Category Archives: Public Law

Trombe Juridique Québécoise : Une Charte et un Juge

L’actualité juridique québécoise  m’offre gracieusement la chance d’écrire un billet en français. Bien que j’aurais aimé écrire quelque chose de positif, les récentes bourdes du gouvernement provincial et fédéral me poussent vers la critique (et la déception). Ces bourdes sont évidemment la charte des « valeurs » du Québec et la nomination du juge Nadon à la Cour suprême. Bien que ces deux évènements ne soient pas liés, ils ont en commun une forme d’amateurisme gouvernemental et une absence de réflexion poussée. J’aborde chaque bévue séparément.

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One step forward, two steps back: the SCC, immigration & refugee law and discretion

The past decade has not been kind to migrants. The events of 9/11 added extra hurdles to immigration process as immigration authorities’ paranoia grew. Western countries’ hospitality is much colder as xenophobia increased fuelled by right wing political groups such as the Tea Party in the USA, the Front National in France or the Conservatives in Canada and the UK. In Canada, since the election of the conservative government of Prime Minister Harper, we have adopted a series of reforms in immigration and refugee law. The focused is now on so called “desirable” migrants, usually people with education and language proficiencies in English or French.[1] Inadmissibility rules continue to prohibit family from reuniting, disabled and sick migrants from settling, and otherwise qualified migrants with tenuous link to alleged terrorist groups from immigrating.[2] Parliament adopted the so called Balanced Refugee Reform Act in 2010 making it harder for refugees to seek protection in Canada.[3] Additionally, Refugees’ access to health care was cut by the federal government.[4] Many of those changes are being or will be challenged in court. Whether these challenges will succeed is hard to predict as the Supreme Court has tended to be deferential towards the government on immigration and refugee issues. Two cases handed down in the last two months may shed some light on what the future holds for refugee and immigration law.

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Some Insights on Insite

On 30 September 2011 the Supreme Court of Canada released the Insite decision.[1] This case began when the Government of Canada made it clear that it wouldn’t renew Insite’s – a supervised drug injection clinic in the Down Town Eastside of Vancouver – exemption from the application of the Controlled Drugs and Substances Act (the CDSA). Insite and its many supporters decided to challenge the constitutionality of the CDSA applicability to Insite and of the refusal of the Minister of Health to grant the exemption. A few weeks ago, the judicial battle ended with a victory for society, and for Insite and its patients.

I am happy for the people who are involved with Insite; it is a great victory for them and probably a great relief as they won’t have this Sword of Damocles hanging over their heads anymore. It was, however, a predictable victory. The Supreme Court of British Columbia[2] and the British Columbia Court of Appeal[3] had already found that the applicability of the CDSA to Insite violated section 7 of the Charter[4] (right to liberty, life and personal security of the person).[5] The facts of this case were overwhelmingly in favour of Insite. The project had the support of the community, the business close to Down Town East Side, the public health authorities, the City ofVancouver and theProvince ofBritish Columbia. The federal government, to no surprise, only had demagogical arguments. It was thus a predictable victory as I couldn’t conceive how the Supreme Court, in anyway shape or form, could agree with the federal government. The CDSA was not found inapplicable but the refusal of the Minister of Health was found to violate section 7 and the Court ordered the government to exempt Insite and to give an exemption to any safe injection site that would meet certain criteria.

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Judicial (in)activism

I would encourage people to read the About page before diving into this first blog post, especially the Disclaimer section… Now that that is done, enjoy!

Judicial (in)activism

Many commentators (often conservatives – and I use that term in its wide sense not solely its political or partisan sense – but also people who [over]value the sovereignty of Parliament) have critiqued our courts, especially the Supreme Court of Canada (SCC), of indulging in judicial activism. This was particularly true after the advent of the Canadian Charter of Rights and Freedom in 1982. These criticisms have resulted in an increased deference to the two other branches of government (legislative and executive) in public law. The Khadr 2010[1] decision is a perfect example. This trend is not healthy for our judicial system and I intend to show why in this post.

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