Author Archives: Catherine Dauvergne

Are these really the Border Services we want?

Posted by on | Canada, immigration, inequality, law, multiculturalism, politics

It’s curious that complaints about the egregious behaviour of the Canada Border Services Agency (CBSA) get so little traction. I wish there were a sophisticated, multi-faceted, complex explanation for this, but having watched the press on this for almost a decade, I think the explanation is pathetically straightforward: the CBSA deals mostly with foreigners. Sure, the Agency does a few bad things, a few human rights abuses and arbitrary exercises of power, but the broadly defined ‘we’ group is essentially willing to ignore this – or at least put up with this – in exchange for the sense of security that an armed border guard gives us.

Today, in my regular pursuit of near futile causes, I’d like to highlight just two things, to serve as a reminder that CBSA practices are quite far from the norm of what ‘we’ typically will tolerate from armed state officials and jailers in Canada.… Continue reading

A quiet loss for refugees

Posted by on | Canada, criminal justice, immigration, inequality, Supreme Court (Canada)

Today the Supreme Court of Canada handed down an important decision about refugee claimants with criminal records.

Obviously, that’s a tough sell. With so many people in the world whose basic human rights are not protected by their home states (about 15 million at last count), advocating for the tiny subset of refugees who have been convicted of a crime is not easy.

The arguments in their favour, however, are familiar to us, even though they come with an echo of a kinder and gentler time. There are two principal reasons why we forgive criminals: rehabilitation and atonement. That is, our criminal justice system echoes these two ideas at many levels. A commitment to rehabilitation means believing that people can change, and can return to being productive members of society. A commitment to atonement means that we embrace that idea that those who have ‘done their time’ or ‘paid their dues’ should be free to resume their place as members of society.… Continue reading

BC has a second look at TWU law school

Posted by on | inequality, law, multiculturalism, political philosophy, Western Canada

Today the Law Society of British Columbia held a special general meeting to reconsider its approval of Trinity Western University’s proposed Law School. It was a fascinating thing to witness.

Trinity Western University, as its President explained to the meeting, is the largest faith based university in Canada, and a community of evangelical Christian learners. The controversy surrounding it arises from the community covenant that it requires all staff, faculty and students to sign. Among (many) other things, the covenant requires that signatories abstain from ‘sexual intimacy that violates the sacredness of marriage between a man and a woman’ and attaches consequences to the failing to live by the covenant’s terms. The covenant is perceived as aiming primarily at lesbian, gay, transgender, bisexual, intersex and queer people. Many of those voting ‘yes’ today wore rainbows.

The central question for the Law Society is whether to approve a Law School that embraces, indeed requires, this discrimination.… Continue reading

Temporary Foreign Workers – Why Now?

Posted by on | Canada, economy, immigration, inequality, politics

I admit to being a bit surprised about how just how the temporary foreign worker program hit the front pages over recent weeks. For migration policy wonks, the myriad problems with temporary foreign worker programs are well known, and usually do not centre on putting citizen workers out of jobs.

I’ve been mulling it over and have come to the conclusion that the current uproar might even have been deliberately provoked to provide a politically palatable way to end to the most progressive aspect of the temporary foreign worker program.

Temporary foreign worker programs are not new. Canada has relied on temporary foreign workers off and on for much of the last century. Many other Western democracies have done the same.

The basic idea behind a temporary non-citizen worker program is to create a category of workers who have fewer rights than citizens or permanent residents. This framework ensures that the workers can be directed to particular employers or sectors, and can be compelled to leave when their work is finished.… Continue reading

Still Not Fixed

Posted by on | Canada, law, Supreme Court (Canada)

The crisis provoked by the Prime Minister’s malicious accusations about the Chief Justice has left the front pages. And while there has been some backtracking, the record has not been set straight. So I thought it would still be worth posting the link to this letter from leaders in Canada’s legal community. Take a look here.

There is almost nothing else to be said about this particular bit of craziness as an unusually high number of excellent articles about it have run in the mainstream press across the country, and in many other places besides. My point is simply not to let this become one more thing that we almost forget in the long string of reprehensible actions by this government.

The Prime Minister’s actions in this case demonstrate a basic disrespect for the rule of law, unprecedented in the long history of the relationship between the judiciary and the executive in this country.… Continue reading

Building More Poor Houses – The Truth of Sentencing

Posted by on | inequality, law, politics, Supreme Court (Canada)

The Supreme Court of Canada’s conclusion that the Truth in Sentencing Act is unconstitutional is challenging to explain. In part this is because of the rhetorical flourish of the legislation. Who can oppose Truth, especially with a capital T? But mainly it is because most of us know very little about our criminal justice system and about our prisons.

The Canadian Criminal Code is written, like much criminal law around the world, with a series of ‘theoretical maximum’ penalties. Parliament sets out what the maximum possible sentence can be. The courts then apply the law.

Applying the law can be complicated. Every crime is comprised of a particular kind of knowledge, specific actions, potential consequences. Evidence needs to be carefully weighed. Criminal conviction is the most serious penalty that our society condones. It can, and should, be complicated. It’s serious.

Sentencing is even more intricate. The judge considers the individual circumstances of the crime against the theoretical maximum of the Criminal Code.… Continue reading

Agenda Setting 101 (What, no Ministry of Truth?)

Posted by on | Canada, elections, law, politics, Uncategorized

One thing the current national government does very well is to occupy rhetorical terrain. I am thinking in particular of how the government deploys short form titles for its legislation. This week we are hearing a lot about the Truth in Sentencing Act. Last week it was Victims Bill of Rights Act. And for months now, the Fair Elections Act. In my little corner of the world, the latest legislation is called the Protecting Canada’s Immigration System Act, and before that, the Faster Removal of Foreign Criminals Act and the Balanced Refugee Reform Act.

There are days when I think what I most resent about this legislative agenda is that as a law teacher, I am required to stand up and say these things aloud.

What is more, even as Canadians engage in a public, private, Parliamentary, and scholarly debate about these laws, these short form titles get repeated over and over.… Continue reading

Justice Nadon, Canadian constitutionalism and cherry blossoms

Posted by on | law, Quebec, Supreme Court (Canada), Western Canada

There is more to the Supreme Court’s rejection of Justice Nadon than a crude politics. But the politics is so compelling, well nigh prurient, that it is tempting to overlook the legal arguments themselves, or to consider that this was a case with ‘no right answer’. This is absolutely not so.

Justice Nadon was appointed to the Supreme Court of Canada to one of the three places on that Court reserved for judges from Quebec. Prior to his appointment, he was a judge on the Federal Court of Appeal. Long ago, he practiced law in Quebec for many years. Knowing that questions about this appointment were brewing, the government sought to amend the key provisions of the Supreme Court Act using the omnibus budget legislation passed last fall.

After Toronto immigration lawyer Rocco Galati challenged Nadon’s appointment, the government stepped into the fray directly by asking the Supreme Court itself to use its ‘reference’ jurisdiction to answer two questions.… Continue reading

Non-citizens and the Charter of Rights and Freedoms

Posted by on | Canada, immigration, inequality, politics

Almost thirty years ago, when the Charter of Rights and Freedoms was brand new, the Supreme Court of Canada made two decisions that were vitally important for the rights of non-citizens in Canada.  Since that time, it has been all down hill.

What has gone wrong and why?  The beginning was promising.  In 1985, the Supreme Court ruled than anyone physically present in Canada was protected by the Charter.  This ruling was followed in 1989 with a decision that a lack of citizenship was analogous to the grounds of discrimination listed in the Charter and thus was a basis for equality protection.

My study published late in 2013 showed both that very few questions of non-citizens’ rights reach the Supreme Court of Canada, and that those that claims that do are frequently rejected by the Court.  The commitment of the Court to ensure that the Charter meets international human rights standards is not being met in this area.  … Continue reading