ANTI-IMMIGRANT JUDICIAL DISCRIMINATION
By Munyonzwe Hamalengwa
November 14th, 2005
Why was there deafening silence in the mainstream media about one of the most reactionary decisions by the Supreme Court of canada in a decade concerning an immigration issue? On September 30th, 2005, the Supreme Court of Canada ruled in a pair of immigration cases (OLGA MEDOVARSKI VERSUS MINISTER OF CITIZENSHIP AND IMMIGRATION; JULIO ESTEBAN VERSUS MINISTER OF CITIZENSHIP AND IMMIGRATION) that non-citizens who have been sentenced to more than six months in goal twice or more have no right of appeal to the Immigration Appeal Division if they had no active stays of removal after the new IMMIGRATION AND REFUGEE PROTECTION ACT came into force in June 2002. This is regardless of the lack of severity of their criminal antecedents and or the existence of humanitarian and compassionate circumstances. The Supreme Court of Canada displayed its callousness and lack of concern for the equality rights of non-citizens. The mainstream media displayed the same attitude. Non-citizens are indeed vulnerable in Canada.
Why did it take me so long to continue to give the benefit of the doubt to the judiciary as being less discriminatory than governments against non-citizens, particularly racial minorities despite evident judicial obduracy? Partly it’s due to the fact that my training necessitates that you have a belief, even if forced, on the fairness in the administration of justice and rule of law superintended over by the judiciary. Partly it is due to my experience and research that for minorities, governments are more inhabitable and hostile than the courts. Look at how the government constitutionalized judicial quotas to the Supreme Court alternating between French and English Canada or the recent governmental and institutional practices of ensuring that women are well represented in the judiciary, law schools, electoral politics, the board rooms and elsewhere, but not racial and cultural minorities. However, the same governments that recognize judicial and other quotas refuse to acknowledge the need to diversify the judiciary, law schools, electoral politics etc. in terms of racial and cultural composition. Courts give you a fighting chance, even if you loose. Partly it is due to the human reality that you must have hope in something otherwise you will be lifeless.
It is the courts that ruled in the face of government laws and practices, that non-citizens (permanent residents) can practice law in Canada; that spousal benefits should be extended to same sex couples; that marriage should include same sex couples as opposed only to opposite sex couples; that store owners can choose to open on Sundays rather than be prohibited by law; that restrictions of abortions to a certified procedure in hospital is unconstitutional; that aboriginals can claim through oral history evidence to prove ownership to their lands; that blindly extraditing a Canadian citizen to a country that imposes a death penalty when Canada does not, is unconstitutional; that same sex marriages should be registered just as opposite sex marriages; that maternity benefits should have an equivalent in paternity benefits; that a teen homosexual can take his partner to a teen prom; and so many other legal precedents that have revolutionized law in Canada. Without judicial interventions in prohibited areas, Canada would still be in the Victorian era, complete with its sexual, religious and racial mores and stereotypes. The courts have indeed brought us to the 21st century.
However, upon closer scrutiny, it became evident to me that the same judicial zeal for revolutionary innovation has not been extended to non-citizens (permanent residents) no matter how long they have been in Canada except in the practice of law. The courts have not declared discriminatory many laws and practices against non-citizens as unconstitutional. So I proceeded with my LL.M. thesis marshalling evidence upon evidence that discrimination against non-citizen permanent residents emanated only from government laws and practices. That judicial discrimination was an aberration (I love that term, don’t I?).
But that research forced me to climb a notch higher. Judicial discrimination against non-citizen permanent residents is as pervasive as governmental discrimination. Judicial discrimination against non-citizen permanent residents is not an aberration at all. It is in fact in-bred and systemic and it is repugnant as it is enlightened.
Here is why I say so. When the courts are forced to rule on a challenge that a governmental law or practice discriminates against non-citizen permanent residents, the courts always cite section 6 of the Charter that clearly distinguishes the differential treatment to be accorded to citizens and non-citizens. Discrimination is therefore constitutionalized. The courts state that in that respect, the legislature was very clear-headed when it deliberately set out to treat citizens and non-citizens differently. Hands off. We cannot rewrite the law, especially the constitution. We are bound by it, so the courts say, but only in relation to non-citizens!
Here, however, is the catch. The very courts who adopt a hands-off approach in relation to non-citizens, do not do the same when it comes to other areas of laws and practices at all. Section 15 (equality rights section) of the Charter was enacted not to include homosexuals, lesbians, etc. This is made clear in legislative debates. Courts are always presented with evidence of what the legislature had intended. But the courts have refused to listen. The legislature had always intended to prohibit unregulated abortions and the Criminal Code stated so, but the courts refused to listen. Marriage in all family law acts across the country, meant opposite sex unions. The courts said no. The legislative debates pertaining to Section 7 of the Charter made it clear that fundamental justice simply meant procedural rights and nothing else. The courts departed from this understanding and stated clearly that fundamental justice also means reviewing substantive laws and that their reasonableness must be looked at. Ad infinitum. Courts have struck down clearly stated laws as well as vague laws. Courts have refused to be bound by legislative enactments including the constitution.
But the courts insist on not subjecting the differential treatment of non-citizen permanent residents to the same exacting constitutional scrutiny that they have subjected other legal subjects and issues to, on the grounds that with respect to non-citizens, the legislature had a clear constitutional position on this.
Baloney.
