Frontier Justice

by Andy Lamey

  Singh may be even more transplantable than most Canadian Supreme Court decisions. This is because of the unusual role two influential traditions of law played in the court’s thinking. This aspect of the litigation began eight months after Jackman’s court appearance, when the justices sent her and the other lawyers a strange message. Could they all submit new briefs that re-argued the main issues, not in regard to the Charter of Rights and Freedoms, but in reference to Canada’s confusingly similar Bill of Rights? (“That surprised me,” Jackman recalls. “That was very unusual, for the court to come back with an entirely new argument that had never been raised.”)

  The Canadian Bill of Rights was a legacy of former prime minister John Diefenbaker. He had become a civil libertarian during the 1940s, when the revelation of a Soviet spy ring caused the Canadian government to employ secret interrogations and other draconian measures against espionage suspects. Diefenbaker said that his Bill of Rights, introduced in 1960, was designed to “curb the human tendencies of national governments to take shortcuts in ruling the people.”

  Diefenbaker has come to occupy a place in the Canadian imagination very different from that of Pierre Trudeau, who introduced Canada’s Charter of Rights and Freedoms. Trudeau is remembered in legendary terms, the leader who arrived in office on a wave of Trudeaumania and vanquished Quebec separatists in a referendum. Diefenbaker, by contrast, is most famous for presiding over a badly divided Conservative Party and for cancelling production of a popular airplane, the Avro Arrow. Among Canadian prime ministers, Diefenbaker is a Rodney Dangerfield figure, one who never gets any respect (even if, in fairness, Diefenbaker was the name of the wolf-dog on Due South).

  What is true of Trudeau and Diefenbaker the individuals is also true of the rights instruments they left behind. While every Canadian schoolchild is now familiar with Trudeau’s Charter, the introduction of which is seen as a historic turning point, Diefenbaker’s Bill is forgotten. In terms of understanding Singh’s international relevance, this is unfortunate, as Trudeau’s Charter and Diefenbaker’s Bill represent two distinct traditions of law, both of which influenced Singh and both of which remain influential abroad.

  Trudeau’s vision was in keeping with the liberal tradition, stretching back to the American and French revolutions, which sought to entrench rights at the constitutional level. In this view, fundamental freedoms need to be placed beyond the easy reach of elected politicians, who will often be tempted to curtail rights, particularly during times of crisis. Outlining a set of rights in the constitution is thus a way of giving courts the power to enforce and uphold rights when politicians will not.

  Diefenbaker, by contrast, had no truck with constitutional rights. His view was similar to one still popular in the United Kingdom and Australia, both of which lack a constitutional rights instrument at the national level (even though the U.K. is now a signatory to the European human rights charter). As Diefenbaker’s view is summarized by his biographer, Denis Smith, “rights were only what parliament declared them to be … He genuinely rejected the belief that they should exist beyond parliament’s power.” Diefenbaker’s Bill, therefore, was simply a normal piece of legislation, one that outlined the rights that in Canada “have existed and shall continue to exist,” as the Bill’s preamble put it. Not only could Parliament get rid of the entire Bill of Rights by simple majority vote, but the Bill also came with a giant loophole: lawmakers could disregard any right contained in it so long as they announced that they intended to do so.

  Diefenbaker’s critics pointed out, with some justice, that such allowances made his Bill less a binding legal document than a list of toothless suggestions, or what one critic dismissed as “a timid and tepid affirmation of a political and social tradition.” But Diefenbaker always maintained that requiring Parliament to publicly declare when it was violating a right had value in itself. No longer could the government override rights through the use of little-noticed administrative decrees, which it had done during the war. Now Parliament would have to take responsibility in the full glare of public debate.

  Singh is unusual in that it draws on both the liberal (via Trudeau) and the democratic (via Diefenbaker) conceptions of rights. In the first half of the decision, three of the justices evaluate Canada’s asylum procedures by the standards set out in Trudeau’s Charter. They conclude that the old paper-based system failed to live up to standards of fairness the Charter sets out. The second half of the decision represents the view of three other justices; they do not say anything about the Charter, but instead note that Canada continues to have a Bill of Rights, which still deserves to be taken seriously in the Charter age.

  Today Singh is remembered as a Charter decision. It is not hard to see why. Diefenbaker’s Bill had little influence before the Charter was introduced, and it is unlikely the case would have gone the same way had the Charter not existed. As McGill University law professor Julius Grey put it, the 1982 adoption of the Charter created a “new atmosphere favorable to the protection of basic rights.” Without the revolution in thinking caused by Trudeau’s Charter, Diefenbaker’s Bill would never have been taken seriously enough to strike down Canada’s old asylum laws. In this and other ways there is simply no comparing the liberal and democratic traditions of rights. To be serious about rights is to side with Trudeau against Diefenbaker, and place at least some rights beyond the everyday reach of elected politicians. This is why the great majority of industrialized democracies now enshrine rights at the constitutional level.

  The role the democratic tradition of rights played in Singh is nonetheless significant. The Diefenbaker justices mounted a plausible challenge to Canada’s Kafkaesque asylum system, pointing out that it was in violation of even the minimal safeguards of the Bill of Rights. Insofar as the Diefenbaker approach to rights is still influential internationally, Singh’s relevance applies even to countries that do not have charters of rights or written constitutions. Those countries include Australia, the U.K. and Israel, all of which commit ongoing injustices in their treatment of asylum-seekers. Against such a backdrop, it is worth stressing that the Singh decision is as compatible with the broad legal philosophy of these societies as it is with that of France, the United States or even Canada itself. Singh should serve as an inspiration for rights advocates in countries that have constitutional rights instruments as well as those that do not. Its relevance is truly global.

  Arendt framed her argument in terms of what was and was not historically possible when it came to upholding human rights. As we’ve seen, the treatment refugees continue to receive around the world is often at odds with respecting those rights. For both these reasons, Canada’s precedent is worth stressing. It shows that our civilization can do better than Arendt thought, and far better than is currently the norm.

  This is the first lesson of Singh. But in addition to showing how universal human rights can be enforced, Singh is instructive in two additional ways. A second lesson concerns how rights are given force. Crucially, this is not something that depends on governments alone. Rather, Singh confirms the importance of background cultural attitudes and the role of non-governmental organizations. Both have a key role to play in making sure the rights of human beings seeking asylum are respected. Singh’s third and final lesson, by contrast, concerns the particular role of states, where the ultimate responsibility for enforcing rights lies. The Singh decision’s breakthrough conception of rights provides a template for the enforcement of other rights for refugees, beyond that involving an oral hearing.

  The importance of cultural attitudes in making rights a reality can be seen by recalling Arendt’s experience as a refugee. When refugees of her generation poured into France, background attitudes about belonging and citizenship strongly influenced their reception. This remains true today, most obviously in descent-based societies, which accept fewer refugees than countries of immigration. In Canada’s case, by the time Singh was decided, it had long embraced a different model of belonging, one that stressed the impor
tance of multiculturalism. Not only was Canada where the term multiculturalism was coined, in a 1965 government report, but in 1971 multiculturalism became an official government policy.

  What is important in understanding Singh is less the federal policy than the underlying attitude toward difference, what might be termed “unofficial multiculturalism,” that made such a policy possible. Canada shares with other former settler societies such as Australia and the United States a self-understanding as a country of migration. This attitude is one that has long seen the arrival of British and European immigrants as a positive development. Unofficial multiculturalism extends the same thinking to include non-European immigrants, and embraces cultural pluralism as a fundamental social good. Such an attitude, which is increasingly common internationally, had already become prominent in Canada by the time Singh was decided, in a way that it is still not widely accepted in descent-based societies. The view of cultural difference as something not merely to be tolerated, but valued, has something to do with why Singh happened in the time and place that it did. We can grasp that indirect but nonetheless important influence of a pro-multiculturalism attitude by imagining a refugee lawsuit being brought forward by members of a foreign cultural minority in Japan, only to be rejected long before ever reaching the supreme court.

  In addition to multiculturalism, Singh also confirms the importance of non-governmental organizations. Barbara Jackman was the attorney not for any of the asylum-seekers, who had their own lawyers, but for two intervenors that took an interest in the case, the Canadian Council of Churches and the Canadian Sikh Federation. Jackman’s arguments, which were different from those of the other legal team, influenced the court’s decision. Had the two religious groups not intervened, the case may well have had a different outcome. A key right was thus recognized, not due to a government or an NGO acting in isolation, but to the two rights-defining entities engaging in dialogue with one another. The power of NGOs in this regard is worth noting, given how few rights refugees enjoy around the world. Governments may not always listen to NGOs, but when they do the outcome can be a powerful form of progress.

  If Singh highlights how rights for refugees can be possible, and how multiculturalism and NGOs can advance those rights, its third and final lesson is more forward-looking. There is a difference between asylum-seekers being able to exercise some rights, however minimal, and being able to exercise a fully adequate set of rights. As we have seen, governments exhibit much cunning in their treatment of refugees. In a truly just world, or at least one more just than ours, asylum-seekers would possess constitutional rights beyond that to an oral hearing. The question is, what particular rights would those be?

  Here Singh helps us to better grasp how human rights can be enforced without being pitted against national sovereignty. As Giorgio Agamben and other critics of human rights have pointed out, whether someone’s rights are respected has long been determined in part by a person’s territorial location. We have seen that one of the most difficult places to enforce human rights today is on the ocean, beyond the borders of any state. Similarly, when Germany tried to extend rights to refugees, that took the form of a right to asylum within Germany. The Singh decision did not eliminate the connection between rights and territory, as someone has to be physically present in Canada before their right to an oral hearing is recognized. Nevertheless, the right in question is one that could potentially be exercised anywhere. And separating the place of recognition from the place of potential enforcement may be Singh’s greatest breakthrough of all.

  Barbara Jackman brought this point home during the trial by drawing a handwritten chart to explain to the justices what was involved in the oral hearing process. It made clear that a right to an oral hearing would not prevent Canada from controlling its borders. As Jackman puts it, her chart showed how someone “could in fact be removed even if the person was recognized as a convention refugee. All it was, was a recognition that the person might be persecuted in their home country: it wasn’t a guarantee that Canada would have to keep the person in Canada.”

  Singh says nothing about someone found to be a refugee having to stay in Canada. Rather, it says that people who make an asylum claim are entitled to an oral hearing, a procedure that does not necessarily have to be performed inside Canada. If Canada were to turn refugees away at the Canada-U.S. border, for example, and have them file their refugee claims in the United States instead, such a policy would be perfectly legal so long as the U.S. asylum application involved an oral hearing. Indeed, Canada and the United States implemented precisely such a policy in 2004. As we will see, the policy has hideous flaws, but the point to note here is that removing someone from Canada is in principle compatible with Singh, because the right to an oral hearing Singh upholds is “portable” in a way the right to asylum is not. And once we realize that a right can be portable, it should cause us to ask whether there are other rights that asylum-seekers should have enforced on their behalf, rights that can also be exercised beyond the borders of any particular state.

  I believe justice for asylum-seekers entails recognizing at least two additional constitutional rights beyond that involving an oral hearing. The first is the right of all asylum-seekers to be represented at their asylum hearing by legal counsel. Today no one would deny that a person who cannot afford a lawyer is entitled to have one appointed for him even in cases where his life is not on the line. Given that a wrong asylum decision can potentially result in a refugee being returned to danger, the same principle should apply to people seeking refuge.

  The second additional right is not to be subject to arbitrary detention. The mass detention of asylum-seekers as was practised in Australia until recently treats refugees like criminals. Immigration officers at ports of entry should have the power to detain individuals they consider suspicious, but long-term detention without a trial is even more wrong in the case of asylum-seekers than it is in the case of suspected criminal citizens. Anyone held for more than two or three days should be entitled to some form of judicial review, to ensure that there is a legitimate reason for the continued confinement.

  That Singh says nothing about a right to legal aid or judicial review is testament to the fact that, well made as the decision was, the protection it offers refugees is ultimately limited. If the right Singh upheld is a breakthrough when viewed against the backdrop of historical reality, when judged by the standards of ideal justice that same right is laughably inadequate. Nevertheless, Singh provides a model of how additional rights might someday be enforced. Crucially, as with the right to an oral hearing, neither of the two rights just mentioned would have to take place in any particular territory. In that sense they both follow the underlying logic of Singh. And it is in its underlying logic, one that conceives of human rights as portable and procedural, that Singh’s ultimate significance may be found. Where Arendt began with history and soared into philosophy to argue that human rights are impossible, Singh allows the defender of human rights to reply at both levels, an existing framework of asylum-seekers’ rights serving as a template for what a more fully adequate model of rights will someday look like.

  We can call the Singh-plus model of refugee rights the portable-procedural approach. To see its advantages, it is helpful to imagine different approaches to asylum inside a scalene triangle, which has sides of three different lengths and angles of three different degrees. In the narrowest angle of the triangle, where there is the least room for human rights to be exercised, are clustered the asylum systems of most Western countries. Here people seeking asylum have no constitutional rights of any kind. In the second angle is a German-style right to asylum, where rights have slightly more room to operate, at least in theory. In the third corner, one with the most expansive room for rights to be exercised, is the portable-procedural model, one that includes a right to legal aid and judicial review alongside the right to an oral hearing. The great value of a portable-procedural approach is not that it would be perfect or flawless—it is not—but t
hat it would have fewer shortcomings than either of the alternatives our civilization has yet produced.

  The advantage of a portable-procedural, or Singh-plus, model over most existing systems is that it would enforce human rights at a constitutional level. One of the major problems with most asylum systems that currently exist is that they place few if any limits on the policies politicians can introduce. This was noted by former British cabinet minister Richard Crossman when, looking back on a package of British immigration reforms of the 1960s, he observed that they contained “plans for legislation which we realized would have been declared unconstitutional in any country with a written constitution and a Supreme Court.”

  Crossman’s observation helps explain not only Britain’s experience but also Australia’s. Because both countries lack a charter of rights, politicians as less likely to face serious court challenges, and so have enormous latitude in how they treat refugees. Such an arrangement, however, is the exception, as most countries today regard some rights as so fundamental that they inscribe them in a constitution, a step that makes it maximally difficult for politicians to tamper with those rights. Yet the international norm is still for most countries’ charters of rights to protect the rights of citizens with greater force than those of non-citizens. A portable-procedural model of rights would be a step forward because it would enforce three crucial rights of asylum-seekers in the same powerful way.

  To see how important those rights are, consider the current situation in the United States. As in most Western countries, it is taken for granted that the right to a fair trial is a crucial legal safeguard, so crucial that someone who cannot afford a lawyer will have one provided to him or her. This is the case even when the person is accused of a misdemeanour that involves a relatively short prison sentence. But people making refugee claims do not enjoy the same right to legal aid. American lawyers often take on asylum cases on a pro bono basis, but inevitably, many cases are heard without legal advice. This has an impact on which claims are successful. A 1987 U.S. government report found that asylum claimants without legal representation had a 16 percent success rate compared with 36 percent for those with lawyers. More recently, refugee advocates have suggested that U.S. claimants in general are four to six times more likely to be accepted if they are represented by a lawyer. Surely this arrangement is upside down. Compared to people accused of a misdemeanour, the stakes for people seeking asylum are far higher. In their case, a wrong decision could potentially see them returned to a country where their lives are in danger. Yet the legal rights they enjoy are fewer than those of someone accused of a crime.