Sunday, January 20, 2008

The Role of Sanctuary

There has been a fair bit of press lately out here in Lotusland about the right of various religious groups to declare their churches/temples as sanctuaries for persons who have exhausted the refugee system and are facing deportation/removal from Canada.

For the most part this is a bad development in our society because churches and church groups have taken to asserting this "right" not as a means of really effecting change -- for example by triggering a legal test case -- but instead as a completely independent assertion of a right independent of the rule of law and democracy.

As a tool for triggering social change the use of sanctuary is understandable. On that approach the state is expected to intervene and the churches welcome them -- preferably with a large number of cameras and lawyers around to trigger both the democratic debate and the legal debate. The giving of sanctuary in this model is the approach to the legal and democratic process rather than the assertion of right to be free from or outside of that process.

Unfortunately, what sanctuary has appeared to have evolved into is more of a modern variant of the medieval law that allowed fleeing criminals to hide in the sanctuary of churches and be exempt form arrest or detention by legal authorities for so long as they were able to hold out (which depended -- as does the modern right -- on how long people were willing to bring them food). This right became an affront to the rule of law over time and an embarrassment for many churches (picture the stench of a large collection of unwashed criminals hanging out around the edges of the altar of your local church for weeks on end).

The evils of the modern version of sanctuary should be obvious -- which churches and which crimes? Would it apply if it was the Church of Scientology wanting to protect one of its members from Canadian charges of tax evasion? How about the Catholic Church if it wanted to oppose the extradition of a person wanted for shooting an abortion doctor in the United States? How about a mosque that wanted to prevent the deportation of a person wanted in the Madrid bombings? Where do the poor atheists go? We have no established church here in Canada and it is not so easy to sort these questions out as one might think at first.

The Canadian immigration and refugee system has its good and bad points. Anyone who tells you that it is devoid of process or any sense of fairness is out of touch with reality and should have a good hard look at what really goes on in other countries. On the other hand, anyone who says that the system is without systemic flaws need only read Justice Phelan's recent decision in the Federal Court about the safe third nation rule (a case interestingly enough brought by the Canadian Council of Churches).

What will be inescapable however is the fact that at a certain level immigration and refugee determinations will have to be made at an individual level, indeed, this is just what has been fought for over the years (that is, no blanket rules like "no Chinese" or "no communists"). Any process which does this will inevitably produce results that some people will like and some people will reject -- that is the nature of independent adjudication: someone makes a decision when people are unable to agree amongst themselves. What we cannot tolerate then is the idea that superimposed on this is a veto by churches who can claim the right to make their own decisions that we all have to live with regardless of their democratic or constitutional legitimacy.

The churches of the west have a deal with the state: we leave you alone; you leave us alone. Churches are free to advocate for change. Churches are free to speak out. Churches are free to use their money to support court cases. Churches can bring court cases. Churches are free from paying taxes on properties worth millions of dollars. Moreover, they are free from state supervision of these activities. But they are not empowered to rule us, make laws or exempt citizens from the laws. These are values we cannot lightly set aside and unless the churches want to accept a move toward a legal system where they are supervised (for example, what processes do they have in place to pick who will get sanctuary -- are they fair? do the claimants have a right to a hearing? how about a lawyer paid for by the church?) perhaps they may not want to claim the power they have been claiming.

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frogparts said...
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David P. Janes said...

Judge Phelan's decision was piked: here or here in the globe.