THE HARPER-CHIEF JUSTICE CONTROVERSY IN CANADA

By Dr. Munyonzwe Hamalengwa
Barrister and Solicitor

Tuesday, September 8, 2014

Apart from former Prime Minister Joe Clark’s commentary on the recent hostile attitude of Prime Minister Stephen Harper towards the Chief Justice of Canada, Beverly McLaughlin, most pundits have largely missed Prime Minister Harper’s historical pedigree relating to the judiciary. From his days as the head of the extreme right’s National Citizens’ Coalition (NCC), Harper has always displayed the attitude that the judiciary is obstructionist towards democratic politics. One needs only to examine the massive litigation file of the NCC to detect Harper’s thinking. The NCC battled the Charter to no end. Harper’s thinking was not a lonely call in the wilderness. It was like the thinking of quite a number of both prominent conservative and leftist politicians and academics which is that the judiciary should play no role at all in the politics of Canada, except perhaps to just rubber-stamp after the fact, political decisions, despite the fact that it is parliament that gave the judiciary the tools and the jurisdiction to contend with democratic politics, through for example the Charter of Rights and Freedoms. These pundits forget that law is nothing but codified politics, law is birthed through politics. Judges interpret a political creature and therefore are directly or indirectly involved in political combat in the courtrooms. This other debate is for another day.

It is not surprising that when Harper lost a few significant decisions in the Supreme Court Canada, including having his nominee for the vacant post in that institution rejected, his historical attitude towards the judicial institution exploded to the fore. But that attitude has always been there. Harper insinuated that the Chief Justice wanted to meddle in the politics of judicial appointments. Harper and his disciplines implied that the Chief Justice’s conduct was unbecoming. The shock was that the Prime Minister of the country could cast aspersions on the Chief Justice of the country, with the potential of bringing disrepute or ill-repute to that institution. This would not bode well for the administration of justice in Canada.

Harper however, has also displayed a more menacing and contradictory character as Prime Minister in the history of Canada. From being an advocate of reasonable democracy before he became Prime Minister to being an extreme anti- democratic element as Prime Minister. Harper prorogued parliament to avoid possible non-confidence votes more than any Prime Minister in Canadian history. He did this to avoid defeat. Harper promised to disband the undermocratic senate democratically. But he did not do this. Harper has also perhaps referred more cases to the Supreme Court on reference for decisions than any other Prime Minister, the very institution that he held, was anti-democracy. Thus instead of democratic governance which he had been advocating before he became Prime Minister, Harper abdicated his responsibility to supposedly an undemocratic institution, the judiciary. One should read the NCC’s court submissions against the judiciary to fully understand the contradictory character Harper became as Prime Minister. Harper became a fan of quick fixes. Democratic governance was seen as inconvenient by Harper.

However, when these quick fixes were not in his favor, he lashed out at the Chief Justice, the last salvo involving the derailment of the Nadon appointment to the Supreme Court of Canada. Harper had advocated for public hearings of judicial nominees before appointment, a position he abandoned once he became Prime Minister. He made the process of judicial appointment more political than before. If he cannot recruit the judiciary to his thinking, he will attach them openly, as he used to do as head of NCC. Haper’s ministers have also attacked the judiciary than any other government in Canadian history. One only needs to refer to the numerous ministerial comments when the judiciary ruled against gun-related crimes and mandatory minimum sentences as well as the judiciary’s insistence on preserving the discretionary powers that it has held historically in relation to sentencing.

The only remedy Harper now has is to stack the Courts with like-minded judicial insurgents. As pointed out above Harper had promised transparency in the appointment process of the judiciary. Even that promise had not been fulfilled. The public however, is now more alert to that process because of Harper’s attach on the Chief Justice, than at any other time in Canadian history. Whatever is hidden always comes to light as Harper is quickly learning.

Dr, Munyonzwe Hamalengwa is the author of The Politics of Judicial Diversity and Transformation. He practices law in Toronto.

THE SPECIAL INVESTIGATIONS UNIT (SIU): MUCH ADO ABOUT NOTHING

By Dr. Munyonzwe Hamalengwa
Barrister and Solicitor

Sunday, August 24th, 2014.

When the Black Action Defense Committee, among other influences, engineered the creation of the Special investigations Unit (SIU), they envisaged a body that would have teeth to ensure that police conduct was accountable and transparent. They didn’t intend to create a body that would be held captive to police interests. Even its composition was envisaged to be truly diverse and divorced from the very body whose activities it was intended to investigate.

The SIU gets involved when the police activities involve injury, death or criminality, especially sexual assault by the police.

In this article, I talk about much ado about nothing in respect of the SIU. This article does not suggest that the SIU should be abolished. It suggests that it must be reformed to compote with the trajectory that its main proponents including Dudley Laws, Charles Roach and others, propagated.

However, the way the police establishment fear and talk about SIU you would think that this institution has completely annihilated police investigative powers and modus operandis. You would mistake the SIU for an effective and independent institution. Nothing is further from the truth. For starters, the SIU has always been headed by a former or current prosecutor from the crown law office or Police force or the Military. The head has always been a white male. The majority of the investigators are former white police officers or related law enforcement agencies. The culture is almost predictable. The make-up from Director to the investigator on the beat ensures that someone already predisposed to police and prosecutorial mentality heads and composes this institution thereby irrevocably retaining systemic pro- police and pro- prosecution biases.
Ask yourself this question: why hasn’t any government chosen a truly independent person from the Academy, Legal Aid clinics, community organizations, government ministries, even a former judge (not pro-police judge) etc., someone who had no previous experience with law enforcement,(but trained in the law) to head the SIU? The answer to that question would free you from any doubts about my analysis here.

Andre Marin, the current Ombudsman (2014) who was the Director of the SIU earlier in its life recently catalogued the impotence of the SIU. Despite that powerful report, no reforms have been initiated to improve the SIU’s inertia and pro-police biases. Laurie Goldstein, the conservative Editor of the main stream Toronto Sun newspaper has catalogued the impotence of the SIU in his column December of 5th, 1999. His analysis is as correct 15 years later in 2014. The SIU is much ado about nothing. Goldstein says that “even at its worst, the SIU could hardly be said to have been conducting witch-hunts”. The number of charges laid by the SIU are so dismal they speak for themselves. “In 1990-91, out of 96 SIU investigations of police actions – everything from firearms deaths to alleged sexual assaults – the SIU laid charges in only 12 cases. In1992, it laid charges in only 10 out of 164”, Goldstein continues. It gets worse. “In 1993, charges were laid in two cases out of 201; in 1994, three out of 232; in 1995 two out of 150; in 1998, two out of 168; in 1999 as of December 1999; two out of 163. As can be seen, in most cases, the SIU clears police.”

From 2000 up to the present, the picture has gotten worse. In some years there have been no charges despite increasing police misconduct against civilians. Most years have seen at most one or very few charges.
Goldstein was troubled by the “continuing virulence is some police quarters against SIU”. I am also troubled. I am much more troubled by the Toronto Sun’s vehement blind support of the police despite its virulent attacks on the impotent SIU. Why does the Sun also attack Police critics? On the SIU’s own record, is this an institution that any one must fear?
Worse still, despite the dismal number of charges against the police by the SIU, there have hardly been any convictions. In fact, there have been no convictions at all. The SIU is doubly impotent: fewer charges and no convictions. Yet it gets attacked by the police. The reason? The SIU may one day make a mistake and lay a charge that may lead to a conviction. This scares the police. They better demobilize the SIU before this happens. The police want terra nullius (empty territory) space as it were, on which to roam like the old wild wild west. Lawlessness breeds lawlessness. In the United States, whenever local police forces are judged to have failed the civil rights test of action, accountability and transparency, the Federal Government could swing into action to vindicate the victim’s civil rights. In Canada, the word civil rights does not even exist and the Federal Government is busy criminalizing the nation including the victims.

Dr. Munyonzwe Hamalengwa practices criminal law and civil class action law suits against police misconduct including racial profiling.

His email address is mhamalengwa@sympatico.ca; website: www.hamalengwa.ca

TAXATION AND ORGANIZED STATE CRIMINALITY; THE CASE OF ZAMBIA

By Dr. Munyonzwe Hamalengwa
Barrister and Solicitor

Wednesday, September 10th, 2014

Fred M’mebe, the Publisher of The Post newspaper of Zambia is accused of having committed the crime of wilfully and deliberately not meeting tax liabilities since 2011 when the Patriotic Front (PF) government came to power in Zambia. The tax liability has been reported by the newspapers as of September 1st, 2014 to be K8 Billion (rebased currency).
This submission is not a defence of Mr. Fred M’membe’s alleged non-payment of the alleged tax liability. This submission argues that if what is reported by Mr. Julius Komaki, a PF official, echoed in by the Daily Nation, the Zambia Reports ; the ZambiaWatchDog; Ms. Pamela Chisanga Director of ActionAid Zambia and former Ambassador Joe Mwale is true, then Zambia is an organized criminal state. It basically means that the President of Zambia, His Excellency Mr. Michael Chilufya Sata, former Justice Minister Wynter Kabimba, current Justice Minister Edgar Lungu, the Minister of Finance Mr. Alexander Chikwanda, the Director of Public Prosecutions, Mr. Mutembo Nchito, the head of the Anti-Corruption Commission (ACC); the head of the Zambia Revenue Agency (ZRA); the Inspector General of Police and others along with Mr. M’membe are part of an organized criminal gang. If mr. M’membe is to be charged and prosecuted, all the above personalities and entities must also be prosecuted without exception.

In law the charge would consist of the following criminal charges or elements of the crimes: conspiracy in committing and to commit the crime of deliberate and willful defrauding of the Zambian people of incurred tax revenues; aiding and abetting Mr. Fred M’menbe in not paying incurred income tax liabilities; accessory after the fact to the commission of the crime of deliberate and willful failure to pay incurred tax liabilities; conspiracy to engage and in engaging in organized corruption for the purpose of deliberate and willful non-compliance with incurred tax liability; crime of negligence to enforce the law requiring criminal prosecution of law-breakers; political corruption and other analogous crimes. A massive civil suit for civil conspiracy; economic harm to the nation; negligence; malicious intent not to pay tax liabilies and other analogous torts could be mounted against the culprits.

The evidence is the following as reported by some of the individuals and media that have been vexed by the failure of Mr. M’membe to pay income tax liabilities. This implicates first of all the President of Zambia. Exhibit A is a certificate seemingly from ZRA posted by the Daily Nation showing the Post’s tax liabilities of billions of Kwacha from 2011 when the PF came to power to the present. Exhibit B is a statement from Mr. Julius Komaki, the PF member where he stated as published by the Lusaka Times of September 9th, 2014 : “ We have always known that the post newspaper have been avoiding to pay tax since we formed government. We have all the information about their deliberate failure to meet their tax obligations to a number of statutory bodies. We have information that indicate that the Post Newspapers is owing ZRA more than K8 Billion and that is a lot of money that can do many things to the economy of our country. We now want ZRA to vigorously pursue the Post Newspaper so that they can pay so that the money can get into government coffers. They have been claiming that they have not benefitted anything from the PF government and President Sata when there have been lapses in paying tax”.
Mr. Komaki would be a live witness to tell the court what and when the PF government knew about the criminality of non-compliance with tax liabilities on the part of the Post and Mr. M’membe. With this knowledge, why did the PF not report this to the DPP and the ACC? For Komaki is quoted as stating that “it is a crime for a taxpayer not to be compliant” and that “the Post is holding on to government money and that is tantamount to looting…”. Since the PF government had always known, why was nothing done? Why now?

The Lusaka Times insinuates based on the interview with Mr. Komaki that there seems to have been a quid pro quo with the future and now President of Zambia His excellency Mr. Sata for the Post not to pay tax in exchange for supporting Sata that led to his victory over His Excellency President Rupiah Bwezani Banda in 2011. The Lusaka Times states and this would be exhibit C and the Editor would take the stand to amplify this statement”: “The Newspaper apparently stopped meeting its tax obligations soon after the PF formed government in 2011 and Julius Komaki says the newspaper had been singing praises for President Michael Sata even when they did not believe in his vision because the owner of the newspaper, Fred M’membe was seeking favours from the Head of State”. Presumably these favours included not paying taxes in exchange for the newspaper’s support. Mr. Komaki and the Editor of the Daily Nation would be able to clarify what they meant by and what they knew about these favours. President Michael Sata would take the stand in court and state exactly what favours if any were exchanged and whether they included non-compliance with tax obligations.

President Sata would have a lot to explain to the court: why did the government of Zambia not do anything about this alleged non-compliance from 2011 to the present? Did the ZRA, DPP, the Zambia Police (ZP) and ACC know about this? If not why not? If they knew why didn’t they prosecute? Why did they instead prosecute poor COMESSA traders and other weak individuals? Who else benefits from non-compliance with tax obligations? Mr. Nchito and the heads of other institutions would take the stand to explain. The prosecutor would be an independent lawyer from outside the DPP’s office or the ministry of justice because these two institutions would be implicated in the case and one cannot prosecute his or her own case.
Ms. Chisanga of ActionAid would take the stand and show her concerns about this massive non-compliance in tax liabilities. “I am passionate about [tax non-compliance] because tax pays for education, health, water and all other social services…” she told the Lusaka Times. She had other serious concerns which Mr. Komaki, the Minister of Finance and ZRA would have to answer on the stand in court.: “There are a lot of things wrong with all this [Mr. Fred M’membe and the Post not paying taxes and not being investigated and prosecuted]. Firstly I wonder where Komaki, a PF cadre got this information? Why didn’t the Ministry of Finance say anything on this? Why has ZRA been chasing traders at COMESA and leaving out others like the Post in this case”.

Could it be plausible that the President of Zambia who is consulted and informed about everything in Zambia not know about the tax matters involving the Post and Mr. M’membe? Was there a quid pro quo. Inferentially and circumstantially so if we go by Mr. Komaki’s and Mwale as weel as the Daily Nation’s insinuations. What does common sense dictate? Common sense is not buried in the toilet. It is with us throughout our wake moments. Did the ZRA know? Did ACC know? Did the Police Know? Did the DPP know? Did the Minister of Finance know? Were they consulted at all along the way by anybody not do anything?
Exhibit D would be the blunt statement of Ambassador Joe Mwale as quoted by the Daily Nation of September 10th, 2014 and who would also testify as to his source of knowledge: “You cannot have people not paying tax because that is the only way government earns money. We have always known that the Post Newspaper was a lawbreaker and successive governments had tolerated them. We are demanding that government through ZRA must immediately and vigorously pursue the Post they are nothing but shameless lawbreakers. They have abused the relationships they had with President Sata and his government and they believed they could commit crimes and get away with it. Time is now for them to atone to their economic and political transgressions”. Such admissions by a government official that the government of Zambia ignored the serial commission of alleged criminal offences by anybody because of a special relationship with the President of Zambia is a dream handed to a defence attorney on a silver platter for effective cross-examination of that government official and the President of Zambia on the road to the acquittal of the accused person or business entity.

Only M’membe would come out unharmed if there was a prosecution of all the individuals and institutions mentioned above. There are two elements in a tax criminal case: was this tax evasion or tax avoidance? Tax evasion is a criminal offence. Tax avoidance is not a criminal offence. Tax evasion is when a person or business hides its revenue so that it does not pay tax and the tax authorities are in the dark about the person or business’s income. The person or business would later be discovered to have hidden their income in order not to pay income tax. They had the mens rea or intent to deliberately not pay income tax and committed the actus reus or act of not paying On the other hand, if a person or business makes arrangements with the authorities not to pay tax and the authorities know clearly that the person or business is not paying tax as a result of that arrangement, and they do nothing about it, it is not tax evasion, it is tax avoidance and is legal in many jurisdictions including Zambia. Tax evasion is by stealth while tax avoidance is by arrangement and the authorities know about it. These concepts are elementary in Tax Law and Litigation. Foreign companies, especially mining, don’t pay tax by government arrangement. Is criminality ever applied to such an arrangement? Tax Avoidance is the norm in the mining sector involving foreign entities. Reports accumulate every day about the millions of un taxed profits made by these corporations. They are never prosecuted. Heart-breaking as this latter concept [ Tax Avoidance] is, it is the legal reality. Tax avoidance is not a crime since it is engaged in with government authorities’ approval. It is not criminal tax evasion. The person or business should be able to be acquitted if investigated, charged and tried as long as the person or business introduces evidence that they approached or were approached by the President of Zambia or other authorities and in a quid pro quo arrangement, he or the business were not to pay tax and that that arrangement was known by the ZRA, ACC, DPP, Minister of Finance, Minister of Justice, the Police and that these individuals and government departments did not investigate him or the business until they fell out of favour with the government. When they say that the law is an “ass”, this is what they meant. Law pretends to be very sensible and reasonable, but it is not. Law is also to be distinguished from the concept of justice. They are not equivalent.

What happened here could be taken out of the criminal field and applied to the civil context. Much more important is that the issue at hand could be taken into the realm of political accountability and governance and the perpetrators of organized state criminality should meet their fate at the alter of the ballot box. Or by impeachment. Organized state criminality should be an impeachable offence.

M’membe would take the stand and answer the questions put to him: Is it true that you owe K8 billion in unpaid tax? How did it come to pass that you did not pay tax since 2011? Did you enter into a quid pro quo with President Sata and other government authorities not to pay tax? Do you have any documents to show how if any arrangements were entered into. Have you been investigated by the ZRA, ACC, DPP, Ministry of Finance , the Police or others in matters of tax non-compliance?

The trial of Fred M’membe for tax non-compliance would be the trial to end all trials because the state organized criminality would be on trial rather than Fred M’membe. The state does not criminally charge a person or business who will turn the tables against them, bring the state into open disrepute leading to the loss of an election. But then again, there are some states that are known to commit political suicide. How do the President, the ZRA, ACC, DPP, the Police, the Minister of Justice and the Minister of Finance defend the charge of organized state criminality under the circumstances of this case assuming as a fact that Fred M’membe’s Post has not paid income tax since 2011 when President Sata came to power and Komaki along with Mwale have said that the Government had always known about this fact? Fred M’membe will not be prosecuted because prosecuting him will involve the prosecution of the state of Zambia. Zambia is also the Metropolitan Capital City in the world of Nolle Prosequi. Check mate.

Dr. Munyonzwe Hamalengwa practices law in Toronto, Ontario, Canada.
His PhD Dissertation in law was on international individual and corporate criminal responsibility.
He is the recent author of The Politics of Judicial Diversity and Transformation.

The Lawyers Weekly
Vol. 21, No. 47
April 19, 2002

There has been of late much reporting about a loss of civility among lawyers in Canada. There is not much said about whether this condition has any redeeming qualities at all.

Because nothing is said about what civility used to feel and look like in the past, new-age lawyers are not enlightened as to what civility is all about.

How can we recapture that illusive creature? Do we need it under present conditions? Do we need a new civility rather than harking back to the old and now unknowable civility? Who is being protected from the alleged new incivility? Who is to benefit from the new civility?

It is my thesis that the perceived incivility among lawyers is a result of the changing composition of the legal profession specifically and the broader shifting legal, political, economic, cultural and social dynamics in general - that this new incivility is actually positive, must be welcomed and properly harnessed, rather than suppressed. The attempt to brand all perceived and actual incivility as negative must be resisted at all costs.

Incivility is seen as a condition occurring only in the legal profession, particularly among lawyers. This is not the case. It cuts across all professions and walks of life. It is also a worldwide phenomenon.

Have you watched parliamentary debates in the House of Commons amongst our esteemed governors lately? Or the noise emanating from the council chambers at City Hall and Queen's Park? If there is collapse in civility there, do we expect the other professions to be any different?

Do you remember the slugfest that took place in early 2000 between an Alberta trial Judge and a judge of the Supreme Court of Canada?

The trial judge felt that the decision written by one Supreme Court justice, in which others concurred, libelled him. He wrote letters to the papers in which he poured uncivil venom on the culprit Supreme Court justice. As you recall, all hell broke loose. Incivility was clearly evident within the judiciary. Lawyers learn from their leaders and superiors.

And have you read the dissenting opinions of the Supreme Court of the U.S. in Bush v. Gore, where the majority of that court gave the presidency after the 2000 elections to George W. Bush?

Talk about incivility among the judiciary sinking to the lowest level! Those judges literally accused each other of intellectual dwarfism. And I cherished it.

With that incivility in the so-called most powerful court in the world and whose decisions are read worldwide, what do you expect from the legal professions and others everywhere? Incivility.

You cannot expect the same so-called civility of old when the legal profession has changed in so many ways. No longer is the profession the preserve of the white male. Female judges, lawyers and professors are everywhere. Old-boy networks are on the run for their money. There are a sprinkling of minority judges and lawyers. To get to law school these days, one needs to do an LSAT exam and not just get a handshake from your friend's father or an two-minute interview. There are over 5,000 applicants for limited places in law schools, not the 10 or 20 applicants of the old days.

Demeaning women and minorities at someone's pleasure and at their expense is now no longer tolerated. The backlash against political correctness has been uncivil. Challenge for cause on racial and other biases is now permitted. In provincial courts which do the bulk of the judging in Ontario, judges are no longer appointed through patronage, but by a committee after assessing an application from a lawyer.

People are now more aware of their rights than at any other time in the history of Canada, and indeed every country. They do not any longer take insults and slights lying down. These changes contribute to so-called incivility.

There are now more complaints against judges, police, lawyers, doctors, accountants, stockbrokers, politicians, teachers and others than at any other time in history - as it should be.

With these shifting trends, surely, civility should be the least of our concerns, especially since it is concerned more about not pricking someone's pomposity than about the pursuit of justice, which I hypothesize so-called incivility is all about.

Munyonzwe Hamalengwa is a Toronto lawyer specializing in criminal, constitutional and immigration law.

THE LAWYERS WEEKLY
Vol. 21, No. 1
May 4, 2001

Why is Canada increasingly becoming a criminalized society? Criminal law is increasingly seen and used as a saviour in the resolution of societal problems.  But is criminal law ever a useful tool to correct society's woes?

The Canadian government recently brought in legislation allowing law enforcement agencies to engage in criminal activities in the performance of their duties. In other words, the Canadian government has created and sanctioned organized criminals in the form of law enforcement agencies.

This is one aspect of the increasing criminalization of societies. You officially create official organized criminals. There is no doubt that these official organized criminals will commit criminal acts independent of their official duties and then justify those illegal criminal acts as having been done in furtherance of investigating crime. They have always done this. Now they will have official sanction.

The creation of official organized criminals is in answer to the perceived proliferation of unofficial organized criminals in the form of bikers. But there are already laws to deal with bikers and other organized criminals.

The aim, however, in my view has been to create official organized criminals and allow Crown prosecutors an easy job to obtain convictions. The government has succumbed to intensified pressure from police forces, Crown attorney associations, law-and-order constituencies, the Canadian Alliance Party and the National Post.

The increasing criminalization of Canada is thus politically driven. It is not a response to an actual increase in crime. The crime rate has been declining, as has been officially recognized for the past 10 - 20 years. All statistics prove this. Criminalization of societies is, however, global.

Over the last several decades, national states have passed some domestic criminal legislation to fight organized crime and corruption. But only in the recent past have international organizations joined national states in creating international criminal statutes or laws to fight organized crime and corruption.

However, there has not been any critical assessment or studies of what role, if any, the state in its domestic as well as international setting contributes to organized crime and corruption. Is organized crime and corruption the preserve only of non-state actors?

It is my thesis that the state in its domestic and international setting is both the weakest as well as the strongest link in the fight against organized crime and corruption. As long as it is not recognized that organized crime and corruption are embedded in state structures, however asymmetrically, organized crime and corruption cannot be routed out.

Canada has to recognize that by creating official organized criminals, the Canadian state becomes part of organized criminal conglomerates with significant negative impact on civil liberties and freedoms.

To what extent does the state have an interest in the existence of organized crime and corruption? How implicated is the state in this phenomena? What does it do? What does it overlook? Who are the agents and what tools are deployed to fight these phenomena?

Canada has also been increasingly criminalizing recent immigrants, particularly visible minorities. A 1994 study by Derrick Thomas conclusively showed that recent immigrants commit fewer crimes than the Canadian-born. Those who commit crimes are the least educated, are affected by high rates of unemployment, have low incomes, are from broken families, etc. There is a sociological explanation for their crimes. Canada is not interested in listening. Deportation is the ready answer, just as the criminalization of society is the ready answer to society's problems.

Now we have to fight both the official and unofficial organized criminals. What a task this will be!

Munyonzwe Hamalengwa is a Toronto lawyer specializing in criminal and immigration law. He can be reached by e-mail at mhamalengwa@sympatico.ca or by phone at (416) 222-8111.

THE LAWYERS WEEKLY
Vol. 19, No. 16
September 3, 1999

The ground-breaking Supreme Court of Canada immigration decision handed down in July in the case of Mavis Baker has left unaddressed some of the most pressing issues of the day which, without their resolution, will act as a brake rather than a gigantic positive development in the use of law by disempowered immigrants.

In Baker, the Supreme Court decided among others, that: (a) a decision-maker has to take into account the best interests of the children whose parent(s) face deportation consequences, (b) the standard of review of a humanitarian and compassionate decision is one of simple reasonableness, rather than the higher standard of patently unreasonable, and (c) international treaties Canada has ratified but not incorporated into domestic law are not binding on Canada but are of persuasive interpretative force.

Baker is the most important Supreme Court Immigration decision since Singh, handed down in 1985. Singh decided that refugee claimants had a right to an oral hearing rather than being subjected merely to a paper process, since issues of credibility were involved. You cannot negatively decide someone's credibility without affording them an opportunity to be heard in person.

Baker has brought to the fore some vexing questions, but without them being remarked upon by the Supreme Court justices and other commentators.

The first is: why are some immigrants denied access to justice in Canada, given that in a lot of cases the central issue is what are the best interests of the Canadian-born children -to remain in Canada or to be removed from Canada along with their parents?  How is it that Baker is the first immigration case to reach the Supreme Court dealing with the issue of best interests of children?

There is also no right of appeal to a court of law when a negative decision in an immigration context is handed down. (There is a right of appeal in criminal cases, except to the Supreme Court of Canada.) In the immigration context, leave must be sought from the Federal Court of Canada, usually a hostile court where most judges worked in the federal Department of Justice or elsewhere in the federal government or were former members of Parliament or lawyers from Bay Street.

Studies by Professor Ian Greene of York University and others show that a very small percentage of leave applications are granted.  No reasons for a negative decision are given. The ground is stacked against immigrants in this process.

If leave is granted but judicial review is denied, there is no right of appeal to the Federal Court of Appeal.  In some cases the judge who denied your application for judicial review may be persuaded to certify a question for you to take to the Federal Court of Appeal. Certification is not a right; it involves begging a judge to allow you to proceed further.  Certification of questions to the Federal Court of Appeal is rare.  In that regard, Mavis Baker was lucky. Her lawyers found persuasive legal arguments.

If the certified question or other issues argued in the Federal Court of Appeal are dismissed, there is no right of appeal to the Supreme Court of Canada. One has to seek leave. This is further begging and the Supreme Court grants even fewer leave applications.

With these hurdles, it becomes clear that Mavis Baker through her lawyers waged a tenacious struggle to the mountain top. By the same token, because of the denial of access to justice which this process engenders, you can imagine how many worthy cases were or are lost in the process. People have been turfed out of Canada or gone underground because they were denied access to justice as a result of this process.

So the fundamental question in an immigration context is: How can access to justice be opened up? In the United States, access to justice has been recognized as a fundamental interest worthy of Constitutional protection: See Griffin v. Illinois, 351 U.S. 12 (1956). In Canada not only is this not recognized, a person has no right of appeal or even to a written decision. Access to justice ought to be recognized as a fundamental interest worthy of constitutional protection.

Access to justice is further denied because of poverty or economic circumstances of the majority of immigrants affected by negative immigration decisions. While legal aid is generally accessible in criminal appeals, it is not available for immigration appeals. A lot of good cases go nowhere because immigrants cannot afford to hire lawyers. A lawyer cannot fight a case all the way to the Supreme Court of Canada without a retainer. The Department of Justice will fight any appeal process with all its might, using public resources.

It is therefore not surprising that the Supreme Court of Canada, the most progressive court in the land, is rarely seized of otherwise good cases, because cases rarely if ever reach there.

Immigrants may be better off if their issues were ventilated before the highest court in the land. This would be not only good for immigrants, but also for the development of the rule of law and enhancement of Canada's international reputation.

The second vexing question of our time is: should Canada be bound by the provisions of the international treaties it has ratified but not yet incorporated into domestic law?  The Supreme Court of Canada has stated that international treaties that Canada has ratified are only of persuasive but not binding value.

This interpretation is a dumper. There is no justification to interpreting international treaties that way.  There are two perspectives on this issue. One, called the dualist view, holds that a ratified treaty is not binding if it is not incorporated into domestic law. The other is the monist view, which holds that by ratifying a treaty, a country is bound by its provisions. The European Court of Human Rights (ECHR) compels member states to be bound by the treaties they have signed.

If the Supreme Court adopted the monist view, Canada would perforce be bound by the international treaties it has signed.

Why should a country be permitted to ratify international treaties and get a good name internationally as a result of it, and then expect not to be bound by the provisions of international treaties?

There is a process acceptable in international law called "reservations"which Canada can engage in when it ratifies a treaty, rather than to nonchalantly ratify without any intention of being bound by its provisions.

Imagine if Canada went before a North American Free Trade Agreement tribunal and stated that while it ratified the Agreement, it is not bound by its provisions. Or imagine you signed a contract with the federal government and performed your side of the bargain, but when you delivered the bill, the government told you that while it signed the contract with you, it was not bound to pay you. You would go to court and a judge would be irate at the government. Apparently not the Supreme Court of Canada. The highest court in the land is afraid of enforcing international contracts. What a shame.

Munyonzwe Hamalengwa is a sole practitioner in Toronto.

THE LAWYERS WEEKLY
Vol. 19, No. 23
October 22, 1999

Lawyers, like other professionals and non-professionals alike, occasionally encounter new experiences or unexpected happenings, or deal with unusual twists of life that need to be shared with other people.

August brought a lot of unusual twists of experiences in my professional life, some of which I would like to share with you. They are limited to the legal sphere.  The people who brought me these experiences would appropriately be categorized as having engaged in legal madness or legal incapacity.

Judges

I brought a bail review application in Superior Court of Justice for a young offender on August 6.  That young offender was ably represented at his bail hearing by a duty counsel before a judge at the Etobicoke courthouse, but he was ordered detained.

Pursuant to Section 8 of the Younger Offenders Act, a bail review lies in the Superior Court of Justice if a young offender is detained at first instance by a youth court judge.  Applications for bail review are also provided for in Section 520 of the Criminal Code.  The only court with jurisdiction for bail review, from orders emanating from provincial or youth court is the Superior Court. This has been so since I started practising law a decade ago and in fact since time immemorial, in terms of the existence of the Criminal Code which came into being in 1892.

I brought the bail review before Superior Court Justice Peter Grossi.  To my utter surprise, a crown attorney at 361 University Avenue told the judge that he had no jurisdiction to entertain my application, as only the provincial court had jurisdiction to entertain such applications.

To my utter amazement and those of all who were present, the judge sided with the crown attorney.  He dismissed my application and directed me to provincial court in Etobicoke.

I filed an application in Etobicoke and appeared there on August 13. The crown attorney there, Paul Vesa, and his colleagues as well as Judge Lloyd Budzinski were shocked that a crown attorney at University Avenue and Justice Grossi could blatantly misread or misinterpret the law. Judge Budzinski obviously did not have jurisdiction. He encouraged me to seek costs against the Crown on my next trip to Superior Court.

Given the gaffe by the Crown, they undertook to file the bail review application back in Superior Court rather than me.

On August 18, I was back in Superior Court, where the Crown did not oppose the application and my client was released.  I did not ask for costs because the Crown refiled my papers and did not oppose my client's release.

If a judge can dismiss your application when the law is clearly on your side, can you imagine what happens when the law is not clear? Are judges blindly acceding to arguments by crown attorneys?  Do judges perpetrate wrongful detentions and convictions?

I have known judges to be pro-crown most of the time, but this experience was beyond the pail.  In my respectful opinion, Justice Grossi and the crown attorney displayed legal incapacity and/or legal madness.

A lawyer

I was in Africa in June and July.  A client whom I had bailed out numerous times for allegedly assaulting his wife, was re-detained in my absence.  He retained a female lawyer just to do his bail hearing.  He told her that on the primary case, he already had a lawyer - myself. The female lawyer told him without mincing any words that, for a charge of assaulting his wife, he needed a female lawyer to represent him.  She advised my client that judges and juries look kindly on male clients who are tried for assaulting their wives if they are represented by a female lawyer.

This was the first time I had heard of a female lawyer trying to attract business this way.  Of course, this sales style has no truth whatsoever, even in custody cases where it is usually deployed.  It does not comport with reality and the outcomes of cases.

The most popular version is that deployed by desperate white lawyers who approach African Canadian accused and scare them into dumping their African Canadian lawyers because these accused will appear before a white judge, white jury, white witnesses, white police officers, all of whom will not look kindly on them because of the colour of their lawyers.

A number of African Canadian accused buy into this mythology and promptly dump their African Canadian lawyers, whereupon their new white lawyers usually promptly plead them guilty and move on to another sales pitch while the accused is saddled with a criminal record.  Not long after that, Immigration Canada will be knocking at the door.  A few smart African Canadian accused reject the ploy outright.

It is better to attract business the old-fashioned way -honestly, through referrals and through hard work.

This lawyer and her ilk display legal incapacity and/or legal madness.

Immigration and Refugee Board

Over at the IRB, a board member by the name of Shirley Wales displayed legal incapacity and or legal madness.  On June 3rd, I appeared at the IRB to represent a client by the name of Carrington. After hearing our prosecution of the appeal, the Minister's representative conceded that indeed, my client should be allowed a stay of the deportation order on terms and conditions.

In all my practice at the IRB, any time the Minister's representative concedes that a stay is warranted, the board member, as a matter of course, allows the appeal and stays the deportation order.  It goes the same at Immigration Detention Reviews.

So on June 3, after the hearing, my client and I quietly started celebrating. Our spirits were somewhat dampened when the board member reserved judgement.

Shortly after I returned from Africa, the decision came down. Although the Minister's representative had conceded, the appeal was dismissed. Now, if a Board member dismisses an appeal which had been conceded by the opposing side in an adversarial process like at the IRB, can you imagine how many dismissals this Board member issues in contested cases?  This is legal incapacity and madness at its height.

The Parole Board

Over at Beaver Creek Institution in Gravenhurst, two parole board members engaged in legal incapacity and or legal madness on August 18 in a case called Kien Nguyen.  Nguyen is my client whom I represented for full parole on that day.  He had been denied a paper decision on his Accelerated Parole Review (APR) application.  The Board had received communication from my client's former wife which alleged abuse on the part of my client.

The Board has to direct full parole without conditions if it can be established that the person concerned will not commit a crime of violence before his Warrant Expiry Date.  The only evidence of violence should be the criminal record of the person showing convictions for violence.

There were no convictions for violent activity on the part of Nguyen. Even the former wife indicated that she does not fear any physical violence from Nguyen.   In fact, she had never been assaulted by him. Nguyen had been living with his fiance for over two years.  There was no contact with his former wife.

Yet, because of a mere letter the board received from the former wife, the board concluded, without any documented evidence of prior violence, that Nguyen would be denied immediate full parole, and should instead stay in a halfway house because he is likely to commit a crime of violence before his Warrant Expiry Date.

If Board members can play around with people's lives when there is no evidence,  can you image how fair game you are if there is an iota of evidence?  Nguyen is fuming.  I am fuming.

The above is merely the legal madness I encountered in August 1999. How about a decade of practising law?

Munyonzwe Hamalengwa practises criminal and immigration law in Toronto.