Anti-smuggling, or anti-Charter?Posted: October 20, 2011
The Canadian Association of Refugee Lawyers (CARL) may be only a little over a month old, but they’ve already published a terrific paper on the unconstitutionality of Bill C-4, the so-called “anti-smuggling” bill.
Readers of these pages will know that C-4 (and its predecessor C-49) has been of significant concern to the BCCLA, and the subject of criticism from many quarters. CARL’s paper lays out in detail the various ways the proposed legislation in Bill C-4 is unconstitutional. It’s worth reading in its entirety, but here’s a teaser:
In presenting Bill C-4 to Parliament, the Government of Canada has expressed its confidence that the bill is Charter-compliant and constitutional. The Government has chosen not to articulate any basis for its confidence. Since recent judicial pronouncements from the Supreme Court of Canada directly contradict the Government’s position, it is our opinion that this confidence is misplaced. The drafters of the bill have paid insufficient attention to the carefully worded doctrines that the Supreme Court of Canada has developed to express the basic principles of our Constitution. The government has haphazardly cast an unconstitutionally harsh, wide and arbitrary net in order to deter and punish human smuggling. The consequences inflicted on these individuals will be dramatic, painful and undeserved. It is our hope that the unconstitutionality of the Bill will be recognized before it is enacted as law. If this hope is dashed, it is our hope that it will be recognized by judicial authorities. However, it is our worry that, should we need to rely on the Courts to provide the needed remedy, much hardship will be endured in the interim.
Download the paper here.