On the Importance of Judicial Independence

by Emir Aly Crowne*

This is a response to Immigration Minister Jason Kenney’s remarks at the University of Western Ontario, Faculty of Law given on February 11, 2011. It is appropriate that the Minister’s initials are j/k, because had I not known better, I would have taken them to be a joke. But his remarks are from it. In fact — and quite ironically — his remarks strike at the very values that we, as Canadians, prize: freedom, democracy and the rule of law. Audrey Macklin and Lorne Waldman have already addressed some of these issues in their op-ed piece in the Globe and Mail, and while I may re-tread on some of their ground, it is for a damn good reason.

In what seems to be a generous pat on the back, the Minister indicates that:

[the Government’s and his Ministry’s] good work attracting new Canadians to help us build our country is thus – and our traditional of openness – is thus undermined and jeopardized by a pretty small number of bad actors.

And in Kenney’s theatre, the leading role of “bad actor” apparently goes to the Federal Courts. The Minister cites a handful of the thousands of immigration cases that pass through the Federal Courts as emotive examples of how “bad” these courts — and their judges — are. Any Minister could do the same for virtually any area of the law. It is sheer bad faith.

Then the Minister corrupts the language of Justice “Lacobucci” (sic), indicating that the Honourable Justice Iacobucci “put it best, when he wrote that our constitutional structure encourages a dialogue between and accountability of each of the branches.” Perhaps the Minister did not do his homework, but Justice Iacobucci was not talking about an ‘actual’ dialogue between the branches. In fact, to the contrary, Justice Iacobucci was talking about the role of judicial review in creating a dialogue of sorts between the legislatures and the courts. Which is precisely the type of dialogue that Kenney seeks to stifle, or monopolize. So don’t expect an invitation for tea from the Honourable Allan Lutfy, the Chief Justice of the Federal Court anytime soon, Minister Kenny.

In fact, judges are expressly forbidden to enter into public debates on political matters of this sort. Which explains why the guardians of our democracy — the judges themselves — have been unable to publicly speak up in response to the Minister’s vicious remarks. 

Fear not. There are some of us who love the Federal Court. More importantly, there are some of us (all of us, I would hastily assume) who cherish the role of the Courts in ensuring that “state actors” (to keep with Kenney’s metaphor) do not overstep their legitimate bounds and tread into the shallow waters of tyranny. Indeed, Kenney’s solution seems equally damaging to civil liberties and basic fairness. He indicates in his speech that he’s:

creating a new Refugee Protection Division that will be staffed by public service decision makers rather than Cabinet appointees. They’ll have more continuity over time, greater expertise and efficiency. We’re also creating a new Refugee Appeal Division, something that refugee advocates have called for, for many years. That means that, if someone comes and makes a claim, it’s rejected at the Protection Division after an interview – after an oral hearing, they can then appeal to this new, fact-based Appeal Division.

In other words, because of these “bad actors” in the Federal Court, the Minister will create his own appellate division and deal with matters there. And, if the tone of his speech is any indication, we know exactly how those appeals will be decided. 

Minister Kenney, in a feat of mathematical gymnastics, then indicates that he’s:

… proud of the quality of the work done by the officials in my Department. They work extraordinarily hard to enforce the laws Parliament has passed fairly and accurately. And the simple fact is they get things right far more often than they get them wrong. This is clear from the fact that the rate of reversal of our refugee decisions by the federal court is one percent – one percent. So it concerns me when I hear that more than half of the cases that come before the federal court are immigration or refugee related. It suggests to me that the integrity of the decisions made by the decision makers in my Department is being questioned too often without sufficient justification.” (emphasis added)

So if 1% percent of refugee decisions are overturned — an insignificant number by any statistical measure — then how exactly does this get us to the proposition that the “integrity of the decision made by the decision makers” in the Immigration Department “is being questioned without sufficient justification”? 

I close with two very telling sentences from the Minister’s speech:

I believe that, in a free and democratic society such as ours, judicial decisions should encourage debate over where the line is drawn between legitimate legislative objective and constitutionally protected rights and freedoms… But we legislators are not an island, and we don’t act alone. We need the judiciary to understand the spirit of what we are trying to do.

These are very troubling statements. The Minister apparently wishes to engage in an actual dialogue with the Federal Courts — a dialogue which he readily knows will just be himself yelling into an empty room — because the very principles of judicial office demand that judges refrain from actual discourse on political matters. He then wants the Federal Court to give him and his Department a ‘free pass’ on that trifling 1% of cases that are indeed overturned. 

To suggest that the judges of the Federal Court should somehow be beholden to his Department in the name of “constitutionally protected rights and freedoms” strikes at the heart of all those very rights and freedoms. The principle of judicial independence demands that judges not be under the direction or control of Her Majesty or a Government Department. As the Supreme Court of Canada stated in R. v. Lippé:

The overall objective of guaranteeing judicial independence is to ensure a reasonable perception of impartiality; judicial independence is but a “means” to this “end”. If judges could be perceived as “impartial” without judicial “independence”, the requirement of “independence” would be unnecessary. However, judicial independence is critical to the public’s perception of impartiality. Independence is the cornerstone, a necessary prerequisite, for judicial impartiality.

Indeed, the Supreme Court has repeatedly emphasized the importance of this concept, finding roots for it in the Constitution and the Charter. In the Provincial Judges Reference Chief Justice Lamer noted that the:

express provisions of the Constitution Act, 1867 and the Charter are not an exhaustive written code for the protection of judicial independence in Canada. Judicial independence is an unwritten norm, recognized and affirmed by the preamble to the Constitution Act, 1867. In fact, it is in that preamble, which serves as the grand entrance hall to the castle of the Constitution, that the true source of our commitment to this foundational principle is located.

Likewise, it has been held that judicial independence underlies all of our Charter rights. In 2004 the Supreme Court held [2004 SCC 42] that: 

Judicial independence is the “lifeblood of constitutionalism in democratic societies”… An independent judiciary is absolutely necessary to ensure that the power of the state is exercised in accordance with the rule of law and the provisions of our Constitution. In this capacity, courts act as a shield against unwarranted deprivations by the state of the rights and freedoms of individuals… Judicial independence further represents the cornerstone of the common law duty of procedural fairness, which attaches to all judicial, quasi-judicial and administrative proceedings, and is an unwritten principle of the Constitution. The twin aspects of judicial independence and impartiality are relevant to this appeal. The first is the requirement that the judiciary function independently from the executive and legislative branches of government… The second is the recognition that judicial independence is necessary to uphold public confidence in the administration of justice.

So Minister Kenney, in the guise of protecting us from terrorists and thugs, has precisely undermined the very core of our Charter rights and the Constitution itself by suggesting that the Courts should basically talk to him, and follow his lead without question. 

If the judges of the Federal Court are “bad actors” it is because the Minister has ruined the entire play by attempting to re-write it in his own image. On behalf of the Constitution and the Charter, I say to you: keep out of the Courts, Federal or otherwise.

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Professor Emir Aly Crowne, University of Windsor, Faculty of Law; Barrister & Solicitor, Law Society of Upper Canada
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