MLJ Volume 36-1.pdf - Robson Hall Faculty of Law
MLJ Volume 36-1.pdf - Robson Hall Faculty of Law MLJ Volume 36-1.pdf - Robson Hall Faculty of Law
360 MANITOBA LAW JOURNAL|VOLUME 36 ISSUE 1 Similarly, recent amendments to the Immigration and Refugee Protection Act 40 authorize the detention, without judicial review for one year and with limited access to the administrative tribunal, of individuals whom the Minister of Citizenship and Immigration designates as “irregular arrivals” (i.e., through an alleged human smuggling event). 41 This new regime may require a revisiting of the controversial ruling in Peiroo that immigration law provides a “complete, comprehensive and expert review procedure” which has meant that superior courts will generally decline to exercise habeas corpus jurisdiction in immigration cases. In Charkaoui v Canada, Chief Justice McLachlin made it clear that “foreign nationals, like others, have a right to prompt review to ensure that their detention complies with the law. This principle is affirmed in section 10(c) of the Charter.” 42 The provisions of the Immigration and Refugee Protection Act which failed to allow for review of the detention of foreign nationals until 120 days after a security certificate was confirmed were found to violate section 10(c). 43 In these and other contexts, it is hoped that the flexibility and gap-filling functions of the habeas corpus remedy will continue to develop in a manner deserving of the “great writ of liberty.” Code” (2009) 55 Crim LQ 134. 40 Bill C-31, An Act to amend the Immigration and Refugee Protection Act, the Balanced Refugee Reform Act, the Marine Transportation Security Act and the Department of Citizenship and Immigration Act, 1st Sess, 41st Parl, 2012 (Assented to 28 June 2012), SC 2012, c 17. 41 Ibid at s 20.1(1). For critical commentary on this legislation, see “Bill C-31” Canadian Association of Refugee Lawyers (9 July 2012), online: CARL, Bill C-31 . 42 Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9 at para 90, 276 DLR (4th) 594. She went on to note that this right is also recognized internationally, citing Rasul v Bush, 542 US 466 (2004) and some European cases. 43 Charkaoui, ibid, at para 90.
C O M M E N T A R Y The DeLloyd Guth Visiting Lecture in Legal History: Habeas Corpus, Legal History, and Guantanamo Bay J A M E S O L D H A M I. INTRODUCTION I t is an honor to be giving the second DeLloyd Guth Visiting Lecture in Legal History, and to follow the excellent inaugural lecture by Chief Justice McLachlin on “Louis Riel: Patriot Rebel.” I give special thanks to my long-time friend DeLloyd Guth. Among the many reasons why DeLloyd is so well-loved by his students and colleagues are his irrepressible intellectual curiosity and his unbounded, contagious enthusiasm for everything he teaches and studies. About ten years ago, your own Justice Robert Sharpe wrote a review essay of a book entitled The Most Fundamental Legal Right: Habeas Corpus in the Commonwealth. 1 Justice Sharpe discussed the view that seemed to be gaining momentum in England that habeas corpus should be absorbed into the doctrine of judicial review. 2 He quoted Lord Justice Simon Brown’s reassurance – “Bring habeas corpus into the evolving process of judicial review and I do not think the judges will fail you.” 3 Justice Sharpe, however, said that this analysis… St Thomas More Professor of Law and Legal History, Georgetown University Law Center. 1 Justice Robert J Sharpe, Book review of The Most Fundamental Legal Right: Habeas Corpus in the Commonwealth by David J Clark & Gérard McCoy (2001) 1 OUCLJ 287. 2 Ibid at 290-292. 3 Ibid at 292.
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C O M M E N T A R Y<br />
The DeLloyd Guth Visiting Lecture in<br />
Legal History: Habeas Corpus, Legal<br />
History, and Guantanamo Bay<br />
J A M E S O L D H A M <br />
I. INTRODUCTION<br />
I<br />
t is an honor to be giving the second DeLloyd Guth Visiting Lecture<br />
in Legal History, and to follow the excellent inaugural lecture by Chief<br />
Justice McLachlin on “Louis Riel: Patriot Rebel.” I give special thanks<br />
to my long-time friend DeLloyd Guth. Among the many reasons why<br />
DeLloyd is so well-loved by his students and colleagues are his irrepressible<br />
intellectual curiosity and his unbounded, contagious enthusiasm for<br />
everything he teaches and studies.<br />
About ten years ago, your own Justice Robert Sharpe wrote a review<br />
essay <strong>of</strong> a book entitled The Most Fundamental Legal Right: Habeas Corpus in<br />
the Commonwealth. 1 Justice Sharpe discussed the view that seemed to be<br />
gaining momentum in England that habeas corpus should be absorbed into<br />
the doctrine <strong>of</strong> judicial review. 2 He quoted Lord Justice Simon Brown’s<br />
reassurance – “Bring habeas corpus into the evolving process <strong>of</strong> judicial<br />
review and I do not think the judges will fail you.” 3<br />
Justice Sharpe, however, said that this analysis…<br />
<br />
St Thomas More Pr<strong>of</strong>essor <strong>of</strong> <strong>Law</strong> and Legal History, Georgetown University <strong>Law</strong><br />
Center.<br />
1<br />
Justice Robert J Sharpe, Book review <strong>of</strong> The Most Fundamental Legal Right: Habeas<br />
Corpus in the Commonwealth by David J Clark & Gérard McCoy (2001) 1 OUCLJ 287.<br />
2<br />
Ibid at 290-292.<br />
3<br />
Ibid at 292.