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.
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.
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.
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 It’s not precedential – they could decide to hear a future case.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.
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:
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.