Singh to Suresh: Non-Citizens, the Canadian Courts and Human Rights Obligations by Tom Clark. Victoria BC: Trafford Publishing, 2006.
reviewed by Jack Costello
This book is not an easy “romp,” and no reader who knows Tom Clark or what he has written previously will be surprised to know that. Clark’s first book, The Global Refugee Regime (2004), distilled years of research on legislation since WW II designed to protect refugees within what he called a “rights-enhancing” regime. That book was Clark’s challenge to states to live by a more just world order for refugee claimants as reflected in the international law we say we have accepted.
In Singh to Suresh his microscope and scalpel are turned with similar intent on the access of non-citizens to fundamental justice in our Canadian courts. His basic question is: Do Canada’s courts, in applying our Charter of Rights and Freedoms, dispense justice to non-citizens living in this country according to commitments we made in signing key UN Covenants and the Inter-American Declaration of the Rights of Man? Clark’s answer: In the late 80s we did that rather well. Through the 90s, less so. In the early 2000s, distinctly less so.
The focus and form of the book are tight and clear. Clark describes his project simply: “My book makes the detailed comparison of international obligations with the rulings of Canadian courts on the selected cases. My contribution adds a reflection on rights which recur in international case law about non-citizens, such as the right to freedom of movement, the right to seek and obtain asylum, and a right to a court remedy.”(p.9)
What is not revealed in this modest summary is the meticulous analysis offered by the author with regard to a contested question: is there a “presumption of conformity with international law” in a Canadian court’s use of the Charter applied to civil and political rights (CCPR), torture, etc. or may the courts “cherry-pick” international law simply as context for their own preferred judgment? Clark concludes that, “there is a gap between Canadian court positions and international human rights case law positions.” And this gap reflects an inadequacy, both in substance and in procedure, in recent Supreme Court decisions on human rights.
An aside: The February 23, 2007 Supreme Court decision on Charkaoui v. Canada came out the day Singh to Suresh was being launched in Toronto. In a follow-up statement (Feb.26/07) Clark observed that “in calling for reforms of the security certificate regime the Court moved Canada towards meeting some of its human rights treaty obligations.” A muted accolade with a clear “let’s wait and see” attitude to it.
I read this book as a layman. The specifics of international covenants and the several court decisions cited in detail by the author were new turf for me. I found it tough-going at times–feeling somewhat like a cricket asked to join a spider at his night’s work in the vain hope of learning before dawn the intricacies of how it weaves its web. However, as I ploughed on, the patterns in the Supreme Court’s changing perceptions became more evident. I discovered the Court’s willingness to avoid the language of ‘rights” in referring to international law while settling for seeing these ‘rights’ as simply ‘values’ or merely ‘factors’ to be considered in their own ‘rights’ judgments. I was also astounded to see our Supreme Court appealing to “what shocks the conscience of Canadians” as a significant factor, even a criterion, in shaping a legal decision on fundamental rights, knowing how fickle and self-reversing that category can be depending on the social influences imposed on us by events, governments and media.
This book a jewel. I expect it will find its best setting in discussion among lawyers and, I hope, law students. For the interested “layman,” it teaches us some of our legal history. It also points the way towards greater substance for some of our deepest hopes for this country.
