Chartered Fight

Mayors in Canada’s largest cities, as well as some who run smaller ones, complain about the financial burdens of asylum seekers and refugees on their budgets and physical facilities. Provinces correctly blame Ottawa for increased numbers of new arrivals and demand money for their care. A surge of migration has produced predictable results: ad hoc sheltering arrangements, additional homelessness, stressed social services.

The Immigration and Refugee Board, the agency charged with authenticating refugee claims, is overwhelmed. It has 200,000 claims on its docket but can process only about 140,000 of them per year, which means that if refugee flows continue apace, the backlog will get worse. Inevitably, some asylum seekers disappear into the underground economy or into the protection of friends or family members, while officials charged with tracking them down struggle to do so.

Canada is not alone among Western democracies in facing the immense challenges of mass migration. The United States, France, Italy, Spain, Turkey, Great Britain, Germany, Mexico, and Australia, as well as the Benelux and Scandinavian countries, are in the same predicament. Colombia, Peru, and Panama are among the top Latin American destinations for the estimated seven million Venezuelans fleeing economic collapse and political repression. But Canada, where they’re also landing, is considered a soft touch: enter the country and ask for asylum, and the odds are you’ll be able to stay.

Migrants seek an escape from political, ethnic, or religious tensions as well as a chance for better economic circumstances. A key difference between Canada and many other countries has been the lack of a political backlash, let alone the kind of anti-immigrant riots recently seen in Britain. There is no anti-immigrant party here, nor does the issue provoke the response we see in the United States, with governors of southern border states shipping thousands of asylum seekers north by bus.

Although about 80 percent of asylum applications in Canada are approved by the IRB, the federal Liberals want to make it possible for some of those who are turned down to remain in the country. So why have a tribunal at all if those rejected would be able to stay?

In short, Canada’s refugee system is a mess. There was a time before the Charter of Rights and Freedoms, however, when it was less so. Border agents reviewed claims, and the courts were seldom involved. There was an appeal process, but it operated in private. Governments sometimes made special arrangements for those fleeing particular crises, such the 1956 Hungarian Uprising and the end of the Vietnam War. But this system, once hailed by the United Nations, was completely overturned by the Supreme Court of Canada.

What we have today, though few people would now make the connection, is rooted in a 1985 decision called Singh. Six Sikhs from India and a Guyanese citizen who had arrived in Canada between 1977 and 1981 claimed refugee status, alleging that they would face persecution were they to return to their home countries. Their claims were rejected by the Refugee Status Advisory Committee — the stage of first appeal — and then by the Immigration Appeal Board. The Supreme Court ruled that under the Charter of Rights and Freedoms, adopted three years earlier, “everyone” physically present in the country, whatever their status, was entitled to Charter protections — and that meant open hearings and appeals.

Such an interpretation was not what the politicians who drafted and approved the Charter had intended, as some of the members of the parliamentary committees who had worked on it later explained. They had intended the Charter to apply to people legally living in Canada, not those who weren’t. No matter: the Charter, starting with Singh, would change law and government forever. The case belied predictions that the Supreme Court would move gingerly into Charter terrain. Ultimately, as the great Peter H. Russell of the University of Toronto observed, Canada went from a parliamentary democracy to a constitutional democracy.

Within four years of that first Charter-bending decision, the backlog of asylum claimants grew to about 100,000. The Federal Court of Appeal’s docket was overwhelmed. Arguments for amnesty as a way of clearing the administrative backlog filled the air. Asylum advocates, of course, loved the Singh case, as it meant, in their view, fundamental justice. The judge who penned the decision, Bertha Wilson, reasoned that “a balance of administrative convenience does not override” the rights of refugees. But the resulting administrative inconveniences, as many observers put it, still plague us today.

The court’s ruling in Singh had some ramifications for provincial and municipal governments, as a matter not of law but of providing services. It did not, however, drag Ottawa and the provinces into direct legal conflict. Other Charter cases did. In them, the court ruled on which rights should be respected and then left it to the provinces to give effect to those decisions.

This relationship between the court and the provincial implementation of its rulings frames James B. Kelly’s Constraining the Court: Judicial Power and Policy Implementation in the Charter Era, a title as dry as the book itself. Not meant for leisurely reading, this is a work of detailed scholarship, by a professor at Concordia University. Kelly focuses on five cases where the federal government took a position that was more or less accepted by the court — a position provinces then had to administer. If the affected provincial governments disagreed with Ottawa and the court, what could they do? Delay is a hardy perennial. Adopt a law that looks on the surface like compliance but in practice circumvents the court’s intentions. Pass legislation or adopt a regulation that partially — but only partially — remedies what the court considered an abuse of the Charter. Buckle up for a donnybrook with Ottawa by using the Charter’s notwithstanding clause. Delay, defiance, disagreement, dilution are ways in which reluctant provinces can block or modify court decisions.

“The Supreme Court of Canada,” Kelly writes, “is an ‘implementer-dependent’ institution, reliant on Parliament and the provincial and territorial assemblies to introduce legislative responses when the Court declares statutory provisions unconstitutional.” Charter decisions often come in one of two varieties: judges say what absolutely cannot be allowed, or they hint or suggest what should be done. But the doing remains outside the court’s remit; hence, Kelly argues, the court can be constrained at the provincial level.

Kelly follows the winding paths of his five provincial cases, showing various “constraints” on the court. Three involve English-language rights in Quebec; the other two are about medical assistance in dying and supervised drug consumption sites. The details of the language cases differed, but the essence remained the same. The Charter guarantees protection for minority language rights: English in Quebec, French elsewhere, in both instances “where numbers warrant.” In these three cases, Quebec governments of different stripes — Parti Québécois, Liberal, and Coalition Avenir Québec — asserted the province’s primacy over Charter-imposed language policy. The province claimed complete jurisdiction as the guardian of majority French-speaking residents in a predominantly English‑speaking continent.

Quebec responded to the court’s decisions in each case — involving English in education, public signage, and commercial communications — by offering legislative or policy changes that appeared on paper to comply with the Charter but essentially did not. This game of hide-and-seek went on for years, replete with hot rhetoric on both sides. English-language rights were eroded slowly until the CAQ arrived in office and sped up the erosion through the notwithstanding clause. The CAQ government did not so much “curtail” decisions involving Charter rights; it ignored them. In Ottawa, Justin Trudeau’s Liberal government gum-flapped but did nothing. As Kelly puts it, “Legislative disagreements that operate in a complex implementation chain can change the trajectory of a judicial decision and confine judicial impact to the agenda-setting phase of the policy process.”

The struggle over drug injection sites, centred in but not restricted to British Columbia, also went on for years. Although the federal government had a range of differences with the B.C. authorities, the major tussle was over the attempt by Stephen Harper’s Conservatives to water down both the Supreme Court ruling approving the sites and the support these sites received from the province. The battle went back and forth, with the Tories consistently trying to circumscribe the ambit of site approvals by including consideration of the impacts on local communities through the Respect for Communities Act. Trudeau’s Liberals gutted that legislation, only to find the essence of Harper’s law inspiring Jason Kenney’s government in Alberta. Kelly correctly summarizes the outcome: the Charter victory for the supervised drug injection site known as Insite, and therefore for the federal government, did not reduce the policy autonomy of provincial governments in the delivery of — or the decision not to deliver — a “non‑core” health service. In this case, the “constraining the court” argument also applies.

Kelly’s book certainly shows how the Supreme Court, even with the Charter as its sword, can be and often is blunted in whole or in part by legislative actors. The relationship between pre-Charter parliamentary supremacy and the power of the Charter now so frequently used by lawyers and so dominant in the nation’s law schools might be called a draw. But while judicial power is constrained in the types of cases Kelly includes, there are others where the constraints are more limited or non-existent.

In Singh-like decisions, for instance, it’s the federal government that must respond. These cases allow for few “constraints” and sometimes see the court telling the government what it must do, regardless of the cost or administrative toll. Recently, for example, the court ruled unanimously that Ottawa had not made adequate payments to First Nations north of Lake Superior and Lake Huron under treaty arrangements dating back 175 years. It gave the government six months to come up with a settlement with the Superior Anishinaabe, which it will then review and presumably approve or deny. The judges, therefore, turned themselves into the court of last resort —“implementers,” in other words. A broadly similar case involving First Nations in northeastern Ontario resulted in a $10-billion settlement, meaning the payments in the newer case will likely be of a similar size. Both cases will surely be relied upon by Indigenous groups elsewhere in Canada, meaning that governments will be out of pocket many billions of dollars — the overdue price of justice in the eyes of some, money lost for other causes in the eyes of others.

Scarcely a month now passes without Charter arguments of all kinds raised in federal and provincial courts. Charter law is the hottest subject in our law schools, much more interesting than dull old property or torts law and certainly more appealing than old-fashioned constitutional law, which is about which level of government is responsible for what.

We live — and have done for some time — in the Age of the Charter. Today judges are more popular than politicians, courts are more respected than parliaments, judges wrestle with how much power they should exercise, and governments sometimes grind their teeth over decisions made by the unelected judiciary, which is unschooled in the inconveniences of their decisions and not much interested in them either.