National Post Friday, December 31, 1999
After this summer’s flotilla of illegal Chinese migrants, and the revelation that Canada is a base camp for would-be international terrorists, many Canadians might think it’s time to replace Elinor Caplan as immigration minister. A tempting thought, no doubt, but a pointless one. Despite her title, Ms. Caplan no longer runs immigration laws.
Sure, Ms. Caplan’s approach to securing our borders is laughably lax. As David Harris, former chief of strategic planning at the Canadian Security Intelligence Service, told the U.S. Congress: “The largely untold truth is that Canada and terrorism do go together.” But that has little to do with Ms. Caplan. Frederick Gibson sets the immigration laws.
Federal Court Judge Gibson has just ruled that Canada has no right to deport violent foreign criminals quickly. Even if a crook is a foreign citizen, tried and convicted here, he says the Charter of Rights forbids a quick extradition.
The case before Mr. Gibson was that of Sunil Bhagwandass, a 22-year-old convicted drug trafficker, thief and break-and-enter artist. Two years ago, a Calgary court convicted him of robbing a youth at knifepoint in his own bedroom, to pay off his drug debts. Calgary’s police, tired of fighting Bhagwandass’ one-man crime wave, wanted to send him back to Guyana, where he is a citizen. Immigration officials deemed him to be “dangerous” and an expedited deportation was ordered.
Not so fast, said Mr. Gibson. Bhagwandass, he ruled, “can perhaps appropriately be described as a product of his environment in Canada.” Hence, a speedy deportation would be a “breach of the duty of fairness” that Canada owes him. After all, deportation “affects in a fundamental manner the future of an individual’s life.” And with that flourish of masochistic logic, Mr. Gibson struck down the law permitting dangerous foreign criminals from being speedily deported. All this as the U.S. beefs up its border guard against Canadian-based criminals.
Not even Ms. Caplan can match Mr. Gibson’s extravagant compassion. Her department has occasionally used the struck-down legal provisions to deport foreign criminals — though not nearly often enough. But for Canada’s anti-terrorism and anti-crime fighting strategy to be undermined by a single, unelected, unaccountable judge is beyond comprehension in a democracy.
Most times, when a judge engages in judicial activism, lives are not in danger, just common sense and democratic accountability. Mr. Gibson’s ruling errs against those desiderata too, but it adds to them an attack on public safety not seen since the Supreme Court’s disastrous Askov ruling, which set thousands of accused criminals free overnight.
Mr. Gibson’s decision goes beyond the hubris that so often characterizes the Canadian judiciary. It is nothing less than a judicial coup d’etat, as embarrassing internationally as it is dangerous domestically. And it is fatuously reasoned. It must be appealed — quickly.