[QUOTE=Little Nemo]
The Canadian court was being asked to rule on whether or not the American government was following its own laws.
[/QUOTE]
No, it most certainly was not.
These guys came to Canada and filed for refugee status. Their claim was turned down by Immigration Canada. They appealed, the court that heard the case rejected their appeal, and the Supreme Court declined to hear an appeal of that decision. Really, there is absolutely nothing remarkable about the case whatsoever. The guys don’t even come close to being legitimate refugees. Real refugees typically have a legitimate fear for their lives due to political persecution, or something along those lines. These guys faced initially a dishonorable discharge, and now I presume a couple years in Leavenworth for desertion. They’re not even on the same playing field as actual refugees.
[QUOTE=Little Nemo]
Getting back to the OP, I agree that the war was not illegal - it may have been stupid but it was legal. And the defendants did volunteer to serve in the armed forces. So I don’t see them having any legitimate claim to having a right to desert.
But I disagree with much of what Bricker has said. First, the idea that the Supreme Court of Canada “rejected the claims” or “disagreed with this conclusion”. The court refused to hear the case; it did not issue any ruling on the case such as these comments imply. The Court may have decided not to hear the appeal for reasons that had nothing to do with the merits of the case itself. If I shoot a man in New York and a Pennsylvania court says it won’t try my case, that doesn’t mean I can claim they exonerated me.
Second, I disagree with the claim that “the legality of the war is irrelevant for the purposes of refugee status”. This is begging the question. While I don’t feel that the United States acted illegally, I’m not going to say that the possibility couldn’t exist. And it pretty much was the issue the court was called upon to decide. The Canadian court was being asked to rule on whether or not the American government was following its own laws. Saying that question should only be addressed by the American court system is ridiculous - if the American government is acting illegally then the American courts system cannot be an unbiased arbitrator of that fact. A legitimate court would legally rule its actions were legal but an illegitimate court would illegally also rule its actions were legal. I’m sure Bricker wouldn’t allow an Iranian or North Korean court the same benefit of a doubt in ruling on the legitimacy of its own government’s actions.
[/QUOTE]
Generally, as a matter of practice in reality, courts in Canada and the US grant each other “judicial comity” - that is, they recognize each other’s legitimacy and authority based on respect for and deference to each other’s laws and enforcement abilities. This is a very powerful tradition and not lightly overturned, as the courts on both sides of the border in many cases rely on each other’s probity.
Same is not true for North Korea or Iran. In those cases there may be powerful public policy reasons not to grant their courts comity.
In order to overturn this traditional attitude, there would have to be powerful evidence of malfeasance on the part of the courts such that it could legitimately be said that it was against Canadian public policy to grant comity in that case.
[QUOTE=Malthus]
In order to overturn this traditional attitude, there would have to be powerful evidence of malfeasance on the part of the courts such that it could legitimately be said that it was against Canadian public policy to grant comity in that case.
[/QUOTE]
The most famous cases, though, typically involve suspects in Canada who will likely face capital charges if extradited to the U.S.
[QUOTE=Bryan Ekers]
The most famous cases, though, typically involve suspects in Canada who will likely face capital charges if extradited to the U.S.
[/QUOTE]
You are referring to extradition cases in general. I’m referring to the proposition that a Canadian court would (or should) not accept an American court’s ruling on the legality of its own government’s action.
The issue of extradition (to face capital punishment) does not directly impinge on the notion of judicial comity. The Canadian courts are not holding that the US courts have applied their own laws improperly, but rather that they will not send a felon to face a punishment that has been decreed inhumane.
[QUOTE=Little Nemo]
But I disagree with much of what Bricker has said. First, the idea that the Supreme Court of Canada “rejected the claims” or “disagreed with this conclusion”. The court refused to hear the case; it did not issue any ruling on the case such as these comments imply. The Court may have decided not to hear the appeal for reasons that had nothing to do with the merits of the case itself. If I shoot a man in New York and a Pennsylvania court says it won’t try my case, that doesn’t mean I can claim they exonerated me.
[/quote]
A truly inapt analogy. By taking the action it did, the Court cleared the way for these individuals to be extradited to the U.S. They have no other recourse. They clearly did have jurisdiction to hear the case, unlike your example, and their decision is effectively a decision on the merits of the particular claim. It’s not precedential – they could decide to hear a future case. But they’re the Supreme Court – they could do that even if they had ruled. And while I’m no expert on Canadian law, I rather suspect the lower court’s decision is precedential to some extent; the Supreme Court’s decsion to not act left in place that precedent.
[QUOTE=Post # 26]
Since these are leave decisions (our equivalent to a denial of cert.), it does not count as a precedent from the SCC. The decision of the Federal Court of Appeal stands and is precedent for any similar cases that come up through the Federal Court / Refugee Board, but it is not necessarily the final word. It is conceivable that in the future the SCC might decide to hear a similar case. If so, it would not be bound by today’s decision to deny leave.
[/QUOTE]
Bricker, I wouldn’t say that this is a decision on the merits of this case by the SCC. The Court has always taken the position that a denial of leave is not a comment on the merits - and lower courts have always followed that position. It is customary when citing a case from a court of appeal where leave to the SCC was denied to give the cite to the denial, but that is to give the complete history of the case, not to indicate that the SCC has ruled. That’s why the SCC never gives reasons in leave applications; plus, it’s only a decision of three judges of the Court, which is not a quorum on appeals.
Since there’s considerable heat being expended on what this decision means, I thought it might be helpful to give a brief procedural summary.
The two soldiers’ claims were heard in the first instance by the Refugee Protection Division of the Immigration and Refugee Board, a federal administrative tribunal. I’ve not hunted down that decision, but from the subsequent Federal Court decision, it appears that in seeking to establish their claim to be refugees, they advanced two issues: that the Iraq war was illegal, and also contrary to humanitarian principles, because of the actions of the US military in Iraq. The Board rejected both positions.
On the issue of the legality of the war, the Board heard extensive evidence, but ultimately ruled that the legality of the war was irrelevant to the decision whether the two were refugees under Canadian law. On the issue of the conduct of the war, the Board concluded that the fact that some US military personnel had mistreated Iraqi citizens (such as Abu Gharib) did not rise to a systemic US policy. The Board then ruled on the merits, holding that neither qualified as a refugee under Canadian law.
On the issue of the legality of the war, she stated:
[QUOTE=McTavish J.]
[144] In summary, this jurisprudence establishes that an individual must be involved at the policy-making level to be culpable for a crime against peace: see Davidson, above, at pp. 122-124, and the Papers for the Preparatory Commission for the International Criminal Court (the “Princeton Papers”), United Nations Documents PCNICC/2002/WGCA/L.1, and PCNICC/202/WGCA/L.1/Add.1.
[145] That is, the ordinary foot-soldier such as Mr. Hughey is not expected to make his or her own personal assessment as to the legality of a conflict in which he or she may be called upon to fight. Similarly, such an individual cannot be held criminally responsible merely for fighting in support of an illegal war, assuming that his or her own personal wartime conduct is otherwise proper: Davidson, above, at p. 125. See also François Bugnion, Just Wars, Wars of Aggression, and International Humanitarian Law, International Review of the Red Cross, “Just Wars, Wars of Aggression, and International Humanitarian Law” (2002) 847 Int’l Rev. of the Red Cross 523.
[146] As a consequence, it appears that the legality of a specific military action could potentially be relevant to the refugee claim of an individual who was involved at the policy-making level in the conflict in question, and who sought to avoid involvement in the commission of a crime against peace. However, the illegality of a particular military action will not make mere foot soldiers participating in the conflict complicit in crimes against peace.
[147] As a result, there is no merit to Mr. Hughey’s contention that had he participated in the war in Iraq, he would have been complicit in a crime against peace, and should thus be afforded the protection offered by paragraph 171 of the Handbook.
…
[151] For these reasons, I am satisfied that when one is dealing with a foot soldier such as Mr. Hughey, the assessment of the “military action” that has to be carried out in accordance with paragraph 171 of the Handbook relates to the ‘on the ground’ conduct of the soldier in question, and not to the legality of the war itself.
[152] As a consequence, I am satisfied that the Board did not err in finding evidence as to the alleged illegality of the American-led military action in Iraq to be irrelevant to the determination that had to be made by the Refugee Protection Division in this case, in accordance with paragraph 171 of the UNHCR Handbook.
[/QUOTE]
She also dismissed the argument that the Iraqi war showed systemic mistreatment of Iraqis by the US military:
The matter then went on appeal to the Federal Court of Appeal: Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171 (CanLII), but only on the question certified by McTavish J. as needing consideration: the relevance of the legality of the Iraqi war. In an interesting move, the Federal Court of Appeal declined to consider that issue.
Speaking for a unanimous three-judge panel of the Court of Appeal, Sexton J.A. instead reviewed the issue of whether the appellants had exhausted all of their domestic remedies in the U.S., and whether, if they had so applied, they would have been entitled to a fair review of their objections by the U.S. legal system (my summary). Sexton J.A. held that they had not done so, and therefore did not meet the initial requirement for applying to be refugees in Canada. The Court therefore did not even address the issue of whether the legality of the Iraq war was relevant.
So, not only did the SCC not comment on the merits of the issue about the legality of the war, neither did the Federal Court of Appeal. The FCA decision is simply a precedent on the threshold issue of exhaustion of domestic remedies as a pre-condition of applying for refugee status. The Federal Court decision is the only decision which addresses that issue. While it is a precedent for the Refugee Board, it does not bind either the Federal Court of Appeal or the Supreme Court.
[QUOTE=Northern Piper] Bricker, I wouldn’t say that this is a decision on the merits of this case by the SCC. The Court has always taken the position that a denial of leave is not a comment on the merits - and lower courts have always followed that position. It is customary when citing a case from a court of appeal where leave to the SCC was denied to give the cite to the denial, but that is to give the complete history of the case, not to indicate that the SCC has ruled. That’s why the SCC never gives reasons in leave applications; plus, it’s only a decision of three judges of the Court, which is not a quorum on appeals.
[/QUOTE]
I say “effectively” only to illustrate that it finalizes the particular case.