Courts for Protecting Rights or Declaring the US "Safe"?     July 2008 Click square for index   Whether the US is safe or not misses the point. Of course the US can be said to be safe as the Globle and Mail July 3 2008 editorial proclaims. Every country is safe for some people. The point is that the US can be seen to be unsafe for a few groups of people seeking refuge in Canada. Judge Evans as much as agrees in his short concurring decision to the ruling of the Federal Court of Appeal. The appeal ruling was on a court action begun by Amnesty, the Canadian Council for Refugees and the Canadian Council of Churches. The point of the action was to protect the human rights of some persons appearing before Canadian officials to ask for refuge. Their rights can foreseeably be put at risk by following the law and regulations relating to the US as Safe Third Country. It is the sign of a wider Canadian problem that the underlying concern about safeguarding people's rights gets lost in the administrative details. The Federal Court judge recognized rights were put at risk on account of the application of the law. Using the powers granted courts for such circumstances, he struck down the law to safeguard the rights. At the Federal Court of Appeal, the rights were simply set aside. The issue for the majority of two judges became whether the Canadian government had applied the right standards and test for making the determination set out in the law as to whether the US is safe or not. For the minority of one appeal court judge the issue was whether the initial Judge Phelan's decision was too sweeping, or whether the scope of this concern is big for courts to handle. Neither majority nor concurring minority decision focuses on the clear evidence that the rights of some groups of non-citizens seeking refuge before Canadian authorities are put at risk by the present application of the law. Ensuring the rights of everyone under Canada's jurisdiction in the particularities of the circumstances is an obligation Canada has accepted under international human rights treaties. Protecting the individual from the excesses of the authorities is a job for a court - it's the paramount job of a court. Canada put in place a Charter of Rights and Freedoms precisely to proclaim the importance of upholding rights and freedoms for everyone and precisely to give the courts the power to strike down offending legislation. In a manner true to the original intentions for the Charter, the trial judge recognized rights, found them to be put at risk and took the action open to him. In tune with the more recent higher court rulings relating to rights and non-citizens, the appeal court simply denied the existence of rights. Somehow along the way since it was prclaimed in 1982, the role of the Charter has been muted by nervous courts, unappealing human beings and media antagonism. Instead of giving effect to Canada's international treaty obligations, the Charter has become a discretionary filter of international treaty rights. Perhaps it's time to renew a committment to a Charter which unambiguously puts the human person first and aims to allow everyone to enjoy international treaty rights. At least there might then be some principled discussion about ensuring these people's rights rather than tedious discussion of whether or not the government was correct to deem the US "safe". A big newspaper has a big responsibility to make sure the public is given an accurate picture of the issues at stake. Here, the Globe seems to follow its past pattern of supporting particular laws rather then supporting the Charter,of supporting the authorities rather than the rights of the individuals before the authorIties, and of promoting government views rather than recalling the reservations of the UN High Commissioner for Refugees about this particular Safe Third Country law when it was debated. TOP   Click:

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