require—at the very least—the use of the notwithstanding clause to void the Supreme Court of Canada’s 1985 decision in Singh. It would probably require nothing less than the repeal of the Charter of Rights. And the delegates to the same Canadian Alliance convention that revised its immigration policy were advised pretty forcefully to keep shtum about messing with the Charter.Legal bunnies can go and read the Supreme Court's full decision in Singh here.The shocking intrusion of the Court is to require procedural safeguards to be extended to refugee claimants. This is based on the wording of section 7 the Charter.
There is no reason at all to assume that the notwithstanding clause would have to be invoked to alter the process for dealing with refugee claimants. However, any alteration would have to meet the minimal standards of fundamental justice the Charter is designed to protect. To commit the solecism of quoting the headnote,
At a minimum, the procedural scheme set up by the Act should provide the refugee claimant with an adequate opportunity to state his case and to know the case he has to meet.This is hardly judicial activism run wild.