24th annual immigration law summit · 2016-12-02 · refugee and immigration legal services refugee...

chairs

Catherine Bruce, DirectorRefugee and Immigration Legal Services

Refugee Law Office, Legal Aid Ontario

Claire le RicheDeputy Regional Director and Senior Counsel

Immigration Law Division, Ontario Regional Office Department of Justice

day two November 23, 2016

24TH ANNUAL Immigration Law Summit

*CLE16-0111201-A-PUB*

DISCLAIMER: This work appears as part of The Law Society of Upper Canada’s initiatives in Continuing Professional Development (CPD). It provides information and various opinions to help legal professionals maintain and enhance their competence. It does not, however, represent or embody any official position of, or statement by, the Society, except where specifically indicated; nor does it attempt to set forth definitive practice standards or to provide legal advice. Precedents and other material contained herein should be used prudently, as nothing in the work relieves readers of their responsibility to assess the material in light of their own professional experience. No warranty is made with regards to this work. The Society can accept no responsibility for any errors or omissions, and expressly disclaims any such responsibility.

© 2016 All Rights Reserved

This compilation of collective works is copyrighted by The Law Society of Upper Canada. The individual documents remain the property of the original authors or their assignees.

The Law Society of Upper Canada 130 Queen Street West, Toronto, ON M5H 2N6Phone: 416-947-3315 or 1-800-668-7380 Ext. 3315Fax: 416-947-3991 E-mail: [email protected] www.lsuc.on.ca

Library and Archives Canada Cataloguing in Publication

24rd Annual Immigration Law Summit – Day Two

ISBN 978-1-77094-985-0 (Hardcopy)ISBN 978-1-77094-986-7 (PDF)

1

Chairs: Catherine Bruce, Director

Refugee and Immigration Legal Services Refugee Law Office, Legal Aid Ontario

Claire le Riche, Deputy Regional Director and Senior Counsel, Immigration Law Division, Ontario Regional Office, Department of Justice

Co-Chair: Alyssa Manning, Refugee and Immigration Legal Services

Refugee Law Office, Legal Aid Ontario

November 23, 2016 9:00 a.m. to 4:00 p.m.

CPD Hours = 5 h Substantive + 1 h Professionalism The Law Society of Upper Canada

130 Queen Street West Toronto, ON

SKU CLE16-0111201

Agenda

DAY TWO: 9:00 a.m. – 9:05 a.m. Welcome and Opening Remarks

Catherine Bruce, Director Refugee and Immigration Legal Services Refugee Law Office, Legal Aid Ontario

24TH ANNUAL Immigration Law Summit – DAY TWO

2


9:05 a.m. – 9:20 a.m. Update from the Chief Justice

The Honourable Paul Crampton, Chief Justice, Federal Court of Canada

9:20 a.m. – 9:30 a.m. Question and Answer Session 9:30 a.m. – 10:35 a.m. Top Developments Relevant to Immigration Law

a) International Developments

Professor Jennifer Bond, Associate Professor, Faculty of Law, University of Ottawa b) Refugee Cases Angus Grant, Legal Aid Ontario c) Non-Immigration Cases

Ann Margaret Oberst, Counsel, Immigration Law Division Ontario Regional Office, Department of Justice

10:35 a.m. to 10:45 a.m. Question and Answer Session 10:45 a.m. to 11:05 a.m. Coffee and Networking Break 11:05 a.m. to 11:45 a.m. Country Research: Distinguishing Fact from Fiction

Youliana Daskalova, Senior Research Analyst, Immigration and Refugee Board of Canada

Bill Frelick, Director, Refugee Rights Program, Human Rights Watch

http://www.irb-cisr.gc.ca/Eng

3

Heidi Sprung, Director of the Research Directorate, Immigration and Refugee Board of Canada

11:45 a.m. – 12:00 a.m. Question and Answer Session 12:00 p.m. – 1:00 p.m. Lunch on your own 1:00 p.m. – 1:25 p.m. Keynote: Standard of Review, Distinguishing Signal from

Noise after Atomic Energy/Edmonton East

Dr. Paul Daly, Senior Lecturer in Public Law, University of Cambridge and Derek Bowett Fellow in Law, Queens' College (Vidyo Presentation)

1:25 a.m. – 1:30 p.m. Question and Answer Session 1:30 p.m. – 1:55 p.m. Developments Related to Vulnerable People in Detention Andrew Brouwer, C.S., Senior Counsel - Refugee Law

Legal Aid Ontario Maria Burgos, Counsel, Immigration Law Division Ontario Regional Office, Department of Justice

1:55 p.m. – 2:00 p.m. Question and Answer Session

2:00 p.m. – 2:30 p.m. Habeas Corpus Applications in the Immigration Context

Sharon Stewart Guthrie, Counsel, Immigration Law Division, Ontario Regional Office, Department of Justice Jared Will, Avocat - Barrister & Solicitor Jared Will & Associates

2:30 p.m. – 2:40 p.m. Question and Answer Session

2:40 p.m. – 3:00 p.m. Coffee and Networking Break


4

3:00 p.m. – 3:50 p.m. Ethical Issues POLLING a) Good Faith Candour and the Obligation to Disclose Barbara Jackman, LSM, Jackman, Nazami & Associates Jamie Todd, Senior Counsel, Immigration Law Division, Ontario Regional Office, Department of Justice b) Ethical Considerations when Preparing Witnesses Aisling Bondy, Bondy Immigration Law John Provart, Senior Counsel, Immigration Law Division, Ontario Regional Office, Department of Justice

3:50 p.m. – 4:00 p.m. Question and Answer Session 4:00 p.m. End of Day Two

http://www.jackmannazami.com/

1

Chairs: Catherine Bruce, Director Refugee and Immigration Legal Services Refugee Law Office, Legal Aid Ontario


Co-Chair: Alyssa Manning, Refugee and Immigration Legal Services Refugee Law Office, Legal Aid Ontario

November 23, 2016

SKU CLE16-0111201

Table of Contents

DAY TWO:

TAB 1 The Federal Court: Update ..............................………….. 1 – 1 to 1 – 51


24TH ANNUAL Immigration Law Summit – DAY TWO

2

TAB 2 Top Developments Relevant to Immigration Law TAB A International Developments …………………………………… 2A – 1 to 2A – 1

Professor Jennifer Bond, Associate Professor, Faculty of Law, University of Ottawa

TAB B Recent Developments in Immigration and

Refugee Law …………………………………………………………… 2B – 1 to 2B – 18

Angus Grant, Legal Aid Ontario TAB C 2016 Practice, Procedure & Administrative Cases

You Might Not Know About …………………………………….. 2C – 1 to 2C – 24

Ann Margaret Oberst, Counsel, Immigration Law Division Ontario Regional Office, Department of Justice

TAB 3 Country Research: Distinguishing Fact from Fiction TAB A Human Rights Watch’s Research Methodology:

Distinguishing Fact from Fiction ………………………………… 3A – 1 to 3A – 9 Bill Frelick, Director, Refugee Rights Program,

Human Rights Watch TAB B Country Research: Distinguishing Fact from Fiction …… 3B – 1 to 3B – 31

Youliana Daskalova, Senior Research Analyst, Immigration and Refugee Board of Canada Heidi Sprung, Director of the Research Directorate, Immigration and Refugee Board of Canada

TAB 4 Keynote: Standard of Review, Distinguishing Signal

from Noise after Atomic Energy/Edmonton East …….. 4 – 1 to 4 – 15

Dr. Paul Daly, Senior Lecturer in Public Law, University of Cambridge and Derek Bowett Fellow in Law, Queens' College



3

TAB 5 Developments Related to Vulnerable People in Detention ……………………………………………………………………. 5 – 1 to 5 – 4

Andrew Brouwer, C.S., Senior Counsel - Refugee Law Legal Aid Ontario

TAB 6 Habeas Corpus Applications in the Immigration Context

TAB A Habeas Corpus and Immigration Detention ……………….. 6A – 1 to 6A – 14

Sharon Stewart Guthrie, Counsel, Immigration Law Division, Ontario Regional Office, Department of Justice

TAB B Habeas Corpus Applications for Immigration Detainees in Ontario: Procedural Considerations ………… 6B – 1 to 6B – 18

Jared Will, Avocat - Barrister & Solicitor Jared Will & Associates

TAB 7 Ethical Issues

TAB A Good Faith Candour and the Obligation to Disclose ……. 7A – 1 to 7A – 31

Barbara Jackman, LSM, Jackman, Nazami & Associates

Jamie Todd, Senior Counsel, Immigration Law Division, Ontario Regional Office, Department of Justice

TAB B Ethics of Preparing Witnesses …………………………………….. 7B – 1 to 7B – 14

Aisling Bondy, Bondy Immigration Law

TAB C Caught between Competing Duties, What Witness Preparation is allowed? ………………………………………………. 7C – 1 to 7C – 7

John Provart, Senior Counsel, Immigration Law Division, Ontario Regional Office, Department of Justice


TAB 1

The Federal Court:

Update


November 23, 2016

24TH ANNUAL Immigration Law Summit – DAY 2

The Federal Court: Update

Chief Justice Paul CramptonToronto

November 23, 20161

1 - 1

Overview1. Judicial Complement

2. Workload and Scheduling

3. Citizenship Revocation Cases

4. Certified Questions

5. Issuance of Decisions

6. Work of the Rules Committee

7. File Retention

8. Recent/Ongoing Cases of Note2

1 - 2

1. Judicial Complement

3

1 - 3

• Four retirements over the last year: Justice O’Keefe (01/12/15) Justice Beaudry (12/06/16) Justice Hansen (31/05/16) Justice Hughes (16/09/16)

• One new appointment: Prothonotary Aylen (16/01/16)

4

1 - 4

• Potential for many additional appointments over the next 3 years: Supernumerary elections

Additional prothonotary positions or vacancies

Lifting of visa requirements for Mexico, Bulgaria & Romania

• Leading members of the Bar are encouraged to apply Merit, gender balance, diversity

5

1 - 5

2. Workload and Scheduling

6

1 - 6

Immigration Filings (January 1st to October 31st)

• IMM applications are down over 7% – from 4,820 in 2015 to 4,467 in 2016.– Refugee: down almost 42% -- from 1,722 to 1,215

– Non-refugee: up 5% -- from 3,098 to 3,250

• IMM applications for the same period in 2014 were at 7,376 – 65% higher than in 2016.

• Refugee/non-refugee split is 27%/73% – in comparison to 36%/64% in 2015

7

1 - 7

Federal Court-Immigration: New Proceedings FiledAll types of proceedings including Actions and Certificates for Debts due to the Crown

8

Filed 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016Jan 537 416 471 421 535 626 923 787 556 473 438Feb 596 457 505 574 591 694 1154 763 649 479 446Mar 621 456 523 596 684 840 1038 750 885 555 430Apr 529 407 508 573 616 715 909 790 1371 469 426May 646 451 455 598 639 745 1205 639 814 506 485Jun 707 440 433 571 700 671 1253 584 852 524 534Jul 596 450 469 539 652 662 1161 680 649 460 423Aug 584 457 438 461 642 1013 1117 643 520 452 436Sep 527 461 456 490 636 759 1200 560 534 448 416Oct 511 512 519 610 631 976 1104 732 546 454 433Nov 492 519 428 592 699 1021 1000 629 498 476Dec 426 487 482 685 685 1119 906 758 536 530Total 6,772 5,513 5,687 6,710 7,710 9,841 12,970 8,315 8,410 5,826 4,467

Source PMSYS_COPY.D01PRCDG

0

200

400

600

800

1000

1200

1400

1600

2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016

Jan

Feb

Mar

Apr

May

Jun

Jul

Aug

Sep

Oct

Nov

Dec

1 - 8

Federal Court-Immigration: New Proceedings FiledRPD (and RAD) Applications for leave and for judicial review

9



0

100

200

300

400

500

600

700

800

2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016

Jan

Feb

Mar

Apr

May

Jun

Jul

Aug

Sep

Oct

Nov

Dec

1 - 9

Federal Court-Immigration: New Proceedings FiledOther (non RPD) Applications for leave and for judicial review

10



0

200

400

600

800

1000

1200

2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016

Jan

Feb

Mar

Apr

May

Jun

Jul

Aug

Sep

Oct

Nov

Dec

1 - 10

IMM JR Workload (1)

• The total number of leaves granted is also declining, after significant increases in the prior two years: 999 for 2016 YTD

1,682 for corresponding period in 2015

1,373 for corresponding period in 2014

11

1 - 11

Immigration Leave Applications – All Types

12

- 200 400 600 800 1,000 1,200 1,400 1,600 1,800

-

2,000

4,000

6,000

8,000

10,000

12,000

App

licat

ions

for

Leav

e G

rant

ed

Proc

eedi

ngs

Com

men

ced

/ Dis

pose

d

Jan.1‐Oct.31/11

Jan.1‐Oct.31/12

Jan.1‐Oct.31/13

Jan.1‐Oct.31/14

Jan.1‐Oct.31/15

Jan.1‐Oct.31/16

ProceedingsCommenced

7,699 11,061 6,930 7,372 4,814 4,464

TotalDispositions

7,117 8,232 9,340 6,255 5,844 4,854

Applications for Leave Granted 1,220 1,261 1,050 1,373 1,682 999

1 - 12

Immigration Leave Applications - RPD/RAD matters

13

- 100 200 300 400 500 600 700 800 900

-

1,000

2,000

3,000

4,000

5,000

6,000

7,000

App

licat

ions

for

Leav

e G

rant

ed

Proc

eedi

ngs

Com

men

ced

/ Dis

pose

d

Jan.1‐Oct.31/11

Jan.1‐Oct.31/12

Jan.1‐Oct.31/13

Jan.1‐Oct.31/14

Jan.1‐Oct.31/15

Jan.1‐Oct.31/16


5,516 5,926 3,820 3,104 1,992 1,496

TotalDispositions

5,121 5,343 4,892 3,359 2,839 1,707

Applications for Leave Granted 700 746 533 677 826 360

1 - 13

Immigration Leave Applications – Other (i.e. non-RPD/RAD matters)

14

- 100 200 300 400 500 600 700 800 900

-

1,000

2,000

3,000

4,000

5,000

6,000

App

licat

ions

for

Leav

e G

rant

ed

Proc

eedi

ngs

Com

men

ced

/ Dis

pose

d

Jan.1‐Oct.31/11

Jan.1‐Oct.31/12

Jan.1‐Oct.31/13

Jan.1‐Oct.31/14

Jan.1‐Oct.31/15

Jan.1‐Oct.31/16


2,183 5,135 3,110 4,268 2,822 2,968

TotalDispositions

1,996 2,889 4,448 2,896 3,005 3,147

Applications for Leave Granted 520 515 517 696 856 639

1 - 14

IMM Leave Grant Rates (total dispositions)

• The grant rate YTD is approx. 20% for all IMM leave applications. Essentially the same as between RPD/RAD and non-

RPD/RAD

Down from almost 29% in 2015 and 22% in 2014, but up from 11.2% in 2013

15

1 - 15

IMM Leave Grant Rates (Perfected applications)

• For perfected applications, the leave grant rate has been stable at approx. 37-38% for the last three years. But significantly higher for non-RPD/RAD than for

RPD/RAD 43% vs. 27% for FY 2016 (YTD)

45% vs. 31% for FY 2015

46% vs. 31% for FY 2014

16

1 - 16

Immigration Leave Orders – All types - Perfected leave applications; commenced by the Claimant - FY 2014/15, 2015/16, 2016/17* (to 2016-10-31)*

17

1 - 17

Immigration Leave Orders - RPD/RAD matters - Perfected leave applications; commenced by the Claimant - FY 2014/15, 2015/16, 2016/17* (to 2016-10-31)*

18

1 - 18

Immigration Leave Orders – Other (i.e. non-RPD/RAD matters)- Perfected leave applications; commenced by the Claimant - FY 2014/15, 2015/16, 2016/17* (to 2016-10-31)*

19

1 - 19

IMM Workflow• Lag to a leave decision is oscillating between 3 and

4 months.

• We are scheduling leaves granted within the 90-day period required by para 74(b) of the IRPA.

• The median timeframe between application filing and the issuance of a judgment on the JR is 7.4 months. The median time for the issuance of decisions after the

hearing is ranging from 2-6 weeks – we’re getting our decisions out faster!

20

1 - 20

IMM Stays (Jan.1 – Oct. 31)

• 12% drop in motions, relative to last year YTD

(361 vs. 410).

• 25% drop relative to same period in 2014 (361 vs. 481).

• The grant rate YTD has been consistent with last three years (36-37%).

21

1 - 21

Year Granted Dismissed Other Rate Grand Total

Jan.1/15-Oct.31/15 148 254 8 36% 410

Jan.1/16-Oct.31/16 130 217 14 36% 361

Jan.1/15-Dec.31/15 176 293 12 37% 481

Jan.1/15-Oct.31/16 306 510 26 36% 842

Stays Heard Comparison 2015-2016

22

1 - 22

IMM Scheduling Requests

• Identify bilingual cases at the time of the request for Leave, so a bilingual judge can be assigned. “Bilingual” includes any cases that have some documents in

French, or a witness who would like to testify in French

• Identify cases requiring more than the 90 minute default time at that time as well.

23

1 - 23

IMM Scheduling Orders

• Leave scheduling Orders have been revised to clarify that parties may consent to an alternative time-line for completing various steps.

• Please give positive consideration to requests for JRs to be heard at law schools.

24

1 - 24

IMM Anonymization Requests

• Please also make anonymization requests at the time of request for Leave. Important to provide basis for request

Requests made as a matter of course are discouraged

Rules on requests for anonymity orders are being revised to clarify requirement for affidavit where the party intends to rely on facts that do not appear on the Court file

Motion may in any event be required

25

1 - 25

Non-IMM Scheduling

• 1-2 days: Still some availability in 2016 for English files

Scheduling for late January and beyond for French files

• 3-5 days: Scheduling for fall 2017.

• 6+ days: Scheduling for beginning of 2018.

26

1 - 26

3. Citizenship Revocation Files

27

1 - 27

Citizenship Revocation Files

• Terrorism/treason/spying: Gov’t announced it would not be pursuing these cases.

• Fraud/misrep (178 cases under common case mgt.): JRs of three common issues in eight lead cases were heard

last week by Justice Gagné

On November 7,2016, Justice Zinn dismissed a motion by the BCCLA and CARL for an order staying the operation of subsection 10(1) of the Citizenship Act pending the resolution of the constitutionality and validity of that section by Justice Gagné

28

1 - 28

4. Certified Questions

29

1 - 29

Certified questions (Nov-15-2016)

30

3

17

28

5552

37

45

25

32

10

24

18

30

39

10

0

10

20

30

40

50

60

2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016

NB: somejudgments havemultiple questions /quelquesjugements ontplusieurs questions

1 - 30

5. Issuance of Decisions

31

1 - 31

• Final decisions now being called either: “Judgment and Reasons“ – judgments with full reasons

“Judgment” - where short endorsement used

“Oral Judgments” - where issued orally and transcribed

• “Orders” are now used only for interlocutory decisions.

32

1 - 32

• All final decisions (except consent judgments) are now given neutral citations, posted to the internet and translated.

Some lag for lower priority decisions, due to funding constraints

Delay in implementing this for recital-type judgments, for same reason.

• Default for interlocutory decisions (including stays) will continue to be not to give a neutral citation or post to our website.

33

1 - 33

• Members of the Court are being encouraged to consider issuing more “judgments” with short endorsements, as well as oral decisions, to expedite issuance of decisionsThe Court has historically made much less use of these

types of decisions than the other trial level courts in Canada

Increasing response to this encouragement has assisted the Court to achieve median time to judgment of 2-6 weeks (post-hearing)

34

1 - 34

6. Work of the Rules Committee

35

1 - 35

Sub-committee on Substantive Amendments (1)

• Draft amendments to Rules recently published in Canada Gazette for public comment: filing a notice of appearance / intent to defend timeline for filing and format for books of authorities

(exemption if an authority is available in electronic format) increasing the monetary limits from $50K to $100K for

prothonotaries and simplified actions clarification of requirement for a public redacted version of

documents that contain confidential material, together with an affirmation from counsel regarding the redactions (Rule 152)

36

1 - 36

Sub-committee on Substantive Amendments (2)

• Additional amendments to Citizenship, Immigration and Refugee Protection Rules are being drafted. See above re: anonymization orders.

37

1 - 37

Sub-committee on Implementation of Global Review

• Amendments related to proportionality and to control of abusive practices are at drafting stage.

38

1 - 38

Sub-committee on Unbundling

• Amendments are also at drafting stage.

39

1 - 39

Sub-committee on Enforcement of Judgments

• Draft amendments soon to be pre-published in Canada Gazette for public comment.

• Will address various practical and procedural difficulties, to improve consistency, access to justice and efficiency.

40

1 - 40

Sub-committee on Costs

• Following public consultation, the Committee recently recommended:Eliminating the first two columns of Tariff B

Increasing costs contemplated by the remaining three columns by 25%

Exploring adding new items to the columns and additional units to existing items

41

1 - 41

Sub-committee on Miscellaneous Amendments

• Draft amendments soon to be pre-published in Canada Gazette for public comment.

42

1 - 42

Sub-committee on Legislative Reform

• Preparing list of potential amendments to the FC Act. Please contact Andrew Baumberg if you have

any suggestions.

Andrew Baumberg(613) [email protected]

43

1 - 43

7. File Retention

44

1 - 44

File Retention (1)

• Court proposing to adopt new 2 year retention policy for:

Abandoned proceedings (e.g., failure to perfect)

Discontinued / Withdrawn proceedings (terminated by a party prior to adjudication)

Cancelled proceedings (i.e, opened by Registry due to administrative error).

• Filings made prior to 2014 may start to be destroyed in 2017.

• Draft Notice to the Profession being published on Court’s website

45

1 - 45

File Retention (2)

• Court welcomes input on appropriate retention periods for:

IMM Leave denied applications

IMM applications adjudicated on their merits

• Please provide feedback to CBA, CARL, RLA or AQAADI reps on the Court’s IMM Liaison Committee.

• Or contact Andrew Baumberg:(613) [email protected]

46

1 - 46

8. Recent/Ongoing Cases of Note

47

1 - 47

Some recent/ongoing cases of interest (1):• Marijuana cases• Girouard (Judicial conduct)• National Security warrants and s. 38 cases• Schmidt (gov’t approach to constitutional issues)• “Lost” Canadians• Alderville First Nations (Treaty claims)• Tepper (potato farmer jailed in Lebanon)• Telus (AWS licenses)• Lost Student Loan Data• Abdelrazik (unlawful dissemination)

48

1 - 48

Some recent/ongoing cases of interest (2):• CHEO v Transgenomic (gene patents)• Canada Post (home delivery)• Aubin (Parliamentary satellite offices)• Buote & White (RCMP Class Settlement)• Chief Gottfriedson v HMQ (day school class action)• Virginia Hillis v AGC (Constitutional challenge of Canada-United

States Enhanced Tax Information Exchange Agreement Implementation Act)

• Hinton v HMQ (Gov’t Profit from Visa fees – class proceeding)• Constitutionality of Citizenship Act amendments• Alani - Failure to appoint senators• NDP Expenses

49

1 - 49

Some recent/ongoing cases of interest (3):• US War deserters• Volkswagen Class Action• McCrea (class action – EI benefits on maternity leave)• MNR v KPMG • PIPSC v Canada (standard for security screening)• Shoan v Canada (internal CRTC complaint)• Dionne v Bureau du surintendant des institutions financières (official

languages)• Information Commissioner v MPSEP (gun registry)• Save our Saugeen Shores v Canada (nuclear waste)• Turp v Canada (armoured vehicles)

50

1 - 50

Some recent/ongoing cases of interest (4):• CSIS: use of national security warrants / retention of associated data

/ duty of candour• Helleyer et al v Trudeau et al: challenge re jurisdiction to sign CETA• David Suzuki Foundation et al v Canada: ‘bee file’ that raises

challenge (on judicial review) to permits re neonicotinoids• Voltage Pictures – file-sharing lawsuit via reverse class action• Alexion Pharmaceuticals v Canada – re pricing of blood disease

medication (“$700K-a-year drug”)• Pacific Northwest LNG case• Application re thalidomide survivors contribution program• Blacklock’s – Copyright Act fair dealing re content behind pay wall• Public Service Alliance of Canada et al v Canada: Phoenix system• Mi’gmaq challenge re Port of Belledune crude oil project

51

1 - 51

TAB 2A

International Developments

Professor Jennifer Bond, Associate Professor, Faculty of Law, University of Ottawa

November 23, 2016


Presentation to Law Society of Upper Canada 24th Annual Immigration Law Summit

Professor Jennifer Bond

University of Ottawa The following publicly available documents will be referenced during my presentation on international developments in immigration law: • Report of the Secretary-General on Large Movements of Refugees & Migrants:

http://refugeesmigrants.un.org/sites/default/files/in_safety_and_dignity_-_addressing_large_movements_of_refugees_and_migrants.pdf

• New York Declaration (“Refugee Compact”):

http://www.unhcr.org/events/conferences/57e39d987/new-york-declaration-refugees-migrants.html

• UNHCR Global Trends 2015:

http://www.unhcr.org/global-trends-2015.html • UNHCR Projected Global Resettlement Needs (2017):

http://www.unhcr.org/protection/resettlement/575836267/unhcr-projected-global-resettlement-needs-2017.html

• Canada’s 2017 Immigration Levels Plan:

http://news.gc.ca/web/article-en.do?nid=1145319 • News Release re. Global Private Sponsorship of Refugees:

http://news.gc.ca/web/article-en.do?nid=1126819

• Refugee Sponsorship Support Program: http://refugeessp.ca/home/

2A - 1





http://www.unhcr.org/global-trends-2015.html





http://refugeessp.ca/home/

TAB 2B

Recent Developments in Immigration and Refugee Law

Angus Grant Legal Aid Ontario

November 23, 2016


Atrium on Bay, 40 Dundas Street West, Suite 200

Toronto, ON M5G 2H1

Atrium on Bay, 40, rue Dundas Ouest, bureau 200

Toronto (Ontario) M5G 2H1

Phone / Téléphone :

Toll-free/Sans frais :

Fax / Télécopieur:

Email / Courriel:

www.research.legalaid.on.ca

416-979-1321

1-800-265-1392

416-979-8946

[email protected]

Recent Developments in Immigration and Refugee Law

Presented at the 24th Annual LSUC Immigration Law Summit (Day Two)

Angus Grant

The past year has seen a steady flow of important decisions in immigration and refugee law. Most notably, the Supreme Court of Canada released decisions on the meaning of people smuggling under both inadmissibility and criminal provisions in the Immigration and Refugee Protection Act (in B010, 2015 SCC 58 and Appulonappa, 2015 SCC 59, respectively) and on the proper interpretation of humanitarian and compassionate considerations under s.25 of the IRPA (Kanthasamy, 2015 SCC 61). Below I provide summaries of these decisions and some of the cases that have considered them over the past year. Finally, I provide summaries of two cases that are currently before the Supreme Court (one, pending a hearing, the other a decision on leave). These cases relate, respectively to the meaning of conditional sentences in the context of immigration inadmissibility (Tran, SCC Court File No. 36784) and the constitutionality of the PRRA Bar (Atawnah, SCC Court File No. 37122).

B010 / Appulonappa and Recent Jurisprudence

B010 et al. v. Canada (MCI) 2015 SCC 58

The appellants, all refugee claimants, had been found inadmissible to Canada for engaging in people smuggling, contrary to s.37(1)(b) of the IRPA. They challenged these findings, arguing that the legislative provision at issue should be limited in its scope to those individuals who engage in smuggling activities in exchange for a material benefit, as is explicitly the case in the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime, 2241 U.N.T.S. 480 [Smuggling Protocol]. Some of the appellants further argued that if s.37(1)(b), properly construed, is not limited to profit-making operations, it violates s.7 of the Charter.

Employing principles of statutory interpretation, the Supreme Court of Canada granted the appeals, concluding that s.37(1)(b) applies only to people who act to further illegal entry of asylum-seekers in order to obtain, directly or indirectly, a

2B - 1

https://www.canlii.org/en/ca/scc/doc/2015/2015scc58/2015scc58.html

financial or other material benefit in the context of transnational organized crime. Acts of humanitarian and mutual aid of asylum seekers (including aid between family members) do not constitute people smuggling under the IRPA.

In arriving at this conclusion, the court found that s.37(1)(b), read in its ordinary and grammatical sense, clearly indicates that it only applies to acts of illegally bringing people into Canada where such acts are connected to transnational organized criminal activity: para. 35.

The court rejected the government’s contention that limiting the people smuggling provision to those circumstances involving a material benefit to the smugglers fails to catch operations undertaken for other nefarious purposes, such as sexual exploitation or terrorism. Other inadmissibility provisions, the court noted, are available to address these situations, most notably those found at sections 34-36 of the IRPA.

The court also rejected the argument that s.37 of the IRPA should take its meaning from the broad meaning ascribed to “human smuggling” under s.117 of the IRPA, primarily on the basis that, in a companion proceeding described below, the court found s.117 to be unconstitutionally overbroad: para. 40.

The court also appeared to find that Article 31 of the Refugee Convention, which mandates that states refrain from imposing penalties against refugees on account of their illegal entry, also applies to refugees who assist others in seeking asylum (at para. 63): “[t]he law recognizes the reality that refugees often flee in groups and work together to enter a country illegally. Article 31(1) thus does not permit a state to deny refugee protection … to refugees solely because they have aided others to enter illegally in an unremunerated, collective flight to safety. Rather, it targets those who assist in obtaining illegal entry for financial or other material benefit.”

The court then concluded on this issue (at para. 72):

The wording of s. 37(1)(b), its statutory and international contexts, and external indications of the intention of Parliament all lead to the conclusion that this provision targets procuring illegal entry in order to obtain, directly or indirectly, a financial or other material benefit in the context of transnational organized crime. To justify a finding of inadmissibility against the appellants on the grounds of people smuggling under s. 37(1)(b), the Ministers must establish before the Board that the appellants are people smugglers in this sense. The appellants can escape inadmissibility under s. 37(1)(b) if they merely aided in the illegal entry of other refugees or asylum-seekers in the course of their collective flight to safety.

2B - 2

Given its above findings, the court found it unnecessary to fully consider the appellants’ constitutional challenge. However, in obiter, the court further provided that the Charter arguments were of “no assistance” to the appellants because s.7 of the Charter is not engaged in respect of inadmissibility determinations: para. 75, citing the finding in Febles, 2014 SCC 68, that a determination of exclusion from refugee protection under the IRPA similarly does not engage s.7. It is only later in the removals process, at the PRRA stage, that s.7 is “typically engaged”: para. 75.

Appulonappa et al. v. R 2015 SCC 59

In the companion case to B010, summarized above, the Supreme Court considered the constitutionality of the criminal prohibition against human smuggling found at s.117 of the IRPA. The appellants were alleged to be the organizers and principal crew aboard the MV Ocean Lady vessel that transported 76 Tamil asylum seekers to Canada in 2009. In granting the appeals, the court concluded that, insofar as s.117 permits prosecution for humanitarian aid to undocumented entrants, mutual assistance amongst asylum-seekers or assistance to family members, it is overbroad and therefore infringes s.7 of the Charter.

In concluding that the provision at issue was overbroad, the court first looked to its legislative purpose, rejecting the contention of the Crown that the provision was intended to catch all acts that in any way assist the entry of undocumented migrants : para. 32. In tracing the purpose of the provision, the court looked to its wording, to its larger legislative context and history; and to international law; it concluded that the narrow focus of s.117 was simply to combat people smuggling.

The court then compared this purpose to the actual scope of s.117, finding that it plainly exceeded its objective by catching those who provide humanitarian, mutual and family assistance to asylum-seekers: para. 72. This overbroad purpose, the court further found, could not be cured by the requirement under s.117(4) of the IRPA that the Attorney General authorize prosecutions under s.117(1). The court stated (at para. 74):

Ministerial discretion, whether conscientiously exercised or not, does not negate the fact that's. 117(1) criminalizes conduct beyond Parliament's object, and that people whom Parliament did not intend to prosecute are therefore at risk of prosecution, conviction and imprisonment. So long as the provision is on the books, and so long as it is not impossible that the Attorney General could consent to prosecute, a person who assists a family member or who provides mutual or humanitarian assistance to an

2B - 3



https://www.research.legalaid.on.ca/cgi/searchEverything.pl#2

asylum-seeker entering Canada faces a possibility of imprisonment. If the Attorney General were to authorize prosecution of such an individual, despite's. 117 s limited purpose, nothing remains in the provision to prevent conviction and imprisonment. This possibility alone engages's. 7 of the Charter. Further, as this Court unanimously noted in R. v. Anderson, 2014 SCC 41 ( CanLII ), [2014] 2 S.C.R. 167, at para. 17, per Moldaver J.: . . . prosecutorial discretion provides no answer to the breach of a constitutional duty .

As this finding was sufficient to grant the appellants appeal, the court declined to consider other Charter arguments, namely that s.117 was grossly disproportionate and unconstitutionally vague, and that it violated equality principles which, some of the appellants argued, are incorporated into the principles of fundamental justice under s.7.

On the question of remedy, the court refused to strike s.117 in its entirety and opted instead to read down the provision as being not applicable to persons who assist asylum seekers for humanitarian reasons or for reasons of mutual aid or family assistance: para. 85.

Appulonappar v. Canada (MCI) 2016 FC 914

The applicant [A] served as a crew member aboard the Tamil migrant vessel, the Ocean Lady, in its journey to Canada in 2009. He sought refugee protection upon his arrival in Canada, but was found by the IRB to be inadmissible pursuant to s.37(1)(b) of the IRPA on the ground that he had engaged in people-smuggling. A was also charged under s.117 of the IRPA in relation to his participation in the smuggling operation. Litigation related to those charges (in addition to charges brought against three other individuals) went to the Supreme Court, which resulted in a finding that s.117(1) was unconstitutional insofar as it permitted prosecution for humanitarian aid to undocumented entrants, mutual assistance amongst asylum-seekers, or assistance to family members: Appulonappa, 2015 SCC 59.

Judicial review of A’s inadmissibility determination was held in abeyance pending the outcome of other litigation on the proper interpretation of s.37(1)(b) of the IRPA, that was ultimately heard and determined in tandem with Appulonappa, see B010, 2015 SCC 58.

In subsequently considering A’s application for judicial review, the Federal Court acknowledged that the legal landscape for determining inadmissibility under s.37 had significantly changed following the Supreme Court’s B010 decision. Specifically, the reviewing court found that the board had unequivocally

2B - 4

http://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/179930/index.do

http://www.canlii.org/en/ca/scc/doc/2015/2015scc59/2015scc59.html


erred in: i) tying its interpretation of people smuggling under s.37 of the IRPA to the meaning ascribed to it under s.117; and ii) in declining to import a profit or “material benefit” component into the definition of people smuggling under s.37.

However, the reviewing court upheld the board’s decision because in its reasons, the board went on to find that the applicant had, in fact, received a material benefit for his work as a crew member aboard the Ocean Lady, namely a $5000 discount in the fee charged for the journey. On the facts, Justice Fothergill found this conclusion to be reasonable. The court also found it reasonable for the board to have concluded that A acted in knowing furtherance of the aims of the criminal organization in question, even if he was not himself a member of that organization: para. 32.

The court also found the board’s rejection of the defences raised by A, of necessity and duress, to be reasonable. A was living in Thailand when he boarded the Ocean Lady. He had been given successive visas to remain in the country and, as such, he was not in any imminent danger in relation to his refugee claim against Sri Lanka.

Finally, the court also upheld as reasonable the board’s conclusion that the applicant either intended or was wilfully blind to the fact that his participation in the voyage assisted other passengers to evade the law: para. 41. As the necessary elements for a finding of inadmissibility under s.37(1)(b) were made out, the application for judicial review was dismissed.

Gechuashvili v. Canada (MCI) 2016 FC 365

The applicant applied for permanent residence from within Canada under the spousal/common law partner in Canada class. In two separate decisions, the applicant was found to be inadmissible to Canada pursuant to s.37 of the IRPA and his application for permanent residence was refused. The inadmissibility findings arose after the applicant, together with two Canadian citizens and two foreign nationals, was arrested near the U.S. border. The Canadian citizens separately stated to the authorities that they were involved in a smuggling operation, bringing the foreign nationals across the border into Canada. They also stated that the applicant was the leader of the operation.

Before the Immigration Division, the applicant requested that the matter be deferred until the Supreme Court of Canada resolved the legal issues relating to the Federal Court of Appeal's decision in B010 and Appulonappa, above. The request was dismissed and the ID issued its decision, relying on the jurisprudence such as it was at the time. Subsequent to the ID’s decision, the Supreme Court released its decisions in the above matters, concluding in both that material benefit is a necessary component in the definition of people smuggling.

2B - 5

https://www.canlii.org/en/ca/fct/doc/2016/2016fc365/2016fc365.html

On judicial review of the ID decision, the court noted that the tribunal did not consider or make an express or implied finding on the question of whether or not the applicant, directly or indirectly, obtained a financial or other material benefit from transnational crime: para. 17. The respondent pointed to various references in the ID decision in which it suggested that the smuggling operation was carried out for purposes of financial gain, but the court concluded that these references were insufficient to establish that the Minister had discharged his burden in establishing the applicant's inadmissibility. In granting the application for judicial review, Justice Gleeson concluded (at para. 23):

The ID was silent on a critical issue, an issue that the Minister, not the applicant has the onus under paragraph 37(1)(b) of the IRPA to establish before the ID. This Court on judicial review is not in a position to find the Minister discharged the onus on this point particularly where the ID did not address the issue either expressly or by necessary implication. Therefore, the Court cannot be confident that the ID would have reached the same result by addressing this issue of whether the applicant derived a financial or other material benefit, directly or indirectly, from people smuggling in the context of transnational organized crime, and it follows that the decision was unreasonable and both matters should be sent back for redetermination ( JMSL at paras 38-39 ).

Vashakidze v. Canada (MCI) 2016 FC 1144

The applicant in Vashakidze was alleged to have participated in the same operation as the applicant in Gechuashvili, above. Their admissibility hearings were heard jointly.

As noted above, the Immigration Division concluded that the applicants were both inadmissible pursuant to s.37(1)(b) of the IRPA because there were reasonable grounds for believing that both had engaged in the transnational crime of people smuggling. As in Gechuashvili, the applicant argued that because the ID had not turned its mind to the issue of profit, the court had no choice but to quash the ID’s decision.

The respondent acknowledged that the ID had not considered material benefit and that this was now a prerequisite to a finding of inadmissibility for people smuggling under s.37(1)(b). It argued, however, that the judicial review should nevertheless be dismissed because it was clear from the record that the applicant was to be paid for his participation in the smuggling operation.

The court commenced its analysis by noting the following (at paras. 18-19):

2B - 6


Since the applicant had an outstanding opportunity to apply for judicial review, a final decision about his inadmissibility had not been made when the Supreme Court of Canada changed the law in B010.

Because the common law has retrospective effect in cases where final decisions have not been made, the applicant is entitled to have his inadmissibility considered using the principles set forth by the Supreme Court of Canada in B010.

While acknowledging that there was “relevant evidence” in the record that was before the ID, the court declined to, in its words, “supplement” the ID decision with a finding on the material benefit issue. Rather, this issue needed to be determined afresh by the Immigration Division and, on this basis, the application for judicial review was granted. However, the court limited the redetermination, as follows:

1. The same ID member was to preside over the reconsideration;

2. Unless directed otherwise, the reconsideration was to deal only with the question of material benefit;

3. The record before the ID in the initial hearing “is not to be challenged”;

4. The applicant may cross-examine any witnesses, may testify himself and may call two specified witnesses; and

5. The respondent may call further evidence and may cross-examine the applicant and his two witnesses.

Saif v. Canada (MCI) 2016 FC 437

The applicant pleaded guilty to a summary offence under paragraph 465(1)(d) of the Criminal Code, involving a conspiracy to commit a summary offence, which resulted in a conditional sentence of five months. The conspiracy in question involved a scheme that provided Canadian permanent residents with addresses of convenience and other documentation to fraudulently establish their Canadian residency. The applicant was a secondary player in the scheme, who simply allowed his address and name to be used on falsified documents.

2B - 7


Upon a referral for an admissibility hearing, the Immigration Division of the Immigration and Refugee Board found that the applicant's activities fell within the scope of organized criminality as the term is understood under s.37(1)(a) of the IRPA. Of interest, an RCMP officer who testified at the hearing indicated that no serious consideration had been given to bringing criminal organization charges against the applicant. The officer further indicated that the applicant was assisting another individual in an employment relationship that did not appear to constitute a criminal organization under the Criminal Code : para. 4.

In the proceedings, the board accepted the Minister's contention that, while the applicant may not have been a member of a criminal organization, he did fall within the second part of s.37(1)(a), namely that he had engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert.

The Federal Court on judicial review found that the board erred in its application of s.37(1)(a) of the IRPA to the evidence before it. Although the board did properly consider some of the elements of s.37(1)(a), it failed to clearly consider the structural features required for a finding of organized criminality : para. 9. This, the court continued, was largely because at the time of the board's decision, the jurisprudence had really only established that the proper approach to the term organization as it appears in s.37 was that it was to be provided a broad and unrestricted interpretation: para. 9, citing Sittampalam, 2006 FCA 326.

However, after the board's decision, the Supreme Court of Canada released its decision in B010, 2015 SCC 58, in which it explored the meaning of the term people smuggling as it appears in s.37(1)(b) of the IRPA. Despite the arguments of the respondent, the court in Saif found that the general approach of the court in B010 on concepts related to organized criminality was also applicable to s.37(1)(a).

One such approach was to incorporate the Criminal Code definition of criminal organization into s.37 and, as the court noted, this definition establishes that such organizations must be composed of at least three individuals. In this case, the evidence established that only the applicant and one other person were involved in the scheme. The court further rejected the respondent's contention that the beneficiaries of the scheme could also be said to have formed a part of the organization: para. 16. Despite the broad interpretation to be applied in these cases, the court noted that third parties who individually transact with a criminal organization cannot reasonably be seen to be members nor can they be considered to be engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an indictable offence: para. 17.

On the basis of this finding alone, the court granted the application for judicial review.

2B - 8

https://www.canlii.org/en/ca/fca/doc/2006/2006fca326/2006fca326.html


Kanthasamy and Recent Jurisprudence

Kanthasamy v. Canada (MCI) 2015 SCC 61

In Kanthasamy, 2015 SCC 61, the Supreme Court of Canada revisited the question as to how immigration officers are to assess humanitarian and compassionate factors and determine when they will be sufficient to warrant relief under the IRPA. The appellant was a Tamil from northern Sri Lanka who came to Canada as a minor and initiated a refugee claim. After his claim was rejected, he submitted an application for permanent residence from within Canada on humanitarian and compassionate grounds, pursuant to s.25(1) of the IRPA. An officer rejected his application, finding that relief was not justified as she was not satisfied that a return to Sri Lanka would result in hardship that was unusual and undeserved or disproportionate. The officer also limited her analysis by virtue of s.25(1.3) of the IRPA, which provides that, in examining H&C applications, officers may not consider the factors that are taken into account in the determination of whether a person is a Convention refugee or a person in need of protection under ss.96 and 97 of the IRPA. The Federal Court and Federal Court of Appeal upheld the officer’s decision.

On further appeal, the Supreme Court noted that in rendering decisions under s.25(1), officers must substantively consider and weigh all the relevant facts and factors before them. In doing this, and notwithstanding s.25(1.3), an officer may take the underlying facts adduced in refugee determination proceedings into account in determining whether the applicant’s circumstances warrant humanitarian and compassionate relief.

The court further found that while the instructions provided in the applicable CIC Manual – which state that applicants must demonstrate either “unusual and undeserved” or “disproportionate” hardship for relief under s.25(1) – may be useful, they are not legally binding and are not intended to be either “exhaustive or restrictive”: para. 32. Officers should not, in other words, fetter their discretion by treating the instructions contained within the Manual as if they were “mandatory requirements that limit the equitable humanitarian and compassionate discretion granted by s.25(1)”: para. 32. Abella J. continued (at para. 33):

The words “unusual and undeserved or disproportionate hardship” should therefore be treated as descriptive, not as creating three new thresholds for relief separate and apart from the humanitarian purpose of s. 25(1). As a result, what officers should not do, is look at s. 25(1) through the lens of the three adjectives as discrete and high thresholds, and use the language of “unusual and undeserved or disproportionate hardship” in a way that limits their

2B - 9



ability to consider and give weight to all relevant humanitarian and compassionate considerations in a particular case. The three adjectives should be seen as instructive but not determinative, allowing s. 25(1) to respond more flexibly to the equitable goals of the provision.

On the issue of the best interests of children affected by H&C decisions, the court noted that decision-makers must do more than simply state that the interests of a child have been taken into account. Those interests must be “well identified and defined” and examined “with a great deal of attention” in light of all the evidence: para. 39, citing Legault, 2002 FCA 125 and the decision of Justice Campbell in Kolosovs, 2008 FC 165.

Where, as in s.25(1), legislation specifically directs that the best interests of a child be considered, those interests are a “singularly significant focus and perspective”: para. 40.

Applying the above reasoning to the case at bar, the court found that the officer took an “unduly narrow approach” to the assessment of the appellant’s circumstances: para. 45. The officer failed to give sufficiently serious consideration to his age, his mental health, and the evidence that he would suffer discrimination if he were returned to Sri Lanka. The officer’s “literal obedience” to the language from the manual on disproportionate hardship, language that does not appear anywhere in the legislation, rather than looking at the appellant’s circumstances holistically, had the effect of improperly restricting her discretion, rendering her decision unreasonable.

It was also unreasonable for the officer to have discounted the psychological evidence before her because the psychologist who prepared the report was not a witness to the events that led to the anxiety experienced by the appellant. The evidence related to the psychological impact that the appellant would experience if removed from Canada was clearly relevant and it could not be dismissed on the mere basis that the psychologist did not witness the events that gave rise to the appellant’s trauma. The court continued (at para. 49):

Only rarely will a mental health professional personally witness the events for which a patient seeks professional assistance. To suggest that applicants for relief on humanitarian and compassionate grounds may only file expert reports from professionals who have witnessed the facts or events underlying their findings, is unrealistic and results in the absence of significant evidence. In any event, a psychologist need not be an expert on country conditions in a particular country to provide

2B - 10



expert information about the probable psychological effect of removal from Canada.

In a dissenting opinion, Justices Moldaver and Wagner would have upheld the decision of the immigration officer. While recognizing that the “undue hardship” analysis lacked flexibility and was in need of reform, the dissenting justices suggested that the approach adopted by the majority was “amorphous” and lacking in practical guidance for decision-makers. Instead, they proposed an approach requiring officers to determine “whether, having regard to all of the circumstances, including the exceptional nature of H&C relief, the applicant has demonstrated that decent, fair-minded Canadians would find it simply unacceptable to deny the relief sought. To be simply unacceptable, a case should be sufficiently compelling to generate a broad consensus that exceptional relief should be granted”: para. 101.

Huruglica v. Canada (MCI) 2016 FCA 93

While not an H&C case, the Federal Court of Appeal in Huruglica commenced its analysis of the scope of the Refugee Appeal Division’s powers by discussing the holding of the court in Kanthasamy on the interplay between the standard of review and the requirement that appeals in immigration matters may only be brought on the basis of a certified question of general importance.

The court found that the Kanthasamy decision significantly changed the way in which the Federal Court of Appeal is to address certified questions of general importance. Previously the court generally viewed its appellate role as requiring that it provide the ‘correct’ answer to certified questions. However, the Supreme Court in Kanthasamy rejected this proposition, indicating that despite the fact that a certified question may well be of general importance to the refugee law system, it is not necessarily a type of question that falls within the exceptions to the general application of the reasonableness standard: para. 27, citing Kanthasamy at para. 44.

Taylor v. Canada (MCI) 2016 FC 21

In considering the approach taken by an immigration officer in rejecting the applicants H&C application, the Federal Court determined that the officer had erred in assessing the application through the lens of unusual and undeserved or disproportionate hardship. The officer's decision was inconsistent with the decision of the Supreme Court of Canada in Kanthasamy, 2015 SCC 61, particularly in the connections it drew between the best interests of the child and hardship analyses: paras. 22, 26. In granting the application for judicial review, the court further provided (at para. 31):

2B - 11

http://www.canlii.org/en/ca/fca/doc/2016/2016fca93/2016fca93.html




We know that, per Kanthasamy SCC, a child affected by an H&C decision must be given the full and careful attention of the decision-maker. This means a thorough assessment of the child's interests assuming relevant evidence is provided which includes education, accommodation, personal safety, and health, and which takes into consideration the full spectrum of consequences that may result from granting, or denying, the H&C application. To do otherwise constitutes a reviewable error.

Gomez Valenzuela v. Canada (MCI) 2016 FC 603

The applicant fled Colombia for Ecuador with his mother. Over the period that he lived in Ecuador, he entered into a relationship with an Ecuadorian woman and together they had a daughter. Eventually the applicant and his mother were granted permanent residence in Canada as resettled refugees. In their application, the applicant did not list his partner or their child, as the mother feared that it would “derail” their application.

The applicant later submitted an application to sponsor his partner and child, though later the applicant’s relationship with the mother ended and he withdrew his sponsorship of her. In continuing with the application in respect of his daughter, the applicant requested H&C relief from the application of s.117(9)(d) of the Regulations, which would otherwise have barred the sponsorship because the sponsored person was not originally listed in the applicant’s application for permanent residence.

An officer rejected the application, finding that it was barred by s.117(9)(d) and that there were insufficient H&C grounds to warrant granting special relief. On the issue of the best interests of the daughter, the officer concluded that there was “no indication that the child concerned is lacking in terms of her basic needs, love, or education, or in a situation of danger”: judicial review, para. 8.

On judicial review of the decision, the Federal Court found that while the officer had not erred in incorporating a hardship component into the best interests of the child analysis, his decision on the evidence was unreasonable. While the officer reasonably pointed to the decent life and strong support that the daughter had in Ecuador, there was no correspondingly meaningful assessment of the benefits that she would experience in being able to spend part of her time in Canada with her father and paternal grandmother: para. 24. Key pieces of evidence were ignored and the officer even went so far as to indicate that the daughter’s mother did not provide a letter of support for the application when, in fact, she had signed an authorization for the daughter to immigrate to Canada. Drawing such an “unintelligible and unjustifiable” distinction between a letter of support and a signed authorization amounted to precisely the kind of

2B - 12

http://www.canlii.org/en/ca/fct/doc/2016/2016fc603/2016fc603.html

“perfunctory” best interests analysis that the Supreme Court of Canada warned against in Kanthasamy, 2015 SCC 61.

Ultimately, it was insufficient for the officer to simply conclude that the daughter’s basic needs were being met in Ecuador. This may be true, the court concluded, “but a child’s best interests connote more than basic needs”: para. 28.

D Aguiar-Juman 2016 FC 6

Notwithstanding the decision of the Supreme Court of Canada in Kanthasamy, 2015 SCC 61, applicants still bear the onus of adducing proof of any claim on which an H&C application relies. In this case, the officer's decision not to grant H&C relief was based on the absence of objective and relevant evidence in the record. This finding was unaffected by the Supreme Court's determination in Kanthasamy.

Lu v. Canada (MCI) 2016 FC 175

The applicant, an eight-year-old boy, was not listed on his father's application for permanent residence in 2008, because the father did not want to report his birth out of fear of repercussions in relation to China's one-child policy. The father, elder sibling and mother moved to Canada ( where they eventually had another child ), leaving the applicant in the care of his grandparents. The parents, knowing that the applicant was barred from being sponsored for permanent residence pursuant to s.117(9)(d) of the Regulations, later sought to bring him to Canada on H&C grounds. In making this application, they noted the reasons why the applicant was originally omitted from the father's permanent residence application and further submitted that the applicant's grandparent caregivers faced health concerns and were no longer in a position to care for the applicant. They also submitted that the family separation was a source of depression for the applicant's mother and, further, that the father had received inaccurate advice from his employer's HR department as to how to bring the applicant to Canada.

A visa officer rejected the application, finding that the hardship experienced by the applicant was not unusual, undeserved or disproportionate, particularly since it was the direct result of the choices made by the father, who would have been aware of the possible impact of the separation: para. 10.

On judicial review, the Federal Court found that the officer's consideration of the applicant's best interests, such as it was, amounted merely to a statement of the law and made no attempt to engage in the specifics of his case: para. 46. In further criticizing the lack of analysis undertaken by the officer, Justice Russell stated (at para. 48):

2B - 13







The submissions of the Applicant and the evidence that was before the Officer were sufficient to at least draw attention to the considerable number of issues in existence related to H&C grounds. The Decision in this regard constitutes a series of bald and unreasonable statements that were not grounded in a judicious evaluation of the evidence. The Officer's mind was essentially closed to an appreciation of the reality and best interests of the Applicant. The Applicant and his family deserved more here.

In granting the application for judicial review, the court further considered its jurisdiction, pursuant to s.18.1(3)(b) of the Federal Courts Act, to issue directions in relation to the reconsideration of the applicant's application. While the court refrained from exercising its ( rarely invoked ) jurisdiction to issue a directed verdict, it did provide as follows, taking into consideration the recent decision of the Supreme Court of Canada in Kanthasamy, 2015 SCC 61 (at para. 55):

While it is not the role of the Court to substitute its own view for the preferred outcome for that of a previous decision-maker, given the circumstances and the recent Supreme Court of Canada jurisprudence, the current Decision falls so far out of the range of possible outcomes that could be considered defensible in respect of the facts and law, that I think I would be remiss not to point out that, on the facts before me, this is an extremely compelling case that needs to be dealt with urgently in order to ensure that this young Applicant is not left in China without the long-term protection of close family. Also, there does not appear to be anything in the evidence before me that would disallow a positive decision on H&C grounds.

The court further ordered that the redetermination of the H&C application take place within 30 days.

Conditional Sentences

Canada (MPSEP) v. Tran 2015 FCA 237 SCC Court File No. 36784

The court considered the following certified questions:

2B - 14




1. Is a conditional sentence of imprisonment imposed pursuant to the…Criminal Code…a term of imprisonment under s.36 (1)( a ) of the IRPA?

2. Does the phrase punishable by a maximum term of imprisonment of at least 10 years in's. 36(1)( a ) of the IRPA refer to the maximum term of imprisonment available at the time the person was sentenced or to the maximum term of imprisonment under the law in force at the time admissibility is determined?

The respondent was convicted in relation to a marijuana grow op and received a 12-month conditional sentence of imprisonment. As a result, a Minister's delegate decided to refer the respondent for an admissibility hearing and the respondent sought to review this decision on the basis that the conditional sentence he received did not constitute a term of imprisonment for the purposes of s.36 of the IRPA. The Federal Court accepted this argument, noting that the determination as to whether a particular statutory reference to imprisonment includes a conditional sentence must be answered in context. Imprisonment, as it is referred to at s.36(1) of the IRPA, is in the context of serious criminality, which suggests that it was not meant to include conditional sentences, as they are reserved for less serious crimes. The Federal Court also found that the delegate had erred in assessing the impact of legislative changes that took effect between the respondent's conviction and his referral, changes that increased the potential length of sentence that he could have received and thereby affecting his appeal rights to the Immigration Appeal Division. The court found that the relevant date for assessing a person's admissibility is the date of conviction, rather than the date of the referral decision, as was found by the delegate.

The Federal Court of Appeal granted the Minister's appeal. On the question of conditional sentences, the court first observed that, generally, a sentence of imprisonment should be understood to include conditional terms of imprisonment when referring to a sentence under the Criminal Code: para. 66. While the jurisprudence has recognized exceptions to this general rule, where the meaning of imprisonment will be limited to a carceral term, the jurisprudence has further established that the general rule applies unless Parliament clearly indicates to the contrary: para. 67. In applying this reasoning to the situation of s.36 of the IRPA, the court first noted that the mere fact that conditional sentences may be applied to less serious offences at criminal law does not necessarily mean that they will not be considered serious for immigration purposes: para. 72.

The court further found it persuasive that, in reducing the threshold for losing an appeal in criminal inadmissibility cases from two years to six months, the relevant Parliamentary Committee specifically rejected suggestions that conditional sentences be excluded from the lowered threshold: paras. 84-86. As a result, while there may clearly have been other defensible interpretations of the

2B - 15

provision at issue, the court concluded that the interpretation adopted by the Minister's delegate was reasonable.

On the question of the appropriate moment at which to assess the respondent's admissibility, the respondent put forward two distinct arguments. First, he argued that regardless of the applicable criminal provision the one in force at the time of conviction or the one in force at the time of the s.44 referral it was incorrect for the Minister's delegate to refer his case because it was never actually open to the criminal court by virtue of sections 11(g) and (i) of the Charter to impose a maximum term of imprisonment of ten years or more. Second, the respondent argued that assessing inadmissibility on the basis of available punishments at the time of the referral decision would result in absurdities. It would mean, for example, that any permanent resident ever convicted of an offence could potentially be exposed to deportation for a crime which was not considered serious when it was committed or when the person was convicted of it. The respondent further argued that this approach introduced retroactivity into the operation of the criminal law, as it potentially increased liability or punishment for past criminal conduct.

The court rejected these arguments. First, the court concluded that the word punishable in s.36 refers to the offence under the Act of Parliament and not to the particular punishment that could in fact be imposed on the offender. Second, while the court recognized that the wording of s.36 could support an interpretation that the time at which one must assess whether an offence was punishable by a 10-year prison term is the time at which the person was convicted, the wording of the provision was not as clear as the judge appears to have considered it: para. 52. The other side of the respondent's absurdity argument, the court noted, was that someone convicted of an offence once thought to be serious, could benefit from later changes to the law increasing leniency: para. 54. Given that the particular proceedings before the delegate were neither criminal nor penal, one could not say that s.11(i) of the Charter found direct application; in fact, the overriding consideration was that reiterated by the Supreme Court of Canada in Medovarski, 2005 SCC 51 (at para. 46): the most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in Canada. As the delegate's interpretation was consistent with the legislative purpose of the provision under review, his decision was not unreasonable.

PRRA Bar Atawnah v. Canada (MPSEP) 2016 FCA 144 SCC Court File No. 37122

The appellants’ refugee claims were declared abandoned and they were eventually called in for a removal interview. As citizens of a Designated Country of Origin, the appellants were not eligible for a Pre-Removal Risk Assessment for

2B - 16



36 months and, as a result, they sought a deferral of removal and submitted an emergency PRRA application. The deferral was refused, as an enforcement officer found that, despite the fact that the applicants had not had a risk assessment conducted by a competent decision-maker, they did have access to due legal process and it was their own actions that led to the abandonment of their refugee claims. The appellants also brought a stay of removal before the Federal Court, which was denied, and they were consequently removed from Canada.

They filed an application for judicial review, asserting that their rights under s.7 of the Charter had been breached because they were removed from Canada without a fulsome assessment of their asserted risks being undertaken by a competent decision-maker. The applicants further sought a declaration that paragraph 112(2)(b.1) of the IRPA, which imposes the 36-month PRRA bar, is of no force and effect and, by way of remedy, they sought a writ of mandamus compelling the respondent to return them to Canada at the Minister's expense.

The Federal Court dismissed the application: Atawnah, 2015 FC 774, but certified the following question of general importance:

Does the prohibition contained in section 112(2)(b.1) of the Immigration and Refugee Protection Act against bringing a Pre-Removal Risk Assessment application until 36 months have passed since the claim for refugee protection was abandoned, violate section 7 of the Charter?

On appeal, the appellants argued that the applications judge had erred in a number of respects. First, they asserted that the judge had erred on the question of whether the PRRA bar's Charter compliance could properly be based on the assumption that enforcement officers will adequately assess risk prior to removal. This, the appellant argued, was called into question by the recent decision of the Supreme Court of Canada in Appulonappa, 2015 SCC 59, in which the court found that prosecutorial discretion in the context of people smuggling prosecutions was not sufficient to save an otherwise unconstitutional law: Atawnah, at paras. 8-10.

The Court of Appeal dismissed the appeal, finding on the above issue that there is an important distinction between prosecutorial discretion and the decisions of enforcement officers, which is that the latter may be challenged by way of judicial review, while the former, for the most part, cannot.

The court further noted that a risk assessment and determination conducted in accordance with the principles of fundamental justice is a condition precedent to a valid determination to remove an individual from Canada: para. 12, citing Farhadi, [2000] F.C.J. No. 646, at para. 3. As the removal scheme under consideration requires such an assessment in a manner that is not illusory, it

2B - 17




could not be said to violate s.7 of the Charter. The court further provided (at para. 23):

In my view…the supervisory role of the Federal Court, together with the ability of the Minister to exempt an applicant from the application of paragraph 112(2)(b.1) of the Act, acts as a safety valve such that the PRRA bar under review is not overbroad, arbitrary or grossly disproportionate.

The court also found that the appellant had failed to make out the argument that it is a principle of fundamental justice that prior to removing an individual from Canada, a decision-maker empowered to assess risk must conduct an assessment of that risk that conforms to the basic principles of fairness, including the ability to convene an oral hearing if credibility is in issue: paras. 24-27.

That said, the court did go on to note that in view of the decision of the Supreme Court in Singh, 1985 CanLII 65, an enforcement officer cannot reasonably make credibility findings with respect to any assertions of risk in the absence of an interview: para. 32.

As a result, the appeal was dismissed and the certified question was answered in the negative.

2B - 18

https://www.canlii.org/en/ca/scc/doc/1985/1985canlii65/1985canlii65.html

TAB 2C

2016 Practice, Procedure & Administrative Cases You Might Not Know About

Ann Margaret Oberst, Counsel, Immigration Law Division Ontario Regional Office,

Department of Justice

November 23, 2016


The Law Society of Upper Canada 24rd Annual Immigration Law Summit

Toronto, Ontario November 23, 2015

2016 Practice, Procedure & Administrative Cases You Might Not Know About

Ann Margaret Oberst Department of Justice Canada

Some of the most vexing issues you will encounter when litigating are those dealing with practice and procedure. They are also the issues you often have the least time to research. Collected below are brief summaries of practice, procedure and administrative law cases from the past year that may be helpful for your immigration and refugee law litigation. They come from all levels of the Federal and Ontario courts, and the Supreme Court of Canada. The cases are collected under general headings to allow you to quickly browse through them and find the issues that most interest you. ACTIONS Calwell Fishing Ltd. v. Canada, 2016 FC 312 http://canlii.ca/t/gnr47 Actions seeking declarations versus actions seeking damages Heneghan J. discusses the difference between (1) an action for damages based on a cause of action, and (2) an action for a declaration that the plaintiff is legally entitled to compensation. For example, an action for a declaration is not necessarily rooted in a cause of action and may not be subject to statutory limitations periods. At the same time, a declaration that the plaintiff’s rights were violated may require that the plaintiff proves the elements of a related cause of action. In this case, the plaintiffs were permitted to frame their action as seeking a declaration that they had been subject to an uncompensated expropriation of their fishery business, but they were still required to prove the well-established elements of a regulatory taking before any declaration would issue. ADEQUATE ALTERNATIVE REMEDY Twin v. Sawridge First Nation, 2016 FC 358 http://canlii.ca/t/gpczs Judicial review – bars to relief – adequate alternate remedies

2C - 1

http://canlii.ca/t/gnr47

http://canlii.ca/t/gpczs

Zinn J. analyzes the rule that an applicant must exhaust all adequate internal appeals before seeking judicial review (aka “the doctrine of exhaustion”). He draws a fine distinction, noting that although a failure to utilize internal appeal routes may function as a bar to relief on judicial review, this does not mean that the applicant is bound to judicially review the most final appeal decision. Rather, it is open to the applicant to challenge the original decision (so long as the applicant has also pursued all internal appeals). In this case, Zinn J. endorses the approach of an applicant who sought judicial review of the initial decision of the Chief Electoral Officer of an aboriginal band, rather than seeking judicial review of a later appeal to the band’s general assembly. CANADA EVIDENCE ACT Canada (Attorney General) v. Tepper, 2016 FC 307 http://canlii.ca/t/gnrjs Privilege – public interest immunity – s. 37 of the Canada Evidence Act O’Reilly J. provides a helpful roadmap for how litigants and the court should assess a claim by Canada that documents should be withheld from a plaintiff on the basis of public interest immunity under s. 37 of the Canada Evidence Act. O’Reilly J. discusses the circumstances when it is appropriate for the court to personally review the documents, and how the court should apply the balancing exercise which determines whether the information should be released. CHARTER R. v. Moriarity, 2015 SCC 55 http://canlii.ca/t/gm4nr Section 7 and Overbreadth The SCC continues to clarify the law of overbreadth as a principle of fundamental justice under section 7 of the Charter. The Court confirms that it is critically important to identify the law’s purpose and effects because overbreadth is concerned with a disconnection between the two. The Court recognizes that the objective of the challenged provision may be more difficult to identify and articulate than its effects. Judges must articulate the objective in a way that is firmly anchored in the legislative text and considered in its full context. Judges must also avoid statements of purpose that effectively predetermine the outcome of the overbreadth analysis without actually engaging in it. In general, the articulation of the objective should focus on the ends of the legislation rather than on its means, be at an appropriate level of generality and capture the main thrust of the law in precise and succinct terms. An unduly broad statement of purpose will almost always lead to a finding that the provision is not overbroad, while an unduly narrow statement of purpose will almost always lead to a finding of overbreadth. The

2C - 2

http://canlii.ca/t/gnrjs

http://canlii.ca/t/gm4nr

overbreadth analysis does not evaluate the appropriateness of the objective. Rather, it assumes a legislative objective that is appropriate and lawful. Carter v Canada (AG), 2016 SCC 4 http://canlii.ca/t/gmxkq

Extension of suspension of declaration of constitutional invalidity

The Attorney General must show extraordinary circumstances to justify an extension of a suspension of a declaration of constitutional invalidity. The Court unanimously granted a 4 month extension of the suspension of the declaration of invalidity of Criminal Code provisions prohibiting physician assisted ending of life, based on a 4 month interruption of legislative work due to a federal election. A 5-4 majority also granted an exemption to its extension order to individuals suffering from a grievous, intolerable and irremediable medical condition, who may apply to superior court to exercise their rights under the Court’s decision in which the declaration of invalidity was originally given. Quebec, which has already enacted end of life legislation was also granted an exemption to the extension order. Four members of the Court, including the Chief Justice, agreed that the extension was justified, but would not have granted exemptions for individuals because the question of the lawfulness of physician assisted ending of life is most appropriately addressed by the legislative process. The minority also found it was unnecessary to grant an exemption for the province of Quebec.

Trinity Western University v. The Law Society of Upper Canada, 2016 ONCA 518 http://canlii.ca/t/gs9d5 Administrative law – public interest – competing Charter values The Ontario Court of Appeal upholds the decision of the Law Society of Upper Canada to refuse accreditation to Trinity Western University’s law school. The refusal was based on TWU’s “Community Covenant”, which stipulated that students must abstain from sexual intimacy that “violates the sacredness of marriage between a man and a woman”. The Court discusses how an administrative tribunal should balance competing Charter rights (in this case, freedom of religion vs. equality rights). The Court also discusses how a statutory body like the LSUC should interpret its statutory mandate to promote “the public interest”. Schmidt v Canada, 2016 FC 269 http://canlii.ca/t/gnlgn Statutory interpretation – law-making – role of the Minister of Justice – compliance with the Charter The Federal Court dismisses an action brought by a former Justice lawyer who argued that the Minister of Justice was failing in his statutory duty to review proposed legislation for compliance

2C - 3

http://canlii.ca/t/gmxkq

http://canlii.ca/t/gs9d5

http://canlii.ca/t/gnlgn

with the Charter. The plaintiff, Edgar Schmidt, argued that the Minister must alert Parliament when it is “more likely than not” that legislation runs afoul of the Charter. Canada, on the other hand, argued that it is a more flexible standard: the Minister must only alert Parliament if there is no “credible argument” that the legislation is Charter compliant. After an extensive exercise in statutory interpretation, Noel J. agreed with Canada’s interpretation. This case is a useful primer on the different roles of the Attorney General and the Minister of Justice, the legislative function of the Department of Justice and the process of law-making. CONSOLIDATION OF CLAIMS Dove v. Canada, 2016 FCA 231 http://canlii.ca/t/gtvcc Consolidation of claims at the FC level does not carry over to the FCA level Five claims were consolidated by the Federal Court and one was made the lead file. Only the lead file was appealed and the parties assumed that the consolidation order would continue in force in the Court of Appeal. Not so: the two courts are separate and distinct and the only case the Court of Appeal could adjudicate upon was the one (the lead case) that was appealed. COSTS Sarnia (City) v. River City Vineyard Christian Fellowship of Sarnia, 2015 ONCA 732 http://canlii.ca/t/glvmr Costs – public interest litigation – government as public interest litigant This is the Ontario Court of Appeal’s latest statement on costs in public interest litigation. The underlying case involved an unsuccessful attempt by the City of Sarnia to obtain an injunction against a homeless shelter that allegedly violated a municipal bylaw. Sarnia argued that it should not be liable for costs because it was a public interest litigant. The Court of Appeal rejected this submission and held that Sarnia was liable for partial indemnity costs. The Court held that “it is more difficult to justify depriving a successful private actor, rather than a government actor, of the costs order they would normally receive in public interest litigation.” However, the Court rejected the homeless shelter’s argument that it should receive full indemnity, holding that special costs should not become routine in public interest litigation. Ogichidaakwe (Grand Chief) et al v Ontario Minister of Energy et al, 2015 ONSC 7582 (Div Ct) http://canlii.ca/t/gmg4x

2C - 4

http://canlii.ca/t/gtvcc

http://canlii.ca/t/glvmr

http://canlii.ca/t/gmg4x

Costs – interveners not entitled to costs The day before a five-day hearing was to begin, the applicant First Nation and the respondent provincial minister settled, on a without costs basis, the application, which had raised issues concerning the duty to consult. A company had been granted standing as an intervener (not as an added party) with limited role and participation. The court dismissed its request for costs of $335,000 against the First Nation. There was no reason to depart from the usual rule that an intervener neither receives nor pays costs. “[T]he duty to consult is the pragmatic manifestation of our collective recognition of the constitutional position of First Nations within Canada. The concerns raised are understood to be between nations. Settlement of such issues is to be celebrated, not unnecessarily impeded by the threat that the First Nations involved may have to pay costs. Those [such as this intervener] whose commercial interests could be engaged may have to absorb the costs of becoming involved.” Galati v. Harper, 2016 FCA 39 http://canlii.ca/t/gn8jr Solicitor-client costs – costs for self-represented litigants – special costs for public interest litigation – award of costs based on scandalous submissions. A claim for solicitor-client costs by a self-represented litigant is impossible. They have no counsel and therefore have no out-of-pocket expenses for which full indemnity is appropriate. Under the Federal Courts Rules, lawyers appearing as self-represented litigants or lawyers appearing pro bono cannot recover costs above their regular hourly rate. The Court of Appeal rejected the request for special costs because the case (the SCC Nadon challenge) did not have widespread societal impact and because it was possible to pursue the litigation with private means. In his submissions, Mr. Galati had stated that any court who did not award solicitor-client costs in this type of case would be perceived as being in collusion with the state government. This statement rose to the level of being so scandalous that it deserved to be condemned by the Court with an award of costs against Mr. Galati. These costs were limited to $1000 only because that was the amount asked for by the respondents. Carter v. A.G. (Canada) (31 August 2016), SCC 35591 Supreme Court of Canada Bulletin of September 2, 2016 http://scc-csc.lexum.com/scc-csc/bulletins/en/item/5304/index.do Taxation of Costs – Special (Solicitor and Client) Costs at the Supreme Court The Carter case came out of British Columbia, a regime in which special costs have replaced solicitor-client costs. The Supreme Court Registrar confirms that special costs and solicitor and client costs are comparable scales and that bills involving awards for special costs should be taxed in the same manner as in those where the Supreme Court awards solicitor and client costs. The

2C - 5

http://canlii.ca/t/gn8jr

http://scc-csc.lexum.com/scc-csc/bulletins/en/item/5304/index.do

assessment of solicitor and client costs are based on quantum meruit, meaning what is “fair and reasonable”, which is decided according to a list of nine factors known as the “Cohen criteria”. It cannot be overstated that there is an underlying obligation on parties to do their utmost to minimize the costs of litigation. The successful litigant cannot burden the defendant with any and all expenses. And, where a government party is ordered to pay costs, particularly full indemnity solicitor and client costs, the Crown should not be treated as an unlimited sources of funds. A costs order against the Crown in not a windfall. In this case, the costs that were in contention were for the motion brought by the Attorney General for an extension of the suspension of the declaration of unconstitutionality. The Registrar reduced the amounts claimed by almost $60,000 and the decision shows he took into account the complexity of the issues, duplication of work, and the amount claimed for agent’s fees. Best v. Kingsland Estates Ltd. (28 August 2016), SCC 35785 Supreme Court of Canada Bulletin of September 2, 2016 http://scc-csc.lexum.com/scc-csc/bulletins/en/item/5304/index.do Taxation of Costs – Solicitor and Client Costs at the Supreme Court Counsel submitted a bill of costs that referenced three costs scales used in the Ontario Court. Counsel fees are taxed in conformity with the order of the Court on either a party and party scale in accordance with the Tariff set out in the Rules of the Supreme Court of Canada or on a solicitor and client scale. Parties should not submit bills of costs based on any other method or scale unless directed by the Court. The indemnity scales used in other provinces do not apply other than in very particular and extremely rare circumstances where the order of the Court makes clear that another scale or basis for costs is to be applied. Solicitor and client costs are assessed on a quantum meruit basis and parties are obliged to do their utmost to minimize costs. Courts should make reductions for any duplication of work by lawyers in the same firm as reflected by multiple billing for inter-office conferences, attending meetings together, or otherwise conferring with one another. COUNSEL Popova v. Empire Life Insurance Company, 2016 FCA 77 http://canlii.ca/t/gnnkq Parties must act in person or be represented by a solicitor in the Federal Courts Justice Webb, for the Court, confirms that Rule 119 requires that parties must either act in person or be represented by a solicitor. This means, for example, your father can’t represent you unless he is a lawyer. Under Rule 121 the only time representation by someone other than a solicitor is possible is when the party is under a legal disability or is seeking to act in a representative capacity.

2C - 6


http://canlii.ca/t/gnnkq

DIRECTIONS FROM THE COURT Bernard v. Canada (Customs and Revenue Agency), 2015 FCA 263 http://canlii.ca/t/gmb0m Rule 54 and directions from the court on how to proceed Paragraphs 37-46 warn that Rule 54 (which allows a party to move for directions concerning the procedure to be followed under the Federal Courts Rules) should be used “as a last resort”. Rule 54 is no substitute for reading the Rules yourself and assessing how to use them. Where ambiguity exists about a filing, a party should attempt to file and, if the Registry refuses, the matter can then be placed before a judge. Exeter v. Canada (Attorney General), 2016 FCA 234 http://canlii.ca/t/gtsqb Directions from the Federal Courts – purpose of Rule 54 The appellant believed that an audio recording of a proceeding before a prothonotary had been tampered with. She sought directions under rule 54 from the Federal Court regarding the procedure for obtaining an audio forensic expert. On appeal, Justice Dawson discusses the purpose of directions. As an independent and impartial decision-maker, the court cannot give legal or tactical advice to a party. The onus always rests on the party asserting a right to prove the facts which support their claim. The court cannot counsel the party on how to prove their case. Rule 54 only permits directions on procedure. The court should not adjudicate upon disputed issues in the course of giving procedural directions. DELIBERATIVE SECRECY Commission scolaire de Laval v Syndicat de l’enseignement de la région de Laval, 2016 SCC 8 http://canlii.ca/t/gnrhl Standard of Judicial Review — in camera deliberations — examination of deliberating members The Quebec School Board dismissed a teacher after in camera deliberations by its executive committee. The teacher’s union grieved the dismissal on the grounds that the deliberations were not sufficiently “thorough” as required by the collective agreement, and sought to call members of the executive committee as witnesses. The grievance arbitrator allowed this evidence, rejecting the School Board’s argument that the executive members could not be examined because of the principle that the motives of a decision making body are unknowable, and that deliberative secrecy shields the in camera deliberations of decision making bodies. Should the standard of correctness or reasonableness apply to the arbitrator’s decision on this question of law? According to Dunsmuir, the correctness standard only applies to a question of law where

2C - 7

http://canlii.ca/t/gmb0m

http://canlii.ca/t/gtsqb

http://canlii.ca/t/gnrhl

the question under review affects the administration of justice as a whole, and where it falls outside the special expertise of the decision making body. Here are the different outcomes that resulted from the application of this approach at each level of court: The Quebec Superior Court applied the correctness standard and quashed the arbitrator’s decision as incorrect. The Court of Appeal for Quebec was unanimous on the standard of review (correctness) and divided on the merits, with the majority restoring the arbitrator’s decision as correct. The SCC, however, was divided on the standard of review — with the 4-3 majority (per Gascon J) ruling for a reasonable standard — and unanimous in upholding the arbitrator’s decision to allow the examination, as reasonable (the majority) or correct (the minority, per Côté J.). DISCONTINUANCES Philipos v. Canada (Attorney General), 2016 FCA 79 http://canlii.ca/t/gnnkp Principles governing the resurrection of proceedings after a discontinuance Discontinuance is a unilateral act – it does not require leave of the court or consent of an opposing party. But a motion is required to resurrect a discontinued appeal. Discontinuances are usually final. Acting by mistake without appreciating the consequences of discontinuance is not enough. Resurrection can only occur in “exceptional circumstances” that “strike at the root of the decision to discontinue”. Examples include fraud, mental incapacity, or repudiation of a settlement agreement. Even if exception circumstances exist, the court must also be satisfied that the discontinued proceedings have “some reasonable prospect of success”. The court must also consider whether resurrection would cause prejudice. EVIDENCE Bernard v. Canada (Customs and Revenue Agency), 2015 FCA 263 http://canlii.ca/t/gmb0m New Evidence on Judicial Review - Advance Rulings on Evidentiary Issues Justice Stratas elaborates on the three recognized exceptions to the general rule that evidence that could have been placed before a tribunal is not admissible before the reviewing court. In this decision he further states that “the list of exceptions is not closed” (which may not be not obvious from his previous decisions). He gives two examples of situations where new evidence would be admissible even though the evidence would not fall within the three recognized exceptions. At paragraphs 10-12 there is also a nice summary of the jurisprudence on when a court should provide an advance ruling on an evidentiary or any other kind of issue prior to the hearing of a judicial review application.

2C - 8

http://canlii.ca/t/gnnkp

http://canlii.ca/t/gmb0m

Canadian Copyright Licensing Agency (Access Copyright) v. Alberta, 2015 FCA 268 http://canlii.ca/t/gmb0s How to put materials that were before an administrative decision-maker before the reviewing court This case gives general guidance on what goes into an application record and what must be admitted by way of affidavit. Materials produced by the administrative decision-maker in response to a Rule 317 request can simply be placed in the applicant’s or respondent’s record: see Rule 309(2)(e.1) and Rule 310(2)(c.1). Portions of any transcript of oral evidence before a tribunal may also be filed in the party’s record without an affidavit: see Rule 309(2)(f) and Rule 310(2)(d). Material that is “transmitted” to the court under Rule 318 is not filed and is not formally before the court in the sense of being a part of the evidentiary record. (The material is given to the Registry only for the purpose of authenticating that the materials contained in an application record were those supplied by the decision-maker.) As for material that was before the decision-maker but was not produced pursuant to Rule 317, Rules 309 and 310 do not permit this material to be filed in a party’s record. That material must be introduced by an affidavit that authenticates them. “Documents simply stuffed into an application record are not admissible.” Justice Stratas also gives advice about the best way to handle a situation where evidence has been improperly put before the court. He urges parties to be problem-solvers when procedural issues like this arise: the focus should be “on a fix, not a fight”. Davies v The Corporation of the Municipality of Clarington, 2015 ONSC 7353 http://canlii.ca/t/gm882 Video conferencing for witnesses in foreign jurisdictions As part of the "cultural shift away from the traditional trial" endorsed by the SCC in Hryniak, the court fully endorses the use of video conferencing as a means for witnesses in foreign jurisdictions to "attend" a trial in Ontario. Video conferencing does not detract from a judge's ability to assess credibility. Allard v Canada, 2016 FC 236 http://canlii.ca/t/gngc5 Charter challenge – medical marihuana – expert evidence – impartiality Phelan J. struck down the Marihuana for Medical Purposes Regulations for being arbitrary and overbroad contrary to s. 7 of the Charter. In the course of his reasons, Phelan J. was critical of both parties’ expert evidence (but especially Crown witnesses) for lack of impartiality. He found that expert witnesses from the police and fire department were so “philosophically against

2C - 9

http://canlii.ca/t/gmb0s

http://www.canlii.org/en/ca/laws/regu/sor-98-106/latest/sor-98-106.html#sec317_smooth

http://canlii.ca/t/gm882

http://canlii.ca/t/gngc5

marihuana” that their testimony with respect to the dangers of marihuana cultivation garnered little weight. This case can be seen as part of the courts’ ongoing re-evaluation of the role of experts (and especially “institutional experts” like police officers) in complex litigation. See White Burgess Langille Inman v Abbott and Haliburton Co, 2015 SCC 23. Shire Canada Inc. v. Apotex Inc., 2016 FC 382 http://canlii.ca/t/gp8s0 Expert evidence – “blinded” expert opinions Locke J. discusses the practice (used most commonly in patent cases) of “blinding” experts. In this case, the Respondent argued that the evidence of its experts should be preferred over the evidence of the Applicant’s experts because the Respondent shielded its experts from certain unnecessary facts when seeking their opinions – i.e. the Respondent did not inform their experts of its legal position. This allowed the Respondent to claim that its experts could not be tainted by any bias, unlike the experts of the Applicants. Locke J. held that blinding an expert may give their testimony additional weight. However, it was important to look at the substance of the expert’s opinion, and if the opinion was well-reasoned, it does not really matter if the expert was blinded or not. Pfizer Canada Inc. v. Teva Canada Limited, 2016 FCA 161 http://canlii.ca/t/grxf1 Primer on Evidence Justice Stratas, for the Court, discusses many general principles of evidence in a trial context: admissibility, judicial notice, appellate review of admissibility decisions, exclusionary rules such as hearsay, authentication of documents, objections, cross-examinations (paragraphs 78-103). British Columbia (Workers’ Compensation Appeal Tribunal) v. Fraser Health Authority, 2016 SCC 25 http://canlii.ca/t/gs78q Expert evidence – not binding on a fact-finding tribunal In this case, expert evidence was unanimous and unequivocal regarding a question of causation (whether hospital lab technicians had developed breast cancer due to occupational factors). Nonetheless, the Supreme Court found that expert opinion is not determinative. Where a tribunal has exclusive jurisdiction over questions of fact, it may choose to rely on merely circumstantial evidence, even in the face of inconclusive or contrary expert evidence. Justice Côté wrote a dissent emphasizing the need for a tribunal to have sufficient positive evidence to support its findings. This tribunal, which lacked any expertise in medical matters, had strayed

2C - 10


http://canlii.ca/t/gp8s0

http://canlii.ca/t/grxf1

http://canlii.ca/t/gs78q

outside the realm of supportable inference and reasonable deductions and “into the wildness of mere speculation or conjecture”. Gordon v. Canada (Attorney General), 2016 ONCA 625 http://canlii.ca/t/gsz6m Expert witnesses – government employees The Ontario Court of Appeal upholds the Ontario Superior Court’s decision that Expenditure Restraint Act, enacted in response to the 2008 economic crisis, is valid under the Charter. The constitutional challenge had been brought by the two major federal public service unions. One ground for the unions’ appeal was that the Superior Court had erred in accepting the opinion evidence of an Assistant Deputy Minister who testified about economic issues. The witness had not signed a Rule 53 form as required by the Rules, and was allegedly “partial” to the outcome of the case. The Court of Appeal rejected this argument, holding (para. 340): “I also observe that the appellants’ view of the law would make it impossible for the expert opinion of a government employee ever to be accepted by a court as substantive evidence. The proposition that governments can only defend the constitutionality of legislation through the assistance of hired guns rather than highly professional and qualified civil servants is remarkable and unpersuasive.” R. v. Santhosh, 2016 ONCA 731 http://canlii.ca/t/gv0bp Evidence law – credibility – religious beliefs The Ontario Court of Appeal holds that reliance on evidence of a witness’s religiosity for credibility purposes is improper. Evidence of a witness’s religious beliefs is not admissible for the purposes of enhancing or impeaching his or her credibility, nor can it be relied upon for those purposes. Brine v Industrial Insurance and Financial Services Inc (NS), SCC Bulletin, March 4, 2016 http://scc-csc.lexum.com/scc-csc/bulletins/en/item/5174/index.do Leave to appeal to the SCC - Affidavit evidence of public importance In the vast majority of cases, affidavit evidence will be irrelevant in deciding whether a case raises an issue of public importance warranting leave to appeal to the Supreme Court of Canada under s. 40(1) of the Supreme Court Act, RSC 1985, c S-26. Such evidence may be helpful if it points to conflicting decisions or unworkable principles resulting from the decision for which leave to appeal is being sought, or if it addresses the policy or jurisprudential impact of a decision that is not readily apparent from the material already filed. The opinion evidence of Professor Bruce Feldthusen, asserting that insurer misconduct is related to low punitive damages awards, was struck without leave to amend because it was not helpful to the court. It was also an assertion of

2C - 11

http://canlii.ca/t/gsz6m

http://canlii.ca/t/gv0bp


belief without a proper foundation contrary to Rule 89 of the Rules of the Supreme Court of Canada, SOR/2002-156. The affidavit was simply sworn argument on the ultimate question in the appeal for which leave was sought and, as such, was an improper attack on the correctness of the Court of Appeal decision. INHERENT JURISDICTION Florence v Benzaquen, 2016 ONSC 132 http://canlii.ca/t/gmx3g Inherent jurisdiction – bifurcation of proceedings In the face of conflicting decisions regarding whether the Court has inherent jurisdiction to bifurcate proceedings when one party opposes bifurcation, the Court ruled that continuing inherent jurisdiction to bifurcate exists despite Rule 6.1.01, which allows bifurcation on consent. The wording of the Rule is not adequately clear to oust such jurisdiction. Recognizing this jurisdiction is in keeping with the growing recognition of the need for greater efficiency in litigation flowing from Hyrniak v. Mauldin. INTERVENORS Sport Maska Inc. v. Bauer Hockey Corp., 2016 FCA 44 http://canlii.ca/t/gn9h1 Test for intervention clarified A three-judge panel of the Court of Appeal confirms that the governing case regarding the test for intervention is still Rothmans, Benson & Hedges, not the 2014 decision of Justice Stratas in Pictou Landing (although the panel says that differences between the two are not of any substance). The panel stresses that the criteria for intervention must remain flexible because every intervention is different. The decision essentially rests on whether the interests of justice require that intervention be granted or refused. Nothing is gained by adding factors to respond to every novel situation. The Rothmans factors are well-tailored to this task and the factors enumerated in Pictou Landing are simply an example of the flexibility set out in Rothmans. (paras 37-43)

Meridian Credit Union Limited v. Baig, 2016 ONCA 150 http://canlii.ca/t/gngt9 Non-parties – right of intervention – damage to reputation On a summary judgment motion, the motions judge made serious credibility findings against various lawyers who acted as witnesses. On appeal, the lawyers argued that that the judge erred by not providing them with an opportunity to clear their name, especially since his findings could

2C - 12

http://canlii.ca/t/gmx3g

http://canlii.ca/t/g2s18

http://canlii.ca/t/gn9h1

http://canlii.ca/t/gngt9

open them up to civil liability in another action. The Court of Appeal rejected this argument. The Court reiterated that non-parties have no right to notice, to adduce evidence, or to make submissions whenever an adverse credibility finding may be made in judicial proceedings that involve them. Non-parties are limited to whatever procedural rights they have under the rules. Berge v College of Audiologists, 2016 ONSC 3261 http://canlii.ca/t/grr37 Special expertise and timing of intervention A relatively new, ad hoc association of audiologists was refused leave to intervene in this Charter challenge to provincial legislation that prevents audiologists from using the title “doctor”. Although the association had a real identifiable interest in the subject matter, it did not have special expertise and its argument substantially echoed that of the appellant. Also, it provided no explanation for waiting until after factums were filed and the hearing scheduled, before seeking leave to intervene. JUDICIAL COMITY Eclectic Edge Inc v. Gildan Apparel (Canada) LP, 2015 FC 1332 http://canlii.ca/t/gmkqq Judicial comity – finding of fact Judicial comity only applies to determinations of law, and has no application to findings of facts where there is a different evidentiary basis between two cases. Decisions by other judges on similar questions of fact should be treated with respect – however, judicial comity cannot be invoked to trump the trial judge’s role in assessing the evidence as it unveils before him or her. JUDICIAL NOTICE Chaudhry v. The Queen, 2016 TCC 28 http://canlii.ca/t/gn86z Judicial notice of official consolidations of federal statutes Faced with a misguided argument that the Income Tax Act was not properly before it, the Tax Court carefully references the relevant sections of the Legislation Revision and Consolidation Act (LRCA) and the Canada Evidence Act before concluding that copies of consolidated statutes or regulations printed from the Department of Justice’s website in electronic form and containing the imprimatur of sections 31(1) and (2) of the LRCA are official copies that courts can take judicial notice of.

2C - 13

http://canlii.ca/t/grr37

http://canlii.ca/t/gmkqq

http://canlii.ca/t/gn86z

JUDICIAL REVIEW Canadian Broadcasting Corporation (Radio-Canada) v. Canada (Attorney General), 2016 FC 933 http://canlii.ca/t/gt1q9 Federal court – judicial review – 30 day limitation period Justice Roussel holds that the 30 day limitation period in s. 18.1(2) of the Federal Courts Act does not apply when the applicant is challenging a “course of conduct” or a “matter” rather than a specific “decision”. In this case, the limitation period did not apply because the applicant was challenging a policy to withhold from the public the names of witnesses/victims in Court Martial hearings. The fact that the applicant was also challenging a specific refusal to disclose information by the government on a specific day did not detract from this conclusion. JUSTICIABILITY Sauvé v. Canada (Attorney General), 2016 FC 401 http://canlii.ca/t/gpgwm Justiciability – standing – non-binding policies Elliott J. discusses the relationship between justiciability and standing in judicial review applications. In this case, the applicant sought judicial review of a non-binding report of the Privacy Commissioner. In ruling that the non-binding report is not justiciable, Elliott J. notes that the report fails to affect the applicant’s legal rights, impose legal obligations, or cause prejudicial effects Grain Farmers of Ontario v. Ontario (Environment and Climate Change), 2016 ONCA 283 http://canlii.ca/t/gpkxt Justiciability – government policies – economic rights The Ontario Court of Appeal discusses the justiciability of government policy. Absent a constitutional challenge, it is not within the power of the courts to rewrite legislation that is argued by a party to be faulty or ambiguous. Classifying the dispute as a matter of “property rights” or “economic rights” does not alter this analysis. In this particular case, the motion judge was correct to strike out a claim alleging that new regulations concerning the use of insecticides would injure the farming sector. MOOTNESS

2C - 14

http://canlii.ca/t/gt1q9

http://canlii.ca/t/gpgwm

http://canlii.ca/t/gpkxt

Canada (National Revenue) v. McNally, 2015 FCA 195 http://canlii.ca/t/glzw8 Canada (National Revenue) v. McNally, 2015 FCA 248 http://canlii.ca/t/gm0m3 Request for directions and advanced hearing of a mootness issue The Minister complied with a judgment of the Federal Court rather than having it stayed but pursued an appeal of the decision nonetheless. In the first decision, Justice Stratus accepted a request for directions from the Minister and agreed to give an advanced ruling on whether the matter was moot. It was “an unsatisfactory state of affairs” to require either party to do any further preparation for the appeal that might be moot. The Court comments on its plenary power, its discretion under Rule 55 and the objectives set out in Rule 3. In the second decision, the Court dismisses the appeal after applying the Borowski factors that give courts the discretion hear a matter that is otherwise moot. MOTIONS TO VARY Pfizer Canada Inc. v. Teva Canada Limited, 2016 FCA 218 http://canlii.ca/t/gvl25 Reconsideration – Remaining 2 judges can hear motion to vary where 3rd judge has retired The Federal Court of Appeal was asked to reconsider a judgement made by a three-member panel. One of those three judges (Ryer, J.A.) had retired and was functus by the time the motion was heard. The general rule, derived from 16(1) of the Federal Courts Act, is that variations of judgments under Rules 397 and 399 can be made only by a panel of three judges. But 45(3) of the Act sets out an exception, which allows the remaining judges to give judgment where one judge has become functus. Justice Stratas goes even further and states that the court has a “penumbral” or “plenary” jurisdiction concerning basic matters related to its procedures and powers, which exists alongside the explicit and implicit powers provided by statute. He is careful to state that his analysis of the jurisdiction found in 45(3) does not foreclose whether the motion could have been entertained under this plenary jurisdiction. Justice Stratas says he is making no comment on “the exceptional circumstance where a judgment requires variation under Rule 397, the original panel cannot act, the need for this Court to act is urgent, and private or public order must be preserved.” Astrazeneca Canada Inc. v. Apotex Inc., 2016 FCA 194 http://canlii.ca/t/gsj16 Motion to vary a judgment that was unsuccessfully appealed A judgment of the Federal Court was appealed to the Court of Appeal. The appeal was dismissed. A motion to vary the Federal Court’s initial decision was then filed in both courts. The Court of Appeal confirmed that the appropriate court to hear the motion is the Federal Court. When the

2C - 15

http://canlii.ca/t/glzw8

http://canlii.ca/t/gm0m3

http://canlii.ca/t/gvl25

http://canlii.ca/t/gsj16

Court of Appeal dismisses an appeal, the judgment below is not vitiated. The person best placed to decide if newly discovered matters would have affected the original judgment is the original decision-maker. NUNC PRO TUNC Canadian Imperial Bank of Commerce v Green, 2015 SCC 60 http://canlii.ca/t/gmcnk

Nunc pro tunc and special circumstances doctrine

In this fractured decision, Justice Cote, for what seems like a majority of judges, clarifies the law of nunc pro tunc and the special circumstances doctrine. Nunc pro tunc allows a court to backdate its orders. Cote J discusses a list of non-exhaustive factors that can help a judge determine whether to exercise this power, comments that nunc pro tunc is not available if it is precluded by the language or purpose of a statute, and states that a nunc pro tunc order cannot help a party where a limitation period has already passed. He describes the special circumstances doctrine as the power of the court to temper potentially harsh and unfair effects of a limitation period by allowing a plaintiff to add a cause of action or a party to a claim after the expiry of the relevant limitation period. Again, there is no exhaustive list of factors that governs this doctrine but the majority discusses some of things courts can consider that might meet the test of “special circumstances”.

QUESTIONS OF LAW Rogers Communications Partnership v Society of Composers, Authors and Music Publishers of Canada, (SOCAN) 2016 FCA 28 http://canlii.ca/t/gn4lc Appeal of a Rule 220 question of law determination Rule 220(1)(a) allows the court to make a determination on a question of law before trial. The judge is obliged to ensure that the question proposed by the parties or which has been reformulated by the judge is a pure question of law. If it is not, the Court of Appeal can decline to consider the correctness of the lower court judge’s answer and can simply set aside the lower court’s determination of the question. SERVICE & FILING Oesterlund v Pursglove, 2015 ONSC 5967 http://canlii.ca/t/glcbl

2C - 16

http://canlii.ca/t/gmcnk

http://canlii.ca/t/gn4lc

http://canlii.ca/t/glcbl

Service – Outside Ontario - Convention vs. Non-Convention States Rule 17.05 draws a distinction for the manner of service between a convention state, meaning a state under the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters signed at the Hague on November 15, 1965 (“Convention”) and a non-convention state. For non-convention states, service "may be made" in a manner provided by the Rules, or in a manner provided by the law of the jurisdiction where service is made. Because the language is discretionary the Court may validate service if it is satisfied that the document came to the notice of the person to be served, notwithstanding that the document was not served in accordance with the Rules nor in accordance with the law of the jurisdiction where service is made. The language is not discretionary with respect to convention states. The Court has no authority to validate service other than as provided for in the Convention even if the defendant has actual notice of service. SETTLEMENT U.S. Steel Canada Inc. (Re), 2016 ONSC 3012 http://canlii.ca/t/gr5m3 Settlement privilege The moving parties will argue at a forthcoming motion that an exemption to settlement privilege applies so as to require the disclosure of the terms of a confidential settlement agreement involving the responding parties. In advance of that forthcoming motion, they seek the production, on a “for counsel’s eyes only” basis, of the agreement, so that counsel can make full submissions about its contents. Wilton-Siegel J dismissed the preliminary motion. Settlement privilege applies unless the moving parties meet their onus in establishing that an exemption applies, and they may have to do so without having full access to the terms of the confidential agreement. SOLICITOR AND CLIENT PRIVILEGE R. v. Kara, 2016 ONSC 4519, [2016] O.J. No. 3830 Solicitor-client privilege – not destroyed by review by judge The Crown applied to remove defence counsel of both co-accused from the record because of an anticipated conflict of interest. The respondents wished to respond by filing solicitor-client privileged information (evidence of their defence position) under seal for the court’s eyes only, to show that what the Crown supposes might occur will not. The court rejected the Crown’s position that solicitor-client privilege ends when the information is shared with anyone outside of the solicitor-client relationship, including the court. A judge’s review of information which is

2C - 17

http://canlii.ca/t/gr5m3

subject to solicitor-client privilege, for the purposes of adjudication, does not end the privilege or the confidentiality. STANDARD OF REVIEW Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29 http://canlii.ca/t/gsh2f Administrative law – standard of review – home statute interpretation Standard of review continues to bedevil the Supreme Court. Nine judges produced four sets of reasons. Here’s an attempt at a scorecard:

• A majority (six judges) confirmed that the standard of review when a tribunal interprets its home statute is reasonableness, even where there is disagreement about the correct interpretation at the tribunal level.

• The dissenting minority (three judges) found that this poses a serious concern for rule of law. Where there is lingering disagreement on a matter of statutory interpretation between administrative decision-makers and where it is clear that the legislature could only have intended the statute to bear one meaning, the correctness standard of review is appropriate.

• Justice Abella, in what is clearly acknowledged as obiter, attempts to start a new “conversation” about standard of review by proposing that the two standards of correctness and reasonableness could be collapsed into one. All eight remaining judges either reject this proposal or refuse to engage with it.

• Two judges (Justices Abella and Cromwell) explicitly reject Justice Stratas’s “margins of appreciation” approach to deference.

Canadian Broadcasting Corp v SODRAC, 2015 SCC 57 http://canlii.ca/t/gm8b0

Different standards of review for different issues in the same decision

In this split decision, Rothstein J for the majority ruled that every standard of review analysis requires the identification of discrete issues under review for the purpose of assigning a standard of review for each issue. The Court ascribed a specific standard of review for three separate issues: the Copyright Board’s interpretation of its home statute, the Copyright Act; the interpretation of licences issued under the Copyright Act, and; the Board’s valuation of a reproduction licence under the Act (Justice Abella identified at least five discrete issues). Justice Abella, dissenting, called the majority’s approach of extricating various components of a tribunal’s decision for their own individual standard of review analysis, “a significant and inexplicable change” in the Court’s jurisprudence that would lead to unworkable and absurd results, and take judicial review “Through the Looking Glass”. Justice Karakatsanis, also dissenting on this point, stated that while the discrete issue approach is permitted on an exceptional basis,

2C - 18

http://canlii.ca/t/gsh2f

http://canlii.ca/t/gm8b0

courts should not be required to adopt this method of analysis. The majority also stated that while it is possible to frame any interpretation of a tribunal’s home statute as a question of the tribunal’s jurisdiction, in the context of standard of review analysis, the category of “true questions of jurisdiction” is narrow, if it exists at all. (paras 35-42, 185-191, 194)

Canadian Pacific Railway Company v. Canexus Chemicals Canada, LP, 2015 FCA 283 http://canlii.ca/t/gmm7k Standard of Review for home statute – reasonableness rebutted The presence of concurrent jurisdiction with respect to a given question by both a tribunal and the courts is a significant, if not a decisive factor in favour of the correctness standard with respect to the tribunal’s treatment of that question. It makes no sense to review a tribunal’s interpretation on a deferential standard on judicial review and then to review the same question on a standard of correctness where it arises in the course of an appeal from a decision of a court. (paras 70-81)

Canadian Tire Corporation, Limited v. Koolatron Corporation, 2016 FCA 2 http://canlii.ca/t/gmw4zB Standard of review for breach of procedural fairness Justices Near, Gauthier and Webb of the Federal Court of Appeal explicitly reject Justice Stratas’s statements in previous cases that procedural fairness issues should be reviewed with a degree of deference and that the court must be respectful of a decision-maker’s choices. While procedural issues generally attract considerable deference this is not so when the issue involves a breach of procedural fairness. (para 14) Hospira Healthcare Corporation v. Kennedy Institute of Rheumatology 2016 FCA 215 http://canlii.ca/t/gt7c8 Standard of Appellate Review: Housen test now applicable to all discretionary decisions of both prothonotaries and judges of the Federal Court The Federal Court of Appeal has revisited the wording of the standard of review for discretionary decisions made by prothonotaries. That standard was set out in 1993 in a case called Aqua- Gem and was formulated as whether the prothonotary was “clearly wrong”. The new standard should now be that set out by the Supreme Court in Housen v. Nikolaisen. Discretionary orders of prothonotaries should only be interfered with when such decisions are incorrect in law or are based on a palpable and overriding error in regard to the facts. Prothonotary decisions will no

2C - 19

http://canlii.ca/t/gmm7k

http://canlii.ca/t/gmw4zB

http://canlii.ca/t/gt7c8

longer be subject to de novo hearings, regardless of whether the issue before the prothonotary can be characterized as vital to the final issue of the case. Five judges heard this case: Nadon, Pelletier, Rennie, De Montigny and Gleason. Until now, Aqua-Gem was the last time when a panel of five judges heard an appeal. As noted by the Court, the issue of the standard of review applicable to orders of both judges and prothonotaries has been one of the most contentious issues before all courts of appeal, including before the Supreme Court of Canada, in the last 10 to 15 years. It was not in the interests of justice to continue with a plurality of standards when one standard is sufficient to deal with the review of first instance decisions. This five judge panel also took this case as an opportunity to “get our own house in order” regarding the standard of appellate review for discretionary decisions of judges. Earlier this year, in the Turmel case, Justice Stratas had formulated a test that introduced language that was different from that found in Housen. This was causing confusion at the Court of Appeal. The Court also confirmed that it will apply the Housen standard when reviewing discretionary decisions of judges. Teva Canada Limited v. Gilead Sciences Inc., 2016 FCA 176 http://canlii.ca/t/gs1sn Leave to amend a statement of claim – standard of review when decision appealed The Federal Court refused to allow an amendment to a statement of claim. On appeal, in keeping with the recent trends in the jurisprudence, the Court of Appeal confirmed that the standard of appellate review for this type of discretionary decision is that set out in Housen v. Nikolaisen. There must be an error on a pure question of law or on a legal principle that can be extracted from a question of mixed fact and law. Absent that sort of legal error, a palpable and overriding error must be demonstrated. A palpable and overriding error is one that is both obvious and determinative in the sense that it undermines the outcome reached below. However, regardless of how one enunciates the standard of review, the standard of review is deferential. Commission scolaire de Laval v Syndicat de l’enseignement de la région de Laval, 2016 SCC 8 http://canlii.ca/t/gnrhl Standard of Judicial Review — in camera deliberations The Quebec School Board dismissed a teacher after in camera deliberations by its executive committee. The teacher’s union grieved the dismissal on the grounds that the deliberations were not sufficiently “thorough” as required by the collective agreement, and sought to call members of the executive committee as witnesses. The grievance arbitrator allowed this evidence, rejecting the School Board’s argument that the executive members could not be examined because of the principle that the motives of a decision making body are unknowable, and that deliberative secrecy shields the in camera deliberations of decision making bodies. Should the standard of correctness or reasonableness apply to the arbitrator’s decision on this question of

2C - 20

http://canlii.ca/t/gs1sn

http://canlii.ca/t/gnrhl

law? According to Dunsmuir, the correctness standard only applies to a question of law where the question under review affects the administration of justice as a whole, and where it falls outside the special expertise of the decision making body. Here are the different outcomes that resulted from the application of this approach at each level of court: The Quebec Superior Court applied the correctness standard and quashed the arbitrator’s decision as incorrect. The Court of Appeal for Quebec was unanimous on the standard of review (correctness) and divided on the merits, with the majority restoring the arbitrator’s decision as correct. The SCC, however, was divided on the standard of review — with the 4-3 majority (per Gascon J) ruling for a reasonable standard — and unanimous in upholding the arbitrator’s decision to allow the examination, as reasonable (the majority) or correct (the minority, per Côté J.). STANDING Lukács v. Canada (Transportation Agency), 2016 FCA 220 http://canlii.ca/t/gvl1z Standing at administrative agencies The strict rules of standing developed in the judicial context cannot automatically be applied with the same rigour by an administrative agency. Administrative bodies must look to their enabling statute to determine what rights of participation parliament intended to give the public. An agency fetters its discretion if it refuses to look at a complaint on the sole basis that the complainant does not meet the standing requirements developed by courts of civil jurisdictions. STARE DECISIS Sport Maska Inc. v. Bauer Hockey Corp., 2016 FCA 44 http://canlii.ca/t/gn9h1 Decisions by a single Court of Appeal judge do not change the law A decision of a panel of judges of the Court of Appeal takes precedence over that of a single judge of the Court sitting on a motion. The law is not changed until it is adopted by a panel of the Court. (paras 37-38) STATUTORY INTERPRETATION Canada (Public Safety and Emergency Preparedness) v. Tran, 2015 FCA 237 http://canlii.ca/t/gm2q6 Using legislative histories in statutory interpretation

2C - 21

http://canlii.ca/t/gvl1z

http://canlii.ca/t/gn9h1

http://canlii.ca/t/gm2q6

At paragraphs 70-87 the Federal Court of Appeal makes some good statements about using government manuals, views expressed by bar associations and the legislative history set out in Hansard to interpret legislation. Legislative histories can be “quite persuasive”. The Court went so far as to make this finding: “Although such interpretative tools are typically given less weight than others, I simply cannot conclude that the interpretation of the Minister’s delegate, which the legislative history appears to support, should be found unreasonable on the basis that it produces inconsistent consequences which might be regarded as absurd”. B010 v. Canada (Citizenship and Immigration), 2015 SCC 58 http://canlii.ca/t/gm8wn Statutory Interpretation – absences in a legislative history can be meaningful The Supreme Court pointed to an absence of what it expected to find in the debates of Parliament in order to support its interpretation of a statutory provision: “If Parliament, in enacting s. 37(1)(b) in 2001, intended to erase the distinction between those who act for financial or material benefit and those who act for humanitarian purposes or give mutual assistance, one might expect some sign of this in the parliamentary record. But the record reveals no evidence that Parliament sought to ignore this distinction or to target conduct unconnected to transnational organized crime. Rather, the record supports the view that Parliament understood “people smuggling” in the sense that “migrant smuggling” is used in the Smuggling Protocol. There is nothing in the parliamentary record suggesting that Parliament sought to adopt a broader definition of people smuggling.” (see paragraph 68) Fleming v Massey, 2016 ONCA 70 http://canlii.ca/t/gn2qn Statutory interpretation – implied exclusion The Ontario Court of Appeal analyzes an important principle of statutory interpretation: the rule of implied exclusion (expressio unius est exclusio alterius aka “the expression of one thing is the exclusion of the other thing”). An implied exclusion argument lies whenever there is reason to believe that the legislature would have referred to a particular thing expressly if the legislature had intended to include the thing within the ambit of its legislation. The Court holds that implied exclusion “is a valuable servant, [but] a dangerous master.” The Court declines to follow implied exclusion in this case because the result would be contrary to the purpose of the legislation as a whole. Rooney v. ArcelorMittal S.A., 2016 ONCA 630 http://canlii.ca/t/gt08c Statutory interpretation – basic principles

2C - 22

http://canlii.ca/t/gm8wn

http://canlii.ca/t/gn2qn

http://canlii.ca/t/gt08c

The Ontario Court of Appeal provides a helpful primer on statutory interpretation. The Court discusses the “modern approach” pioneered by the SCC in Rizzo Shoes and asks modern in comparison to what? This leads to a discussion of the tension between interpreting a statute based solely on its plain language (the “traditional approach”) and interpreting a statute in its “entire context” (the “modern approach). Schmidt v Canada, 2016 FC 269 http://canlii.ca/t/gnlgn Statutory interpretation – law-making – role of the Minister of Justice – compliance with the Charter The Federal Court dismisses an action brought by a former Justice lawyer who argued that the Minister of Justice was failing in his statutory duty to review proposed legislation for compliance with the Charter. The plaintiff, Edgar Schmidt, argued that the Minister must alert Parliament when it is “more likely than not” that legislation runs afoul of the Charter. Canada, on the other hand, argued that it is a more flexible standard: the Minister must only alert Parliament if there is no “credible argument” that the legislation is Charter compliant. After an extensive exercise in statutory interpretation, Noel J. agreed with Canada’s interpretation. This case is a useful primer on the different roles of the Attorney General and the Minister of Justice, the legislative function of the Department of Justice and the process of law-making. SUBPOENAS Ontario (Provincial Police) v. Mosher, 2015 ONCA 722 http://canlii.ca/t/glt0d Subpoenas versus production orders The Ontario Court of Appeal clarifies some of the law surrounding subpoenas duces tecum and how to quash them. Watt J.A. holds that a subpoena duces tecum compels the attendance of an individual with certain documents in that person’s possession. But, in isolation, it does not allow the issuing party to review or obtain these documents. SUMMARY JUDGMENT Maurice v. Alles, 2016 ONCA 287 http://canlii.ca/t/gpm5p Applications – summary judgment

2C - 23

http://canlii.ca/t/gnlgn

http://canlii.ca/t/glt0d

http://canlii.ca/t/gpm5p

The Ontario Court of Appeal holds that summary judgment is not available for applications (as opposed to actions). However, a judge may order an application be converted into an action, and then proceed with a summary judgment motion. TRIBUNAL RECORDS Lukács v. Canada (Transportation Agency), 2016 FCA 103 http://canlii.ca/t/gp9rn Rule 318(2) - Tribunal objection to providing materials in its possession Justice Stratas clarifies the wide remedial flexibility the Federal Courts have when a tribunal has objected to providing materials that have been requested by a party to a judicial review application. When determining the validity of an objection the court is not reviewing the decision to object. Instead it is determining the content of the evidentiary record. The Court is applying its own standards of admissibility – it is not deferring to the tribunal. The remedy can take “any shape and size” and is limited only by the creativity and imagination of counsel and the judge. When crafting a remedy, the Court must consider three objectives: (1) meaningful review of the decision, (2) procedural fairness, and (3) the protection of any legitimate confidentiality interests. Canadian National Railway Company v. Louis Dreyfus Commodities Ltd, 2016 FC 101 http://canlii.ca/t/gn553 Judicial review – tribunal record – internal documents The Federal Court analyzes a tribunal’s obligation under Rule 317 to provide internal documents such as legal opinions when requested under a judicial review. The Court holds that such a Rule 317 request must be supported by evidence in order to provide a foundation that the material requested will cast light upon an allegation of bias or a breach of procedural fairness. In this case, such evidence was lacking. The Court also discusses deliberative secrecy and how it protects administrative tribunals.

2C - 24

http://canlii.ca/t/gp9rn

http://canlii.ca/t/gn553

TAB 3A

Human Rights Watch’s Research Methodology:

Distinguishing Fact from Fiction

Bill Frelick, Director, Refugee Rights Program, Human Rights Watch

November 23, 2016


1

HUMAN RIGHTS WATCH’S RESEARCH METHODOLOGY:

Distinguishing Fact from Fiction

IMMIGRATION LAW SUMMIT | TORONTO 2016

By Bill Frelick, Director, Refugee Rights Program

Introduction

Human Rights Watch conducts regular, systematic investigations of human rights abuses around the world. At any given time, we are actively researching, reporting, and advocating for change in about 90 countries. We choose our countries of focus, and the issues we address, based on where we think our attention is needed, and where we think we can make a difference.

The focus of my work within Human Rights Watch is on the rights of refugees, asylum seekers, and other forcibly displaced people. My program responds not only to emergency refugee crises, but also to protracted refugee situations.

Although Human Rights Watch’s Refugee Rights Program is small, we work collaboratively with a staff that includes more than 80 researchers. The researchers work to an established, proven, and consistent methodology based on information gathering from a broad range of sources, and with field-based research at its core. Some of our researchers are permanently out in the field, within or close to the locations they focus on, in places as diverse as Bujumbura, Cairo, Bangkok, and Tashkent. Others work out of our main offices in New York, Berlin, Brussels, London, Johannesburg, Moscow, or, as I do, Washington DC. Our researchers regularly conduct field investigations, interviewing victims and witnesses to put the human story front and center of our reporting and advocacy. They cooperate with local civil society activists, lawyers, and journalists, and they seek contacts with state and government officials. Our researchers constantly follow developments relevant to their work through the media, the output of peer organizations and the research community, and continuous phone and email communication with trusted contacts in the local activist community.

While our fact-finding is objective, our interest is not academic. Our purpose is not merely to document violations, but also to advocate on behalf of the victims of human rights abuse and to defend the rights of refugees, asylum seekers, and others. Researching the problem goes hand-in-hand with researching the advocacy approach: our research is not just about victims and perpetrators, but about determining who can and should take responsibility for stopping rights violations and providing redress, the detailed and specific steps they need to take, and who else can bring influence and leverage to bear.

3A - 1

2

All our researchers come to Human Rights Watch with a powerful commitment to human rights and an existing expertise in their countries or issues of focus, and from backgrounds as diverse as law, journalism, local- or national-level civil society activism, and academic research. Many are seasoned professionals drawn from peer organizations. Across Human Rights Watch our researcher staff are organized both geographically and thematically: Five geographic divisions - Africa, Americas, Asia, Europe & Central Asia, and Middle East & North Africa, plus a separate program on the United States - give us our global spread. Thematic divisions and programs add to our depth and focus on specific issues within countries and regions. In addition to the Refugee Rights Program, our thematic coverage includes: Arms; Business & Human Rights; Children's Rights; Terrorism & Counterterrorism; Health & Human Rights; International Justice; Lesbian, Gay, Bisexual &Transgender Rights; and Women's Rights. The researchers work under the supervision of divisional or program directors, and core departments such as the Legal & Policy Office and the Program Office, which ensure the highest organizational standards of accuracy, balance, and persuasiveness are consistently met.

I. Initial Research

Human Rights Watch develops its research strategies and selects its research topics based upon the guiding principles of the organization.

The goals of the initial stages of research are to develop a thorough, well-rounded understanding of the incident, situation and to gain a strong sense of the local political, social, and cultural context of the violations that may be occurring. The researcher must also frame the violation as it relates to international human rights and humanitarian law. Contextualizing the violation or situation assists the researcher in the other initial stages of research: identifying potential victims and witnesses for testimony, reaching out to all actors involved with the violation, and beginning to identify advocacy targets. Communication with a local network of contacts and relevant actors is the primary method for researchers to familiarize themselves with the local conditions and gain a thorough understanding of the situation.

In addition to preliminary communication with contacts, such as local human rights activists and civil society members, researchers conduct extensive background research before beginning witness or victim interviews. They examine international humanitarian law and international human rights law, domestic or local law, data from the United Nations and other international organizations, academic or policy studies, nongovernmental organization reports, and relevant media stories to gain understanding and context.

II. Interview Research

A. Locations

3A - 2

3

Human Rights Watch's goal with any research mission is to gain enough information about an incident, or about repeated rights violations, to create an accurate picture of what happened. This requires not only interviewing victims but also attempting to gain the other multiple sides of the story. To do this, our researchers always try to get to specific locations where violations are known to have occurred, or are ongoing. Security conditions and time limitations can greatly affect where researchers can conduct investigations. Before every research mission, we evaluate the security risks and develop communications and security protocols.

One of the challenges in my work on refugees and other displaced people is finding interview subjects who are witnesses or victims of abuse and a proper setting in which to interview them. This can involve locating interview subjects within undocumented populations in urban settings, refugees in crowded camps, or detainees in migrant detention centers. Each interviewing environment presents its own set of challenges in finding interview subjects and in maintaining privacy and preserving confidentiality. We often work with humanitarian organizations or local activists to help identify interviewees and places where we can conduct the interviews. We also often need to obtain permission from authorities and their agreement to our terms of reference for conducting our work.

B. Who We Interview

Human Rights Watch researchers conduct interviews when investigating reported human rights abuses in order to understand accurately what occurred. Human Rights Watch seeks to interview those directly involved with the abuses: victims and witnesses. In addition to understanding the reality of what has occurred, Human Rights Watch interviews victims and witnesses in order to give them an opportunity to have their voices and stories reach a wider audience. Interviewing victims and witnesses also helps Human Rights Watch develop the recommendations we address to authorities for cessation and redress of human rights abuses.

Human Rights Watch researchers often begin their research by interviewing those with direct knowledge of the rights violations that have occurred or of the relevant issues. This includes local human rights organizations and activists and members of local civil society. These initial discussions help Human Rights Watch researchers identify and locate victims and witnesses to interview. Aside from initial background discussions, our researchers will also interview a range of individuals such as representatives from local and international nongovernmental organizations, UN representatives, journalists, doctors and medical experts, lawyers and legal experts, community leaders, law enforcement officials, diplomats, and civil society leaders in order to corroborate information from witnesses and victims, and to better understand the social, political, and cultural contexts of the situation Human Rights Watch is reporting.

In addition to victims and witnesses, Human Rights Watch always attempts to contact government officials throughout chains of command, from border or detention center

3A - 3

4

guards to their immediate superiors, as well as officials who set policy. We also seek to interview military leaders, rebel or militia groups, or any other accused perpetrators of abuses in order to receive information, explanations and accounts of incidents, and to communicate our concerns. In many instances, requests for such interviews have been refused or have gone unanswered, however.

At times, we are not able to interview accused perpetrators of abuses or others because of potential security risks to our researchers.

C. How We Conduct Interviews with Victims/Witnesses

Every human rights violation or incident that Human Rights Watch investigates, and every victim or witness a researcher interviews, is unique. Therefore, there is no uniform interview methodology that is universally used by the organization. But the principles by which Human Rights Watch researchers conduct interviews with victims and witnesses are standard: though interview techniques may be varied or adapted for each situation, the guiding principles, such as the need to ascertain the truth, to corroborate the veracity of statements, to protect the security and dignity of witnesses, and to remain impartial, are consistent throughout the organization.

When I conduct research, even in the most overcrowded refugee camp or detention center, I do everything possible to find or create a private space where I can conduct a one-on-one interview. I first explain to every interview subject who I am, what Human Rights Watch is (stressing our independence), and what we will do with their interview (showing them a copy of one of our reports, hopefully in a language they can understand). I explain that our purpose in talking to them is to gather information that will enable us to make recommendations to decision-makers to improve the situations that they and others like them are experiencing. In my introduction, I tell each person I interview four things:

1) The interview is private. No guards or other people can see or hear what we are saying.

2) I will do everything in my power to maintain confidentiality, to the extent the person wants the interview to be confidential.

3) The interview is completely voluntary. No one is forcing them to talk and they may decide not to at any point.

4) They will receive no personal benefit from doing the interview. We will not pay them, represent them in court, or provide a humanitarian service, other than referring them to others.

This last point is very important. I explain that if we helped them personally, the government officials who we are trying to influence would reject our findings. This also is particularly important to stress in the refugee context. Refugees are survivors and when they see a foreigner, they immediately see a lifesaver, someone who might be

3A - 4

5

able to help them. This helps to control false expectations, but also does serve to minimize incentives to embellish or exaggerate.

In my experience conducting many hundreds of interviews, very few of the refugees and migrants to whom I have given this introduction have failed to understand and respect how the interview will be conducted.

We direct the interview and do our best to keep it on track, usually by walking the person through events chronologically with frequent, Who, What, Where, When questions. But we also listen sympathetically and are careful to avoid re-traumatizing people who have suffered serious abuses. Part of the reason for finding the appropriate secure and private setting is to build trust. After we explain the purpose and scope of the interview, assuring anonymity and confidentiality, and that they always have the option to end the interview or not answer a question, we get the consent of the person to be interviewed. If we feel that a witness or victim is not emotionally ready to be interviewed, we cancel or reschedule it. I also do my best to avoid anyone who seems to have a political agenda in wanting to talk with me, and if a strong political agenda emerges in the course of the interview, I often cut it short and move on to other witnesses and victims who do not appear to be promoting a particular agenda or ideology.

Oftentimes, refugees will insist on a group interview. I am usually able to convince them that group interviews are not credible, often by making the analogy to a witness in a trial not being able to hear what other witnesses say. Interviews are conducted in-person whenever possible. On the occasion where it is impossible to conduct an in-person interview, Human Rights Watch researchers have conducted interviews with witnesses or victims via telephone and other modes of communication. The setting or mode of the interview is always correctly noted in the published Human Rights Watch report, including if anyone else is present during the interview other than the researcher and an interpreter.

We make every effort to conduct interviews in a language in which the interviewee is fluent (usually the interviewee's first or native language). When we are not fluent in the language or local dialect, we use interpreters. Selecting interpreters, training them—sometimes on the spot—and making sure that both the interpreter understands that the interview is confidential and the interview accepts the person as trustworthy, is essential to our work. We train interpreters to translate questions and responses verbatim so that follow-up questions can be asked when clarity is needed and insist on scrupulous respect for confidentiality.

We triangulate interviews and other sources of information to test credibility. Conducting interviews in private both supports maintaining the witness's confidentiality and privacy and helps to avoid false statements, exaggeration, and conjecture by ensuring interviewees are making independent statements. We always attempt to ask other

3A - 5

6

witnesses and victims questions about the same incidents, attempting to corroborate factual details, confirm witness accounts, expose exaggerations, or discount unverifiable statements.

One of the most commonly employed interview techniques for confirming the veracity of a statement is to focus interview questions on details. By focusing on details such as ages, names, locations, times and other descriptions, researchers can identify false or misleading statements or whether statements are about incidents that have been personally witnessed, as opposed to hearsay. Asking interviewees to repeat or clarify information that they have given earlier in the interview is another technique used to expose false statements. Researchers often ask other witnesses and victims about the same incidents to help confirm the veracity of statements. It is difficult and unlikely for multiple interviewees to present the same details about an incident if those details are false.

III. Non-Interview Research

When documenting evidence of human rights abuses, researchers are trained to use any methods at their disposal and not to rely solely on interviews. We conduct extensive reviews of media reports, domestic legislation, international law, policy papers, academic reports, and civil society reports during the initial stages of, and throughout, the research process. Trial materials, government reports, conviction and sentencing materials are all often used to make cases in Human Rights Watch reporting.

Data collected from sources such as the UN, regional intergovernmental bodies, and domestic government agencies are also often analyzed to prove the existence and extent of human rights abuses.

Researchers use documentary evidence to demonstrate 1) a violation has been committed, 2) the government had knowledge of the violation, 3) the government failed to act, and 4) a given party is liable under the theory of individual, institutional, or command responsibility. A violation can be shown by death certificates, medical records confirming fraud or corruption, contracts or deals, and court records. Researchers may use complaints or mailing receipts to help prove government knowledge. Failure to act can be revealed in written refusals to open an investigation and records showing unnecessary delays. Finally, researchers can determine the theory of liability by looking to orders, police records, and official correspondence.

When assessing the credibility of photos and videos, researchers must establish the time, place, and context in which the media was recorded, as well as the identity of the victims and perpetrators.

In the field, researchers sometimes gather information and data that are not based on interviews but on examining the location of incidents. Human Rights Watch researchers have used forensic tools to document human rights violations. Researchers have photographed bodies for injuries and scars, documented locations of destruction,

3A - 6

7

documented spent ammunition casings, and measured and analyzed craters due to explosions.

Human Rights Watch also uses GPS coordinates and satellite imagery to visually expose the locations of rights abuses. Through satellite imagery, we can often show movements of refugees, concentrations of asylum seekers in places like borders, locations and changes in refugee camps, including destruction of camps, and to confirm locations of detention centers and proximity of fighting to displaced populations.

IV. Our instructions to HRW Researchers Regarding Support for Asylum Claims

HRW engages in research on human rights violations and on the conditions in which refugees, asylum seekers, and other displaced people live for the purpose of exposing abuses and advocating for the respect of human rights, and, in the case of refugees or asylum seekers, with respect to the particular sets of rights that apply to those categories of people. In general, we do not focus on intervening on behalf of individual cases, but rather with trying to change policies that affect groups of people. Our advocacy toolbox rarely includes litigation, though we recognize its importance as an instrument for social change. We also recognize, in fact, that lawyers, as well as unrepresented asylum seekers, often make great use of HRW materials to present their claims.

In general, we discourage our researchers from providing expert testimony. For us, this is largely a strategic and human resource question. Our reluctance to do individual casework is in large part dictated by our limited human resources that necessitate setting priorities that enable us to be most effective in the work we do. We constantly ask the question how we might have the most impact in improving the rights of as many people as possible. Our view is that individual asylum casework (and resettlement cases) can be very time consuming and do not often create precedents that affect larger numbers of people.

But we do make exceptions. Our researchers have discretion to intervene on behalf of an individual refugee claimant if there are positive answers to any of the three situations:

1) Was HRW directly involved in the case? Do we feel responsible for this person? Are they endangered because of their association with HRW?

2) Does HRW have specific, specialized knowledge about this particular individual's case that is not in published materials or otherwise available to the asylum seeker?

3) Would the grant of asylum in this case create a precedent or does it involve substantive legal and/or factual questions that would be applicable beyond this individual?

3A - 7

8

If the answer to any of these questions is "yes," then our researchers have greater discretion to provide affidavits or support letters, or even appear at a hearing to provide expert testimony.

We provide guidance to researchers on how to write such letters. Letters of support are also reviewed by the researcher’s supervisor within their regional or thematic division, by the Refugee Rights Program, by our Legal and Policy office as well as our General Counsel’s office, and, depending on the facts, by other HRW divisions that have relevant expertise to the particular case (our LGBT division would be such an example).

The guidance we provide to researchers who choose to provide affidavits or letters of support on behalf of individual asylum seekers includes the following:

· Start with some accounting of your individual expertise, why you are qualified to comment on this case/application, including academic or other background that makes you an expert on the country, group, or issue, including through your work with HRW.

· Say something along the lines of: “I understand X alleges she was persecuted on the grounds of her [political activity; race; religion; LGBT identity, etc.], including experiencing [torture in X prison; surviving a massacre in X place; etc]. ”

· Say how the applicant’s account of his or her experience would be consistent

with other information you have expert knowledge of about the way similarly situated people are persecuted in that country.

· Include, if you have it, information we have documented about human rights

violations occurring at the specific times and places where the applicant claims he or she was persecuted.

· Source your information carefully, preferably with citations to our reports or

other documents.

· Avoid trying to “prove” the person’s account, simply by repeating it. Do not just summarize an interview you had with the claimant or repeat the person’s statement as though it is factual. There are good reasons not to do this:

o Normally we are not adding anything by simply repeating what they could

say themselves. In any case, their first-hand account will be much more powerful than any second-hand account we can provide.

o Our own credibility should not be compromised by our stating as fact an allegation made by a person seeking protection who might not be telling the truth. Therefore,

3A - 8

9

When making any reference’s to the applicant’s account of what happened, be sure to say, “He said,…”

Do not succumb to any pressure from the applicant’s attorney to go beyond facts you know to be true or to make conclusions or extrapolations beyond your direct knowledge and experience.

· In consultation with the Refugee Program and the Legal and Policy team, you might be able to draw a conclusion that you believe the asylum applicant meets the international refugee standard or otherwise qualifies for international protection. In some cases, we present our information without drawing such a conclusion

V. Conclusion

Although each situation is unique, thoroughness and credibility is always a top priority of Human Rights Watch researchers. Through the methodology outlined in this paper, we conduct quality research to support our advocacy efforts in furtherance of human rights around the globe.

3A - 9

TAB 3B

Country Research: Distinguishing Fact from Fiction

Youliana Daskalova, Senior Research Analyst,

Immigration and Refugee Board of Canada

Heidi Sprung, Director of the Research Directorate

Immigration and Refugee Board of Canada

November 23, 2016

24TH ANNUAL

Immigration Law Summit – DAY 2



Law Society of Upper Canada (LSUC) 24th Annual Immigration Law Summit November 23, 2016

“Country Research: Distinguishing Fact from Fiction”

Youliana Daskalova, Senior Research Analyst, and Heidi Sprung, Director Research Directorate Immigration and Refugee Board of Canada

The Research Directorate and Country of Origin Information

1. The Research Directorate

1.1 Mandate

The mandate of the Research Directorate is: to meet the information requirements of the Refugee Protection Division (RPD) and the Refugee Appeal Division (RAD) of the IRB; to provide current and reliable Country of Origin Information (COI), including claimant-specific information, to support fair refugee determination; and, to ensure the consistent dissemination of research to all IRB offices across Canada.

1.2 Products and Services

The Research Directorate is comprised of the Country-of-Origin Research Unit (COI), which produces Responses to Information Requests (RIRs); the Knowledge and Information Unit (KIM), which produces National Documentation Packages (NDPs) and Supplemental Country of Origin Information (SCOI); and the Specific Information Research Unit (SIRU).

2. Country of Origin Information (COI) Unit

The COI unit provides country of origin information in the form of Response to Information Requests (RIRs), which are produced using Research Directorate standards, guidelines and methodology. Research Officers are responsible for researching and writing the RIRs. The Editing and Research Analysis team provides quality assurance of the COI unit’s products. The COI unit also undertakes fact-finding missions to support its research when the need arises. The COI unit does not provide information about individual refugee claimants.

2.1 Response to Information Requests (RIRs)

RIRs are focused research reports that answer specific COI questions. They are produced for specific hearings, or for inclusion in the National Documentation Packages (NDPs). RIRs are written using publicly available sources, selected according to the Research Directorate methodology. The information provided in RIRs is compared, contrasted and corroborated whenever possible. RIRs do not draw conclusions from the information provided by sources; they do not provide analysis of the information; and, they do not assign weight to the sources being used.

3B - 1

2.2 COI Research Methodology As part of the research methodology, when producing RIRs, researchers look for a variety of documents that compare, contrast and corroborate information on a specific topic, using a variety of sources. Sources used in the RIRs are evaluated using specified criteria in order to determine whether the information they provide should be included in the report.

RIRs use publicly available information and identify the sources for all of the information provided in the response (a reference list is always included). No “weight” is assigned to any source or report within the RIR, as it is the member’s responsibility to determine the weight of information provided. Every source is described in the RIR at first mention. The Research Directorate also does not offer its own opinion on country conditions: all such opinions belong to the authors of the information. COI research is necessarily “equivocal”— multiple viewpoints will often result in contrasting or contradictory assessments of country conditions.

2.2.1 Sources

Research Officers use a variety of publicly available sources to represent multiple points of view, including the following:

• International, national and regional human rights organizations • Newspapers and media • Academic publications • Independent research institutes • Governments • Oral sources willing to provide public domain information and/or be cited in a public

document Sources are assessed for their reliability and selected based on the following criteria:

• Currency • Objectivity • Transparency • Reputation • Mandate/mission of the source • Qualifications and background of the author • Information gathering and reporting methodology • Quality of the writing and presentation • Source funding

Oral sources are often consulted by researchers when there is a lack of documentary sources on COI topics. These sources can include scholars, human rights defenders in the country of origin, NGO representatives, government officials, etc. The use of oral sources is a critical contribution to the Research Directorate’s research products, especially on topics such as:

• Implementation of legislation • Local incidents that were not reported in the news • Procedures concerning identity documents • Analysis of complex situations

3B - 2

• Political parties and organizations’ internal structure and functioning • Efficiency of state protection, recourse options and alternatives for victims of persecution

Oral sources are presented in RIRs in the following way: “In correspondence with the Research Directorate, a professor from the Department of Anthropology at Thompson Rivers University, who specializes in the Roma population in the Slovak Republic, stated that…”

Oral sources are presented objectively, with no weight assigned to the source, and are generally not identified in the RIR by their name. When selecting oral sources, the COI unit uses the same criteria as documentary sources. For example, they look at an academic's background, publications, and specialization, in order to determine whether they would be an appropriate source to contact for information. Members can instruct the Research Directorate to disclose further information on oral sources (e.g. name, résumé, professional contact information, etc.), if they decide they require said information during their process.

In many instances, it is impossible for a researcher to apply all of the criteria to evaluate the sources used in a COI report, as not all information for an organization/publication is always available. This is balanced by the RD methodology of corroborating, comparing and contrasting the information in reports as much as possible.

When looking at RIRs, members are responsible for weighing all of the information provided in the reports. The Research Directorate works independently and does not provide advice to members.

2.3 Research Challenges

The Research Directorate is often faced with challenges when producing COI. For example, there are sources available only in foreign languages, which are not accessible for the researcher, unless they have the language capacity. Often it can be difficult to obtain information from governments due to factors such as their political relationship with Canada; lack of funding and resources to respond to queries or produce published in-country reports; or, lack of sufficient infrastructure and contact information.

It can also be challenging to obtain on-the-ground information for countries if there is an ongoing conflict, a lack of a communications infrastructure, an international presence (NGOs, media, foreign embassies, etc.), or a local presence (civil society, media, researchers, etc.).

Since the COI methodology used by the RD relies only on publicly available information, researchers are limited in the information they can include in a report. For example, not all oral sources provide information when they know that it will become part of the public domain, even if they know the answers to our questions. Reasons for this can include fear of persecution or, usually for government officials, the fact that they do not feel comfortable representing their government. The COI unit has also had cases when an oral source, such as a lawyer or academic, requests payment for the information they will provide, as it might take them a significant amount of time to do so. However, the RD does not provide payment for such information, as it is contrary to our methodology due to the implications.

3. National Documentation Packages (NDPs)

3B - 3

The Knowledge Information Management Unit (KIM) produces and publishes National Documentation Packages. The KIM unit is also responsible for: answering member queries in regional offices, the RD's internal and external research databases, and, acquiring and maintaining research holdings and acquisitions (paper and electronic formats).

The NDPs are found on the IRB’s Intranet and the IRB website in both official languages

for 160+ countries. These packages support quality and consistency by creating a uniform evidentiary base when claims are reviewed. The NDPs also align limited research capacity to meet the IRB caseload and the information needs and priorities of decision makers. The NDPs contain comprehensive, current, publicly available information while respecting copyright. The NDPs are updated annually. They include documents on the following topics:

• General information and maps • Human rights • Identification documents and citizenship • Political activities and organizations • Gender, domestic violence and children • Sexual minorities • Criminality and corruption • Military service • Judiciary, legal and penal systems • Police and Security Forces • Media freedoms • Religion • Nationality and ethnicity • Freedom of movement • Labour, employment and unions

The NDP documents include reports (RIRs) produced by the RD as well as documents from third-party sources. Information Officers who update the NDPs use the RD methodology and criteria when selecting third-party documents. This means that they evaluate the sources for these documents using the same criteria as the COI unit, and, the documents they include are selected from a variety of sources in order to compare, corroborate, and contrast the COI that fills out the different sections in an NDP.

NDPs serve as the IRB’s standard disclosure of country information in all RPD

proceedings and only include documents that are publicly available. They are comprehensive according to decision-maker information needs and address principle claim types. There is a minimal reliance on copyright-protected materials.

NDPs are not meant to be exhaustive or specific to an individual’s claim; they are also

not meant to contain information about the latest headlines. Members can also disclose additional information on a supplemental basis depending on the particulars of a claim. 4. Conclusion

3B - 4

The Research Directorate aims to maintain full objectivity when producing COI research. However,

this does not mean that the sources used in RIRs and NDPs are not biased. This is why the strength of the RD methodology lies in always comparing, contrasting and corroborating information from a variety of sources. This allows for a more balanced presentation of country of origin information. In addition, there is a preference by members to assess the credibility of evidence based on the total evidence presented. RD methodology parallels this practice, as the information presented in RIRs is not given weight and it is meant to present a more complete perspective of country conditions.

3B - 5

IRB/CISR 528 (02/07)

The Research Directorate and Country of Origin

Information

Presentation by Youliana Daskalova and Heidi Sprung IRBToronto, November 23 2016

3B - 6

Legal basis Subsections 170(g) and (h) of the Immigration and

Refugee Protection Act provides: The Refugee Protection Division, in any proceeding

before it, (g) is not bound by any legal or technical rules of

evidence; (h) may receive and base a decision on evidence

that is adduced in the proceedings and considered credible or trustworthy in the circumstances;

2

3B - 7

3

Research Directorate Mandate

To meet the information requirements of the Refugee Protection Division and the Refugee Appeal Division

To provide current and reliable country-of-origin information (COI), including claimant-specific information, to support fair refugee determination

To ensure the consistent dissemination of research to all IRB offices across Canada

3B - 8

4

Country-of-origin Research Unit

(COI)

Specific Information

Research Unit (SIRU)

Responses to Information Requests

(RIRs)

National Documentation

Packages (NDPs)

RD products and services

Supplemental Country-of-Origin

Information (SCOI)

Knowledge and Management

Information Unit (KIM)

3B - 9

5

Country of Origin Information (COI) Unit

Provides country of origin information. Uses a variety of publicly available sources selected

using Research Directorate methodology. Does not provide information about individual refugee

claimants. Product quality assurance through Editing and

Research Analysis. Fact-finding missions

3B - 10

6

What are Responses to Information Requests (RIRs)?

Focused research reports that answer specific COI questions

Produced: for specific hearing, or for inclusion in National Documentation Packages

Based on publicly available sources

3B - 11

7

RIRs do not …

draw conclusions from the information provided by sources

provide analysis by the Research Directorate

assign weight to the sources being used

3B - 12

8

ERI105095.E 02 March 2015

Eritrea: The Medhane Alem movement in Eritrea, including religious affiliation and history; treatment of members by authorities (2003-February 2015)

Research Directorate, Immigration and Refugee Board of Canada, Ottawa

1. OverviewThe US Department of State's International Religious Freedom Report for 2013 indicates that the government's record on religious freedom during 2013 was "poor" (28 July 2014, 1). In correspondence with the Research Directorate, a professor of comparative religion at the Hebrew University of Jerusalem similarly indicated that the situation with regard to religious freedom in Eritrea is "awful" (26 Feb. 2015). According to the International Religious Freedom Report for 2004, the government enacted adecree in May 2002 by which all religious bodies had to "register or cease all religious activities"; as a result, the government closed down all religious facilities not belonging to the four sanctioned religions (US 15 Sept. 2004). Similarly, InternationalChristian Response (ICR), an international organization that "provides spiritual and material assistance for persons who are persecuted as a result of their Christian beliefs" (ICR n.d.), said that all religious bodies in Eritrea except the four who registered in May 2002 were illegal (ibid. 5 May 2014). The International Religious Freedom Report for 2013 indicates that the four religious groups officially registered with the government are the Eritrean Orthodox Church, Sunni Islam, the Roman Catholic Church, and the Evangelical Lutheran Church of Eritrea; churches belonging to other religious groups remained closed during the time of the reporting period (ibid. 28 July 2014, 6).

2. Medhane Alem MovementSources indicate that the Medhane Alem Orthodox Church is a renewal movement within the Eritrean Tewahedo Orthodox Church [Eritrean Orthodox Church] (Oriental Orthodox Church 1 Jan. 2013; BBC 27 Sept. 2007; Professor 26 Feb. 2015). The movement reportedly emerged in the 1970s (WEA 24 May 2006). According to Amnesty International (AI) in 2005, the Medhane Alemmovement, which means "'Saviour of the World'," is a bible study group of the Eritrean Orthodox Church "centered on the Medhane Alem church in Asmara" (Dec. 2005, 5).

… 8

3B - 13

9

References

Amnesty International (AI). 7 December 2005. Eritrea: Religious Persecution. <http://www.refworld.org/docid/4396b22c4.html> [Accessed 11 Feb. 2015]

British Broadcasting Corporation (BBC). 27 September 2007. Tanya Datta. "Eritrean Christians Tell of Torture." <http://news.bbc.co.uk/2/hi/7015033.stm> [Accessed 11 Feb. 2015]

…

Professor, Hebrew University of Jerusalem. 26 February 2015. Correspondence with the Research Directorate.

…

Additional Sources Consulted

Oral sources: The following were unable to provide information within the time constraints of this Response: Ethiopian Orthodox Tewahedo Church — Debre Medhanit Medhane Alem.

Attempts to contact the following were unsuccessful within the time constraints of this Response: Diocese of Eritrean Orthodox Church in North America; Eritrean Orthodox Tewahdo Church of St. Mary in Chicago; Ethiopian Orthodox Church — MedhaneAlem Parish in York, Ontario; Medhane Alem Eritrean Orthodox Church in Washington, DC; Medhane Alem Evangelical Church in Seattle; Norwegian Church Aid; Saint Mary Eritrean Orthhodox Church in Bay Area, California.

Internet sites, including: Africa Review; Aid to the Church in Need; AllAfrica; Asmarino; Bloomberg; Christian Science Monitor; Droit.Afrique.com; ecoi.net; Eritrea — Embassy in Washington, DC; Evangelical Alliance Foundation; Factiva; Freedom House; Harvard University — Pluralism Project; Jeune Afrique; Release Eritrea; Reporters sans frontières; The Tablet; Telegraph; United Nations — High Commisioner for Refugees, RefWorld; United States — Commission on International Religious Freedom; World Watch Monitor.… 9

3B - 14

RIR Methodology and Standards

Evaluating every source using specific criteria

Compare, corroborate, contrast Standard presentation of information Quality check process

10

3B - 15

How RIRs are Produced

Research Officers (ROs) are responsible for researching and writing RIRs on specific COI subjects

ROs work on several information requests at a time

ROs typically work on an RIR between 3 to 15 days

RIRs undergo an extensive review and analysis, are edited, and proofread.

11

3B - 16

12

Research Methodology Produce a report that compares, contrasts and corroborates

information using multiple sources

Use publicly available information

Identify sources for all information (reference list provided)

Assign no “weight” to any source or report (member responsibility)

The Research Directorate does not offer its own opinion on country conditions: all such opinions belong to the author(s) of the report

COI research is necessarily “equivocal”

3B - 17

13

COI Research MethodologyResearching a variety of publicly available sourcesto represent multiple points of viewResearching a variety of publicly available sourcesto represent multiple points of view

International, national and regional human rights organizations

Newspapers and media

Academic publications

Independent research institutes

Governments

Oral sources willing to provide public domain information and/or be cited in a public document

3B - 18

14

Research Challenges Sources available only in foreign language Obtaining information from governments whose

resources are scarce Lack of: International presence (NGOs and media) and Local presence (civil society and media)

Finding information on local events/situations Finding evidence of legislation being enacted and

enforced

3B - 19

15

COI Research MethodologySources are assessed for their reliability and selected based on the following criteria:Sources are assessed for their reliability and selected based on the following criteria: Currency

Objectivity

Transparency

Reputation

Mandate/mission of the source

Qualifications and background of the author

Information gathering and reporting methodology

Quality of the writing and presentation

Source funding

3B - 20

Oral sources Scholars, government officials, human rights defenders,

NGO representatives, legal experts, etc. Critical contribution to RD’s research products,

especially on: Implementation of legislation Local incidents or issues that were not reported in the public

domain Procedures concerning identity documents Analysis of complex situations Political parties and organizations’ internal structure and

functioning Efficiency of state protection, recourse options and alternatives

16

3B - 21

Oral Source Information

Interview or correspondence Disclaimer Follow-up and clarification Clarity of information Contrast and corroboration Credibility issues

17

3B - 22

18

Research Challenges – Oral SourcesCountry of Origin:•Different time zones•Country conditions •Communication infrastructure unreliable•Cultural and linguistic barriers•Availability of qualified oral sources

The Source:•Providing information could endanger the claimant or source•Information is publicly available – source’s name may be cited•Information perceived as sensitive •No financial compensation given to oral sources•Time constraints

3B - 23

Presenting oral sources in RIRsIn correspondence with the Research Directorate, aprofessor of comparative religion at the Hebrew Universityof Jerusalem indicated that …

19

Objective presentation No weight assigned to the source Generally not identified by their name

3B - 24

Relying on oral sources for decision-making

Members are responsible for weighing all evidence before them, including information provided by oral sources

The Research Directorate works independently and does not provide advice to members

Members can instruct the Research Directorate to disclose further information on oral sources (e.g. name, résumé, professional contact information, etc.)

20

3B - 25

21

Knowledge Information Management Unit (KIM)

Produce and publish National Documentation Packages

Answer member queries in regional offices Build and maintain internal and external research

databases Acquire and maintain research holdings and

acquisitions (paper and electronic formats)

3B - 26

22

National Documentation Packages Exist on Intranet and IRB website in both official

languages for 160+ countries and are updatedannually

Support quality and consistency by creating a uniform evidentiary base when claims are reviewed

Contain comprehensive, current, publicly availablecountry of origin information while respecting copyright

Documents are selected using RD methodology and evaluation criteria

3B - 27

23

A selection of documents on the following topics:

General information and maps Hatiouman rights Identificn documents and citizenship Political activities and organizations Gender, domestic violence and children Sexual minorities Criminality and corruption Military service Judiciary, legal and penal systems Police and Security Forces Media freedoms Religion Nationality and ethnicity Freedom of movement Labour, employment and unions

NDP documents include:

Reports (RIRs) produced by the RD

Documents from third-party sources

3B - 28

24

NDPs …• Serve as the IRB’s standard

disclosure of country information in all RPD proceedings.

• Are comprehensive according to decision maker information needs.

• Include publicly available documents only.

• Minimal reliance on copyright-protected materials.

• Address principle claim types.

NDPs are not…• meant to be exhaustive.

• meant to be specific to an individual’s claim.

• meant to contain information about the latest headlines.

• N.B. members can discloseadditional information on a supplemental basis dependingon the particulars of a claim

3B - 29

2525

3B - 30

Immigration and Commission de !'immigration Refugee Board of Canada et du statut de refugie du Canada

Country I China G Language I English G

I Get Package for Selected Country J Print Preview Selected Files !LP..f[n.fE~eyi,i~J,I~fQf.Qilf~.r!ii~ii]

National Documentation Package- 31 October 2014

List of Documents 1+1 10 China [+) [] 1. General Information and Maps

1+1 [] 2. Human Rights

[+) [] 3. Identificat ion Documents and Citizenship

[+) [] 4. Political Activities and Organizations

[+) [] 5. Gender, Domestic Violence and Children

[+) [] 6. Sexual Minorities

[+) [] 7. Criminality and Corruption

8. Military Service - (No items in this section)

[+) [] 9. Judiciary, Legal and Penal systems

[+) [] 10. Police and Security Forces

[+) [] 11. Media Freedoms

1+1 [] 12. Religion

[+) [] 13. Nationality, Ethnicity and Race

[+) [] 14. Exit/Entry and Freedom of Movement

[+) [] 15. Labour, Employment and Unions

16. Other - (No items in this section)

The following changes have been made to the previous package dated 14 March 2014:

[+) Updated

[+) Removed

[+) Added

Canada

National Documentation Package 31 October 2014

China

list of Documents

For the purposes of disclosure toO c laimants and counsel, please use the U.st of Documents posted on the IRS websUe. This version is for-internal use only, as it may contain electronic vers ions of documents, some of which are available to the public only in hard-copy fomJa t Some o f these documents were not available in English when this

National Documentation Package (IIDP) was pubJ;shed.

1. General lnfonnation and Maps

1.1. TiUe: China. Central Intelligence N)ency. Source: Untted States Oateof Oocument: July2011 URL: hltpJtwww.lib.utexas.edu/maps/micldle_east_and_asiaJtxu-pclmaps-oclc-785900401khi

na_pol-2011 .jpg Accessed Date: 20 October2014 Keywords: map; transport infrastructure

1.2. Title: China. Education. Source: National Geographic URL: hlt(JJ/education_nationalgeographic.comleducation/mapping/outline-map/?map=China&a

r_a=1 Accessed Date: 29 October2014 Keywords: map

1.3. TiUe: Fujian Map Source: ChinaMaps.org URL: hltp:Jiwww.chinamaps.org/china/provincemapslfujian~ap.html

Accessed Date: 17 October2013 Keywords: map

1.4. TiUe: Guangdong Map Source: ChinaMaps.org URL: hltpJ!www.chinamaps.org/china/provincemaps/guangdong-map.html Accessed Date: 20 October2014 Keywords: map

1.5. Title: Chine. l 'Encydopedie en ligne. Source: larousse URL: hlt(JJtwww.larousse.fr/encydopedie/flashfixe/Chine/1306040 Accessed Date: 8November 2012 Keywords: map

Thank you

26

3B - 31

TAB 4

The Signal and the Noise in Administrative Law

Dr. Paul Daly, Senior Lecturer in Public Law, University of Cambridge

Derek Bowett Fellow in Law, Queens’ College, Cambridge Research Associate, Centre de recherche en droit public

November 23, 2016


1

The Signal and the Noise in Administrative Law

Keynote Address to the Law Society of Upper Canada’s 24th Annual Immigration Law Summit, November 23, 2016

Paul Daly

Senior Lecturer in Public Law, University of Cambridge

Derek Bowett Fellow in Law, Queens’ College, Cambridge

Research Associate, Centre de recherche en droit public

Introduction

There has been an unfortunate trend in recent Supreme Court of Canada administrative law cases.

While academics, practitioners and lower-court judges try to establish coherent frameworks to understand the general principles of judicial review, the Court has been resolving cases one by one without, with respect, any serious attempt to explain how they fit into its existing body of jurisprudence. The institutional context in which the Court operates, explained in Part I, no doubt influences the Court’s resolution of individual cases in this way.

Whatever the background institutional context, confusion is the inevitable result, as I explain in Part II. How should lawyers read these cases: as attempts to resolve one-off issues of substantive law (workers’ compensation law, immigration law, discrimination law and so on) or as continual refinements to an already complex body of administrative law doctrine?

I argue in this paper that it is now necessary to distinguish between signal and noise,1 between those cases that do modify administrative law doctrine and those cases that simply deal with a particular substantive area of law. In Part III, I set out criteria which will help Canadian administrative lawyers to distinguish signal from noise.

This confusion seems to me, however, to be unnecessary. As I suggest in Part IV, the Court could take up judicial and academic proposals for a unified reasonableness standard that would allow it to resolve individual cases without creating uncertainty about whether it has also modified administrative law doctrine. Adopting this approach would obviate the need to distinguish signal from noise, because they would both fade into the comforting hum of reasonableness review.

I. Institutional Context

The problem of distinguishing signal from noise must be understood in context.

The Court is an apex court, sitting athwart Canada’s judicial hierarchy. With the exception of certain criminal cases where there is an automatic right of appeal, the Court deals only with questions of “public importance”, important legal questions and other questions “of such a nature or significance as to warrant [its] decision”.2

1 Nate Silver, The Signal and the Noise: the Art and Science of Prediction (Penguin, London, 2013). 2 Supreme Court Act, RSC 1985, c s-26, s. 40(1).

4 - 1

2

Moreover, its decisions are important not only for the parties that appear before it but also for the wider community: the reasons it gives lay down important guidance for lower courts, litigants and laypeople.

The Court itself is aware of this. In R. v. Henry,3 Binnie J. explained that the traditional common law distinction between ratio decidendi – those matters essential to the decision of a case – and obiter dicta – everything else – was a “supposed dichotomy” that is an “oversimplification of how the common law develops”.4

Rather:

The issue in each case…is what did the case decide? Beyond the ratio decidendi which…is generally rooted in the facts, the legal point decided by this Court may be as narrow as the jury instruction at issue in [Sellars v. The Queen, [1980] 1 SCR 527] or as broad as the Oakes test. All obiter do not have, and are not intended to have, the same weight. The weight decreases as one moves from the dispositive ratio decidendi to a wider circle of analysis which is obviously intended for guidance and which should be accepted as authoritative. Beyond that, there will be commentary, examples or exposition that are intended to be helpful and may be found to be persuasive, but are certainly not “binding” in the sense the Sellars principle in its most exaggerated form would have it. The objective of the exercise is to promote certainty in the law, not to stifle its growth and creativity. The notion that each phrase in a judgment of this Court should be treated as if enacted in a statute is not supported by the cases and is inconsistent with the basic fundamental principle that the common law develops by experience.5

The result, though, is that even if the decisions of the Court are not treated as legislative pronouncements, there is a temptation to ‘read the tealeaves’ and closely parse obiter statements for indications of changes in the law.

The undoubted need to give general guidance is also a reason for enhanced collegiality on an apex court. The Court has placed a premium on collegiality and the production of majority and even unanimous reasons.6 This can increase certainty and clarity by committing all members of the Court to the same position. But it can also undermine certainty and clarity by achieving a narrow unified position at the cost of drowning out dissenting noises that may prove too loud to ignore in later cases.7

II. Signal or Noise?

A problem that can be traced to the institutional context in which the Supreme Court of Canada operates plagues the Canadian law of judicial review of administrative action. Because of the Court’s role in answering important questions of law, it is often difficult to

3 [2005] 3 SCR 609. 4 Henry at para. 52. 5 Henry at para. 57. 6 See e.g. Emmett Macfarlane, “Consensus and Unanimity at the Supreme Court of Canada” (2010) 52 Supreme Court Law Review (2d) 379. 7 For a generalized critique of the demise of seriatim opinions, see Dyson Heydon, “Threats to Judicial Independence: the Enemy Within” (2013) 129 Law Quarterly Review 205.

4 - 2

3

determine whether the reasons given for deciding a judicial review case are intended to have an effect on the general principles of administrative law.

Administrative law consists of abstract principles that have to be applied to different areas of substantive law. Decisions in environmental law, discrimination law, workers’ compensation law, immigration law and so on are, where taken by administrative decision-makers, subject to judicial review for legality, rationality and fairness. These abstract principles exist at one remove from the substantive law that provides the context in which administrative decisions are taken.

As a result, the Court may grant leave to appeal (and may eventually decide a case) for one of two reasons: it may wish to answer a question or questions relating to the general principles of judicial review; or it may wish to answer a question of substantive law; some combination of the two is also possible. Although reasons for granting or denying leave are not given, my experience is that the Court is much more interested in questions of substantive law than questions relating to the general principles of judicial review.

Indeed, as the judicial body of last resort, the Court has to give authoritative guidance on matters of substantive Canadian law to other actors (individuals, politicians, lawyers and lower-court judges), a task that might be impeded by consideration of the general principles of judicial review. According deference to administrative decision-makers, for instance, means favouring legal pluralism, permitting those decision-makers to put their own spin on rules of substantive and procedural law. But as court of final resort, the Court has an institutional obligation to set down clear substantive and procedural rules for courts and decision-makers across the country.

Few of the judicial review cases the Court agrees to hear provide meaningful guidance to lower courts on how to apply these general principles. Sometimes the Court ignores the role of the administrative decision-maker entirely (Febles v. Canada (Citizenship and Immigration),8 which involved an important question of immigration law touching upon the interpretation of the United Nations Convention Relating to the Status of Refugees is an example); sometimes it dresses up its authoritative exposition of the law in the guise of reasonableness review (so-called “disguised correctness review”, in which it says it is applying a reasonableness standard but in fact performs its own analysis of the law and the facts to reach an independent conclusion that it labels ‘reasonable’ or ‘unreasonable’9); and sometimes in its drive for coherence it undermines legal pluralism.10 The techniques are not mutually exclusive, of course, and they are often deployed in combination.

These techniques might permit the Court to provide authoritative guidance on important questions of substantive law, but their use raises inevitable questions about their impact on the general principles of judicial review. When the Court ignores administrative law, engages 8 [2014] 3 SCR 431. 9 See e.g. Canada (Canadian Human Rights Commission) v. Canada (Attorney General), [2011] 3 SCR 471 though see also the benign interpretation of that decision offered in Canada (Attorney General) v. Canadian Human Rights Commission, 2013 FCA 75, at para. 15, a point to which I will return below in Part IV. 10 See the discussion below of Bombardier. See also Mouvement laïque québécois v. Saguenay (City), [2015] 2 SCR 3; Paul Daly, “Why Would Jurisdiction Be Concurrent? Another Thought on Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16” Administrative Law Matters, April 17, 2015 (http://www.administrativelawmatters.com/blog/2015/04/17/why-would-jurisdiction-be-concurrent-another-thought-on-mouvement-laique-quebecois-v-saguenay-city-2015-scc-16/).

4 - 3

4

in disguised correctness review, or otherwise plays fast and loose with administrative law doctrine to enable it to give guidance to the wider community, it risks warping the administrative law framework and creating confusion.

Consider Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center),11 a case that was resolved decisively in favour of the exposition of national rules of substantive and procedural law.

The facts are straightforward. Latif is a pilot who was denied training by Bombardier in 2004. The denial was based on a national security decision of the American authorities, a decision Bombardier applied because it did not want to imperil its standing with the Federal Aviation Authority. Latif is Pakistani. The Quebec Human Rights Tribunal found that Bombardier had discriminated against him. Although there was no direct evidence of discrimination by Bombardier, the Tribunal based its decision on an expert report and circumstantial evidence about racial profiling in the United States after 9/11.

At first blush, this looks like a straightforward administrative law case that required the Tribunal to weigh evidence and come to a conclusion. Moreover, it conducted the weighing exercise in a very particular context, one in which an individual like Latif is powerless in the face of an unreviewable decision.12 In this sort of context, one can understand why the Tribunal was not especially impressed by Bombardier’s automatic application of the American decision and why the Tribunal thought Bombardier should have been more proactive.13 As a large institution, it was certainly in a better position than Latif to follow up with the U.S. authorities.

Why, then, did the Court grant leave? There are two large clues in the joint reasons of Wagner and Côté JJ. for a unanimous Court.

First, this was the first opportunity for the Court to consider “a form of discrimination allegedly arising out of the decision of a foreign authority”.14

Second, the Court had “never clearly enunciated the degree of proof associated with the plaintiff’s burden” of making out a prima facie case of discrimination.15 Unsurprisingly, the bulk of Wagner and Côté JJ.’s reasons are devoted to giving administrative decision-makers and lower courts guidance on these inter-related issues. The guidance is that the civil standard of the burden of proof always applies.16

What about administrative pluralism? Wagner and Côté JJ. accept that tribunals have the authority to adapt their rules of procedure and admissibility of evidence to their particular regulatory context.17 But not the burden of proof, “in order to maintain the uniformity, integrity and predictability of the law”.18 It is difficult see a justification here for according the burden of proof a special status different to rules of procedure and evidence. Wagner and 11 [2015] 2 SCR 789. 12 Bombardier, at para. 16. 13 Bombardier, at para. 101 14 Bombardier, at para. 2. 15 Bombardier, at para. 55. 16 Bombardier, at para. 65, though note that strictly speaking this conclusion only applies to Quebec, which has a specific legislative provision about the burden of proof. 17 Bombardier, at paras 67-68. 18 Bombardier, at para. 69.

4 - 4

5

Côté JJ. say only “that the application of a given legal test must be based on the same elements and the same degree of proof in every case”,19 but this is difficult to square with the Court’s openness to allowing administrative decision-makers to mould rules of substantive law to better achieve their regulatory purposes. As Fish J. put it in Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, an administrative decision-maker “may properly develop doctrines and fashion remedies appropriate in their field, drawing inspiration from general legal principles, the objectives and purposes of the statutory scheme” and other contextual considerations.20 Hopefully future reviewing courts will focus on the language highlighting the effective reversal of the burden of proof, the sort of error that superior courts can more plausibly claim they have authority to correct on judicial review.

There then follows an intrusive analysis of the Tribunal’s appreciation of the facts, which looks suspiciously like de novo review even though it is adorned by the language of reasonableness.21 At one point, Wagner and Côté JJ. comment that the “practical” effect of the Tribunal’s decision was to reverse the burden of proof they had previously established,22 but in their analysis they carefully pick apart the Tribunal’s reasons, using different expressions: insufficient evidence,23 evidence not “tangibly related”,24 evidence “not sufficiently related”,25 or simply “no evidence”.26 But whether the evidence is adequate or not is a matter for the administrative decision-maker. As has been said many times, it is emphatically not “the function of the reviewing court to reweigh the evidence”.27

Further, the evidence was insufficient on only one of the three grounds Latif needed to prove to make out a prima facie case of discrimination — does this mean that a reviewing court is entitled to pick apart a human rights tribunal’s decision and examine the sufficiency of the evidence on each ground independently? We have been told, however, that judicial review is not a “line-by-line treasure hunt for error”.28

Inasmuch as there is any meaningful guidance to lower courts here about the general principles of administrative law, the unfortunate effect would be to license intrusive judicial review of tribunals’ appreciation of the facts. In my view, Bombardier should be treated primarily as a case about discrimination law. If the Court’s goal was — as I suggested — to set out general principles relating to the burden of proof in discrimination cases, Wagner and Côté JJ.’s reasons surely achieved it; it was a strong signal to lower courts and administrative tribunals about how to proceed in discrimination cases. But as far as administrative law is concerned, its comments on the standard of proof applied by the decision-maker and its close review of the evidence constitute noise that future courts should tune out.

19 Bombardier, at para. 69. 20 [2011] 3 SCR 616, at para. 45. 21 Bombardier, at para. 81. 22 Bombardier, at para. 88. 23 Bombardier, at para. 84. 24 Bombardier, at para. 89. 25 Bombardier, at para. 89. 26 Bombardier, at para. 99. 27 Canada (Citizenship and Immigration) v. Khosa, [2009] 1 SCR 339, at para. 60. 28 Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., [2013] 2 SCR 458, at para. 54.

4 - 5

6

III. Sorting Signal from Noise

How do the rest of us know when the Court is telling us something about judicial review principles and when it is not? Should lower courts, lawyers and litigants try to integrate all of the Court’s judicial-review jurisprudence into their analytical frameworks or should they be selective?

In general, where the Court expressly sets out to give authoritative guidance on the general principles of administrative law its decisions should be closely parsed by administrative lawyers. But the rest, with respect, is “noise” as far as administrative law is concerned. These cases are characterized by purely pro forma references to correctness and reasonableness, an absence of detailed discussion of the general principles of standard of review and lengthy explanations of substantive law designed to guide lower courts.

This last characteristic is important. I am not saying that these cases should be ignored, but that they should be treated as authoritative only in respect of the particular area of substantive law they address. What is “noise” to someone interested in the general principles of judicial review may be a very strong “signal” to someone interested in, say, access-to-information law, or human-rights law. From the perspective of the general administrative lawyer, the distinction between “signal” and “noise” will be viewed differently and many cases of interest to others will have to be discarded.

There are several well-known examples of cases in which the Court has explicitly sent signals about administrative law: C.U.P.E. v. New Brunswick Liquor Corporation;29 Pushpanathan v. Canada (Minister of Citizenship and Immigration);30 and, most recently, Dunsmuir v. New Brunswick.31 These examples are straightforward, however. What is necessary is a set of criteria for identifying other cases that send important signals.

Extent of Treatment of an Issue

First, the Court may give greater or lesser treatment in its reasons to a particular issue.

An easy example is Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board).32 This was an unexceptional case about the calculation of vacation benefits by a labour arbitrator.

But Abella J. began the judgment of the Court by referencing the “transformative” Dunsmuir decision, in which the Court had said that the “purpose of reasons, when they are required, is to demonstrate “justification, transparency and intelligibility””.33 She then set out the issues for resolution: “whether the arbitrator’s reasons in this case satisfied these criteria and whether the reasons engaged procedural fairness”.34 Most of her reasons focused not on the facts of the case but on the general principles of administrative law.

29 [1979] 2 SCR 227. 30 [1998] 1 SCR 982. 31 [2008] 1 SCR 190. 32 [2011] 3 SCR 708. 33 Newfoundland Nurses, at para. 1, citing Dunsmuir, at para. 47. 34 Newfoundland Nurses, at para. 1.

4 - 6

7

She began by laying out “the context for understanding what the Court meant in Dunsmuir when it called for “justification, transparency and intelligibility””.35 She explained that Dunsmuir was not authority “for the proposition that the “adequacy” of reasons is a stand-alone basis for quashing a decision, or as advocating that a reviewing court undertake two discrete analyses — one for the reasons and a separate one for the result”.36 She also rejected the suggestion that “alleged deficiencies or flaws in the reasons fall under the category of a breach of the duty of procedural fairness and that they are subject to a correctness review”.37 And she laid down a general rule: “if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met”.38

Newfoundland Nurses thus sent an important signal to lower courts (something that was especially important given that some provincial appellate courts had seen the references to “justification, intelligibility and transparency” as inviting close scrutiny of the reasons given for administrative decisions).39

I should not be understood as saying that Newfoundland Nurses must therefore be read like a statute. To do so would be contrary to the Court’s express admonition in Henry.

In addition, Newfoundland Nurses has to be read with other important decisions of the Court. In particular, in Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association,40 decided the previous day, Rothstein J. in his majority reasons had specified that “The direction that courts are to give respectful attention to the reasons “which could be offered in support of a decision”41 is not a “carte blanche to reformulate a tribunal’s decision in a way that casts aside an unreasonable chain of analysis in favour of the court’s own rationale for the result”.42 It will be necessary in some situations to engage in a classical common law analysis which seeks to reconcile these two decisions.43 But there can surely be little doubt that Newfoundland Nurses sent a signal.

Conversely, cursory treatment of an issue may indicate that the Court’s views on a particular point should be considered to be noise. In Agraira v. Canada (Public Safety and Emergency Preparedness)44 the underlying issue for decision – the meaning to be given to “national interest” in the context of one of the minister’s discretionary powers – had been certified as a general question of law by the Federal Court for resolution by the Federal Court of Appeal. One might reasonably think that this would have been a strong indication that the correctness

35 Newfoundland Nurses, at para. 13. 36 Newfoundland Nurses, at para. 14. 37 Newfoundland Nurses, at para. 21. 38 Newfoundland Nurses, at para. 16. 39 See e.g. Clifford v. Ontario Municipal Employees Retirement System (2009), 98 OR (3d) 210. 40 [2011] 3 SCR 654. 41 Dunsmuir, at para. 48, citing David Dyzenhaus, “The Politics of Deference: Judicial Review and Democracy”, in Michael Taggart, ed., The Province of Administrative Law (Hart Publishing, Oxford, 1997), 279, at p. 286. 42 Alberta Teachers, at para. 54, citing Petro-Canada v. Workers’ Compensation Board (B.C.), 2009 BCCA 396, 276 B.C.A.C. 135, at paras. 53 and 56. 43 See e.g. Lemus v. Canada (Citizenship and Immigration), 2014 FCA 114. 44 [2013] 2 SCR 559.

4 - 7

8

standard should apply.45 But LeBel J. simply said, “the standard of review applicable in the case at bar has been satisfactorily determined in past decisions to be reasonableness”.46

In a subsequent case, the Federal Court of Appeal refused to follow Agraira on this point, because it appeared “to depart inexplicably from earlier Supreme Court of Canada jurisprudence”, essentially treating it as noise.47 Instead, the Federal Court of Appeal would continue “its practice of providing the definitive answer to a certified question on a point of statutory interpretation”.48 As a result, the issue had to be resolved expressly by the Court in favour of the Agraira approach. In Kanthasamy v. Canada (Citizenship and Immigration), the Court gave explicit reasons that constituted a clear signal as to the Court’s view of the general principles of judicial review, viz. that the presumption of deferential review of a decision-maker’s interpretations of its home statute is not rebutted by the presence of an appeal clause.49

Sometimes, a decision of the Court can contain some signal and some noise. Consider, in this respect, McLean v. British Columbia (Securities Commission).50

On the one hand, Moldaver J. gave a lengthy exposition of the meaning of the other operative part of paragraph 47 of Dunsmuir, namely the injunction that an administrative decision must fall “within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”.

Moldaver J. explained the implications of this injunction for the review of administrative interpretations of statutory provisions: “because legislatures do not always speak clearly and because the tools of statutory interpretation do not always guarantee a single clear answer, legislative provisions will on occasion be susceptible to multiple reasonable interpretations”,51 in which case “the resolution of unclear language in an administrative decision maker’s home statute is usually best left to the decision maker…because the choice between multiple reasonable interpretations will often involve policy considerations that we presume the legislature desired the administrative decision maker — not the courts — to make”.52 In some cases, however, “[w]here the ordinary tools of statutory interpretation lead to a single reasonable interpretation”, the range of reasonable outcomes “will necessarily be limited to a single reasonable interpretation — and the administrative decision maker must adopt it”.53 This was a clear signal about how to address questions of statutory interpretation under paragraph 47 of Dunsmuir.

On the other hand, Moldaver J. dealt summarily with the question of whether deference could be accorded to the Commission’s choice between the competing possible reasonable interpretations of the statutory provision that was at issue. The British Columbia Court of

45 See e.g. Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982, though see also Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817. 46 Agraira, at para. 49. 47 Kanthasamy v. Canada (Citizenship and Immigration), 2014 FCA 113, at para. 30. 48 Kanthasamy, at para. 35. 49 [2015] 3 SCR 909, at paras. 42-44. 50 [2013] 3 SCR 895. 51 McLean, at para. 32. 52 McLean, at para. 33. Emphasis original. 53 McLean, at para. 38.

4 - 8

9

Appeal considered it “impossible” to review the interpretation,54 but Moldaver J. was satisfied that “a basis for the Commission’s interpretation is apparent from the arguments advanced by the respondent”.55 Does this mean that the reasons to which a reviewing court must pay “respectful attention”56 include those advanced in argument by counsel for an administrative decision-maker? This is a troubling proposition,57 the potential wider impact of which Moldaver J. did not seem to consider. It would be better, then, for lower courts to consider this aspect of McLean to constitute noise.

Extent of Argument

Second, the extent to which a point was pressed on the Court and actually decided may be relevant to distinguishing signal from noise. As the hoary old maxim has it: “a case is only an authority for what it actually decides”.58

This maxim sits uneasily with the Court’s revision of the ratio/obiter distinction in Henry, but may be helpful in distinguishing signal from noise. In particular, the extent to which a particular point was ultimately decided by the Court might indicate whether a decision is better classed as signal rather than noise.

For instance, Katz Group Canada Inc. v. Ontario (Health and Long‑Term Care)59 created some uncertainty about the general applicability of the Dunsmuir framework. At issue in Katz was the validity of a set of regulations imposed by a provincial cabinet on the sale of generic medication. Abella J. made no attempt to situate judicial review of regulations in the Dunsmuir framework, preferring instead to rely on 1980s authority on judicial review of regulations.60

Subsequently, in Canadian National Railway Co. v. Canada (Attorney General), Rothstein J. denied that Katz cast any doubt on the general applicability of the Dunsmuir framework, characterizing it is a case limited to a challenge to the vires of regulations issued by a body (and, one might add, an elected body61) acting in a “legislative capacity”.62 In other words, Katz was noise and not a signal about the general principles of administrative law.

Concurring and Dissenting Reasons

Third, the presence of concurring and dissenting reasons as to a majority judgment’s treatment of the general principles of administrative law will suggest that a decision should be treated as signal rather than noise. Concurring and dissenting reasons tend to concentrate

54 2011 BCCA 455, 343 DLR (4th) 432 at para. 30. 55 McLean, at para. 72. 56 Dunsmuir, at para. 48, citing David Dyzenhaus, “The Politics of Deference: Judicial Review and Democracy”, in Michael Taggart, ed., The Province of Administrative Law (Hart Publishing, Oxford, 1997), 279, at p. 286. 57 See further Paul Daly, “The Scope and Meaning of Reasonableness Review” (2015), 52 Alberta Law Review 799, at pp. 815-817. 58 Quinn v. Leathem, [1901] AC 495 (HL), at p. 506. See also The State (Quinn) v. Ryan, [1965] IR 70, at p. 120: “a point not argued is a point not decided”. 59 [2013] 3 SCR 810. 60 Thorne’s Hardware Ltd. v. The Queen, [1983] 1 SCR 106. 61 Though the British Columbia Court of Appeal has applied Katz rather than Dunsmuir to a regulation adopted by an unelected regulatory body: Sobeys West Inc. v. College of Pharmacists of British Columbia, 2016 BCCA 41. 62 [2014] 2 SCR 135, at para. 51.

4 - 9

10

attention on particular points of dispute that might otherwise be obfuscated by a bland set of majority reasons.

For instance, the presence of a lengthy and detailed dissent by Fish J. in Canada (Citizenship and Immigration) v. Khosa, in which he would have quashed the decision of the Immigration Appeal Division for giving too much weight to Mr. Khosa’s lack of remorse for engaging in street racing gives additional heft to the holding of the majority that reviewing courts should not reweigh the evidence considered by an administrative decision-maker.63 That the point was raised by the dissent and decided without equivocation by the majority made it a clear signal about the general principles of administrative law.

This was reinforced by Alberta Teachers’, in which the majority expressly rejected Binnie J.’s suggestion in his concurring reasons that there ought to be variable degrees of deference within the reasonableness standard set out in paragraph 47 of Dunsmuir. Similarly, Cromwell J.’s reluctance in his concurring reasons in Alberta Teachers’ to countenance the abolition of “true jurisdictional questions” as a category of question attracting correctness review64 underscored that the majority’s insistence that this category has to be extremely narrowly construed was a clear signal to lower courts.

Finally, and most recently, the refusal of the majority in Edmonton East (Capilano) Shopping Centres v. Edmonton (City) to revise the administrative law principles concerning the application of the presumption of reasonableness review even to a statutory framework containing an appeal clause was, in view of the strident dissent on this point, a clear signal of the scope of deference.65

Consideration of Lower Court Decisions

Fourth, detailed consideration of lower court decisions will indicate that a decision contains important signals about administrative law.

Directly at issue in Mouvement laïque québécois v. Saguenay (City)66 was a decision of Quebec’s Human Rights Tribunal about whether the recitation of a prayer before municipal meetings (allied to the presence of religious symbols) amounted to discriminatory treatment of an atheist who attended the meetings. Indirectly at issue was whether a statutory appeal clause could pre-empt the general principles of administrative law; does the standard of review analysis apply in all cases, even if a statute creates a very broad right of appeal?

Decisions of the Tribunal are appealable, with leave, directly to the Quebec Court of Appeal.67 The relevant statute also provides that the general rules governing appeals are to apply in this context. The Quebec Court of Appeal had split previously on the proper interpretation of its role on appeal from the Tribunal: some judges applied judicial review criteria (following the well-established rule that appeal clauses do not eliminate deference to specialized tribunals) but some applied appellate criteria based on the apparently plain

63 [2009] 1 SCR 339, at para. 59. 64 See especially Alberta Teachers’ at paras. 102-103 and see also Lauren Wihak, “Whither the Correctness Standard of Review: Dunsmuir Six Years Later” (2014) 27 Canadian Journal of Administrative Law & Practice 174. 65 2016 SCC 47. 66 [2015] 2 SCR 3. 67 Charter of Human Rights and Freedoms, CQLR c C-12, ss. 132-133.

4 - 10

11

language of the statute and the evident goal of giving the Quebec Court of Appeal a gatekeeping power by limiting appeals to those raising questions of general law.68

Having set out the conflicting approaches at some length, Gascon J. came to a firm conclusion based on a comprehensive review of the authorities: “Where a court reviews a decision of a specialized administrative tribunal, the standard of review must be determined on the basis of administrative law principles…regardless of whether the review is conducted in the context of an application for judicial review or of a statutory appeal”.69

He acknowledged that “the scope of a right to appeal and the absence of exclusive jurisdiction may sometimes affect the deference to be shown to decisions of a specialized administrative tribunal” but held nonetheless that these features of a regulatory scheme would “not justify replacing the standards of review applicable to judicial review with the appellate standard”.70

Given the lengthy treatment of the conflicting approaches in the court below and the consideration of relevant authority, Saguenay sends a very clear signal about the relationship between appeal clauses and the standard of review framework, viz. that language creating a statutory appeal never pre-empts administrative law principles (a point recently underscored again by Edmonton East).71

Conclusion

One way of addressing the problem of distinguishing the signal from the noise in the Court’s administrative law cases is to develop criteria along the lines of those I have laid out above. My list of criteria is not exhaustive; the distinction between signal and noise will not always be an easy one to make and will typically require lawyerly judgement, just as sorting ratio from obiter is not a purely mechanical exercise.

To forestall potential objections, I do not think that my distinction between “signal” and “noise” is an incitement to illegitimate judicial disobedience to binding commands issued by the Court. To reiterate the Court’s own statements in Henry, to think of a “a strict and tidy demarcation” between ratio and obiter is an “oversimplification”.72 For the administrative lawyer, the “noise” cases are limited to their particular facts, but the “signal” cases involve commentary that is part of “a wider circle of analysis which is obviously intended for guidance and which should be accepted as authoritative”.73

If the Court’s decisions continue to sow confusion by resolving individual cases in ways that are inconsistent with the general principles of judicial review, administrative lawyers will

68 Saguenay, at paras. 31-37. 69 Saguenay, at para. 38. 70 Saguenay, at para. 43. 71 See also Kanthasamy v. Canada (Citizenship and Immigration), [2015] 3 SCR 909. Interestingly, the only other post-Dunsmuir case in which the standard of review analysis has been applied by the Court to a statute containing a leave provision was Bell Canada v. Bell Aliant Regional Communications, [2009] 2 SCR 764. Readers will not be surprised to learn that the Court paid no attention to the existence of an appeal clause containing a leave provision. 72 Henry, at para. 52 73 Henry, at para. 57.

4 - 11

12

have to develop analytical tools that permit them to distinguish the important cases from the unimportant cases, the signal from the noise.

IV. Reasonableness and the Court’s Institutional Role

However, the Court’s decisions need not sow confusion. There is an alternative approach, which would permit the Court to set out general guidance about substantive areas of law in a way consistent with its institutional role at the apex of the Canadian legal system without causing confusion about the operation of the principles of administrative law.

The alternative approach is for the Court to abolish the standard of correctness and subject administrative decisions to reasonableness review in all cases. There is academic74 and extra-judicial75 support for this approach, which has recently received the cautious imprimatur of Abella J.

In her partially concurring reasons in Tervita Corp. v. Canada (Commissioner of Competition), she confessed to finding it “increasingly difficult to discern the demarcations between a reasonableness and correctness analysis” and even floated the possibility that the demarcations could be “completely erased” at some point in the future.76

What was implicit in Tervita recently became explicit in Wilson v. Atomic Energy of Canada Ltd.77 Abella J.’s reasons were notable for her forthright suggestion that the Court ought to consider collapsing correctness and reasonableness into a single reasonableness standard, the “most obvious and frequently proposed reform of the current system”.78 She set up the question as follows: “whether we need two different names for our approaches to judicial review, or whether both approaches can live comfortably under a more broadly conceived understanding of reasonableness”.79 She also highlighted the key advantage of a general reasonableness standard, that it is flexible enough to allow “a wider range for those kinds of issues and decision-makers traditionally given a measure of deference, and a narrow one of only one ‘defensible’ outcome for those which formerly attracted a correctness review”.80

It is this flexibility that makes the reasonableness standard of such utility in responding to the signal and noise problem created by the Court’s recent judgments in the area of administrative law.

Dunsmuir’s reasonableness standard, with its twin references to “justification, intelligibility and transparency” and a “range of possible, acceptable outcomes”,81 has been refined over the years. It now seems clear that most of the analytical burden has been assumed by the concept of a “range of reasonable outcomes”,82 with the “justification, intelligibility and

74 See e.g. Paul Daly, “Towards Coherence in Standard of Review: Reasonableness, the Rule of Law and Democracy” (2016) McGill Law Journal (forthcoming). 75 See David Stratas, “The Canadian Law of Judicial Review: A Plea for Doctrinal Coherence and Consistency”, available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2733751. 76 [2015] 1 SCR 161, at para. 171. 77 2016 SCC 29. 78 Wilson, at para. 28. 79 Wilson, at para. 24. 80 Wilson, at para. 33. 81 Dunsmuir, at para. 47. 82 Khosa, at para. 67.

4 - 12

13

transparency” requirement satisfied by a decision that is “clearly understand[able]” to a reviewing court.83

Reasonableness “takes its colour from its context”.84 The “range will necessarily vary”.85 It “must be assessed in the context of the particular type of decision making involved and all relevant factors”.86

Of particular interest in the present context is the role of legal principles in narrowing the range of reasonable outcomes.

In Catalyst Paper, McLachlin C.J. noted that range of reasonable outcomes may be “circumscribed” by reference to “the rationale of the statutory regime”.87

Similarly, in Canada (Minister of Transport, Infrastructure and Communities) v. Jagjit Singh Farwaha Stratas J.A. explained that, in some cases “Parliament may have constrained the decision-maker’s discretion by specifying a recipe of factors to be considered – all things being equal, this narrows the range of options the decision-maker legitimately has”.88 An excellent illustration of this principle is the Court’s acknowledgement in McLean that, sometimes, the range of reasonable outcomes will be so narrow as to admit of only one outcome.

In addition, prior judicial decisions on matters subsequently considered by an administrative tribunal will also tend to narrow the range of reasonable outcomes.89

And in Canada (Attorney General) v. Igloo Vikski Inc., albeit in dissent, Côté J. took the view that the range of reasonable interpretations of a tariff schedule was constrained by the need to provide an answer consistent with Canada’s international obligations in respect of tariff harmonization.90

It has thus been said that “[l]egal matters, as opposed to factual or policy matters, admit of fewer possible, acceptable outcomes”.91 In most cases, this is likely to be true.

The insight that the more legal in nature a question is the narrower the range of reasonable outcomes will be is significant because it allows us to appreciate how the Court might send signals about individual cases for the benefit of the environmental, immigration and workers’ compensation lawyers without creating too much noise for the administrative lawyers.

Very simply put, by demonstrating that the range of reasonable outcomes is constrained by statutory language, pre-existing jurisprudence and so on, the Court can provide a significant degree of structure to areas of substantive law. Without necessarily substituting judgment as it would by applying correctness (or “disguised correctness”) review, it can indicate that

83 Agraira, at para. 89. 84 Khosa, at para. 59. 85 Wilson, at para. 22. 86 Catalyst Paper Corp. v. North Cowichan (District), [2012] 1 SCR 5, at para. 18. 87 Catalyst Paper, at para. 25. 88 2014 FCA 56, at para. 91. 89 Canada (Attorney General) v. Canadian Human Rights Commission, 2013 FCA 75, at paras. 16 and 18. 90 2016 SCC 38 , at para. 58. 91 Canada (Attorney General) v. Abraham, 2012 FCA 266, at para. 45.

4 - 13

14

administrative decision-makers have, relatively speaking, a narrower margin of interpretation in some areas than in others.

Although I think that the move to a unified reasonableness standard is the most rational next step in Canadian administrative law, I have significant reservations about a one-size-fits-all reasonableness standard. For one thing, applying the concept of a range of reasonable outcomes risks reintroducing distinctions between questions of law and questions of policy, fact and discretion.92 For another thing, permitting reviewing courts to define the range of reasonable outcomes in respect of a particular factual and legal matrix will allow judges to confine administrative decision-makers within strict limits.93

It would be better in my view for any “range” to be established by reference to the statute as a whole rather than to a particular statutory provision; departure from a line of previous cases, judicial authority or the natural meaning of a statute would constitute indicia of unreasonableness that may justify judicial intervention.94 Nonetheless, the range of reasonable outcomes concept is the most rational next step in the development of Canadian administrative law, though judges ought to apply it with due regard to the decisional autonomy accorded by the legislature to the administrative decision-maker under review.95

As Iacobucci J. explained in Law Society of New Brunswick v. Ryan, the analytical structure of reasonableness review provides some safeguards against judicial intrusion on administrative decision-makers’ autonomy: “Applying the standard of reasonableness gives effect to the legislative intention that a specialized body will have the primary responsibility of deciding the issue according to its own process and for its own reasons”.96 At no point should the reviewing court “ask itself what the correct decision would have been”,97 because even “if there could be, notionally, a single best answer, it is not the court’s role to seek this out when deciding if the decision was unreasonable”.98

It is thus inappropriate for a reviewing court to set up a benchmark based on its independent view of the legal and factual matrix such that “any departure from the reviewing court’s hypothetical decision is bound to appear unreasonable”.99 Rather, a reviewing court should start from the decision and work outwards, identifying “badges of unreasonableness” that cannot be cogently explained by the decision-maker and, as a result, bring the decision outside the range of reasonable outcomes.100

Applying this methodology to Bombardier, Wagner and Côté JJ. could have begun with the Tribunal’s decision and gone on to lay out the conventional burden of proof in discrimination cases, as well as the undisputed elements of discriminatory treatment. This would have permitted them to give general guidance to the legal community on the appropriate approach

92 See Paul Daly, “Unreasonable Interpretations of Law” (2014) 66 Supreme Court Law Review (2d) 233. 93 See Paul Daly, “The Struggle for Deference in Canada” in Hanna Wilberg and Mark Elliott eds., The Scope and Intensity of Substantive Review: Traversing Taggart’s Rainbow (Hart Publishing, Oxford, 2015), 297. 94 See Paul Daly, “Unreasonable Interpretations of Law” (2014) 66 Supreme Court Law Review (2d) 233. 95 See Paul Daly, “Towards Coherence in Standard of Review: Reasonableness, the Rule of Law and Democracy” (2017) McGill Law Journal (forthcoming). 96 [2003] 1 SCR 247, at para. 50. 97 Ryan, at para. 50. 98 Ryan, at para. 51. 99 Ottawa Police Services v. Diafwila, 2016 ONCA 627, at para. 66. 100 Delios v. Canada (Attorney General), 2015 FCA 117, at para. 27.

4 - 14

15

administrative decision-makers should follow in discrimination cases. A departure from the undisputed framework for discrimination cases would have been a badge of unreasonableness.

However, Wagner and Côté JJ. could then have emphasized that the Tribunal, in the unique factual circumstances before it, had provided cogent reasons for its modification of the burden of proof (or reasons that were insufficiently cogent, as the case may be). In this way, Wagner and Côté JJ. could have given general guidance on discrimination law without causing confusion about the operation of the general principles of administrative law.

Conclusion

The institutional context in which the Court operates puts pressure on it to provide general guidance on issues of substantive law. Where such issues are first resolved by administrative decision-makers and addressed by the Court only on judicial review, however, the general principles of administrative law may be perceived as inhibiting the Court’s ability to provide general guidance. Unfortunately, the Court has in recent decisions prioritized the giving of general guidance over the sound operation of the principles of administrative law.

Accordingly, administrative lawyers need to be able to distinguish between the signal and the noise, between those decisions of the Court that are designed to structure the administrative law framework (“signal”) and those that are designed to resolve pressing issues of substantive law (“noise” – at least as far as administrative lawyers are concerned).

Alternatively, however, the Court could take up academic, extra-judicial and now judicial suggestions to adopt a unified reasonableness standard of review. By setting the “range” of reasonable outcomes and rigorously following the well-established analytical structure of reasonableness review, the Court could send signals about substantive areas of law without creating unnecessary noise in the operation of the principles of judicial review. Noise and signal would merge in the comforting hum of reasonableness review.

4 - 15

TAB 5

Developments Related to Vulnerable People in Detention:

The settlement in BB and Justice for Children and Youth v. MCI, IMM-5754-15

Andrew Brouwer Legal Aid Ontario

November 23, 2016


Developments Related to Vulnerable People in Detention: The settlement in BB and Justice for Children and Youth v. MCI, IMM-5754-15

Andrew Brouwer, Legal Aid Ontario November 2016

Attachments:

BB and Justice for Children and Youth v. MCI, IMM-5754-15, Order of Hughes J dated August 24, 2016

CBSA instructions to Hearings Officers re BB and Justice for Children and Youth v. MCI

Relevant jurisprudence:

Canada (MCI) v. Sahin, [1994] F.C.J. No. 1602, (http://canlii.ca/t/4gkx)

Canada (MCI) v. Li, 2009 FCA 85, (http://canlii.ca/t/22rzj)

Charkaoui v Canada (MCI), 2007 SCC 9 (http://canlii.ca/t/1qljj)

Canada (MCI) v. Shote, 2004 FC 115 (http://canlii.ca/t/1gbsj)

Useful links:

University of Toronto’s International Human Rights Program (IHRP), ‘No Life for a Child’: A Roadmap to End Immigration Detention of Children and Family Separation (http://ihrp.law.utoronto.ca/utfl_file/count/PUBLICATIONS/Report-NoLifeForAChild.pdf)

A statement against the immigration detention of children (https://endchildimmigrationdetention.wordpress.com/)

University of Toronto’s International Human Rights Program (IHRP), ‘We Have No Rights’: Arbitrary imprisonment and cruel treatment of migrants with mental health issues in Canada (http://ihrp.law.utoronto.ca/utfl_file/count/PUBLICATIONS/IHRP%20We%20Have%20No%20Rights%20Report%20web%20170615.pdf)

5 - 1

http://canlii.ca/t/4gkx

http://canlii.ca/t/22rzj

http://canlii.ca/t/1qljj

http://canlii.ca/t/1gbsj

http://ihrp.law.utoronto.ca/utfl_file/count/PUBLICATIONS/Report-NoLifeForAChild.pdf

http://ihrp.law.utoronto.ca/utfl_file/count/PUBLICATIONS/Report-NoLifeForAChild.pdf

https://endchildimmigrationdetention.wordpress.com/

http://ihrp.law.utoronto.ca/utfl_file/count/PUBLICATIONS/IHRP%20We%20Have%20No%20Rights%20Report%20web%20170615.pdf

http://ihrp.law.utoronto.ca/utfl_file/count/PUBLICATIONS/IHRP%20We%20Have%20No%20Rights%20Report%20web%20170615.pdf

5 - 2

24-AUG-2016 11:40 From:416932154

Federal Court 6h IR Cour federale

Toronto, Ontario, August 24,2016

PRESENT: The Honourable Mr. Justice Hughes

BETWEEN:

B.B. AND JUSTICE FOR cmLDREN AND YOUTH

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

ORDER

Date: 20160824

Docket: IMM-5754-15

Applicants

Respondent

UPON MOTION for judgment in writing, dated the 19lh day of August, 2016, filed by

the Respondent on the consent of both parties, for an Order:

(a) Granting the application for leave and for judicial review;

(b) Vacating the judicial review hearing date of August 30th, 201 6 at 9:30am;

(c) Regulation 24 5 of the IRP A is non-exhaustive and can include the presence of a

child in Canada and the interests of that child as a factor in assessing whether the

5 - 3

24- AUG-2016 11 :40 From:416932154

Page: 2

detained parent will be motivated (because of the specific needs or interests of

their child) to comply with terms and conditions should the parent be released

from detention. This factor could also fall under strong ties to the community as

per R. 245(g). The interests of the child would not be a primary factor but would

be a factor to be considered on a case by case basis. The overall focus of the

analysis under R. 245 would remain on the detained parent.

(d) Regulation 248 is not exhaustive. If the Immigration Division determines that

grounds for detention exist it must consider all 5 mandatory factors listed in R.

248 as well as other relevant factors as determined by the facts of the specific

case. The interests of a child who is housed in an Immigration Holding Centre at

the request of the detained parent can be considered under other relevant factors.

The interests of the child who is housed in an Immigration Holding Centre at the

request of the detained parent is a factor to be weighed along with the other 5

mandatory factors listed in R. 248. The overall focus of the analysis under R. 248

remains on the detained parent.

(e) No costs to be awarded to either party.

AND UPON READING the material filed;

THIS COURT ORDERS that:

"Roger T. Hughes" Judge

INSTRUCTIONS FROM CBSA TO ITS HEARINGS OFFICERS,

DISTRIBUTED BY CBSA ON AUGUST 29, 2016:

Subject: URGENT PLEASE READ IMMEDIATELY: GUIDANCE FOR HEARINGS OFFICERS FOLLOWING

COURT SETTLEMENT RE: DETENTION FACTORS

*** FRENCH TRANSLATION WILL FOLLOW

PLEASE SHARE WITH HEARINGS OFFICERS WITHOUT DELAY

The Federal Court recently issued an Order for Judgement based on a Motion for Judgement on Consent

of all parties in the case B.B. and Justice for Children and Youth v. MCI IMM-5754-15. The subject matter

of this case was whether the Immigration Division (ID) had the jurisdiction to consider under R. 245 and

R. 248 the interests of a Canadian child who is housed at an Immigration Holding Centre (IHC) at the

request of the detained parent when considering if the parent should be released from detention.

The parties settled the case. The first part of the settlement agreement involved the parties making a

Motion for Judgement on Consent to have the judicial review allowed on certain terms. Those terms are

reflected in the Order for Judgement attached and should be taken as the position of the government

on these specific issues.

The second part of the settlement involved the parties agreeing that certain instructions would be

provided to Hearings Officers in order to clarify the government’s position and the meaning of a

previous Federal Court case Shote v. MCI 2004 FC 115 which until now the ID has relied on for the

proposition that it does not have the jurisdiction to consider the interests of a Canadian child who is

housed at an IHC at the request of the detained parent when considering if the parent should be

released from detention.

The following text is the instructions that the government has agreed to provide to Hearings Officers

and this text should be taken as the position of the government in cases involving Canadian children

who are housed at an IHC at the request of their detained parent.

a) The Respondent will instruct ID Hearings Officers to bring the Order on Consent to the ID’s

attention. The Respondent will instruct Hearings Officers that Shote is being misapplied by the ID and

that Shote does not stand for the proposition the ID believes it does. While in Shote, the Court

concluded that the ID erred in releasing the detained parent based on an irrelevant factor, namely

the superior interests of the child, the Court did confirm at paragraph 29 that R. 245(g), which covers

strong ties to the community when considering flight risk, may include the presence of children but

that factor does not supersede other factors. Hence, the ID could have considered the Applicant’s

child as a tie to Canada and how the presence of that child and her interests could motivate or

influence the detained parent to comply with terms or conditions of release in assessing whether the

person concerned presents a flight risk.

b) The Respondent will instruct Hearings Officers that in Shote the litigation centred on R.245. The Court

therefore did not turn its mind to R. 248. Shote is silent as to what factors can be considered under

R.248 as that issue was not before the Court.

5 - 4

TAB 6A

Habeas Corpus and Immigration Detention

Challenges

Sharon Stewart Guthrie, Counsel, Immigration Law Division, Ontario Regional Office,

Department of Justice

November 23, 2016


HABEAS CORPUS AND IMMIGRATION DETENTION CHALLENGES

By Sharon Stewart Guthrie, Immigration Law Division at the Department of Justice1

The writ of habeas corpus has a long history, with the first statute capturing the remedy

enacted in 1641. While once a means to ensure that defendants appeared in Court, it later

evolved into a “vehicle for reviewing the justification for a person’s imprisonment”.2 It

continues to serve this function now and the protection against unlawful detention is captured

in section 10(c) of the Canadian Charter of Rights and Freedoms which states that:

10. Everyone has the right on arrest or detention

…

(c) to have the validity of the detention determined by way of

habeas corpus and to be released if the detention is not lawful.

The process on an application for habeas corpus is as follows:

1) The Applicant must show that he or she has been deprived of liberty and that there is a

legitimate ground upon which to question the lawfulness of that deprivation of liberty;

and,

2) If the Applicant shows a ground on which to question the lawfulness of the detention,

the Respondent authorities must then show that the deprivation of liberty is lawful.3

Access to habeas corpus in the Ontario Superior Court for immigration detainees is a significant

change in the landscape of immigration law. The purpose of this paper is to provide an

overview of the recent developments in Ontario in this area of law, trace the path that the

jurisprudence has taken thus far and point out issues that have yet to be determined by the

courts.

1 The opinions expressed in this paper are those of the author alone and do not reflect those of the Department of Justice. 2 Mission Institution v Khela, 2014 SCC 24 at paras 27 – 28. 3 Khela, supra at para 30.

6A - 1

PEIROO V CANADA (MEI) 4: THE PRE-CHAUDHARY LANDSCAPE

In Peiroo, a foreign national in immigration detention sought to challenge both the finding that

her refugee claim did not have a credible basis and the removal order issued against her. The

Ontario Court of Appeal compared the remedy available to her in Federal Court by way of

judicial review with the remedy available by way of habeas corpus in superior court. The Court

determined that the “ambit of… review and appeal [in the Federal Court] was as broad or

broader than the traditional scope of review by way of habeas corpus with certiorari in aid.”5

The detention review and judicial review process in the Immigration Division and the Federal

Court was therefore found to be a comprehensive scheme and the tribunal and the Court’s

expertise in immigration matters made them the preferable fora for such challenges to be

brought and determined.

The principle that habeas corpus jurisdiction should be declined where there is a “complete,

comprehensive and expert procedure” to do so was later upheld by the Supreme Court of

Canada in May v Ferndale Institution.6

For many years, superior courts declined to take jurisdiction of habeas corpus applications

seeking to challenge the lawfulness of immigration detention relying on the principles set out in

Peiroo and May v Ferndale Institution.7 This limited exception to a Superior Court exercising its

jurisdiction to hear habeas corpus applications came to be known as the Peiroo exception.

CHAUDHARY: THE SHIFT

Superior Court of Justice

In November 2014, four immigration detainees (detained for periods between 2 to 8 years)

brought habeas corpus applications in the Ontario Superior Court of Justice seeking release

from detention. Some also asked the Court to order the Minister of Public Safety to set a

4 Peiroo v Canada (MEI) (1989), 69 OR (2d) 253, [1989] OJ No 805 (CA), leave denied, [1989] 2 SCR x. 5 Peiroo, supra. 6 May v Ferndale Institution, 2005 SCC 82 at para 44. 7 See for example Kippax v Canada (AG), 2014 ONSC 3685; Jaballah v Canada (AG), 2005 CanLII 30315; Komera v Canada (MCI), 1999 ABQB 267; Fairfield v Canada (MCI), 2009 BCCA 391 at paras 10 – 11; Apaolaza-Sancho c Director of Établissement de detention de Rivère-des-Prairies, 2008 QCCA 1542.

6A - 2

presumptive period of detention during which a person may be held for removal from Canada.

For three of the Applicants, confirmation of their identity or nationality and a valid travel

document was an obstacle to removal. They argued in part that their detention was unlawful

because it was too lengthy and because there was no prospect for removal.8

In deciding the preliminary issue of the court’s jurisdiction, Campbell J. of the Superior Court

considered the Immigration and Refugee Protection Act scheme, applied the reasoning in

Peiroo and declined to take jurisdiction of the habeas corpus application.9

Court of Appeal

In October 2015, in Chaudhary v Canada (MPSEP)10, the Ontario Court of Appeal held that

people detained on immigration grounds who wish to challenge the lawfulness of their

detention based on its length and uncertain duration could do so in either of two ways. They

could choose either an application for leave to judicially review the order for detention in

Federal Court or a habeas corpus application in Superior Court. 11

The Court of Appeal held that the Peiroo exception did not apply to the Appellants’ situation.

The Court framed the approach in Peiroo as follows:

The ratio in Peiroo, therefore, is that a comprehensive alternative remedy to habeas

corpus was in place within the administrative structure created to regulate immigration

matters, and this alternative remedy was as broad and as advantageous to the detainee

as would be habeas corpus. In those circumstances, a provincial superior court should

exercise its discretion and decline to grant relief upon the application for habeas

corpus.12

The Court distinguished the Appellants’ situation from Peiroo noting that the Peiroo application

was “not directed to whether detention was warranted pending disposition of the immigration

8 Chaudhary v Canada (MPSEP), 2015 ONSC 1503. 9 Chaudhary v Canada, 2015 ONSC 1503 at paras 26 – 29. 10 Chaudhary v Canada (MPSEP), 2015 ONCA 700 (Chaudhary). 11 Chaudhary, supra at para 113. 12 Chaudhary, supra at para. 60.

6A - 3

issues” and that the application in Peiroo was clearly a collateral attack on core immigration

decisions.13 The Court held that the issue raised by the Appellants in Chaudhary – “whether the

detentions, because of their length and their uncertain duration – have become illegal and in

violation of the appellants’ ss. 7 and 9 Charter rights”14 - was not an immigration law matter

and did not fall within the scope of the Peiroo exception.

The Court compared habeas corpus with judicial review and concluded that, for the issue raised

in that appeal (as framed by the Court), the remedy available in Federal Court was not as broad

or advantageous as the remedy in Superior Court. It held that immigration detainees should be

able to choose in which forum to challenge their detention.

Subsequently, four habeas corpus applications15 have been brought by immigration detainees

in Ontario seeking their release from immigration detention.16 These cases are discussed below.

The factual contexts and outcomes of these cases have been varied and raise questions about

how the law in this area will evolve.

POST-CHAUDHARY CASES: THE NEW LANDSCAPE

R v Ogiamien, 2016 ONSC 3593; R v Ogiamien, 2016 ONSC 4126

In August 2014, Mr. Ogiamien (a self-represented litigant) brought a habeas corpus application

in the Ontario Superior Court of Justice. He had been found criminally inadmissible to Canada

and ordered deported in 2002. He had long maintained a country of origin that could not be

confirmed but CBSA determined in the course of the proceeding that he was in fact a citizen of

a different country.17 He had been detained at a provincial correctional facility on immigration

grounds for 3 months when he brought his application. While his initial application was brought

13 Chaudhary, supra at paras 62 – 65. 14 Chaudhary, supra at para 72. 15 At the time the appeal was heard, two of the appellants had been removed from Canada. There are no habeas corpus decisions from the Ontario Superior Court related to the other two Appellants. 16 See also Chinna v Canada (MPSEP) et al, (2 September 2016), Calgary 160576914X1 (ABQB) for a recent Alberta habeas corpus decision considering the impact of Chaudhary v Canada (MSPEP), 2015 ONCA 700 on an immigration detention challenge. This decision is currently under appeal. 17 R v Ogiamien, 2016 ONSC 4126 at paras 25, 64 (Ogiamien).

6A - 4

alleging complaints about his conditions of detention, it later evolved into a challenge to the

lawfulness of his immigration detention.18

On the matter of the Superior Court’s jurisdiction, he argued that although the Federal Court

presented an adequate and effective means to challenge his detention, he was not able to

access it because of the conditions of his detention and the actions of certain CBSA officers.19

Following the Ontario Court of Appeal’s decision in Chaudhary, an amicus curiae was appointed

and assisted Mr. Ogiamien with an amended habeas corpus application. The new application

was framed in Chaudhary terms (raising concerns about the length and uncertainty of the

detention) and sought his release from detention. His amended application also challenged the

legality of his arrest, the lawfulness of the deportation order, asserted his ability to make a

refugee claim and claimed that he had been deemed criminallly rehabilitated.20

Coats J. determined that Mr. Ogiamien had established that his detention was lengthy and of

uncertain duration and that the Minister had not met the onus of establishing that his

continued detention “at Maplehurst or any other correctional facility” was reasonably

necessary to further the machinery of immigration control.21 In doing so, while not rejecting the

argument in principle, she declined to find that Mr. Ogiamien’s lack of cooperation with the

investigation into his identity should shorten the period of time that could be considered in

calculating the length of his detention.22

The Court released Mr. Ogiamien from immigration detention under conditions and a judicial

interim release. Coats J. required that any application to vary the conditions or any non-

compliance pursuant to which it is sought to re-incarcerate Mr. Ogiamien be brought before

her. 23 Mr. Ogiamien had been detained for more than two years as of June 2016 when he was

released.

18 Ogiamien, supra at paras 2 – 4. 19 Ogiamien, supra 20 Ogiamien, supra, Schedule A. 21 R v Ogiamien, 2016 ONSC 3593 at para 1. 22 Ogiamien, supra note 13 at paras 54 - 58 23 R v Ogiamien, 2016 ONSC 3593.

6A - 5

Coats’ J. decision is currently under appeal.

Ogiamien v Ontario, 2016 ONSC 3080

A second habeas corpus application brought by Mr. Ogiamien and an inmate at Maplehurst

Correctional Complex raised the issue of the impact of the conditions of their detention on their

section 7 and 12 Charter rights. Although initially brought as a habeas corpus application, the

matter proceeded as an application for Charter damages. The Applicants were awarded Charter

damages as their conditions of detention were found to breach their rights under s. 12 of the

Charter. No habeas corpus remedy was granted.

This decision is also under appeal.

Canada v Dadzie, 2016 ONSC 6045

Mr. Dadzie arrived in Canada in 2003. He was briefly detained in 2003 and from 2008 – 2009.24

He was re-detained in February 2014 and brought his habeas corpus application in July 2016

before the Superior Court of Justice. He had been detained since April 2014 in a maximum

security provincial correctional facility.25 He sought release from immigration detention on the

basis that his detention was very lengthy and of uncertain duration. At the time of the habeas

corpus hearing, Mr. Dadzie’s identity and country of origin had not been confirmed.26

Detention is not very lengthy and not indefinite

Clark J. determined that the time Mr. Dadzie spent in a maximum security correctional facility

could be considered in assessing the length of the period of detention. The Court took judicial

notice of the proposition that a maximum security facility is, by its nature, “a harsher and less

hospitable environment” than an Immigration Holding Centre.27

24 Canada v Dadzie, 2016 ONSC 6045 at paras 4, 13, 15 – 16 (Dadzie). 25 Dadzie, supra at paras 15 – 16. 26 Dadzie, supra, at paras 17, 49 – 50. 27 Dadzie, supra, at para 32.

6A - 6

The Court held that Mr. Dadzie had been frustrating the authorities’ ability to identify and

remove him and determined that the period of time during which he had done this could not

be counted in assessing the length of his detention.28

The Court rejected the argument that a lack of attention by CBSA to the identity investigation

during a 5 year period of release precluded the Court from considering Mr. Dadzie’s lack of

cooperation during his current period of detention. In doing so, Clark J noted that only the

current period of detention was being considered in the application and considered the “finite

resources” which require that detained cases be given priority.29

Clark J. reduced the time spent in detention by the period of non-cooperation and arrived at a

period of four months in detention. He however added an additional two months to

acknowledge that the detention was in a maximum security facility. He determined that this

period of six months was not very lengthy.30

The Court also determined that Mr. Dadzie’s “lack of cooperation… is the real and immediate

cause of the indefinite nature of his detention” and consequently found that he is not

indefinitely detained “in the sense in which that term is understood in habeas corpus

matters.”31

Detention not in breach of ss. 7 and 9 of the Charter

Notwithstanding his finding on the threshold issue, Clark J. went on to assess the legality of Mr.

Dadzie’s continued detention. With respect to the section 9 of the Charter, the Court

determined that Mr. Dadzie’s detention was not arbitrary as it was not random or at anyone’s

“personal whim”32 On the matter of section 7 of the Charter, the Court found that there had

been at each detention review, a “meaningful judicial assessment” of his detention by the

Immigration Division, thereby complying with the principles of fundamental justice.33

28 Dadzie, supra at para 46. 29 Dadzie, supra at paras 38 – 40. 30 Dadzie, supra at para 46. 31 Dadzie, supra at para 55. 32 Dadzie, supra at para. 75. 33 Dadzie, supra at paras 76 – 77.

6A - 7

The Court also concluded that the “IRPA provisions concerning detention are not in conflict

with international norms” and did not discuss various international cases and instruments

raised by Mr. Dadzie other than to distinguish a 2014 United Nations Working Group Opinion

regarding another immigration detainee whose immigration detention was found by the

Working Group to be arbitrary.34

BROWN V CANADA (MSPEP) ET AL. – UNDER RESERVE AT THE TIME OF WRITING35

Mr. Brown was detained from September 2011 onwards at various correctional facilities as a

flight risk and as a danger to the public. In his habeas corpus application he sought release from

detention, a declaration that his detention breached ss. 7, 9 and 12 of the Charter and damages

of $1,500 per day of unlawful detention as a remedy under ss. 24(1) of the Charter. His

citizenship was confirmed in November 2015 but a January 2016 scheduled removal did not

proceed because consular officials were concerned about Mr. Brown’s mental health and

wanted to ensure arrangements for his care were in place prior to his arrival. These

arrangements were made, a travel document was issued and, on the last day of argument, Mr.

Brown was removed from Canada. The hearing concluded on September 7, 2016 and the

matter is currently under reserve.

Mr. Brown argued that his detention was unduly lengthy and indefinite and not reasonably

necessary to further the machinery of immigration control. He argued that his indefinite

detention (in that there was no real prospect of removal given the Consulate’s decision to

postpone his removal) was in breach of s. 7 of the Charter and that his detention was arbitrary

because he was neither a flight risk nor a danger to the public and because his detention was

no longer linked to removal. He also argued that his detention was a breach of his s. 12 Charter

rights as it is grossly disproportionate because he suffered from mental health issues for which

he was afforded no care while detained.

34 Dadzie, supra at paras 79 – 81. 35 This summary is based on a review of the parties’ pleadings and transcripts.

6A - 8

It was also argued that Mr. Brown’s deportation prior to a decision being rendered on his

habeas corpus application did not change the illegality of Mr. Brown’s past detention and that

notwithstanding the nature of the application and the fact that removal had taken place, there

is no barrier to the Superior Court considering the claim for Charter damages.

In response, the Minister urged the Court to bear in mind, when calculating the length of

detention, the number and complexity of the steps involved in arranging a foreign national’s

removal (which in this case included addressing Mr. Brown’s mental health needs in his country

of origin) and the extent to which the foreign national has cooperated with CBSA in executing

the removal order. It was argued that, since the steps for Mr. Brown’s reception in his country

of origin were complete and removal had been planned for September 2016, his detention had

not been of uncertain duration and the two-part Chaudhary test was therefore not met. The

Minister took the further position that, given the absence of a notice of constitutional question,

Mr. Brown was not entitled to a remedy under ss. 24(1) of the Charter. Mr. Brown responded

that his notice of application gave de facto notice of the request for a remedy under 24(1) and

that a notice of constitutional question was not required.

Lastly, the Minister argued that Mr. Brown’s detention had been tied to a valid immigration

purpose and that the CBSA had taken steps to effect removal. The Minister took the position

that the evidentiary record before the Court on Mr. Brown’s medical care while detained was

insufficient to justify a finding that his s. 12 Charter right had been infringed.36

WHAT DO WE KNOW NOW?

It is early days in post-Chaudhary habeas corpus litigation. The decisions in Ontario leave us

with more questions than answers. Though Ogiamien and Dadzie are in some ways factually

similar, the courts’ analyses do not provide clear guidance on how immigration detention

habeas corpus cases are likely to be decided in future. Furthermore, the Brown case illustrates

36 Only the most recent facility at which Mr. Brown was detained, the Toronto East Detention Centre, was named as a party. As such, no other evidence of the medical care he received while at other correctional facilities was before the Court.

6A - 9

how varied the facts to be brought forward on these cases can be. Given the differences

between the Brown case and the others, the decision in Brown could take the jurisprudence in

yet another direction.

What we might know

The following are the two issues that I propose are somewhat clear from the Ogiamien and

Dadzie decisions:

• The argument that a section 11(b)-like approach to determining the length of detention

in cases where identity is in issue and initiative by the foreign national is required seems

to be acceptable in principle to the Superior Court.37

• The place of detention (the Immigration Holding Centre vs a correctional facility) is

relevant to an assessment of immigration detention (either its length and/or its

lawfulness).

What has yet to be conclusively decided

The following issues, while discussed in one or both of Ogiamien and Dadzie, are yet to be

conclusively decided:

• Can one or more prior periods of detention be added to the current period when the

Court is assessing the length of detention?

• Is conduct that took place while the person was not detained properly considered when

determining whether time should count either against the Minister or the person in

detention?

• What constitutes very lengthy detention in the immigration context? Does it depend on

the specifics of the case? Or will the courts impose a presumptive maximum period

after which detention becomes unlawful?38

37 R v Ogiamien, 2016 ONSC 4126 at para 58; Canada v Dadzie, 2016 ONSC 6045 at paras 36 – 37. 38 The Federal Court may pronounce on this issue in deciding Mr. Brown’s constitutional challenge of the IRPA detention provisions. The matter is being argued in May 2017.

6A - 10

• Is there a distinction between detention while an individual’s identity is unknown and

detention of an identified individual who does not yet have a travel document?

• What is certiorari in aid of habeas corpus supposed to put before the Court? The

detention file? The CBSA file? Something else?

• Can the Court pronounce on the lawfulness of a period of detention that has already

ceased as a result of removal or release?

November 7, 2016

6A - 11

Habeas Corpus and Immigration Detention Yet To be determined…

Sharon Stewart Guthrie, Counsel, Immigration Law Division, Ontario Regional Office, Department of Justice

How long is too long? What do “very lengthy” or “exceptionally lengthy” mean?

The perspective of Ontario courts Chaudhary (ONCA): LENGTHY: Appellants had been in detention for varying periods that ranged from 20 months– 8 years, 8 months.

Ogiamien (SCJ): LENGTHY: The Applicant had been detained for 25 months

Dadzie (SCJ): NOT LENGTHY: The Applicant had been detained for 28 months, but

The length was reduced to four months due to subtraction of periods of time whenMr. Dadzie would not assist authorities with establishing his identity. And two months were added in recognition of the circumstances of his detention (i.e.detention in a maximum security facility). So, six months’ detention total.

Possible arguments? 6 months has not been considered very lengthy in the immigration detention context (even ina maximum security facility) Something less than 20 months (but more than 6 months) may constitute lengthy detention.But, consider whether the following factors would change the assessment:

Identity is established and only a travel document is outstanding;The individual was found to pose a danger to the public;The individual is unlikely to appear for removal;The place of detention;The individual is a Convention refugee or protected person; or,The individual’s level of cooperation with the process of establishing identity or countryof nationality or with the process of obtaining a travel document.

The views expressed are my own and do not reflect the views of the Department of Justice.

6A - 12

Can detention be assessed cumulatively? When can two or more periods of detention be considered as one? What have the courts said? The issue of multiple periods of detention has arisen more than once, but whether the periods should be added together is only discussed in a couple of cases. Dadzie: Detained for approximately 7 months (2008 – 2009), released until 2014, detained for another 28 months Court did not add the periods of detention together, noting that:

Court should be considering the validity of the detention at issue at the time of the habeas corpus application. Release was for a period of almost 5 years between periods of detention.

Shariff (2016 FC 640): 38 months of detention, 3 to 4 weeks of release, 16 months of detention = 55 months Court considered it as one 55 month period of detention as it was a “lengthy period of detention …interrupted by a short period of release”. Possible arguments? The Court may be willing to combine separate periods of detention if the intervening period of release is not too long. i.e. something more than a month. But, also consider the following scenarios which may impact on the Court’s assessment: The length of the most recent period of detention as compared to the prior period of detention (e.g. > 12 months + a one month release + 4 months). Whether a cumulative period of detention can properly be considered in a habeas corpus application given that the assessment of lawfulness is supposed to address the current detention. Are the two periods of detention based on different grounds? (e.g. detention based on unlikely to appear, release, then detention based on danger to the public).

6A - 13

Will the Courts hear ‘moot’ applications? Habeas corpus after removal or release What can be obtained after release or removal? According to the book The Law of Habeas Corpus, the general rule is that habeas corpus applications determine whether detention is justified at the time when the application is decided. It is unclear, therefore, what courts can or will do if release or removal occurs prior to a decision on a habeas corpus application. Here are some considerations: Is there a Notice of Constitutional Question accompanying the habeas corpus application? (see Ogiamien, 2016 ONSC 3080 at para 183 and section 109 of the Courts of Justice Act) Absent a Notice of Constitutional Question, if a habeas corpus application seeks a remedy other than release for an unlawful detention, does that require the court to pronounce on the issue even if the individual is no longer detained?

The way forward…. With this new landscape, we as counsel have an opportunity to propose substantive and procedural approaches to habeas corpus applications that will be efficient and provide a meaningful assessment of the lawfulness of immigration detention.

6A - 14

TAB 6B

Habeas Corpus Applications for Immigration Detainees in Ontario:

Procedural Considerations

Jared Will, Avocat - Barrister & Solicitor Jared Will & Associates

November 23, 2016


Habeas Corpus Applications for Immigration Detainees in Ontario: Procedural Considerations LSUC Immigration Summit, 2016

Jared Will November, 2016

Introduction

The right of a detainee to seek release by way of habeas corpus is guaranteed in Ontario by the common law, the Charter, and the Habeas Corpus Act [HCA]—and all three clearly confer upon the Superior Court of Justice the jurisdiction to hear such applications and to grant habeas relief. However, in Ontario, habeas corpus applications are not clearly governed by any rules of procedure apart from those set out in the HCA. Procedural issues are particularly important in cases where a client wishes to proceed without delay or wishes to seek other forms of relief, in addition to release, under s. 24(1) of the Charter and especially where the client seeks Charter damages within the context of the habeas application. Ultimately, in my opinion, it is best practice to bring a habeas application as a hybrid HCA and Charter application, without reliance on either the Criminal Proceedings Rules [CPR] or the Rules of Civil Procedure [RCP], though the latter are available and may in some cases provide a desirable procedural framework. Applicable Legislation and Regulations Habeas Corpus Act The HCA provides that a writ of habeas corpus may be sought on application to a justice of the Superior Court on two days notice to the AG. The HCA requires the applicant to make out a prima facie case on the basis of affidavit evidence, and provides the Court with jurisdiction to compel the respondent(s) to produce its record relating to the detainee. The HCA also provides that the Court, on return of the writ, is to inquire into the truth of the contents of the applicant’s allegation and stipulates the orders required by law depending on the Court’s conclusions with respect to the legality of the detention. The HCA imposes no further procedural requirements. Criminal Proceedings Rules The provision of the CPR (Rule 43) governing habeas corpus applies to “applications in criminal matters” and is thus inapplicable in the case of immigration habeas applications. While some counsel have relied on the CPR and invoked Rule 43 as the procedural vehicle for their applications for immigration detainees without objection from opposing counsel or the Court, the fact remains that the CPR are technically inoperative for immigration

6B - 1

detainees. Moreover, there are procedural reasons for avoiding the CPR. There is case law from the Ontario Superior Court which has held that the Court, when sitting as “criminal court”, does not have jurisdiction to grant any form of civil remedy and thus cannot award Charter damages.1 While I would argue that these cases were wrongly decided and are inconsistent with more recent Supreme Court case law on s. 24(1) in general and on Charter damages in particular,2 it is better practice to simply avoid reliance on the CPR as they are unnecessary and create obstacles if you wish to seek damages in addition to release. Rules of Civil Procedure The Rules of Civil Procedure [RCP] allow for applications to be brought where so authorized by statute (as is the case here)3 and where the relief sought is on the basis of the Charter.4 They RCP can therefore be relied upon for purposes of habeas applications for immigration detainees. However, even though the Rules for applications are substantially less onerous than those for civil actions, they are inconsistent with the HCA in so far as they require lengthier notice5 and contain procedural requirements that are absent from the HCA that could undermine the right to a timely hearing of the habeas application.6 Given that detainees have a Charter right to seek habeas relief and to a timely remedy7, the strictures of the RCP cannot limit the right to timely habeas relief. It is for this reason that I suggest that, especially in cases where counsel and client wish to be heard on an urgent basis, it preferable not to rely on the RCP and simply bring the application under the HCA. That said, if time permits and resources are available to undertake a more fulsome procedural route, the RCP are available and may be the preferred procedural route for some counsel and clients. Additional Issues Regardless of how counsel proceeds, the following additional factors should be considered when making procedural decisions. Notice of Constitutional Question If any form of relief under s. 24(1) of the Charter is sought, then s. 109 of the Courts of Justice Act [CJA] applies, and one must serve a Notice of Constitutional Question on the Federal and Provincial AGs. Because, under Chaudhary, the provincial Superior Court’s

1 Reisher v. Ontario, 2002 Carswell 1526, [2002] OJ No 1793 and R v Robertson, 2016 ONSC 2726. 2 See Vancouver (City) v. Ward, [2010] 2 SCR 28, 2010 SCC 27; and Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 SCR 3, 2003 SCC 62 at para 45. 3 RCP, s. 14.05(2) 4 RCP, s. 14.05(3)(g.1) 5 RCP, s. 38.06(3)—requiring 10 days notice. 6 See, for example, ss. 38.09(1), 38.09.1, and 39.02(1). 7 See Chaudhary v. Canada, (Public Safety and Emergency Preparedness), 2015 ONCA 700 at paras 103-104 and Baroud v. Canada (Minister of Citizenship & Immigration), 22 O.R. (3d) 255; (1995) 0.J. No. 43

6B - 2

discretion to hear habeas applications is to be exercised only where the issue is the constitutionality of the detention, it is arguably the case that immigration detainees are by definition seeking relief under s. 24(1) of the Charter, which requires an NCQ under s. 109 of the CJA. As such, it is best practice to serve an NCQ as required under the CJA when seeking habeas relief for immigration detainees. Filing the NCQ is not onerous, and its filing will preclude potential technical objections to the relief sought. As appears below, I would suggest that counsel for applicants file an NCQ in addition to their notice of application to forestall any procedural objections from the Respondents. Under normal circumstances, the NCQ must be served at least 15 days prior to the matter being heard. However, if an urgent hearing is sought, the applicant can move for an abridgment of the notice period.8 Damages Sought Against Province If damages are sought against the province, s. 7 of the Proceedings Against the Crown Act applies, which requires service of the notice of application at least 60 days before the matter is to be heard. Content of the Notice of Application There are also substantive considerations, particularly if Charter damages or other forms of s. 24(1) relief are sought in addition to release. The more substantial and complete the notice provided, the less likely that there will be grounds for the Respondent Ontario or Canada to object to the relief sought. The need to provide fulsome notice is particularly pressing if damages are sought. The state bears the burden under the third branch of the Ward test to demonstrate that there are countervailing factors that would render damages inappropriate or unjust and, if they have not been given adequate notice of the basis of the claim for damages, objections may be raised with respect to the applicant’s right to seek damages in the absence of a fair opportunity to the state to know and respond to the case to be met. Ample notice therefore serves to forestall such potential objections. Therefore, it is best practice in these circumstances to provide the most complete statement of facts and grounds for relief in your application record. Wherever possible, this would include not only an ample notice of application and NCQ, but also detailed affidavits in support of your position and a memorandum of argument setting out your position in as much detail as possible. Below, I have provided a model notice of application and a model NCQ as required by s. 109 of the CJA. The models have been formulated such that, where filed with a detailed affidavit and a memorandum of argument, the procedural requirements of both the CPR and RCP will be satisfied in substance. In order words, the Respondent will have no valid grounds to raise procedural objections because they will not have been prejudiced by the 8 CJA, s. 109(2.2.)

6B - 3

manner of proceeding. Of course, each factual situation is unique and this is an evolving practice area. These templates are merely facultative.

6B - 4

(General heading)

NOTICE OF APPLICATION

Application under the Habeas Corpus Act, R.S.O. 1990, ch.h.1, s. 1.7 and Sections 7, 9, 10(c) and 24(1) of the Canadian Charter and Rights and Freedoms

TAKE NOTICE that an application will be brought at 10:00 a.m. on the ____ day of ____________, 2016, at Courtroom No.___________, at the Court House, ADDRESS, Ontario, for:

a. a writ of habeas corpus with certiorari in aid, pursuant to the Habeas Corpus Act and sections 7, 9, 10(c), 12 and 24(1) of the Charter of Rights and Freedoms, 1982 [Charter] on the ground that the Applicant’s continued detention is unlawful;

b. an order that the Applicant be released from detention by this Court, subject to appropriate terms and conditions if deemed necessary;

c. an order for the release of documents in the possession of the Respondents’ officials; and

d. a just and appropriate remedy under s. 24(1) of the Charter of Rights and Freedoms, including release from detention and damages for his unlawful detention.

THE GROUNDS FOR THIS APPLICATION ARE:

1. [STATEMENT OF FACT: NOTE THAT CHAUDHARY REQUIRES, IN ORDER

FOR THE COURT TO EXERCISE HABEAS JURISDICTION, THAT THE ISSUE BE

THAT OF THE DETENTION’S LENGTH AND UNCERTAIN DURATION]

2. The Applicant claims that his/her continued detention is unlawful:

a. His/her detention is both lengthy and of uncertain duration, and it is a breach of his rights under ss. 7, 9, and 12 of the Charter to continue his/her indefinite detention and he/she is therefore entitled to release under s. 10(c) of the Charter.

6B - 5

a. [SPECIFY THE REASONS FOR WHICH THE DETENTION CONTRAVENES THE RELEVANT SECTIONS OF THE CHARTER]

b. In particular, even if there are statutory grounds for detention, the continued detention of the Applicant on the facts of this case is contrary to ss. 7, 9, and 12 of the Charter and she/he is entitled to release pursuant to s. 10(c) and 24(1) of the Charter.

c. [[IF ALSO CONTESTING THE LEGALITY OF DETENTION UNDER THE PROVISIONS OF THE IRPA, THESE GROUNDS SHOULD BE PLEADED WITH SPECIFICITY]

d. [IF DAMAGES OR OTHER CHARTER REMEDIES ARE SOUGHT, SPECIFY THE GROUNDS ALLEGED IN SUPPORT OF SAID RELIEF]

IN SUPPORT OF THIS APPLICATION, THE APPLICANT RELIES ON THE FOLLOWING: 1. The affidavit of ……;

2. The affidavit of …....;

3. The affidavit of …....;

4. The Applicant’s Memorandum of Fact and Law dated _______

5. Such further and other material as counsel may advise and this Court permit.

THE RELIEF SOUGHT IS: [THE FOLLOWING FORMS OF RELIEF ARE AMONG THOSE THAT MAY BE SOUGHT, DEPENDING ON THE FACTS OF A GIVEN CASE] 1. The Applicant seeks a writ of habeas corpus with certiorari in aid to have the legality of his/her detention reviewed by this Court pursuant to ss. 7, 9, 10 and 12 of the Charter of Rights and Freedoms. 2. The Applicant seeks his/her release pursuant to ss. 10(c) and 24(1) of the Charter on the basis (a) that his/her continued detention is unlawful, (b) that the violation of his/her liberty and security of the person are contrary to the principles of fundamental justice and therefore contrary to s. 7 of the Charter, (c) that his/her detention is arbitrary and as such contravenes s. 9 of the Charter, and (d) that, on the facts of this case, continued detention amounts to cruel and unusual treatment and is therefore contrary to s. 12 of the Charter. 3. The Applicant seeks damages in the amount of [$ ________] as a just and appropriate remedy pursuant to s. 24(1) of the Charter.

6B - 6

4. The Applicant seeks his costs on this application on a solicitor-client basis. 5. The Applicant seeks an order, pursuant to s. 109(2.2) of the Courts of Justice Act, abridging the time period required for purposes of a Notice of Constitutional question to ___ days. 6. Such further and other relief as counsel may advise and this Court permits. THE APPLICANT MAY BE SERVED WITH DOCUMENTS PERTINENT TO THIS APPLICATION by service at the office of his solicitors: [COUNSEL’S NAME AND COORDINATES] Dated at CITY, Ontario, this day ____ day of ______, 2016 COUNSEL SIGNATURE _____________________ [COUNSEL’S NAME AND COORDINATES] Solicitors for the Applicant TO: THE MINISTER OF JUSTICE and

THE MINISTER OF PUBLIC SAFETY & EMERGENCY PREPAREDNESS

c/o Attorney General of Canada 1230 King Street West Suite 3400, Exchange Tower Box 36 Toronto, Ontario M5X 1K6 Tel: 416-973-0942 Fax: 416-973-3004 Solicitor for the Federal Respondents AND TO: THE ATTORNEY GENERAL OF ONTARIO Constitutional Law Division 4th Floor, 720 Bay Street Toronto, Ontario M5G-1K6 Fax: (416) 326-4015 Solicitor for the Provincial Respondent AND TO: The Superintendent/Director [NAME AND COORDINATES OF DETENTION CENTRE]

6B - 7

IF PROVINCIAL FACILITY: c/o Legal Branch Minister of Community Safety & Correctional Services 501-655 Bay St Toronto, Ontario M7A 0A8 Tel: 416-314-1508 Fax: 416-314-3518 Solicitor for the Correctional Facility Respondent IF FEDERAL FACILITY:

c/o Attorney General of Canada, on behalf of the Minister of Public Safety and Emergency Preparedness

1230 King Street West Suite 3400, Exchange Tower Box 36 Toronto, Ontario M5X 1K6 Tel: 416-973-0942 Fax: 416-973-3004

6B - 8

[General heading]

NOTICE OF CONSTITUTIONAL QUESTION Courts of Justice Act, Form 4F

The Applicant intends to claim a remedy under subsection 24 (1) of the Canadian Charter of Rights and Freedoms in relation to an act or omission of the Government of Canada and/or Ontario. The question is to be argued on (day), (date), at (time), at (address of court house). The following are the material facts giving rise to the constitutional question: [REPEAT FACTS AS STATED IN NOTICE OF APPLICATION] The following is the legal basis for the constitutional question: [REPEAT GROUNDS AS STATED IN NOTICE OF APPLICATION] The Applicant seeks the following relief: [REPEAT RELIEF SOUGHT AS STATED IN NOTICE OF APPLICATION] (Date)

[Name, address and telephone number of lawyer or party]

TO

The Attorney General of Ontario

Constitutional Law Branch 4th floor 720 Bay Street Toronto, Ontario M5G 2K1 fax: (416) 326-4015

The Attorney General of Canada

Suite 3400, Exchange Tower Box 36, First Canadian Place Toronto, Ontario M5X 1K6 fax: (416) 952-0298

[Names and addresses of lawyers for all other parties and of all other parties acting in person]

6B - 9

ANNEX Legislation, and Rules of Court Habeas Corpus Act, R.S.O. 1990, CHAPTER H.1 In what cases hab. corp. ad subjiciendum may be awarded, and by whom 1. (1) Where a person, other than a person imprisoned for debt, or by process in any action, or by the judgment, conviction or order of the Ontario Court (General Division) or other court of record is confined or restrained of his or her liberty, a judge of the Ontario Court (General Division), upon complaint made by or on behalf of the person so confined or restrained, if it appears by affidavit that there is reasonable and probable ground for the complaint, shall award a writ of habeas corpus ad subjiciendum directed to the person in whose custody or power the person so confined or restrained is, returnable immediately before the judge so awarding the writ, or before any judge of the Ontario Court (General Division). R.S.O. 1990, c. H.1, s. 1 (1). Notice of application for writ of habeas corpus (2) Notice in writing of every application for a writ of habeas corpus ad subjiciendum shall be given to the Attorney General at least forty-eight hours before the making of the application and the Attorney General is entitled as of right to be heard either in person or by counsel upon the application. R.S.O. 1990, c. H.1, s. 1 (2). Service of writ 2. The writ may be served either personally by actual delivery thereof to the person to whom it is directed or by leaving it with his or her employee or agent at the place where the person is so confined or restrained. R.S.O. 1990, c. H.1, s. 2. […] Issue of writ of certiorari 5. Where a writ of habeas corpus ad subjiciendum is issued under the authority of this Act or otherwise, the court or judge may direct the issue of a writ of certiorari directed to the person by whom or by whose authority any person is confined or restrained of his or her liberty, or other person having his or her custody or control, requiring the person to certify and return to the court or judge as by the writ may be provided, all the evidence, depositions, conviction and all proceedings had or taken, touching or concerning such confinement or restraint of liberty. R.S.O. 1990, c. H.1, s. 5. Procedure on return of writ 6. When upon a return to a writ of habeas corpus ad subjiciendum it is alleged that the person is detained by reason of a conviction or order other than a conviction or order of the Ontario Court (General Division) or other court of record, upon the return of the writ of certiorari, it is the duty of the court or judge to examine and consider the proceedings had

6B - 10

and taken to ascertain if the proceedings show that the person restrained has been convicted of any offence against the law and that there is any evidence to sustain the conviction, or that upon the evidence the person accused is guilty of an offence against the law and that the conviction, though irregular, ought to be amended or drawn so as to duly describe the offence of which the person accused is guilty, and in such cases to remand the person detained to custody but otherwise to order his or her discharge. R.S.O. 1990, c. H.1, s. 6. Procedure for inquiring into the truth of the matters alleged in the return 7. Although the return to a writ of habeas corpus ad subjiciendum is good and sufficient in law, the court or judge before whom the writ is returnable may examine into the truth of the facts set forth in the return, by affidavit or other evidence, and may order and determine touching the discharging, bailing or remanding of the person. R.S.O. 1990, c. H.1, s. 7.

6B - 11

Courts of Justice Act, RSO 1990, c C.43 Notice of constitutional question 109. (1) Notice of a constitutional question shall be served on the Attorney General of Canada and the Attorney General of Ontario in the following circumstances: 1. The constitutional validity or constitutional applicability of an Act of the Parliament of Canada or the Legislature, of a regulation or by-law made under such an Act or of a rule of common law is in question. 2. A remedy is claimed under subsection 24 (1) of the Canadian Charter of Rights and Freedoms in relation to an act or omission of the Government of Canada or the Government of Ontario. Failure to give notice (2) If a party fails to give notice in accordance with this section, the Act, regulation, by-law or rule of common law shall not be adjudged to be invalid or inapplicable, or the remedy shall not be granted, as the case may be. Form of notice (2.1) The notice shall be in the form provided for by the rules of court or, in the case of a proceeding before a board or tribunal, in a substantially similar form. Time of notice (2.2) The notice shall be served as soon as the circumstances requiring it become known and, in any event, at least fifteen days before the day on which the question is to be argued, unless the court orders otherwise. 1994, c. 12, s. 42 (1).

6B - 12

https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec24subsec1_smooth

https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html


Criminal Proceedings Rules for the Superior Court of Justice (Ontario) (SI/2012-7) Rule 43 Extraordinary Remedies Application of the Rule 43.01 This rule applies to applications in criminal matters by way of certiorari, habeas corpus, mandamus, procedendo and prohibition, including applications to quash a subpoena, warrant, conviction, inquisition or other order or determination and applications for discharge of a person in custody. To Whom Application Made 43.02 Applications made under rule 43.01 shall be made to a judge of the court in the region, county or district in which the proceedings to which the application relates have been, are being or are to be taken. Contents of Notice General Rule 43.03 (1) A notice of application under this rule shall be in Form 1 and comply with rule 6.03 and shall also state the subpoena, warrant or other order or determination to which the application relates.

6B - 13

Rules of Civil Procedure, RRO 1990, Reg 194

APPLICATIONS — BY NOTICE OF APPLICATION

Notice of Application 14.05 (1) The originating process for the commencement of an application is a notice of application (Form 14E, 14E.1, 68A or 73A) or an application for a certificate of appointment of an estate trustee (Form 74.4, 74.5, 74.14, 74.15, 74.21, 74.24, 74.27 or 74.30). R.R.O. 1990, Reg. 194, r. 14.05 (1); O. Reg. 484/94, s. 5; O. Reg. 43/14, s. 5 (1). Information for Court Use (1.1) Form 14F (Information for court use) shall be filed together with a notice of application in Form 14E, 14E.1, 68A or 73A. O. Reg. 260/05, s. 2; O. Reg. 43/14, s. 5 (2). Application under Statute (2) A proceeding may be commenced by an application to the Superior Court of Justice or to a judge of that court, if a statute so authorizes. R.R.O. 1990, Reg. 194, r. 14.05 (2); O. Reg. 292/99, s. 1 (2). Application under Rules (3) A proceeding may be brought by application where these rules authorize the commencement of a proceeding by application or where the relief claimed is, (a) the opinion, advice or direction of the court on a question affecting the rights of a person in respect of the administration of the estate of a deceased person or the execution of a trust; (b) an order directing executors, administrators or trustees to do or abstain from doing any particular act in respect of an estate or trust for which they are responsible; (c) the removal or replacement of one or more executors, administrators or trustees, or the fixing of their compensation; (d) the determination of rights that depend on the interpretation of a deed, will, contract or other instrument, or on the interpretation of a statute, order in council, regulation or municipal by-law or resolution; (e) the declaration of an interest in or charge on land, including the nature and extent of the interest or charge or the boundaries of the land, or the settling of the priority of interests or charges; (f) the approval of an arrangement or compromise or the approval of a purchase, sale, mortgage, lease or variation of trust; (g) an injunction, mandatory order or declaration or the appointment of a receiver or other consequential relief when ancillary to relief claimed in a proceeding properly commenced by a notice of application; (g.1) for a remedy under the Canadian Charter of Rights and Freedoms; or (h) in respect of any matter where it is unlikely that there will be any material facts in dispute. R.R.O. 1990, Reg. 194, r. 14.05 (3); O. Reg. 396/91, s. 3. APPLICATION OF THE RULE 38.01 (1) Rules 38.02 to 38.12 apply to all proceedings commenced by a notice of application under rule 14.05, subject to subrules (2) and (3). O. Reg. 43/14, s. 8 (1).

6B - 14


(2) Rules 38.02 and 38.09 do not apply to applications to the Divisional Court. R.R.O. 1990, Reg. 194, r. 38.01 (2). (3) Rules 38.02 to 38.12 apply to an application made under subsection 140 (3) of the Courts of Justice Act, unless otherwise provided in rule 38.13 and subject to any modifications set out in that rule. O. Reg. 43/14, s. 8 (2). APPLICATIONS — TO WHOM TO BE MADE 38.02 An application shall be made to a judge. R.R.O. 1990, Reg. 194, r. 38.02. PLACE AND DATE OF HEARING Place of Commencement 38.03 (1) The applicant shall, in the notice of application, name the place of commencement in accordance with rule 13.1.01. O. Reg. 438/08, s. 38. Place of Hearing (1.1) The application shall be heard in the county where the proceeding was commenced or to which it has been transferred under rule 13.1.02, unless the court orders otherwise. O. Reg. 438/08, s. 38. Hearing date where no practice direction (2) At any place where no practice direction concerning the scheduling of applications is in effect, an application may be set down for hearing on any day on which a judge is scheduled to hear applications. O. Reg. 770/92, s. 11. Exception, lengthy hearing (3) If a lawyer estimates that the hearing of the application will be more than two hours long, a hearing date shall be obtained from the registrar before the notice of application is served. O. Reg. 770/92, s. 11; O. Reg. 575/07, s. 3. Urgent application (3.1) An urgent application may be set down for hearing on any day on which a judge is scheduled to hear applications, even if a lawyer estimates that the hearing is likely to be more than two hours long. O. Reg. 770/92, s. 11; O. Reg. 575/07, s. 3. Counter-Application (4) If a notice of application has been served and the respondent wishes to make an application against the applicant, or against the applicant and another person, the respondent shall make the application at the same place and time to the same judge, unless the court orders otherwise. O. Reg. 14/04, s. 20 (3). CONTENT OF NOTICE 38.04 Every notice of application (Form 14E, 14E.1, 68A, 73A, 74.44 or 75.5) shall state,

6B - 15

https://www.canlii.org/en/on/laws/stat/rso-1990-c-c43/latest/rso-1990-c-c43.html#sec140subsec3_smooth

https://www.canlii.org/en/on/laws/stat/rso-1990-c-c43/latest/rso-1990-c-c43.html

(a) the precise relief sought; (b) the grounds to be argued, including a reference to any statutory provision or rule to be relied on; and (c) the documentary evidence to be used at the hearing of the application. R.R.O. 1990, Reg. 194, r. 38.04; O. Reg. 484/94, s. 8; O. Reg. 43/14, s. 9. ISSUING OF NOTICE 38.05 A notice of application shall be issued as provided by rule 14.07 before it is served. R.R.O. 1990, Reg. 194, r. 38.05. SERVICE OF NOTICE Generally 38.06 (1) The notice of application shall be served on all parties and, where there is uncertainty whether anyone else should be served, the applicant may make a motion without notice to a judge for an order for directions. R.R.O. 1990, Reg. 194, r. 38.06 (1). Where Notice Ought to Have Been Served (2) Where it appears to the judge hearing the application that the notice of application ought to have been served on a person who has not been served, the judge may, (a) dismiss the application or dismiss it only against the person who was not served; (b) adjourn the application and direct that the notice of application be served on the person; or (c) direct that any judgment made on the application be served on the person. R.R.O. 1990, Reg. 194, r. 38.06 (2). Minimum Notice Period (3) The notice of application shall be served at least ten days before the date of the hearing of the application, except where the notice is served outside Ontario, in which case it shall be served at least twenty days before the hearing date. R.R.O. 1990, Reg. 194, r. 38.06 (3). Filing Proof of Service (4) The notice of application shall be filed with proof of service at least seven days before the hearing date in the court office where the application is to be heard. R.R.O. 1990, Reg. 194, r. 38.06 (4); O. Reg. 171/98, s. 15; O. Reg. 438/08, s. 39. NOTICE OF APPEARANCE 38.07 (1) A respondent who has been served with a notice of application shall forthwith deliver a notice of appearance (Form 38A). R.R.O. 1990, Reg. 194, r. 38.07 (1). (2) A respondent who has not delivered a notice of appearance is not entitled to, (a) receive notice of any step in the application; (b) receive any further document in the application, unless, (i) the court orders otherwise, or (ii) the document is an amended notice of application that changes the relief sought; (c) file material, examine a witness or cross-examine on an affidavit on the application; or (d) be heard at the hearing of the application, except with leave of the presiding

6B - 16

judge. O. Reg. 351/94, s. 3. (3) Despite subrule (2), a party who is served with a notice of application outside Ontario may make a motion under subrule 17.06 (1) before delivering a notice of appearance and is entitled to be served with material responding to the motion. O. Reg. 351/94, s. 3. Exception, applications to pass accounts (4) Subrules (1) and (2) do not apply to a notice of application to pass accounts under Rule 74. O. Reg. 484/94, s. 9. 38.07.1 Revoked: O. Reg. 457/01, s. 8. MATERIAL FOR USE ON APPLICATION Application Record and Factum 38.09 (1) The applicant shall, (a) serve an application record, together with a factum consisting of a concise argument stating the facts and law relied on by the applicant, at least seven days before the hearing, on every respondent who has served a notice of appearance; and (b) file the application record and factum, with proof of service, at least seven days before the hearing, in the court office where the application is to be heard. R.R.O. 1990, Reg. 194, r. 38.09 (1); O. Reg. 171/98, s. 17 (1); O. Reg. 206/02, s. 9 (1); O. Reg. 438/08, s. 40 (1, 2). (2) The applicant’s application record shall contain, in consecutively numbered pages arranged in the following order, (a) a table of contents describing each document, including each exhibit, by its nature and date and, in the case of an exhibit, by exhibit number or letter; (b) a copy of the notice of application; (c) a copy of all affidavits and other material served by any party for use on the application; (d) a list of all relevant transcripts of evidence in chronological order, but not necessarily the transcripts themselves; and (e) a copy of any other material in the court file that is necessary for the hearing of the application. R.R.O. 1990, Reg. 194, r. 38.09 (2). Respondent’s Application Record and Factum (3) The respondent shall serve on every other party, at least four days before the hearing, a factum consisting of a concise argument stating the facts and law relied on by the respondent. O. Reg. 171/98, s. 17 (2); O. Reg. 206/02, s. 9 (2); O. Reg. 14/04, s. 21; O. Reg. 438/08, s. 40 (3). (3.1) If of the opinion that the application record is incomplete, the respondent may serve on every other party, at least four days before the hearing, a respondent’s application record containing, in consecutively numbered pages arranged in the following order, (a) a table of contents describing each document, including each exhibit, by its nature and date and, in the case of an exhibit, by exhibit number or letter; and (b) a copy of any material to be used by the respondent on the application and not included in the applicant’s application record. O. Reg. 171/98, s. 17 (2); O. Reg. 438/08, s. 40 (4). (3.2) The respondent’s factum, and the respondent’s application record, if any, shall be filed with proof of service in the court office where the application is to be heard, at least four days before the hearing. O. Reg. 171/98, s. 17 (2); O. Reg. 438/08, s. 40 (5). Dispensing with Record and Factum

6B - 17

(4) A judge, before or at the hearing of the application, may dispense with compliance with this rule in whole or in part. R.R.O. 1990, Reg. 194, r. 38.09 (4). Material May be Filed as Part of Record (5) Any material served by a party for use on an application may be filed, together with proof of service, as part of the party’s application record and need not be filed separately if the record is filed within the time prescribed for filing the notice or other material. R.R.O. 1990, Reg. 194, r. 38.09 (5). Transcript of Evidence (6) A party who intends to refer to a transcript of evidence at the hearing of an application shall file a copy of the transcript as provided by rule 34.18. R.R.O. 1990, Reg. 194, r. 38.09 (6). Exceptions, applications in estate matters (7) Subrules (1) to (6) do not apply to applications under Rule 74. O. Reg. 484/94, s. 10. (8) Subrules (1) to (6) apply to applications under Rule 75, but neither the applicant nor the respondent is required to serve a factum. O. Reg. 484/94, s. 10. CONFIRMATION OF APPLICATION Confirmation of Application 38.09.1 (1) A party who makes an application on notice to another party shall, (a) confer or attempt to confer with the other party; (b) not later than 2 p.m. three days before the hearing date, give the registrar a confirmation of application (Form 38B) by, (i) sending it by fax, or by e-mail if available in the court office, or (ii) leaving it at the court office; and (c) send a copy of the confirmation of application to the other party by fax or e-mail. O. Reg. 14/04, s. 22; O. Reg. 438/08, s. 41. Effect of Failure to Confirm (2) If no confirmation is given, the application shall not be heard, except by order of the court. O. Reg. 14/04, s. 22. Duty to Update (3) A party who has given a confirmation of application and later determines that the confirmation is no longer correct shall immediately, (a) give the registrar a corrected confirmation of application (Form 38B), by, (i) sending it by fax, or by e-mail if available in the court office, or (ii) leaving it at the court office; and (b) send a copy of the corrected confirmation of application to the other party by fax or e-mail. O. Reg. 14/04, s. 22.

6B - 18

TAB 7A

Good Faith Candour and the Obligation to Disclose



November 23, 2016



Good Faith Candour and the Obligation to Disclose



SCOPE OF DUTY OF CANDOUR - HONEST REASONABLE BELIEF NOT WITHOLDING

Canada (MCI) v. Modaresi, [2016] F.C.J. No. 262; 2016 FC 185, Brown J – citizenship

18 An innocent failure to provide material information may result in a finding of inadmissibility: Baro v Canada (MCI), 2007 FC 1299 at para 15 on the duty of candour says:

...Even an innocent failure to provide material information can result in a finding of inadmissibility; for example, an applicant who fails to include all of her children in her application may be inadmissible: Bickin v. Canada (MCI), [2000] F.C.J. No. 1495 (F.C.T.D.) (QL). An exception arises where applicants can show that they honestly and reasonably believed that they were not withholding material information: Medel v. Canada (MEI), [1990] 2 F.C. 345, [1990] F.C.J. No. 318 (F.C.A.) (QL).

19 It is well-established that a foreign national seeking to enter Canada has a "duty of candour" which requires disclosure of material facts. This duty is informed by the surrounding circumstances. This duty requires the Defendant to truthfully and completely answer every question asked of him in his applications for permanent residence and citizenship. This duty is legislatively reinforced by subsection 9(3) of the former Immigration Act which requires that "every person shall answer truthfully all questions put to that person by the visa officer and shall produce such documentation as may be required by the visa officer for the purpose of establishing that his admission would not be contrary to the Act or the regulations." See Canada (Minister of Citizenship and Immigration) v Savic, 2014 FC 523 at para 51:

The purpose of the provision is to ensure that applicants do not benefit by obtaining permanent resident status and citizenship as a result of failing to provide essential information or from providing false information. The information provided is relied on by the decision maker. Applicants have a duty to provide the information requested and to be truthful and ought to know that the information will be relied upon and may foreclose further lines of inquiry.

And see Immigration Act, subsection 9(3) (see also subsection 12(4) regarding the duty to answer questions in applications for landing); Bodine v Canada (Minister of Citizenship and Immigration), 2008 FC 848 at paras 41-42; and Baro at para 15.

7A - 1


CLEAR AND CONVINCING EVIDENCE ON BALANCE NEEDED TO ESTABLISH MISREP

Chughtai v. Canada (MCI), [2016] F.C.J. No. 434; 2016 FC 416 Martineau J.

29 An applicant for a permanent residence visa may be refused if he or she fails to meet the evidentiary burden necessary to satisfy the officer as to his or her eligibility. On the other hand, a finding of inadmissibility is more serious in nature. Under paragraph 40(1)(a) of IRPA, a person is inadmissible to Canada if that person "withhold[s] material facts relating to a relevant matter that induces or could induce an error in the administration of th[e] Act". As my colleague Justice Barnes states in Xu at para 16, "[a] finding of misrepresentation under section 40 of the IRPA is a serious matter which should not be made in the absence of clear and convincing evidence [...]" [emphasis added]. Similarly, in Berlin at para 21, Justice Barnes states, "[a] misrepresentation is not established by mere appearances. As the Respondent's Operational Manual on Enforcement acknowledges, a misrepresentation must be established on a balance of probabilities." While an applicant for permanent residence has a duty of candour requiring the disclosure of material facts, and while even an innocent failure to provide material information can result in a finding of inadmissibility (Baro at para 15), there must still be clear and convincing evidence that an applicant, on the balance of probabilities, has withheld material facts for a finding of misrepresentation to be made.

CLEAR AND CONVINCING EVIDENCE ON BALANCE NEEDED TO ESTABLISH MISREP

Hehar v. Canada (MCI), [2016] F.C.J. No. 1136; 2016 FC 1054, Brown J

35 Finally, the Applicant emphasized that findings of misrepresentation must be made on a balance of probabilities as set out in departmental Guidelines, not merely on the basis of reasonable grounds to believe as otherwise required by section 133 of the IRPA. I agree, and I also agree that clear and convincing evidence is needed: Chughtai v Canada (Citizenship and Immigration), 2016 FC 416 [Chughtai] (citing para. 29, 33).

STD OF REVIEW / SCOPE OF DUTY OF CANDOUR – NOT APPLICANT’S DECISION

Chhetry v. Canada (MCI), [2016] F.C.J. No. 476; 2016 FC 513 Strickland J.

8 This Court has previously held that the reasonableness standard applies to a visa officer's assessment of whether an applicant made a material misrepresentation as described in s 40(1)(a) of the IRPA (Oloumi v Canada (MCI), 2012 FC 428 at para 12; Goburdhun v Canada (MCI), 2013 FC 971 at para 19; Singh v Canada (MCI), 2015 FC 377 at para 12. Reasonableness is concerned with the existence of justification, transparency and intelligibility, and whether the decision falls within a range of possible, acceptable outcomes (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47).

Applicant's Position

7A - 2

9 The Applicant submits that while s 40(1)(a) of the IRPA imposes a duty of candour which requires disclosure of material facts, an exception arises when the applicant can demonstrate that they honestly and reasonably believed that they were not withholding material information (Medel v Canada (MCI), [1990] 2 FC 345; Tofangchi v Canada (MCI), 2012 FC 427 ). In this case, the Applicant did not knowingly misrepresent his employment history. He provided the details of his employment history that were relevant to the category in which he was applying, being teacher/lecturer. In this regard, he relied on the Immigration Consultant, who advised him to omit other irrelevant employment information. And, although the Applicant reviewed and signed the application, he honestly and reasonably believed the omission was not a misrepresentation because the information was not relevant to the class in which he was applying. Further, he had no onus to disclose all possibly relevant information (Baro v Canada (Citizenship and Immigration), 2007 FC 1299). And, although he did not believe that he had made an error, he had clarified the discrepancy when the concern was raised by the processing officer.

10 The Applicant also submits that he should not be penalized for his Immigration Consultant's incompetence. Further, since he did not refer to his Facebook page in his application, it was unreasonable to expect him to ensure its accuracy and for the Visa Officer to use it to discredit the employment history established by his employment records.

19 The Applicant submits, in essence, that there was no misrepresentation because this employment was not relevant and, even if there was, it falls within the exception to the requirement to disclose material facts established by Medel, as he honestly and reasonably believed that he was not withholding material information.

20 However, as I have previously found in Goburdhun, the Medel exception is narrow and has been held to require "subjective unawareness" of the material information (Mohammed v Canada (MCI), [1997] 3 FC 299; Singh at paras 39-40).

22 Further, the Applicant's claim that he relied on his Immigration Consultant does not assist him. As I noted in Goburdhun:

[32] In Haque, above, the applicants therein similarly argued that the misrepresentations were not intentional and that it was their consultant who erred in filling out the application. Justice Mosley rejected this argument and stated the following:

[15] [...] Nonetheless, he signed the application and so cannot be absolved of his personal duty to ensure the information he provided was true and complete. This was expressed succinctly by Justice Robert Mainville at para 31 of Cao, [2010] F.C.J. No. 537 supra:

The Applicant signed her temporary residence application and consequently must be held personally accountable for the information provided in that application. It is as simple as that.

24 In any event, it is not the role of the Applicant to determine what is or is not relevant to his application. As stated by Justice Russell in Singh:

7A - 3

[32] But the Decision is not really about culpability. It is about the integrity of the visa process and what is required to maintain that integrity. To put it bluntly, it is not for the Applicant, or any other visa applicant, to decide what is relevant. Applicants are required to make full disclosure and it is the role of the officer who examines the application to decide what is relevant and what weight to give to any particular fact that is disclosed. The system simply could not work if applicants, no matter how honest, were allowed to decide what is relevant for their application. If full disclosure is made, and an applicant believes that a visa has been unreasonably denied, then there is recourse before this Court. But the problem with misrepresentations is that they do not allow decisions to be made on the full facts by officers who have been fixed by Parliament with the power to make those decisions. That is precisely the problem in this application.

25 Applicants are required to provide all of the information requested of them. If they choose not to do so, they assume the risk that their application will be denied. Based on the forgoing, I conclude that there was a misrepresentation and that the circumstances do not fall within the Medel exception.

29 …….. The Applicant also provided letters and documents from each of his other employers corroborating the periods he claims to have worked with them. The Visa Officer, who reviewed the processing officer's notes as well as the other information noted, does not address this evidence or state why the response to the fairness letter did not disabuse him or her of the concerns raised.

30 Further, a misrepresentation must also be material. To be material it need not be decisive or determinative, it is sufficient if it is important enough to affect the process. The wording of s 40 also confirms that a misrepresentation does not actually have to induce an error, it is enough that it could do so (Tofangchi at para 26; Goburdhun at para 37; Oloumi at paras 22 and 25; Haque at para 11; Mai v Canada (Minister of Public Safety and Emergency Preparedness), 2011 FC 101 at para 18; Nazim v Canada (Minister of Citizenship and Immigration), 2009 FC 471).

POLICY BASIS FOR DUTY OF CANDOUR

Abdi v. Canada (MCI), [2015] F.C.J. No. 920; 2015 FC 643 Kane J.

52 As Justice Harrington noted at the conclusion of his decision in (Canada (MPESP) v Gunasingam, 2008 FC 181, [2008] F.C.J. No. 234 at para 24: "It is simply wrong to think one can gain entry to Canada on the strength of a lie."

POLICY BASIS FOR DUTY OF CANDOUR / NARROW EXCEPTION FOR NON-DISCLOSURE

Singh v. Canada (MCI) [2015] F.C.J. No. 341; 2015 FC 377 Russell J.

7A - 4

31 From the Applicant's perspective, this looks like a very harsh and unreasonable Decision, and Applicant's counsel did a very good job of explaining why at the hearing before me. I have no reason to think that the Applicant was in any way dishonest. As counsel put it, he just did not think that something that occurred in the United States over nineteen years ago was relevant to his visa application, given the intervening connection he has established with Canada.

32 But the Decision is not really about culpability. It is about the integrity of the visa process and what is required to maintain that integrity. To put it bluntly, it is not for the Applicant, or any other visa applicant, to decide what is relevant. Applicants are required to make full disclosure and it is the role of the officer who examines the application to decide what is relevant and what weight to give to any particular fact that is disclosed. The system simply could not work if applicants, no matter how honest, were allowed to decide what is relevant for their application. If full disclosure is made, and an applicant believes that a visa has been unreasonably denied, then there is recourse before this Court. But the problem with misrepresentations is that they do not allow decisions to be made on the full facts by officers who have been fixed by Parliament with the power to make those decisions. That is precisely the problem in this application.

33 It is clear there was a misrepresentation in this case. The Applicant failed to disclose in his application that he had overstayed in the United States following his failed refugee application and had been removed back to India. The Applicant knew this had occurred, but he chose not to reveal it, notwithstanding the clear instructions on the form he completed that he had to disclose it, and notwithstanding his sworn statement that he had truthfully completed the form. This meant that the Applicant had decided that the United States information should not be a factor for consideration in his visa application. If this was acceptable, the system would fail because applicants would not disclose what they thought should not be considered, and this would seriously undermine the decision-making powers that Parliament has vested in visa officers. This is why s. 40 exists and why the jurisprudence is clear that a misrepresentation -- even if honest -- can only be excused in truly exceptional circumstances.

35 The Applicant points to the lapse of time (nineteen years) since he was removed from the United States and the number of times he has entered and left Canada in the interim. But this misses the point. It is not whether the visa would have been refused had full disclosure been made. The point is that it could have induced an error because it could have impacted the Officer's Decision on whether the Applicant would leave at the end of the visa period, and it could have induced an error if there were other inadmissibilities. I have no reason to think that the Applicant is other than an entirely honest man who made a genuine mistake. But this does not mean that the failure to disclose could not have induced an error. The Applicant clearly had knowledge of the failed refugee claim and his removal from the United States, so he cannot be said to fall within the narrow range of exceptions where applicants are truly subjectively unaware of what the form requires them to disclose. See Mohammed, above.

39 Justice MacKay in Mohammed, above, explained how narrow the exception is:

[41] The present circumstances may also be distinguished from those in Medel on the basis that the information which the applicant failed to disclose was not information regarding which he was truly subjectively unaware. The applicant in the present case was not unaware

7A - 5

that he was married. Nor was it information, as in Medel, the knowledge of which was beyond his control. This was not information which had been concealed from him or about which he had been misled by Embassy officials. The applicant's alleged ignorance regarding the requirement to report such a material change in his marital status and his inability to communicate this information to an immigration officer upon arrival does not, in my opinion, constitute "subjective unawareness" of the material information as contemplated in Medel.

41 Justice Tremblay-Lamer provided the following guidance on point in Goudarzi, above:

[33] I find that the decision in Osisanwo is not of assistance to the applicants in this case. That decision was dependent on a highly unusual set of facts, and cannot be relied upon for the general proposition that a misrepresentation must always require subjective knowledge. Rather, the general rule is that a misrepresentation can occur without the applicant's knowledge, as noted by Justice Russell in Jiang, above, at paragraph 35:

[35] With respect to inadmissibility based on misrepresentation, this Court has already given section 40 a broad and robust interpretation. In Khan, above, Justice O'Keefe held that the wording of the Act must be respected and section 40 should be given the broad interpretation that its wording demands. He went on to hold that section 40 applies where an applicant adopts a misrepresentation but then clarifies it prior to a decision. In Wang v Canada (Minister of Citizenship and Immigration), 2005 FC 1059, this Court held that section 40 applies to an applicant where the misrepresentation was made by another party to the application and the applicant had no knowledge of it. The Court stated that an initial reading of section 40 would not support this interpretation but that the section should be interpreted in this manner to prevent an absurd result. (Emphasis added.)

A few cases have carved out a narrow exception to this rule, but this will only apply for truly exceptional circumstances, where the applicant honestly and reasonably believed they were not misrepresenting a material fact.

[34] In Osisanwo, Justice Hughes cites the decision of Justice Harrington in Singh v Canada (Minister of Citizenship and Immigration), 2010 FC 378. In that case, the applicant was found inadmissible for misrepresentation because he had failed to disclose the existence of a child that the Board found he reasonably should have suspected was his own. (Notably, like the applicants in the case before me, this applicant was found to not be credible.) Justice Harrington considered certifying a question similar to that in Osisanwo, above, but concluded that the decision was unreasonable on other grounds.

[35] The passage of Singh referred to by Justice Hughes contains an oft-cited portion of Justice O'Reilly's judgment in Baro v Canada (MCI), 2007 FC 1299:

[15] Under s. 40(1)(a) of IRPA, a person is inadmissible to Canada if he or she "withholds material facts relating to a relevant matter that induces or could induce an error in the administration" of the Act. In general terms, an applicant for permanent residence has a "duty of candour" which requires disclosure of material facts. This duty extends to variations in his or her personal circumstances, including a change of marital

7A - 6

status: Mohammed v. Canada (MCI), [1997] 3 F.C. 299 (F.C.T.D.) (QL). Even an innocent failure to provide material information can result in a finding of inadmissibility; for example, an applicant who fails to include all of her children in her application may be inadmissible: Bickin v. Canada (MCI), [2000] F.C.J. No. 1495 (F.C.T.D.) (QL). An exception arises where applicants can show that they honestly and reasonably believed that they were not withholding material information: Medel v. Canada (MEI), [1990] 2 F.C. 345, [1990] F.C.J. No. 318 (F.C.A.) (QL). (Emphasis added.)

DUTY OF CANDOUR INCLUDES DUTY TO ENSURE DOCUMENTS ARE ACCURATE

De Azeem v. Canada (MCI), [2015] F.C.J. No. 1040; 2015 FC 1043 Gleeson J.

29 Under para 40(1)(a) of the IRPA, a person is inadmissible to Canada if that person "withhold[s] material facts relating to a relevant matter that induces or could induce an error in the administration of th[e] Act ". An applicant for permanent residence has a general duty of candour, which requires not only the disclosure of material facts but also an obligation to ensure the documents underlying an application accurately reflect the circumstances: Baro v Canada (Minister of Citizenship and Immigration), 2007 FC 1299 at para 15, [2007] F.C.J. No. 1667; Zhao v Canada (Citizenship and Immigration), 2012 FC 1421 at para 1-2, [2012] F.C.J. No. 1532. …

31 While the applicant takes issue with the use of the term "offer of convenience", I am satisfied after reviewing the refusal letter and the GCMS notes prepared by the immigration officer that the genuine nature of the offer was the issue. The family nature of the business alone is not sufficient to call into question the AEO, however it is not unreasonable to consider this factor where a concern with the genuine nature of the offer is raised by the totality of the circumstances.

32 The applicant submits that the finding of misrepresentation should only be made where there is clear and convincing evidence. The acknowledgement of the inaccuracy of the AEO by the applicant satisfies the clear and convincing standard in my opinion. Similarly, while the visa officer must be mindful of the positive arranged employment opinion of Human Resources and Skills Development Canada, this opinion does not usurp or displace the role of the visa officer in assessing the application. In this case the visa officer identified the facts that caused him to question the genuine nature of the AEO: Bondoc v Canada (The Minister of Citizenship and Immigration), 2008 FC 842 at paras 15 and 16, [2008] F.C.J. No. 1063.

33 I am satisfied that the determination by the visa officer that the AEO was not genuine falls within the range of reasonable possible outcomes within the context of the facts and the law: Dunsmuir v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 SCR 190.

SCOPE OF DUTY OF CANDOUR

Duquitan v. Canada (MCI), [2015] F.C.J. No. 886; 2015 FC 769 Shore J.

7A - 7

5 The Applicant is a 30 year old citizen of the Philippines. The Applicant was sponsored by his ex-wife [M.F.D] and became a permanent resident of Canada on September 16, 2010. Shortly thereafter, M.F.D. learned that the Applicant was in a continuing relationship with another woman [A.G.]. M.F.D. left the Applicant and reported his actions to the Canada Border Services Agency [CBSA]. As a result of his failure to disclose his extramarital relationship, the Applicant was found to be inadmissible under paragraph 40(1)(a) of the IRPA. As a result, an exclusion order was issued against the Applicant pursuant to subsection 45(d) of the IRPA. On appeal before the IAD, the Applicant challenged the legal validity of the exclusion order pursuant to the IAD's discretionary jurisdiction to grant special relief on the basis of H&C grounds.

8 The IAD's analysis and reasons pertaining to the validity of the exclusion order issued against the Applicant and the recognition of the Applicant's duty of candour owed towards Canadian immigration officials are thorough and anchored in the evidentiary record and the law. The Court finds that the IAD's conclusion that the Applicant's misrepresentation was at the heart of the determination of his spousal sponsorship for the purposes of subsection 40(1) of the IRPA is reasonable; had the Applicant not withheld the relationship with A.G., he likely would not have received a permanent resident visa as M.F.D.'s spouse.

DUTY OF CANDOUR IN RESPECT OF CHILDREN

Canada (MCI) v. Zakaria, [2014] F.C.J. No. 936; 2014 FC 864 Strickland J.

55 The [Government] Plaintiff submits that sections 10 and 18 of the Citizenship Act permit revocation of citizenship obtained as a minor regardless of the fact that the subject misrepresentation was made by someone else. For the reasons below, I have concluded that this is so.

56 With respect to intent, the Defendants rely on Minhas, above. There, an application for revocation of citizenship was dismissed as the Court found that the Minister must do more than merely demonstrate that the individual committed a technical transgression of the Act. An innocent statement or representation, although false or misleading, was not sufficient to invoke or justify such a penalty. There was a further element of proof required, relating to the respondent's state of mind, and the onus of proving that lay on the Minister. What was required was some evidence that the respondent misrepresented pertinent facts with the intention to deceive and to obtain his citizenship on the basis of those false representations.

57 In Minhas, it was held that the facts did not support such a conclusion as at the relevant times the respondent had not been charged or, later, convicted of an offence. Therefore, based on the presumption of innocence, his failure to divulge the charge could not be considered a false representation, fraud or knowing concealment under section 10(1) of the Citizenship Act. The application was dismissed in the absence of an intention on the part of the respondent to make false representations or knowingly conceal material circumstances in order to obtain citizenship.

58 The Plaintiff says that the requirement of intent in Minhas has been rejected, nuanced or distinguished in Copeland, Phan and Rogan, all above. It is true that in Copeland, which also dealt

7A - 8

with a failure to disclose a criminal conviction, Minhas was rejected on the basis that the presumption of innocence applied to criminal matters while a reference under section 18 is in the nature of a civil proceeding. The Court in that case concluded that the defendant knowingly concealed material facts within the meaning of section 18(1)(b), but the case does not address intent. Minhas was similarly dealt with in Phan where the defendant also failed to disclose pending criminal charges, although it accepted Minhas for the proposition that more must be established than a technical transgression of the Act. There, the Court found that the failure to disclose amounted to a false representation and a knowing concealment of material circumstances.

59 In Rogan, above, Justice Mactavish stated that:

[32] In order to find that someone "knowingly conceal[ed] material circumstances" within the meaning of section 10 of the Citizenship Act, 1985, "the Court must find on evidence, and/or reasonable inference from the evidence, that the person concerned concealed circumstances material to the decision, whether he knew or did not know that they were material, with the intent of misleading the decision-maker": Odynsky, above, at para. 159. See also Schneeberger, above, at para. 20.[Emphasis added]

60 In my view, these cases do not support a view that a mental element, or intent, is not required by sections 10 and 18.

61 Further, intent, or a mental element, is also reflected in the terms "false representations", "fraud", and "knowingly concealing material circumstances".

62 The term fraud, in the civil context, has been held by the Supreme Court in Hryniak, above, at para 87, having four elements which must be proven on the balance of probabilities, one of which is some level of knowledge of the falsehood of the representation on the part of the defendant (whether knowledge or recklessness). As noted by the Defendants, this Court in McEwing, above, found that electoral fraud for the purpose of section 524 of the Canada Elections Act involved proving on the civil standard the making of a false representation in an attempt to prevent electors from exercising their right to vote. Deliberately misinforming electors about their polling location constituted electoral fraud:

[63] The concept of fraud invalidating transactions of a civil nature has a long history in the common law. In civil law, fraud is a knowing misrepresentation of the truth or concealment of a material fact giving rise to a claim of damages for the loss sustained or the avoidance of a contract: Bryan A Garner, ed, Black's Law Dictionary, 7th ed (St Paul, Minnesota: West Group, 1999). [...]

[65] In the context of the Act as a whole, the object of the Act and the ordinary and grammatical meaning of fraud, it is sufficient to show that a false representation has been made in an attempt to prevent electors from exercising their right to vote for the candidate of their choice: Friesen v Hammell, 1999 BCCA 23 at para 75. [...]

[69] I agree with the submission of the Chief Electoral Officer that any action or instance meeting the dictionary definition of fraud would constitute electoral fraud where it was done in contravention of a provision of the Canada Elections Act or where it served to

7A - 9

defeat a process provided for in that Act. It seems to me to be clear that deliberately misinforming electors about their polling location would thus be fraud within the meaning of s 524 and is provable on the civil standard.

63 And, in Samatar, above, which was a judicial review of a decision of the Public Service Commission finding the applicant guilty of fraud in the context of the Public Service Employment Act, this Court looked to both the French and English definitions of fraud. Both showed that fraud involves deceiving others in the aim of gaining some advantage and that there must be an intent to deceive. Justice Martineau found that "The determination of the intent behind the actions taken is therefore an essential element of the analysis of the evidence" (para 54).

64 As to the term "knowingly concealing material circumstances", this too requires intent as seen from Schneeberger, above:

[20] In Canada (Minister of Citizenship and Immigration) v. Odynsky (2001), 196 F.T.R. 1 (T.D.) Mr. Justice MacKay considered the meaning of the phrase "knowingly concealing material circumstances" as used in section 10 of the Act. He concluded, at paragraph 159, that the phrase requires that:

[...] the Court must find on evidence, and/or reasonable inference from the evidence, that the person concerned concealed circumstances material to the decision, whether he knew or did not know that they were material, with the intent of misleading the decision-maker.

65 This was also followed in Rogan, above.

66 This leaves "false representations". The Plaintiff in its submission states that the term false representations does not imply an intent to deceive and refers to Brooks, above, as applied in Odynsky, above, at para 158-161. However, paragraph 158 of Odynsky refers to Minhas and notes that there Associate Chief Justice Jerome was speaking of the phrase "false representation or fraud or knowingly concealing material circumstances" and, in that regard, quoted the passage which, as noted above, concludes that there is a further element of proof required, relating to state of mind. Further, that there must be some evidence that the person misrepresented material facts with the intention to deceive and to obtain citizenship on the basis of those false representations.

67 Similarly, the reference to Schneeberger at paras 22-23 does not concern the question of whether the term false representations implies intent, but dealt with knowing concealment:

[20] In Canada (MCI) v. Odynsky (2001), 196 F.T.R. 1 (T.D.) Mr. Justice MacKay considered the meaning of the phrase "knowingly concealing material circumstances" as used in section 10 of the Act. He concluded, at paragraph 159, that the phrase requires that:

[...] the Court must find on evidence, and/or reasonable inference from the evidence, that the person concerned concealed circumstances material to the decision, whether he knew or did not know that they were material, with the intent of misleading the decision-maker.

[21] Materiality is to be determined in light of the significance of the information not disclosed to the decision in question.

7A - 10

[22] Mr. Justice MacKay further considered, relying upon the decision of the Supreme Court of Canada in Canada (MMI) v. Brooks, [1974] S.C.R. 850, that a misrepresentation of a material fact includes an untruth, the withholding of truthful information, or a misleading answer which has the effect of foreclosing or averting further inquiries.

[23] Mr. Justice McKeown also applied Brooks, supra in the context of a citizenship revocation case in Canada (MCI) v. Baumgartner, (2001) 211 F.T.R. 197. Mr. Justice McKeown wrote as follows at paragraphs 138 through 140:

[138] In M.M.I. v. Brooks, [1974] S.C.R. 850, Laskin J., writing for the Court, held that untruths or misleading answers that in effect foreclose an avenue of inquiry may be material misrepresentations, even when the further inquiry might not have discovered any independent ground of deportation. Brooks, supra involved allegedly false answers given by the applicant on his application for admission into Canada. At 865-73, Laskin J. stated:...

68 The Court in Schneeberger concluded that an untruth or a misleading answer which has the effect of foreclosing or averting further inquiries may be a misrepresentation within the meaning of the Citizenship Act. Phan, above, merely quotes the above and other portions of Schneeberger. I do not understand these decisions to stand for the proposition that the term "false representation", as used in section 10, precludes intent. They are more directed at the materiality of such representations.

69 Representations may be made in error, in which case they may be innocent misrepresentations, but false representations imply untruths and misleading answers which, in turn, imply intent.

70 The issue of whether intent is a requirement element of section 10 of the Act was recently canvassed by Justice Kane in Canada (MCI) v Savic, 2014 FC 523 [Savic]. That case was decided after this matter had been heard. The Court was aware of the decision and it was also brought to the Court's attention by the Defendants prior to the issuance of my reasons. In Savic Justice Kane concluded that intent was required:

[68] The overall goal of section 10 is to ensure that persons who have obtained permanent resident status and citizenship by providing false information or by withholding information that is material to the decision will not continue to benefit from that status. In my view, intent to mislead the decision maker is required for all conduct referred to in section 10. That intention must be established on a balance of probabilities; the plaintiff must provide some evidence of intention or some evidence from which a reasonable inference of intention to mislead can be drawn.

71 And, with respect to false representations, she stated:

[74] This leaves for consideration the conduct contemplated by false representations, which the plaintiff alternatively submits does not require an intention to mislead. As noted above, I do not agree. Simply making a false statement (i.e., a false representation) in error or

7A - 11

inadvertently should not result in a declaration under section 10. Some intention to mislead is required. This intention must be established on a balance of probabilities. [...]

[77] I note the recent case of Canada (MCI) v Thiara, 2014 FC 220 (CanLII), 2014 FC 220, 2014 FCJ No 288, which the defendant brought to the Court's attention after the hearing and before my reasons were released.

[78] In that case, Justice Roy concluded, as I have, that an intent to deceive is required.

[49] Obtaining citizenship by false representation implies an action made with the intent to deceive. That to my way of thinking implies the knowledge that something is false and the conscience that a statement is made. Black's Law Dictionary, 7th ed., West Group, defines a representation as "a presentation of fact -- either by words or by conduct -made to induce someone to act". In this case, the burden of proving that the defendant was conscious he was making a representation, i.e. that it was made to induce action, has not been discharged. On a balance of probabilities, the defendant's behaviour must be found to be innocent.

72 Justice Kane concluded that the only possible issue for a trial would be whether an intention to mislead the decision maker was a necessary requirement pursuant to section 10, and, whether the defendant had such intent. She found that the legal issues regarding intent had been fully argued by the parties on the motion and that the relevant evidence to determine whether the defendant had the requisite intent was on the record. As she had found that an intention to mislead the decision maker is an element of section 10, and that the plaintiff had established on the balance of probabilities that the defendant had the intent to mislead the decision-maker when he knowingly concealed material circumstances and made false representations, summary judgment was granted.

73 I acknowledge, as noted by the Plaintiff, Lorne Waldman, Immigration Law and Practice, above at 4-62, para 4.115, would appear to conclude differently:

4.115 The three ground for revocation are false representation, fraud, and knowingly concealing material circumstances. The last two would involve mens rea on the part of the applicant. However, false representation does not appear to require any intention.

74 It is also true that in Brooks, above, in considering section 19(1)(e) of the Immigration Act, RSC 1952, c 325, the Supreme Court found that the Immigration Appeal Board erred by finding that "any person, other than a Canadian citizen or a person with Canadian domicile, who (viii) came into Canada or remains therein [...] by reason of any false or misleading information, force, stealth or other fraudulent or improper means, whether exercised or given by himself or by any other person..." required willful or intentional falsehood and that it be designed to mislead. The Supreme Court stated that it could not be persuaded that intentional or willful deception should be read in as a prerequisite.

75 The Plaintiff also submits that the Court's interpretation of each of the three distinct means of unlawfully obtaining citizenship indicates that they each have distinct conceptual concepts. Because intent has been attributed to "knowingly concealing material circumstances" but not to

7A - 12

"false representation", Parliament could not have intended intent to comprise an element of sections 10 and 18.

76 I have some difficulty with this position. It seems to lack logic that, if some but not all of these terms have been found to include intent by the Court, this demonstrates that Parliament would not have intended intent to be an element of the whole of the provision. It seems more likely that if intent is an element of one of these terms then, viewed in the context of the object of the section in whole, intent would be an element of all of them. I also note that none of the cases cited addressed this issue. Further, section 10 reads: "...obtained...citizenship... by false representation or fraud or by knowingly concealing ..." (emphasis added) which appears to group false representation together with fraud, the latter of which clearly includes intent.

77 In view of the foregoing, I find that sections 10 and 18 do include a mental element and, based on the evidence, that Sami and Karim Zakaria did not have intent in these circumstances. However, this is not the determinative issue on this motion for summary judgment.

78 By way of section 5(2) of the Citizenship Act and section 4 of the Citizenship Regulations a parent is explicitly permitted to make an application on behalf of their minor child or children. Therefore, it has to be assumed that the information contained in that application is and was intended to be provided by the parent. In that event, the child clearly obtains citizenship based on that information, which is admitted in this case. Thus, in my view, as section 10 states that where the Governor in Council is satisfied "that any person has obtained...citizenship... by false representation or fraud or by knowingly concealing material circumstances, the person ceases to be a citizen", it must be understood to mean that a minor is "any" such a person and that any false representation or fraud or knowing concealment of material circumstances, regardless of whether intent is a requisite element, must be that of the parent. Otherwise, the provision would read "that a person has obtained citizenship by...that person ceases to be a citizen". In this regard, I agree with the Plaintiff that the focus of the provision is on how any such person obtained citizenship.

79 In this regard, I would also note question 11 of the citizenship application which states:

I agree to advise Citizenship and Immigration if any information on this form changes before the child takes the oath of Citizenship. I understand the contents of this form. I declare that the information provided is true, correct and complete, and that the photographs enclosed are a true likeness of the child. I understand that if I make a false declaration, or fail to disclose all information material to the child's application, the child could lose his/her Canadian citizenship and I could be charged under the Citizenship Act. (Emphasis added)

80 In this case question 11 was signed by Rim Sawaf on both of her sons' applications. While not determinative, this supports my view that section 10 is to be interpreted such that a misrepresentation of a parent, by which a minor obtains citizenship, can result in revocation of the minor's citizenship.

81 The difficulty with this conclusion, of course, is that to determine how Sami and Karim Zakaria obtained citizenship requires an analysis of their mother's actions and a determination of whether her failure to identify this comprises false representation or fraud or knowing concealment

7A - 13

of material circumstances which resulted in her sons obtaining citizenship. Subsumed within this is the issue of her intent and the question of whether the omitted information amounts to a material circumstance in this situation. However, the facts needed to make those determinations are not before this Court.

82 In that regard I would also note that question 12, entitled "Individual, Firm or Organization who Assisted in Completion of this Application". It states that it is not to be completed by the applicant and requires the particulars of the party assisting and their signature. This was left blank in Rim Sawaf's application as well as those of her sons. As question 12 falls below the signed declaration of the applicant found in question 11, this too suggests that there may be an issue as to whether such an omission comprises a false representation or knowing concealment of a material circumstance for the purposes of section 10. This too is an issue to be resolved at trial.

83 On one final point, although both parties, for different premises, refer to section 40 of the IRPA, the comparison is not instructive. Although it and sections 10 and 18 of the Citizenship Act may have a similar objective, which is to require complete and truthful disclosure, the wording of section 40 is sufficiently dissimilar to sections 10 and 18 of the Citizenship Act that direct comparisons of terms are not helpful. Section 40 refers to directly or indirectly misrepresenting or withholding material facts. Indirectly indicates a lack of intent which is confirmed by jurisprudence that has held that indirect misrepresentation can be made by a third person, including a parent, and that misrepresentations can be innocent

84 In conclusion I find that:

i. Sami and Karim Zakaria had no knowledge of the fact that their mother, Rim Sawaf, had used the assistance of an immigration consultant;

ii. Sections 10 and 18 of the Citizenship Act do include a mental element but that, based on the evidence before me, Sami and Karim Zakaria did not have the requisite intent;

iii. While the question of whether or not sections 10 and 18 of the Citizenship Act require a mental element is a question of law, which I have determined, this is not dispositive of this motion for summary judgment;

iv. The Citizenship Act and the Citizenship Regulations permit a parent to make a citizenship application on behalf of their minor child. Therefore, any allegation of false representations or fraud or knowing concealment of material circumstances must pertain to the acts or omissions of the parent which, in this case, concerns Rim Sawaf, the mother of Sami and Karim Zakaria;

v. Based on the evidence before me I am unable to determine whether the acts or omissions of Rim Sawaf establish that she made a false representation or knowingly concealed material circumstances, as alleged, by which Sami and Karim Zakaria obtained their citizenship; and

vi. Accordingly, this matter is not appropriate for disposition by way of summary judgment as there is a genuine issue for trial.

7A - 14

POLICY BASIS FOR DUTY OF CANDOUR

Zhoa v. Canada (MCI), [2012] F.C.J. No. 1532; 2012 FC 1421 Shore J.

1 Maintaining that the duty of candour is of paramount essence to the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]; and acknowledging that without such candour, the objectives as set out in Section 3 of the IRPA risk failure.

2 Understanding that the Canadian immigration authorities rely, first and foremost, on candour to ensure that their respective decisions reflect the health, family, security, social, economic and cultural fabric which Canada has set for itself through objectives as set out in legislative provisions of the IRPA, all of which are reflected in the Section 3 framework encompassing the Act.

MISREPRESENTATION BY WITHOLDING ANSWERS

Ghasemzadeh v. Canada (MCI), [2012] 1 F.C.R. 116; [2010] F.C.J. No. 875; 2010 FC 716 Lemieux J.

11 Throughout the immigration process, the onus is on the applicant to show that he meets the requirements of IRPA. Subsection 16(1) of IRPA imposes a duty on [page125] the applicant to answer truthfully all questions asked during an examination. A visa may be issued if, following an examination, an officer is satisfied that a foreign national is not inadmissible and meets the requirements of IRPA (IRPA, section 11). To facilitate the visa officer's decision, the applicant is required to answer truthfully all questions put to him for the purposes of the examination (IRPA, subsection 16(1)). Should the Minister deny the visa on the basis of inadmissibility, the onus is on the Minister to show the grounds for a finding of inadmissibility.

12 In addition to the discrete grounds of inadmissibility such as security (section 34), serious criminality (section 36 [as am. by S.C. 2008, c. 3, s. 3]) or health (section 38), is the broader ground of misrepresentation (IRPA, paragraph 40(1)(a)). That section can apply to direct misrepresentation (e.g. providing false information to an officer) and indirect misrepresentation (e.g. information provided by a person other than one who is rendered inadmissible) or to a withholding of material facts, which is the situation in this case. In order to rely on the latter, the Minister must be satisfied that the following elements of withholding are made out:

(1) that there is a withholding, and

(2) that the withholding is of material fact relating to a relevant matter, and

(3) the withholding induces, or could induce an error in the administration of the Act.

(See Bellido v. Canada (MCI), 2005 FC 452, at para 27 (Bellido cited to F.C.), quoted with approval in Zhang v. Canada (MCI), 2005 FC 1313, 281 F.T.R. 35, at paragraph 17.)

7A - 15

13 In general terms, an applicant for permanent residence has a duty of candour to disclose all material [page126] facts during the application process as well as and after a visa is issued (Baro v. Canada (MCI), 2007 FC 1299 (Baro), at paragraph 15). To omit material facts may constitute a misrepresentation in the form of a withholding. For example, where an applicant's marital status has changed and the applicant has failed to alert immigration officials to this information, the Court has found an applicant to have withheld material information such that he is now inadmissible because of misrepresentation (Baro, at paragraphs 18-19). However, as the Federal Court affirmed, in Baro, above, an exception arises where an applicant can show reasonable belief that he or she was not withholding material information (Medel v. Canada (MEI), [1990] 2 F.C. 345 (C.A.), cited in Baro, at paragraph 15). Thus, the duty of candour is not unbounded: "'there is no onus on the person to disclose all information that might possibly be relevant'" (Baro, at paragraph 17). The facts of each case will illustrate whether the applicant can rely on this exception.

36 The misrepresentation in this case is a withholding of information by way of refusal to answer certain questions regarding past employment activities. While the materiality of the answers to those questions cannot be assessed for obvious reasons no answers were given, the scope of the inquiry can be. In refusing the applicant's permanent residence application, counsellor Dupuis reasoned the withholding of answers related to the [page135] applicant's work at DIO could have resulted in an inaccurate assessment of his inadmissibility. In Biao v. Canada (Minister of Citizenship and Immigration), 2001 FCA 43, 278 N.R. 36 (Biao), the Federal Court of Appeal held that a visa officer would be justified in denying an application for permanent residence if the approval would contravene the Act [Immigration Act ]. The Court determined the applicant's failure to provide necessary documents to establish his admissibility to Canada did not contravene the Immigration Act but rather constituted an appropriate basis for the officer's decision to deny the application (Biao, at paragraph 2). This same reasoning should apply to the facts of this case.

39 Counsel for the applicant relied on a number of other cases in support of her proposition in this case that there was no connection between the withholding and his application to become a permanent resident of Canada. She relied on Baseer v. Canada (MCI), 2004 FC 1005, 256 F.T.R. 318; Walia v. Canada (MCI, 2008 FC 486, 72 Imm. L.R. (3d) 266; and Mukamutara, above. With respect, none of the cases listed are of assistance to the applicant. Baseer was decided on the basis that there was no evidence to support a misrepresentation. Walia was based on the fact that the evidence did not establish the facts relevant to admissibility which was also the case in Mukamutara.

40 It is true that counsellor Dupuis did not cite the specific ground of inadmissibility, e.g. security, or criminality, terrorism or war crimes. This omission does not constitute an error because the totality of the facts leads to only one reasonable conclusion: he knew he was a security concern and remains so. (See Boulis v. Minister of Manpower and Immigration, [1974] S.C.R. 875, at page 885 for the legal proposition that the Court refrain from reading a Board's reasons microscopically; and note, the following pages in the applicant's record are evidence the applicant knew perfectly well the concern which the Canadian officials had with his employment at DIO and SIO and the circumstances surrounding those employments (e.g. links with high officials in the Iranian government) were security concerns related to his admissibility-see pages 71 to 108 and in particular page 103.)

7A - 16

41 Despite the able arguments of the applicant's counsel, the materiality of the questions regarding his activities at DIO is without doubt. As in Mohammed v. Canada (MCI), [1997] 3 F.C. 299 (T.D.), the effect of refusal, specifically the failure to disclose his employment activities, was to foreclose or avert further inquiries. Ultimately, the purpose of the officer's inquiry regarding inadmissibility is frustrated. The withholding could have induced an error in the determination of the applicant's inadmissibility under IRPA, as counsellor Dupuis identified.

SANCTION FOR MISREPRESENTION – DENIAL OF REUNIFICATION IN CANADA

Kisana v. Canada (MCI), [2009] F.C.J. No. 713; 2009 FCA 189 Létourneau, Nadon and Trudel JJ.A.

25 The appellants make three primary arguments on this issue: first, that the officer failed to expressly consider that it was the parents and not the twins who made the misrepresentations, that the parents were not subject to enforcement action and that they were permitted to remain in Canada; second, that the officer erred in refusing to accept the consistent oral statements of the twins and their aunt; and third, that the officer limited her consideration of the best interests of the children to hardship, without focusing on other relevant factors.

26 With respect to the first argument, I am satisfied that it was not incumbent on the officer to highlight the fact that the twins were innocent of any wrongdoing. The first case cited by the appellants for this proposition, Momcilovic v. Canada (Minister of Citizenship and Immigration), 2005 FC 79 at paragraph 53, does not suggest this in any way. The second, Mulholland v. Canada (MCI), [2001] 4 F.C. 99, (2001) F.C.T. 597, at paragraphs 29-30, only stands for the proposition that it is unreasonable for an immigration officer to effectively ignore the interests of a child on the basis that it was the parents' "choice" to have the child in the first place.

27 In this type of case, where children are "left behind" due to a parent's misrepresentation on an immigration application, it will usually be self-evident that the child was not complicit in the misrepresentation. Yet, it is well established that such misrepresentation is a relevant public policy consideration in an H&C assessment (see, for example: Li v. Canada (Minister of Citizenship and Immigration), 2006 FC 1292 at paragraph 33). Inevitably, the factors favouring reunification of the family in Canada will not always outweigh the public policy concerns arising from a misrepresentation. This is not tantamount to "visiting the sins of the mother upon the children" as in Mulholland, supra, where the officer failed to consider the children's interests at all. Similarly, in my view, an officer is not bound to mention the fact that the parents' removal from Canada had not been sought as a result of their misrepresentations. If the parents were being removed, they would obviously not be in a position to sponsor a child in the first place. The fact that the parents are entitled to remain in Canada is a fact that will be self-evident in cases of children "left behind".

DUTY OF CANDOUR – SCOPE OF DISCLOSURE OF MATERIAL FACTS

Baro v. Canada (MCI), [2007] F.C.J. No. 1667; 2007 FC 1299 O'Reilly J.

7A - 17

15 Under s. 40(1)(a) of IRPA, a person is inadmissible to Canada if he or she "withholds material facts relating to a relevant matter that induces or could induce an error in the administration" of the Act. In general terms, an applicant for permanent residence has a "duty of candour" which requires disclosure of material facts. This duty extends to variations in his or her personal circumstances, including a change of marital status: Mohammed v. Canada (MCI), [1997] 3 F.C. 299 (F.C.T.D.) (QL). Even an innocent failure to provide material information can result in a finding of inadmissibility; for example, an applicant who fails to include all of her children in her application may be inadmissible: Bickin v. Canada (MCI), [2000] F.C.J. No.1495 (F.C.T.D.) (QL). An exception arises where applicants can show that they honestly and reasonably believed that they were not withholding material information: Medel v. Canada (MEI), [1990] 2 F.C. 345, [1990] F.C.J. No. 318 (F.C.A.) (QL).

16 An applicant's marital history is clearly relevant to an application for permanent residence based on a spousal sponsorship. Canadian officials will want to ensure that the union is genuine and the applicant's marital background is a valid factor for them to take into account: Quizon.v. Canada (MCI), [1997] F.C.J. No. 1076 (F.C.T.D.) (QL).

17 Of course, applicants cannot be expected to anticipate the kinds of information that immigration officials might be interested in receiving. As the IAD noted here, "there is no onus on the person to disclose all information that might possibly be relevant". One must look at the surrounding circumstances to decide whether the applicant has failed to comply with s. 40(1)(a).

18 Here, the Canadian officials who were responsible for processing Mr. Baro's application for permanent residence, based on a spousal sponsorship, asked him for a "marriage check". Obviously, this request alerted Mr. Baro to the fact that those officials wanted to know if he had been married before. In my view, in these circumstances, Mr. Baro was obliged to disclose his marital history. True, he complied with the request for an official certificate of marriage registration. However, his compliance with that request did not absolve him of the obligation to divulge his previous marriage and the steps he took to have his first wife presumed dead. Mr. Baro could not have reasonably believed that he was not withholding material information.

SANCTION FOR MISREPRESENTION – DENIAL OF REUNIFICATION IN CANADA

De Guzman v. Canada (MCI), [2005] F.C.J. No. 2119; 2005 FCA 436; Desjardins, Evans, Malone JJ.A.

37 Thus, the Minister may decide that, since Ms. de Guzman has been in Canada for more than ten years, it would be unduly harsh, and expensive, to institute proceedings under section 10 of the Citizenship Act, R.S.C. 1985, c. C-29, to revoke her citizenship, with a view to making a removal order against her on the ground that she is inadmissible under subsection 40(1) because of her misrepresentations. However, it is hardly surprising to conclude that Parliament has also authorized another, less onerous sanction for misrepresentation, namely, ineligibility to sponsor unexamined dependants as members of the family class.

7A - 18

38 In my view, it would seriously impede the effective administration of immigration to interpret IRPA as precluding the possibility that, in addition to removal, another sanction may be imposed on a person who misrepresented a material fact in order to gain entry to Canada. It would result in undue administrative rigidity to conclude that misrepresentations by visa applicants which undermine the integrity of the statutory scheme may not be taken into account when regulations are made under section 14, on the ground that misrepresentations are expressly dealt with in Division 4.

40 Counsel points out that paragraph 117(9)(d) prevents a person from ever sponsoring a foreign national as a member of the family class, whereas paragraph 40(2)(a) provides that a person removed under section 40 for misrepresentation is only inadmissible for two years. The argument would seem to be that, having expressly imposed only a two-year period of inadmissibility for misrepresentation, Parliament should not be taken to have authorized implicitly a regulation made under another Division, which, for the same conduct, results in a lifetime ban on sponsorship.

41 For reasons already given, I do not regard removal as the only sanction for misrepresentation that is consistent with the scheme created by IRPA. Further, removal is generally a more serious sanction than an inability to sponsor a person as a member of the family class, especially since sponsorship may not be a foreign national's only avenue of access to Canada. And, while the period of inadmissibility for misrepresentation lasts for only two years, persons who wish to return to Canada at the end of that time must apply for a visa and demonstrate that they meet selection criteria. There is no automatic right to return after two years.


Mohammed v. Canada (MCI), [1997] F.C.J. No. 605; [1997] 3 C.F. 299 MacKay J.

30 I also reject the related argument put forth by counsel for the applicant that in order for there to be "misrepresentation", there must be active concealment. In my view, this is an interpretation of the word that is too narrow. This argument I reject based on the following three grounds.

31 First, this definition, in my opinion, draws a false distinction in the sense that silence itself may also be an act of conscious concealment. One can misrepresent as easily and effectively by silence as one can by actively stating a mistruth. Were the definition advanced by counsel for the applicant to be adopted, in no case where an individual chose to keep quiet rather than put forward accurate and relevant information could that person ever be found to have misrepresented a material fact. Similarly, no person who refused to answer a question and instead allowed outdated or false information to be represented as accurate could ever be found to have misrepresented a "material fact" pursuant to paragraph 27(1)(e).

32 Second, in my opinion, such an interpretation is simply not supported by paragraph 27(1)(e) which, by its language, encompasses any misrepresentation "made by himself or by any other person". Given that a misrepresentation under this provision could be made by "another

7A - 19

person", as in D'Souza, I fail to see how the provision could be read so as to be limited in its application to only apply to active concealment on the part of the applicant.

33 Third, the interpretation advanced by counsel for the applicant, that a misrepresentation must be made "knowingly" or "willfully" by the applicant requires reading into the statute words not expressed by Parliament. In my opinion, the absence of such language gives rise to the implication that such a requirement was deliberately excluded by Parliament. Had Parliament intended to inject a mens rea or subjective element of intent into paragraph 27(1)(e), presumably it would have done so. In this manner, paragraph 27(1)(e) may be usefully contrasted with other provisions of the Act, such as those found in s.94 which identifies specific offences under the Act, which explicitly contain mens rea or subjective knowledge as a required element of the provision.3 Indeed, even within section 27 itself, paragraph 27(1)(g) states that an immigration officer shall issue a written report to the Deputy Minister regarding a permanent resident who: (f) willfully fails to support himself or any dependent member of his family in Canada,

34 As support for the argument that paragraph 27(1)(e) requires mens rea or subjective intent in order for there to be "misrepresentation" of a "material fact", counsel for the applicant relies on the case of Medel v. Minister of Employment and Immigration.4 According to counsel for the applicant, the Medel case stands for the proposition that in order for there to be "misrepresentation" pursuant to paragraph 27(1)(e), the misrepresentation must be made "knowingly". In my opinion, Medel may be distinguished from the case at bar.

37 The present circumstances may be distinguished from Medel on these two grounds. In Medel, the misrepresentation or non-disclosure in question was that the appellant did not volunteer to the immigration officer that the Embassy in Guatemala had requested the return of her visa because of an "error". This information, MacGuigan J.A. suggested, was not "material" in the sense that it was not information which, as stated in Minister of Manpower and Immigration v. Brooks6, had "an inducing influence" on whether or not the applicant was granted landing. Focussing on this issue of "materiality" or the relevance of the "improper or fraudulent means" by which an applicant is granted landing, MacGuigan J.A. stated as follows:

It is common ground that immigration claimants owe the "positive duty of candour" on all material facts which denote a change in circumstances since the issuance of the visa that was recognized in this Court in Minister of Employment and Immigration v. Gudino, [1982] 2 F.C. 40. The issue is as to what that duty of candour requires in the circumstances such as those at bar.

... in my view, the real issue in the case at bar is rather as to the relevance of the means as reasonably and objectively measured. The Court in Brooks gave no final answer on this question of materiality, but it was very much in its contemplation, particularly in relation to the very words under consideration in the case at bar [i.e. "fraudulent or improper means or misrepresentation" in ss.27(1)(e)] per Laskin J. at pages 870-871):

In my opinion, if the materiality of matters on which no questions are asked is cognizable under s. 19(1)(e)(viii), it would be under the words "other fraudulent or

7A - 20

improper means". They are broad enough to embrace non-disclosure of facts which would be material to admission or non-admission if known. ...

Section 19(1)(e)(viii) ... does, however, stipulate that where false or misleading information is the basis of deportation proceedings against a previously landed immigrant, it be shown that it was by reason of any such information that he came into or remained in Canada. The phrase "by reason of" imports something beyond the mere giving of false or misleading information; it connotes an inducing influence of the information, and hence I agree with the Immigration Appeal Board that it brings in materiality. It is on this basis that, in my opinion, the inadvertence or carelessness of an answer must be weighed as to its consequences; and it is in this connection, and not as importing any element of mens rea (as the Board stated) that the certification statement in the admission documents herein, namely, "my answers ... are true ... to ... the best of my knowledge" has significance for the purposes of s. 19(1)(e)(viii).7 ... [underlining added]

38 On the basis of this interpretation of the significance of the "materiality" of the information withheld, MacGuigan J.A. concluded that given the information withheld - that the Embassy in Guatemala had requested the return of her visa, and that she did not produce for scrutiny the Embassy's telegram to her - was not "material" in that "it might not have triggered any further inquiry at that time."8

39 Further, MacGuigan J.A. concluded, the appellant was clearly "subjectively unaware that she was holding anything back". She was not informed that her sponsorship was withdrawn, but instead was led to believe by the Embassy that a correction was necessary to enable her to use her visa, for which the Court notes the applicant had "reasonably deduced that there continued to be no problem respecting her admission."9

40 In my opinion, the principle which arises from the above comments of MacGuigan J.A. in Medel is that the duty of candour owed by the applicant depends on the materiality of the information withheld. A change in marital status has repeatedly been held to constitute a "material fact" for the purposes of paragraph 27(1)(e) of the Act, in so far as the failure to disclose it, as stated in Brooks, supra, may reasonably have "the effect of foreclosing or averting further inquiries".10 In the present case, the information failed to be disclosed by the applicant, his change in marital status, was clearly "material" information in that it potentially would have had a direct or inducing influence on whether or not he was granted landing in Canada.

41 The present circumstances may also be distinguished from those in Medel on the basis that the information which the applicant failed to disclose was not information regarding which he was truly subjectively unaware. The applicant in the present case was not unaware that he was married. Nor was it information, as in Medel, the knowledge of which was beyond his control. This was not information which had been concealed from him or about which he had been misled by Embassy officials. The applicant's alleged ignorance regarding the requirement to report such a material change in his marital status and his inability to communicate this information to an immigration officer upon arrival does not, in my opinion, constitute "subjective unawareness" of the material information as contemplated in Medel.

7A - 21

51 In the present case, the applicant had a duty to inform immigration officials of any change in circumstances relevant to the issuance of his visa. This duty was his at both stages of the process for gaining admission to Canada, to inform visa officials prior to leaving Bangladesh, as well as the immigration officer upon entering Canada, of any material change in circumstances since the issuance of his visa, particularly in regard to his marital status. As an applicant, it was his responsibility to meet the requirements of the procedure of which he sought to avail himself.

52 In my view, the fact that the applicant was unable to understand or communicate in English or French, while regrettable, does not absolve him of what is, at the end of the day, his own failure to fail to meet the obligation imposed upon him by the Immigration Act. The applicant failed to meet his obligation to notify officials of the change in his marital status prior to leaving Bangladesh and upon entering Canada.

53 Prospective immigrants may arrive at a port of entry in this country with a visa in hand, and only their native language for communication, with little or no facility in Canada's official languages. In my view, to impose upon immigration officials the obligation of reviewing every aspect of material information from each and every applicant with interpreters as may be necessary would place an onerous burden upon the state, and would put immigration officials in the role of investigators.

54 The responsibility of satisfying the requirements of the Act and the regulations to gain entry to Canada clearly falls upon the person seeking admission to this country. This obligation requires that an applicant disclose truthfully all material information, and any material change in that information, which is relevant to the issuance of a visa. This responsibility was placed on the applicant at the time of completing his application for permanent residence, and remained on the applicant at the time of his arrival in Canada.


Chan v. Canada (MCI), [1995] F.C.J. No. 1368 Rouleau J.

13 As I reviewed the facts of this case, and the decision of the adjudicator, I am satisfied that there was an erroneous interpretation of the law. The Applicant, when completing this questionnaire, was only seeking a two-day transit visa; she explained that in her culture she considered herself married; this, the adjudicator found "understandable". This person was in no way attempting to obtain a visa through fraud, improper means or misrepresentation of a material fact. I take comfort in my interpretation. The decision of the Federal Court of Appeal is Anna Esperanza Medel v. MEI, [1990] 2 F.C. 345 at 348, where MacGuigan J.A. wrote:

It is common ground that immigration claimants owe the "positive duty of candour" on all material facts which denote a change of circumstances since the issuance of the visa that was recognized in this Court in MEI v. Gudino, [1982] 2 F.C. 40 (per Heald J.). The issue is as to what that duty of candour requires in circumstances such as those at bar.

In Brooks, the Supreme Court interpreted a statutory provision which was substantially identical with that in the present case except for the phrase there interpreted by the Court:

7A - 22

"by reason of any false or misleading information". However, even if we assume, without deciding, that "improper" means should not be interpreted to mean "fraudulent" means, nevertheless, in my view the real issue in the case at bar is rather as to the relevance of the means, as reasonably and objectively measured. The Court in Brooks gave no final answer on this question of materiality, but it was very much within its contemplation, particularly in relation to the very words under consideration in the case at bar (per Laskin J. at pages 870-871:

In my opinion, if the materiality of matters on which no questions are asked is cognizable under s. 19(1)(e)(viii), it would be under the words "other fraudulent or improper means". They are broad enough to embrace non-disclosure of facts which would be material to admission or non-admission if known. . . .

Section 19(1)(e)(viii) ... does, however, stipulate that where false or misleading information is the basis of deportation proceedings against a previously landed immigrant, it be shown that it was by reason of any such information that he came into or remained in Canada. The phrase "by reason of" imports something beyond the mere giving of false or misleading information; it connotes an inducing influence of the information, and hence I agree with the Immigration Appeal Board that it brings in materiality. It is on this basis that, in my opinion, the inadvertence or carelessness of an answer must be weighed as to its consequences; and it is in this connection, and not as importing any element of mens rea (as the Board stated) that the certification statement in the admission documents herein, namely, "my answers ... are true ... to the best of my knowledge" has significance for the purposes of s. 19(1)(e)(viii). [Underlining added.]

14 Clearly, this Applicant was not aware that she was misinterpreting facts in order to enter Canada by dishonest means; she had no idea that she was to stay in Canada when she initially applied - she was passing through. This is not a material omission or admission that would have precluded her from obtaining either the initial transit visa nor the visitors visa.


Medel v. Canada (MEI), [1990] F.C.J. No. 318; [1990] 2 F.C. 345 Marceau, Stone, MacGuigan JJ.A.

It is common ground that immigration claimants owe the "positive duty of candour" on all material facts which denote a change of circumstances since the issuance of the visa that was recognized in this Court in Minister of Employment and Immigration v. Gudino, [1982] 2 F.C. 40 (per Heald J.A.). The issue is as to what that duty of candour requires in circumstances such as those at bar.

In Brooks, the Supreme Court interpreted a statutory provision which was substantially identical with that in the present case except for the phrase there interpreted by the Court: "by reason of any false or misleading information". However, even if we assume, without deciding, that "improper" means should not be interpreted to mean "fraudulent" means, nevertheless, in my view the real

7A - 23

issue in the case at bar is rather as to the relevance of the means, as reasonably and objectively measured. The Court in Brooks gave no final answer on this question of materiality, but it was very much within its contemplation, particularly in relation to the very words under consideration in the case at bar (per Laskin J. at 870-1):

In my opinion, if the materiality of matters on which no questions are asked is cognizable under s. 19(1)(e)(viii), it would be under the words "other fraudulent or improper means". They are broad enough to embrace non-disclosure of facts which would be material to admission or non-admission if known ...

Section 19(1)(e)(viii) ... does, however, stipulate that where false or misleading information is the basis of deportation proceedings against a previously landed immigrant, it be shown that it was by reason of any such information that he came into or remained in Canada. The phrase "by reason of" imports something beyond the mere giving of false or misleading information; it connotes an inducing influence of the information, and hence I agree with the Immigration Appeal Board that it brings in materiality. It is on this basis that, in my opinion, the inadvertence or carelessness of an answer must be weighed as to its consequences; and it is in this connection, and not as importing any element of mens rea (as the Board stated) that the certification statement in the admission documents herein, namely, "my answers ... are true ... to the best of my knowledge" has significance for the purposes of s. 19(1)(e)(viii). ... [Emphasis added]

In the case at bar, the non-disclosure in question was the fact that the appellant did not volunteer to the admitting officer the information that the Embassy in Guatemala had requested the return of her visa, which, given her lack of English, might have been next to impossible - or that she did not produce for scrutiny the Embassy's telegram to her - though since that was in Spanish, it might not have triggered any further inquiry at the time.

Clearly, the appellant was subjectively unaware that she was holding anything back. She had no knowledge of her husband's withdrawal of sponsorship and her impression was that the Embassy was being excessively bureaucratic. Her uncle, her friend, and indeed the Canadian Consulate in Honduras had assured her that her visa was valid. She may well have thought that, if there were any minor irregularities in the visa, they could be cured as easily in Calgary as in Guatemala City.

It seems to me that the same factors, looked at objectively, lead to the conclusion that she reasonably believed that at the border she was withholding nothing relevant to her admission. That was, in fact, precisely what she had been told by the Embassy, viz., that a correction was necessary to enable her to use the visa, from which she would have reasonably deduced that there continued to be no problem respecting her admission.

This is quite different from the situation in Brooks where the immigration claimant concealed information about his conviction for bigamy and about criminal charges and deportation proceedings against him in the Philippines. It also has nothing in common with Gudino where the claimant had been telephoned by the Embassy in Mexico that, since his offer of employment in Canada had been withdrawn, his visa was no longer valid and he should not attempt to enter

7A - 24

Canada. The appellant in the case at bar might well have been in Gudino's position if she had been told the truth by the Embassy. But what she was told puts her in an entirely different position.


Canada (MEI) v. Gudino, [1981] F.C.J. No. 181; [1982] 2 F.C. 40 Heald, Urie JJ. and Kelly D.J.

5 I think this submission may well result in an interpretation of "change of circumstances" which is too restrictive. However, on the facts of this case, the fact of loss of employment had the effect of altering respondent's status from one who was eligible to one who was not eligible for permanent residence. Without the points awarded to him for his "arranged employment" he did not have enough points to qualify for permanent residence. Accordingly, he would become inadmissible under paragraph 5(t) of the old Act which declared inadmissible:

5. ... (t) persons who cannot or do not fulfil or comply with any of the conditions or requirements of this Act or the regulations or any orders lawfully made or given under this Act or the regulations.

In these circumstances, the test of materiality referred to in the Brooks case4 has, in my opinion, been satisfied. The change of circumstances having to do with loss of his employment was clearly material and should have been disclosed to the immigration officer at the port of entry. In dealing with a similar situation, Lord Wilberforce had this to say concerning the duty of an alien seeking entry to the United Kingdom5:

In my opinion an alien seeking entry to the United Kingdom owes a positive duty of candour on all material facts which denote a change of circumstances since the issue of the entry clearance. He is seeking a privilege; he alone is, as to most such matters, aware of the facts: the decision to allow him to enter, and he knows this, is based on a broad appreciation by immigration officers of a complex of considerations, and this appreciation can only be made fairly and humanely if, on his side, the entrant acts with openness and frankness. It is insufficient, in my opinion, to set as the standard of disclosure that which applies in the law of contract; the relation of an intending entrant and the authorities is quite different in nature from that of persons negotiating in business. The former requires a higher and more exacting standard. To set it any lower than as I have described is to invite, as unhappily so many of the reported cases show, a bureaucratic and anti-bureaucratic contest with increasing astuteness, manoeuvring and ingenuity on one side, and increasingly cautious technicality and procrastination on the other. This cannot be in the interest of sensitive administration.

In this case, the respondent admitted that the cancellation of his visa had been communicated to him, and that when he attended at the port of entry, he deliberately refrained from advising the immigration officer of that fact, thereby breaching the "duty of candour" referred to by Lord Wilberforce in the Zamir case supra. He has, therefore, in my view, obtained landing as a permanent resident by reason of improper means contrary to paragraph 27(1)(e) supra.

7A - 25

DUTY OF CANDOUR – EX PARTE PROCEEDINGS

Ruby v. Canada (Solicitor General), [2002] S.C.J. No. 73; 2002 SCC 75; [2002] 4 S.C.R. 3 McLachlin C.J. and L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.

27 In all cases where a party is before the court on an ex parte basis, the party is under a duty of utmost good faith in the representations that it makes to the court. The evidence presented must be complete and thorough and no relevant information adverse to the interest of that party may be withheld: Royal Bank, supra, at para. 11. Virtually all codes of professional conduct impose such an ethical obligation on lawyers. See for example the Alberta Code of Professional Conduct, c. 10, r. 8.

Canada (Citizenship and Immigration) v. Harkat, [2014] 2 SCR 33, 2014 SCC 37 (CanLII)

[101] In Ruby, this Court recognized that duties of candour and utmost good faith apply when a party relies upon evidence in ex parte proceedings: “The evidence presented must be complete and thorough and no relevant information adverse to the interest of that party may be withheld” (para. 27). The Federal Court added, in Almrei (Re), 2009 FC 1263 (CanLII), [2011] 1 F.C.R. 163, at para. 500, that “[t]he duties of utmost good faith and candour imply that the party relying upon the presentation of ex parte evidence will conduct a thorough review of the information in its possession and make representations based on all of the information including that which is unfavourable to their case.”

[102] The duties of candour and utmost good faith require an ongoing effort to update, throughout the proceedings, the information and evidence regarding the named person: see, for example, Almrei, 2009 FC 1263 (CanLII), at para. 500. The special advocates argue that, pursuant to these duties, the ministers must send detailed requests to foreign intelligence agencies. In their view, those requests must explain the context of security certificate hearings, the purposes for which the information will be used, and the consequences for the named person if the information is not provided.

CROWN - DUTY OF CANDOUR

Shen v. Canada (MCI), [2016] F.C.J. No. 93; 2016 FC 70 Fothergill J.

12 Mr. Shen applied for leave and for judicial review of the RPD's decision. As a result of this Court's decision in B135 v Canada (MCI), 2013 FC 871 [B135], the Crown conceded that there had been insufficient disclosure of information to Mr. Shen and the application for judicial review was allowed on consent.

31 Before the RPD, Mr. Shen argued that the Crown must have known that the undisclosed PSB documents included exculpatory evidence because his sister's statement to the PSB was translated during the initial proceedings. Mr. Shen says that the statement of counsel for the Crown that she "was not aware" of any exculpatory evidence was a breach of the duty of candour, and tantamount to an abuse of process.

7A - 26



32 The duty of candour requires the Crown's representatives to be candid and fair in their dealings with both litigants and tribunals (Tursunbayev v Canada (MPSEP), 2012 FC 504 at para 42; Odosashvili v Canada (MCI), 2014 FC 308 at para 20). The fact that statements were made in submissions rather than in evidence does not limit or reduce the representative's duty of candour (Tursunbayev at para 42).

35 A breach of the duty of candour does not require that the individual who makes the statement know that the information is false. This Court has found a breach of the duty of candour when statements or materials presented by Crown counsel contained information that was "known or ought to have been known to be false" (Odosashvili at para 13).

36 The RPD found that it was incumbent upon the Crown to provide an explanation for failing to disclose evidence that was relevant and exculpatory. Counsel representing the Crown declined to provide any explanation, ostensibly because she could not provide evidence and continue to act as counsel. The RPD then declared that it was drawing an adverse inference against the Crown, but did not explain what this inference was. The natural inference would be that the Crown's withholding of evidence was deliberate, and intended to undermine Mr. Shen's opportunity to make full answer and defence. If this were true, then it could be sufficiently serious to warrant a stay of the Crown's intervention in Mr. Shen's claim for refugee protection.

37 The RPD found that the statement by counsel representing the Crown during the first hearing that no exculpatory evidence had been withheld was false. Mr. Shen therefore established a prima facie case that there had been a breach of the duty of candour. It was incumbent upon the Crown to provide an explanation for the failure to disclose relevant and exculpatory evidence. Where a party "fails to bring before a tribunal evidence which is within the party's ability to adduce, an inference may be drawn that the evidence not adduced would have been unfavourable to the party" (Bains v Canada (MCI), [2000] F.C.J. No 1264 at para 38, [2001] 1 FC 284; Canada (MCI) v Malik, [1997] ACF No 378 at para 4, 128 FTR 309 [Malik]; Ma v Canada (Minister of Citizenship and Immigration), 2010 FC 509 at paras 1-7). An adverse inference will not be drawn against a party where a reasonable explanation is provided (Malik at para 4).

38 This matter must be returned to the RPD member to determine whether the duty of candour was breached; whether this amounted to an abuse of process; and, if so, the appropriate remedy. The Crown must be given a clear opportunity to provide an explanation for its failure to disclose relevant and exculpatory evidence. This will likely require the involvement of counsel who did not participate in decisions respecting disclosure that were made during the first hearing before the RPD.

39 The RPD must then consider the adequacy of the Crown's explanation. If no explanation is forthcoming, then the RPD may draw an adverse inference and must state clearly what that inference is. If the evidence establishes, or an inference is drawn, that the Crown's withholding of relevant and exculpatory documents was deliberate, then this will amount to a breach of the duty of candour and the RPD must consider whether it also constitutes an abuse of process. If the answer is yes, then the RPD must fashion an appropriate remedy, bearing in mind that a stay of proceedings or equivalent remedy will be justified only in the "clearest of cases" (Fabbiano v Canada (MCI), 2014 FC 1219 at para 9).

7A - 27

Odosashvili v. Canada (Citizenship and Immigration), 2014 FC 308 (CanlII) Zinn J.

[20] The Court finds these inaccuracies very disturbing. In Tursunbayev v Canada (Minister of Public Safety and Emergency Preparedness), 2012 FC 504 (CanLII), [2012] FCJ No 540 at para 42, Justice Mactavish set out the duty of Minister’s counsel duty of candour and fair dealing:

Individuals representing the Crown before courts and tribunals always have an obligation to be candid and fair in their dealings both with litigants and with the courts and tribunals themselves. The fact that the comments in question were made by the Minister’s representative in submissions rather than in evidence does not in any way reduce or limit the representative’s duty of candour.

I agree with this observation completely, and would add that the duty of candour and fair dealing takes on added importance and significance when a person’s liberty is at stake.

CROWN DUTY OF DISCLOSURE

Bruzzese v. Canada (MPSEP and MCI), 2016 FC 119 Barnes J.

[25] … The Minister is not, after all required to search out every scrap of relevant evidence that may be in the possession of a foreign agency, particularly where what is produced is inherently reliable. …

Canada (Citizenship and Immigration) v. Harkat, [2014] 2 SCR 33, 2014 SCC 37 (CanLII)

[103] … The ministers have no general obligation to provide disclosure of evidence or information that is beyond their control: R. v. Chaplin, 1995 CanLII 126 (SCC), [1995] 1 S.C.R. 727, at para. 21; R. v. Stinchcombe, 1995 CanLII 130 (SCC), [1995] 1 S.C.R. 754, at para. 2. With respect to evidence and information held by foreign intelligence agencies, the ministers’ duty is to make reasonable efforts to obtain updates and provide disclosure. What constitutes reasonable efforts will turn on the facts of each case. …

B135 v. Canada (Citizenship and Immigration), 2013 FC 871 (CanLII) Harrington J.

[25] The applicants place reliance on the decision of the Supreme Court in R v Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 SCR 326, [1991] SCJ No 83 (QL). It was held in the criminal law context that the Crown is under a duty in indictable offences to disclose all material evidence whether or not favourable to the accused. Failure to disclose impeded the ability of the accused to make full answer and defence.

[26] The Minister points out that the IRB is an administrative tribunal with specialized knowledge so that the disclosure standards in Stinchcombe are not necessarily applicable. In my view, the principle was encapsulated by Mr. Justice de Montigny in Seyoboka v Canada (Minister of Citizenship and Immigration), 2009 FC 104 (CanLII), [2009] FCJ No 108 (QL), where he said at paragraph 34:

7A - 28


http://www.canlii.org/en/ca/scc/doc/1995/1995canlii126/1995canlii126.html




A careful review of the case law on disclosure leads me to the conclusion that this is much too broad a proposition. One must never loose sight of the fact that the Refugee Protection Division of the Immigration and Refugee Protection Board is an administrative tribunal with specialized knowledge, not bound by legal or technical rules of evidence. As a result, the disclosure standards delineated in Stinchcombe do not necessarily apply automatically in the context of a refugee hearing and may require some adaptation. On the other hand, I agree with the applicant that the level of disclosure owed to an applicant cannot be decided by a simple invocation of the distinction between criminal and administrative proceedings, and that the consequences of an adverse finding on the applicant must be taken into consideration…

At a bare minimum, if the Minister chooses to disclose evidence, that disclosure must be complete.

[27] It is not necessary to enumerate all the documents which should have been before the RPD, either as disclosed by the Minister or because they should have been in the IRB’s own bank of country conditions. At the very least, the decision of the Chief Magistrate’s Court, in Colombo with respect to B005 should have been before the decision-maker.

[28] As I said in PG v The Minister of Citizenship and Immigration, IMM-9472-12 , and as I repeat now:

Considering further that it is most important to have as much information as possible as to the treatment of others on board the ship “Sun Sea” who have been returned to Sri Lanka in order to consider their risk of persecution.

Seyoboka v. Canada (Minister of Citizenship and Immigration) (F.C.), [2010] 2 FCR 3, 2009 FC 104 (CanLII) de Montigny J.

[33] The applicant retorts that for the purposes of disclosure obligations, the Crown is indivisible. Relying on the integrated nature of the War Crimes Unit and on the close cooperation of the War Crimes sections in the Department of Justice, the CBSA, and the RCMP, the applicant contends that the Minister breached her legal obligation to make inquiries of all agencies involved in investigating the applicant to ensure a complete record was disclosed.

[34] A careful review of the case law on disclosure leads me to the conclusion that this is much too broad a proposition. One must never lose sight of the fact that the Refugee Protection Division of the Immigration and Refugee Protection Board is an administrative Tribunal with specialized knowledge, not bound by legal or technical rules of evidence. As a result, the disclosure standards delineated in Stinchcombe do not necessarily apply automatically in the context of a refugee hearing and may require some adaptation. On the other hand, I agree with the applicant that the level of disclosure owed to an applicant cannot be decided by a simple invocation of the distinction between criminal and administrative proceedings, and that the consequences of an adverse finding on the applicant must be taken into consideration. As the Supreme Court wrote in Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9 (CanLII), [2007] 1 S.C.R. 350, at paragraph 20:

7A - 29


Section 7 of the Charter requires not a particular type of process, but a fair process having regard to the nature of the proceedings and the interests at stake: United States of America v. Ferras, [2006] 2 S.C.R. 77, 2006 SCC 33 (CanLII), at para. 14; R. v. Rodgers, [2006] 1 S.C.R. 554, 2006 SCC 15 (CanLII), at para. 47; Idziak v. Canada (Minister of Justice), 1992 CanLII 51 (SCC), [1992] 3 S.C.R. 631, at pp. 656-57. The procedures required to meet the demands of fundamental justice depend on the context (see Rodgers; R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309, at p. 361; Chiarelli, at pp. 743-44; Mount Sinai Hospital Center v. Quebec (Minister of Health and Social Services), [2001] 2 S.C.R. 281, 2001 SCC 41 (CanLII), at paras. 20-21). Societal interests may be taken into account in elucidating the applicable principles of fundamental justice: R. v. Malmo-Levine, [2003] 3 S.C.R. 571, 2003 SCC 74 (CanLII), at para. 98.

[35] On the basis of the five factors found to be relevant in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, in determining the content of the duty of fairness in a particular set of circumstances, I am prepared to accept that an applicant is entitled to a high degree of procedural fairness in a proceeding to vacate his refugee status based on alleged omissions of participation in war crimes and crimes against humanity. I rely for that finding more particularly on the consequences for the applicant to be branded as a war criminal, and on the adversarial nature of such a proceeding. Indeed, the Federal Court of Appeal came to that very conclusion in the context of a finding of exclusion based on Article 1F(a) and (c) of the Convention, and opined that it entails the obligation for the Minister to disclose relevant information (Siad v. Canada (Secretary of State), 1996 CanLII 4099 (FCA), [1997] 1 F.C. 608 (C.A.), at paragraph 15):

Paragraph 69.1(5)(a) of the Immigration Act requires that the Tribunal afford the refugee claimant a “reasonable opportunity” to present evidence, cross-examine witnesses, and make representations. Although Stinchcombe, a criminal case, does not apply directly in the immigration context, it is nonetheless instructive. Counsel for the Minister conceded in oral argument, correctly, in my respectful view, that where the Minister alleges exclusion under Article 1F of the Convention, the Minister does owe a duty to disclose information relevant to the refugee claim. This concession is consistent with some of the literature regarding disclosure in the administrative context. [Footnotes omitted.]

Charkaoui v. Canada (Citizenship and Immigration), [2008] 2 SCR 326, 2008 SCC 38 (CanLII)

[57] Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1 (CanLII), at para. 113, concerned the nature of the right to procedural fairness in a context where a person had been deprived of rights protected by s. 7 of the Charter. This Court emphasized the importance of being sensitive to the context of each situation:

[D]eciding what procedural protections must be provided involves consideration of the following factors: (1) the nature of the decision made and the procedures followed in making it, that is, “the closeness of the administrative process to the judicial process”; (2) the role of the particular decision within the statutory scheme; (3) the importance of the

7A - 30

http://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec7_smooth

http://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html









http://www.canlii.org/en/ca/fca/doc/1996/1996canlii4099/1996canlii4099.html



http://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec7_smooth

http://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html

decision to the individual affected; (4) the legitimate expectations of the person challenging the decision where undertakings were made concerning the procedure to be followed; and (5) the choice of procedure made by the agency itself . . . . [para. 115]

[58] In the context of information provided by CSIS to the ministers and the designated judge, the factors considered in Suresh confirm the need for an expanded right to procedural fairness, one which requires the disclosure of information, in the procedures relating to the review of the reasonableness of a security certificate and to its implementation. As we mentioned above, these procedures may, by placing the individual in a critically vulnerable position vis-à-vis the state, have severe consequences for him or her.

7A - 31

http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-23/latest/rsc-1985-c-c-23.html

TAB 7B

Ethics of Preparing Witnesses

Aisling Bondy Bondy Immigration Law

November 23, 2016


Ethics of Preparing Witnesses

Aisling Bondy

Considerations for counsel who becomes aware that their refugee client is not telling the truth about their claim

Occasionally counsel for a refugee claimant may become aware that their client is providing false information in support of their claim. This can present an ethical dilemma for counsel who must consider a variety of factors in determining how to proceed, especially if there is an impending deadline or hearing date. The following information is intended to assist counsel in determining how to proceed when this situation arises.

1. Introduction

Several of the Law Society of Upper Canada Rules of Professional Conduct (“the Rules”) are relevant to such a situation, including rules relating to the duty of candour, confidentiality, and the withdrawal of counsel.

A primary consideration for counsel in this situation is to determine whether they are permitted to withdraw from representing their client in the specific circumstances of their case and, if so, whether withdrawal is mandatory or optional. This is because the Rules state that counsel cannot withdraw from representing a client unless there is “good cause” (see s. 3.7-1 of the Rules).

2. Mandatory withdrawal

The Rules provide that counsel is required to withdraw in any of the following circumstances (see s. 3.7-7 of the Rules):

(a) discharged by the client;

(b) the client's instructions require the lawyer to act contrary to these rules or by-laws under the Law Society Act; or

(c) the lawyer is not competent to continue to handle the matter.

Note that while this section provides that the lawyer “shall” withdraw in any of these three situations, the withdrawal is “subject to the […] direction of the tribunal”, which is addressed further below.

7B - 1

2. a) Determining whether a client’s instructions require lawyer to act contrary to these rules

The situation requiring withdrawal that is most relevant to a client’s dishonesty is the requirement to withdraw if the client’s instructions require the lawyer to act contrary to these rules. This requires counsel to determine whether, in the specific circumstances of their case, continuing to represent the client would require them to act contrary to the Rules. Several rules may be particularly relevant to making such a determination.

The sections of the Rules relating to the lawyer’s relationship with the Administration of Justice require the lawyer treat the tribunal with candour and not knowingly participate in dishonest conduct (see s. 5.1-1 and 5.1-2 of the Rules). The most relevant passages follow:

5.1-1 When acting as an advocate, a lawyer shall represent the client resolutely and honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy, and respect.

5.1-2 When acting as an advocate, a lawyer shall not

[…]

(b) knowingly assist or permit the client to do anything that the lawyer considers to be dishonest or dishonourable,

[…]

(e) knowingly attempt to deceive a tribunal or influence the course of justice by offering false evidence, misstating facts or law, presenting or relying upon a false or deceptive affidavit, suppressing what ought to be disclosed, or otherwise assisting in any fraud, crime, or illegal conduct,

(f) knowingly misstate the contents of a document, the testimony of a witness, the substance of an argument, or the provisions of a statute or like authority,

(g) knowingly assert as true a fact when its truth cannot reasonably be supported by the evidence or as a matter of which notice may be taken by the tribunal,

[…].

More generally, the sections of the Rules relating to the relationship to clients prevent knowingly assisting or encouraging dishonesty, fraud, crime or illegal conduct (see Rules 3.2-7 and 3.2-7.1).

However, the lawyer’s duty of candour may be in conflict with their duty of confidentiality owed to the client if the client insists on relying on dishonest information and /or refuses to disclose that they relied on dishonest information. Rule 5.1-4 provides that a lawyer who discovers they have unknowingly breached the Rules in Section 5.1 (relating to the duty of candour) must disclose their error or omission

7B - 2

and “do all that can reasonably be done in the circumstances to rectify it”, but that this is subject to the rules relating to the duty of confidentiality:

5.1-4 A lawyer who has unknowingly done or failed to do something that if done or omitted knowingly would have been in breach of the rules in Section 5.1 and who discovers it, shall, subject to the rules in Section 3.3 (Confidentiality), disclose the error or omission and do all that can reasonably be done in the circumstances to rectify it.

The duty of confidentiality to a client requires that a lawyer “hold in strict confidence all information concerning the business and affairs of the client acquired in the course of the professional relationship” and that this duty is owed “at all times” (see s. 3.3-1 of the Rules). The commentary to this section observes that the duty of confidentiality survives even after solicitor-client relationship is terminated and even where “differences have arisen” between solicitor and client.

Note that the Rules do allow for the lawyer to divulge confidential information in certain prescribed circumstances, including, inter alia, where authorized by the client or required by a tribunal or the Law Society or where the lawyer is facing allegations of misconduct or negligence. The Rules do not allow a lawyer to disclose confidential information for the sole purpose of exposing a client or former client who has relied on false information in a legal proceeding.

Therefore, where the lawyer learns that their client has relied on false information in support of their claim, and the client refuses to correct this information, then the lawyer could not simultaneously comply with the sections of the Rules relating to candour and confidentiality. Accordingly, the client’s instructions would require the lawyer to act contrary to these Rules and withdrawal would be mandatory.

The commentary to s. 5.1-4 of the Rules specifically states that if the client desires a course of conduct of conduct that would breach s. 5.1 (relating to the duty of candour) of the Rules and the lawyer cannot prevent their client from doing so, the lawyer must withdraw or seek leave to do so:

Commentary

[1] If the client desires that a course be taken that would involve a breach of the rules in Section 5.1, the lawyer must refuse and do everything reasonably possible to prevent it. If that cannot be done the lawyer should, subject to the rules in Section 3.7 (Withdrawal from Representation), withdraw or seek leave to do so.

2.b) Conclusion

If the lawyer becomes aware that their client is relying on false information such that the lawyer would need to act contrary to the Rules in order to continue representing the client (see s. 3.2-7, s. 3.2-7.1, and s.5.1 of the Rules), and the client refuses to disclose the dishonest information in order to remedy the breach (see s.5.1-4 of the Rules), then the client’s instructions would require the lawyer to act contrary

7B - 3

to these Rules, and withdrawal would be mandatory (see s. 3.7-7 of the Rules and the Commentary to s.5.1-4).

3) Optional Withdrawal

Even if withdrawal is not mandatory, counsel may have the option to withdraw pursuant to s. 3.7-2 of the Rules if they discover that their client has relied on false information in relation to their refugee proceedings.

One such situation is if the client’s dishonest information comes to light (either because it is revealed by the client or a third party) and the client accepts not to rely any further on the dishonest information. In this situation withdrawal may not be mandatory, as the lawyer may not be required to break any Rule if the client agrees to reveal their dishonest information and not rely on it any further. Recall that s.5.1-4 of the Rules provides that where the lawyer discovers they unknowingly did something that breached the rules in s.5.1 (relating to candour), subject to the rules relating to confidentiality, the lawyer shall “disclose the error or omission and do all that can reasonably be done in the circumstances to rectify it.” Therefore, where the client is willing to reveal to the relevant parties that they relied on false information and not rely on that information any further, counsel may be able to proceed without breaking the Rules relating to either the duty of candour or confidentiality, and withdrawal would no longer be mandatory for this reason.

However, the lawyer may still be able to optionally withdraw if the client’s previous reliance on dishonest information resulted in a serious loss of confidence between the lawyer and the client. This is because s.3.7-2 of the Rules provides that a lawyer may withdraw “where there has been a serious loss of confidence between the lawyer and the client.” The commentary to this section specifically notes that “justifiable cause” for withdrawal could include “if a lawyer is deceived by their client.”

Note that the Rules provide that optional withdrawal is also subject to “the direction of the tribunal” (see s.3.7-2 of the Rules), which is discussed further below.

Since withdrawal is optional and not mandatory, the lawyer may need to balance their desire to withdraw against other considerations, including the proximity of any deadline or hearing date and the potential prejudice of withdrawal to the client.

4) Withdrawal not permitted by Rules

Since the Rules provide that the lawyer cannot withdraw from representing a client except “for good cause” (see s.3.7-1 of the Rules), where the client’s dishonest information neither would result in counsel being caused to act contrary to the Rules in order to follow the client’s instructions, nor in a serious loss of confidence between the lawyer and client, then withdrawal may not be permitted.

7B - 4

5) Steps to follow if counsel is withdrawing

The Rules are very explicit with regards to the steps the lawyer must follow when withdrawing from representing a client. The Rules must be followed regardless of whether withdrawal is optional or mandatory.

5.a) Getting off the record with the tribunal

The Rules relating to mandatory and optional withdrawal provide that withdrawal is subject “to the direction of the tribunal.” If the lawyer is already on record with a tribunal as representing the client, then the lawyer must consider the tribunal’s rules and procedures relating to withdrawal.

5.a.i) CIC / CBSA

Neither CIC nor the CBSA have any specific rules relating to withdrawal. The lawyer will nonetheless need to follow the Law Society of Upper Canada’s Rules relating to withdrawal and notify CIC or the CBSA, as appropriate, that they are withdrawing from representing the client.

5.b.ii) Refugee Protection Division

The Refugee Protection Division Rules (RPD Rules) allow for a claimant to remove their counsel of record (see s.16 of the RPD Rules). However, for the lawyer to be removed as counsel of their own initiative, the lawyer must make a request to be removed as counsel of record and this request must be granted (see s.15 of the RPD Rules). The RPD Rules also provide that such a request must be made either in writing at least three working days before the next hearing date, or orally at the beginning of a hearing:

Request to be removed as counsel of record

15 (1) To be removed as counsel of record, counsel for a claimant or protected person must first provide to the person represented and to the Minister, if the Minister is a party, a copy of a written request to be removed and then provide the written request to the Division, no later than three working days before the date fixed for the next proceeding.

Oral request

(2) If it is not possible for counsel to make the request in accordance with subrule (1), counsel must appear on the date fixed for the proceeding and make the request to be removed orally before the time fixed for the proceeding.

Division’s permission required

(3) Counsel remains counsel of record unless the request to be removed is granted.

As the request must be made either in writing before the hearing or orally at the hearing “before the time fixed for the proceeding”, it is not clear how the RPD would deal with a request made by the lawyer during the course of an oral hearing if a matter arose requiring counsel to be removed as counsel of record during the hearing. Note that s.70(c) of the RPD Rules allows the RPD to excuse a person from

7B - 5

the requirement of a rule and therefore could be relied on by the lawyer to request that they be removed as counsel during the course of an oral hearing.

5.a.iii) Federal Court

A lawyer who is already solicitor of record at the Federal Court can be removed as solicitor of record without authorization of Court if an appropriate form is filed either by the client removing the lawyer as solicitor of record or by a successor lawyer advising of the change of solicitor (see s. 124 of the Federal Courts Rules).

In order for the lawyer to remove themselves as solicitor of record of their own initiative, the lawyer must file a written motion in accordance with s.125 of the Federal Courts Rules.

5.b) LSUC requirements relating to withdrawal

Once, where applicable, the lawyer is able to get off record with the appropriate tribunal, the lawyer must still comply with the LSUC Rules addressing manner of withdrawal (see s.3.7-8 and s.3.7-9 of the Rules). The Rules are very explicit with regards to the steps the lawyer must follow. Beware in particular the duty to notify the client in writing that the lawyer is withdrawing and the requirements relating to the content of such a letter. The sections relating to withdrawal follow:

3.7-8 When a lawyer withdraws, the lawyer shall try to minimize expense and avoid prejudice to the client and shall do all that can reasonably be done to facilitate the orderly transfer of the matter to the successor legal practitioner.

3.7-9 Upon discharge or withdrawal, a lawyer shall

(a) notify the client in writing, stating

(i) the fact that the lawyer has withdrawn;

(ii) the reasons, if any, for the withdrawal; and

(iii) in the case of litigation, that the client should expect that the hearing or trial will proceed on the date scheduled and that the client should retain a new legal practitioner promptly;

(b) subject to the lawyer's right to a lien, deliver to or to the order of the client all papers and property to which the client is entitled;

(c) subject to any applicable trust conditions, give the client all information that may be required in connection with the case or matter;

(d) account for all funds of the client then held or previously dealt with, including the refunding of any remuneration not earned during the representation;

(e) promptly render an account for outstanding fees and disbursements; and

7B - 6

(f) co-operate with the successor legal practitioner so as to minimize expense and avoid prejudice to the client; and

(g) comply with the applicable rules of court.

6. Conclusion

Various sections of the rules address how a lawyer can proceed after learning their refugee claimant client has relied on dishonest information. They require the lawyer to consider a variety of factors, including whether withdrawal is mandatory, optional or non-permissible; the requirements of the relevant tribunal relating to withdrawal; and the procedures to be followed when withdrawing.

An appendix of the relevant rules cited above follows.

7B - 7

Appendix of rules referenced above

Law Society of Upper Canada Rules of Professional Conduct

Chapter 3: Relationship to Clients

[…]

SECTION 3.2 QUALITY OF SERVICE

[…]

Dishonesty, Fraud, etc. by Client or Others

3.2-7 A lawyer shall not knowingly assist in or encourage any dishonesty, fraud, crime, or illegal conduct or instruct a client or any other person on how to violate the law and avoid punishment.

3.2-7.1 A lawyer shall not act or do anything or omit to do anything in circumstances where he or she ought to know that, by acting, doing the thing or omitting to do the thing, he or she is being used by a client, by a person associated with a client or by any other person to facilitate dishonesty, fraud, crime or illegal conduct.

[…]

Commentary

[1] Rule 3.2-7 which states that a lawyer must not knowingly assist in or encourage dishonesty, fraud, crime or illegal conduct, applies whether the lawyer's knowledge is actual or in the form of wilful blindness or recklessness. A lawyer should also be on guard against becoming the tool or dupe of an unscrupulous client or persons associated with such a client or any other person. Rules 3.2-7.1 to 3.2- 7.3 speak to these issues.

[…]

SECTION 3.3 CONFIDENTIALITY

Confidential Information

3.3-1 A lawyer at all times shall hold in strict confidence all information concerning the business and affairs of the client acquired in the course of the professional relationship and shall not divulge any such information unless

(a) expressly or impliedly authorized by the client;

7B - 8

(b) required by law or by order of a tribunal of competent jurisdiction to do so;

(c) required to provide the information to the Law Society; or

(d) otherwise permitted by rules 3.3-2 to 3.3-6.

Commentary

[1] A lawyer cannot render effective professional service to the client unless there is full and unreserved communication between them. At the same time, the client must feel completely secure and entitled to proceed on the basis that, without any express request or stipulation on the client's part, matters disclosed to or discussed with the lawyer will be held in strict confidence.

[…]

[3] A lawyer owes the duty of confidentiality to every client without exception and whether or not the client is a continuing or casual client. The duty survives the professional relationship and continues indefinitely after the lawyer has ceased to act for the client, whether or not differences have arisen between them.

[…]

Justified or Permitted Disclosure

3.3-1.1 When required by law or by order of a tribunal of competent jurisdiction, a lawyer shall disclose confidential information, but the lawyer shall not disclose more information than is required.

[…]

SECTION 3.7 WITHDRAWAL FROM REPRESENTATION

Withdrawal from Representation

3.7-1 A lawyer shall not withdraw from representation of a client except for good cause and on reasonable notice to the client.

Commentary

[1] Although the client has the right to terminate the lawyer-client relationship at will, the lawyer does not enjoy the same freedom of action. Having undertaken the representation of a client, the lawyer should complete the task as ably as possible unless there is justifiable cause for terminating the relationship.

[…]

7B - 9

[3] Every effort should be made to ensure that withdrawal occurs at an appropriate time in the proceedings in keeping with the lawyer's obligations. The court, opposing parties and others directly affected should also be notified of the withdrawal.

[…]

Optional Withdrawal

3.7-2 Subject to the rules about criminal proceedings and the direction of the tribunal, where there has been a serious loss of confidence between the lawyer and the client, the lawyer may withdraw.

Commentary

[1] A lawyer may have a justifiable cause for withdrawal in circumstances indicating a loss of confidence, for example, if a lawyer is deceived by their client, the client refuses to accept and act upon the lawyer's advice on a significant point, a client is persistently unreasonable or uncooperative in a material respect, there is a material breakdown in communications, or the lawyer is facing difficulty in obtaining adequate instructions from the client. However, the lawyer should not use the threat of withdrawal as a device to force a hasty decision by the client on a difficult question.

[…]

Mandatory Withdrawal

3.7-7 Subject to the rules about criminal proceedings and the direction of the tribunal, a lawyer shall withdraw if

(a) discharged by the client;

(b) the client's instructions require the lawyer to act contrary to these rules or by-laws under the Law Society Act; or

(c) the lawyer is not competent to continue to handle the matter.

Manner of Withdrawal

3.7-8 When a lawyer withdraws, the lawyer shall try to minimize expense and avoid prejudice to the client and shall do all that can reasonably be done to facilitate the orderly transfer of the matter to the successor legal practitioner.

3.7-9 Upon discharge or withdrawal, a lawyer shall

(a) notify the client in writing, stating

(i) the fact that the lawyer has withdrawn;

7B - 10

(ii) the reasons, if any, for the withdrawal; and

(iii) in the case of litigation, that the client should expect that the hearing or trial will proceed on the date scheduled and that the client should retain a new legal practitioner promptly;

(b) subject to the lawyer's right to a lien, deliver to or to the order of the client all papers and property to which the client is entitled;

(c) subject to any applicable trust conditions, give the client all information that may be required in connection with the case or matter;

(d) account for all funds of the client then held or previously dealt with, including the refunding of any remuneration not earned during the representation;

(e) promptly render an account for outstanding fees and disbursements; and

(f) co-operate with the successor legal practitioner so as to minimize expense and avoid prejudice to the client; and

(g) comply with the applicable rules of court.

[…]

Chapter 5 Relationship to The Administration of Justice

SECTION 5.1 THE LAWYER AS ADVOCATE

Advocacy

5.1-1 When acting as an advocate, a lawyer shall represent the client resolutely and honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy, and respect.

[…]

5.1-2 When acting as an advocate, a lawyer shall not

[…]

(b) knowingly assist or permit the client to do anything that the lawyer considers to be dishonest or dishonourable,

[…]

(e) knowingly attempt to deceive a tribunal or influence the course of justice by offering false evidence, misstating facts or law, presenting or relying upon a false or deceptive affidavit,

7B - 11

suppressing what ought to be disclosed, or otherwise assisting in any fraud, crime, or illegal conduct,

(f) knowingly misstate the contents of a document, the testimony of a witness, the substance of an argument, or the provisions of a statute or like authority,

(g) knowingly assert as true a fact when its truth cannot reasonably be supported by the evidence or as a matter of which notice may be taken by the tribunal,

[…].

[...]

Disclosure of Error or Omission

5.1-4 A lawyer who has unknowingly done or failed to do something that if done or omitted knowingly would have been in breach of the rules in Section 5.1 and who discovers it, shall, subject to the rules in Section 3.3 (Confidentiality), disclose the error or omission and do all that can reasonably be done in the circumstances to rectify it.

Commentary

[1] If the client desires that a course be taken that would involve a breach of the rules in Section 5.1, the lawyer must refuse and do everything reasonably possible to prevent it. If that cannot be done the lawyer should, subject to the rules in Section 3.7 (Withdrawal from Representation), withdraw or seek leave to do so.

Refugee Protection Division Rules

Request to be removed as counsel of record

15 (1) To be removed as counsel of record, counsel for a claimant or protected person must first provide to the person represented and to the Minister, if the Minister is a party, a copy of a written request to be removed and then provide the written request to the Division, no later than three working days before the date fixed for the next proceeding.

Oral request

(2) If it is not possible for counsel to make the request in accordance with subrule (1), counsel must appear on the date fixed for the proceeding and make the request to be removed orally before the time fixed for the proceeding.

Division’s permission required

(3) Counsel remains counsel of record unless the request to be removed is granted.

7B - 12

Removing counsel of record

16 (1) To remove counsel as counsel of record, a claimant or protected person must first provide to counsel and to the Minister, if the Minister is a party, a copy of a written notice that counsel is no longer counsel for the claimant or protected person, as the case may be, and then provide the written notice to the Division.

Ceasing to be counsel of record

(2) Counsel ceases to be counsel of record as soon as the Division receives the notice.

Federal Courts Rules

Notice of change or removal of solicitor

124 A party may change or remove its solicitor of record or appoint a solicitor of record by serving and filing a notice in Form 124A, 124B or 124C, as the case may be.

Motion for removal of solicitor of record

125 (1) Where a solicitor of record ceases to act for a party and the party has not changed its solicitor of record in accordance with rule 124, the Court may, on a motion of the solicitor, order that the solicitor be removed from the record.

Manner of service

(2) A notice of motion under subsection (1) shall be served on the party formerly represented by the solicitor

(a) by personal service; or

(b) where personal service cannot practicably be effected,

(i) by mailing the notice of motion to the party at the party's last known address, or

(ii) if no mailing address of the party is known, by depositing the notice of motion at the Registry office where the proceeding was initiated.

Order to be served

(3) An order made under subsection (1) removing a solicitor of record of a party shall be served on the party in the manner set out in subsection (2) and on all other parties to the proceeding.

Proof of service

(4) An order under subsection (1) does not take effect until proof of its service has been filed.

7B - 13

Solicitor of record ceasing to act

126 A party is deemed not to be represented by a solicitor if the party does not appoint a new solicitor after its solicitor of record

(a) dies; or

(b) ceases to act for the party because of

(i) appointment to a public office incompatible with the solicitor's profession,

(ii) suspension or disbarment as a solicitor, or

(iii) an order made under rule 125.

7B - 14

TAB 7C

Caught between Competing Duties, What Witness

Preparation is allowed?

John Provart, Senior Counsel Immigration Law Division,

Ontario Regional Office, Department of Justice

November 23, 2016

24TH ANNUAL

Immigration Law Summit – DAY 2

Caught Between Competing Duties, What Witness Preparation is Allowed? Prepared for the 2016 Immigration Law Summit, November 23, 2016 Law Society of Upper Canada, Toronto, Ontario John Provart, Senior Counsel, Department of Justice Canada1

When it comes to witness preparation, “coaching” is a loaded term. In some jurisdictions, like England and Wales, rehearsing and practising for witness examinations is outright prohibited. In others, including many American states, a failure to thoroughly prepare a witness is considered to not only jeopardize one’s client’s case, but also raise potential grounds for malpractice.

In Canada, and in Ontario more specifically, we fall somewhere between these two extremes. But it does seem fair to say we are closer to Matlock than Rumpole in terms of what we deem ethical and commendable witness preparation. In this brief paper, I aim to provide practical pointers on what sort of witness preparation is advisable and uncontroversial in terms of “best practices,” what sort of witness preparation is plainly prohibited, before addressing some grey areas. To begin, though, it’s worth reviewing the LSUC Rules of Professional Conduct bearing on witness preparation.

LSUC Rules of Professional Conduct

In Ontario, there is no rule equivalent to the English and Welsh Bar Standards Board’s Rule C9.4, which states: “you must not rehearse, practise with or coach a witness in respect of their evidence.” This proscription is said to flow from counsel’s core duty to act with honesty and integrity, which includes the prohibition of encouraging a witness to give misleading or untruthful evidence.2

While the Bar Council approves of witness “familiarisation” arrangements, these are to be conducted by third party counsel without any personal knowledge of the matter in issue. Mock examinations and cross-examinations are only permissible to acquaint witnesses with the process of giving oral evidence but cannot involve any rehearsal or practising of actual testimony; moreover, mock examinations must be refused or terminated by counsel if there is any risk they will “enable a witness to add a specious quality to his or her evidence.”3

In Ontario, the issue of witness preparation falls within broader rules relating to the practice of advocacy. These include several sub-headings of Rule 5.1-2, which says the lawyer acting as an advocate shall not:

1 The opinions expressed in this paper are those of the author alone and do not reflect those of the Department of Justice Canada. 2 The Bar Council, Ethics Committee, “Witness Preparation,” online: http://www.barcouncil.org.uk/practice-ethics/professional-practice-and-ethics/witness-preparation/ (May 2016) at 2-4. 3 Ibid.

7C - 1

http://www.barcouncil.org.uk/practice-ethics/professional-practice-and-ethics/witness-preparation/

http://www.barcouncil.org.uk/practice-ethics/professional-practice-and-ethics/witness-preparation/

(b) knowingly assist or permit the client to do anything that the lawyer considers to be dishonest or dishonourable, […]

(e) knowingly attempt to deceive a tribunal or influence the course of justice by offering false evidence, misstating facts or law, presenting or relying upon a false or deceptive affidavit, suppressing what ought to be disclosed, or otherwise assisting in any fraud, crime, or illegal conduct, […]

(j) improperly dissuade a witness from giving evidence or advise a witness to be absent,

(k) knowingly permit a witness or party to be presented in a false or misleading way or to impersonate another,[…].

These proscriptions go to the same concerns of practising with honesty and integrity as the English and Welsh rules, but do not go as far in linking extensive witness preparation with distortion of the fact-finding process or an undermining of counsel’s duty to the administration of justice.

Indeed, our Rules of Professional Conduct reinforce the duty weighing upon us to properly prepare the witnesses we intend to call, by requiring us to represent our clients “resolutely and honourably” within the limits of the law.4 As the Commentary for this rule notes, in adversarial proceedings this means lawyers must “raise fearlessly every issue, advance every argument and ask every question, however distasteful, that the lawyer thinks will help the client's case and to endeavour to obtain for the client the benefit of every remedy and defence authorized by law.”5

While refugee hearings are non-adversarial in nature,6 the Commentary to Rule 5.1-1 specifies that the advocacy duty to represent one’s client resolutely and honourably does apply to proceedings before boards and administrative tribunals. It would be strange to think that a modified duty to “do one’s utmost” as counsel would not apply vis-à-vis refugee claimant clients simply because RPD proceedings are generally non-adversarial. This is particularly the case when ancillary duties to clients like the duty of confidentiality (Rule 3.3-1) continue to apply.

In short, the Rules of Professional Conduct require immigration and refugee lawyers to do all they can to further their client’s case, while simultaneously treating tribunals and courts with candour, fairness, courtesy and respect. In terms of presenting witnesses, this translates into counsel having a duty to diligently and properly prepare their client and other witnesses, while not knowingly allowing them to misrepresent, mislead or otherwise influence a tribunal

4 Ontario Rules of Professional Conduct, Rule 5.1-1. 5 Ibid., Rule 5.1-1 Commentary. 6 See the discussion in Canada (MCI) v Thamotharem, [2008] 1 FCR 385 at paras 41-51.

7C - 2

through false evidence, the suppression of information that ought to be disclosed or otherwise furthering any fraud or illegal conduct.

Proper witness preparation is a time consuming but necessary task in advancing your client’s claim or case. Effective preparation “serves not only the client’s interest, but also the interest of the effective and efficient administration of justice.”7 Courtroom time is a precious commodity and focusing a witness’s evidence on germane subjects and facilitating its efficient delivery are obviously desirable goals. Several practices are uncontroversial and well-established in facilitating this aim.

Best Practices

• Counsel should engage in a “familiarisation” process with their witness(es). Tell the witness about what to expect when testifying, including what to wear, how to address participants, the tribunal or courtroom layout, the sequence of events (order and style of questioning (open-ended vs leading)), the formalities of the proceeding (bowing to the judge, etc.), how objections work, the strictures on communicating once the witness is under cross-examination,8 etc. Beyond meeting with clients, common tools for assisting in their familiarisation include a “Witness Memorandum”9 summarizing essential points, as well having them attend and observe other proceedings before giving evidence. Admittedly, the possibility of attending and observing refugee proceedings is attenuated because they are closed to the public, but other means of familiarisation are nonetheless worthwhile to improve your client’s confidence and foster an efficient hearing where evidence is provided in an effective manner.

• With respect to giving evidence, above all, counsel must advise witnesses to tell the truth and testify accurately – regardless of how the witness thinks it might affect the case. The job of witnesses is to testify truthfully, not to advance a position. And triers of fact always appreciate candour and honesty, particularly when it might be less embarrassing or more in one’s interest to “massage” the truth. Some witnesses are also afraid of being surprised by a question and being required to provide unexpected (and potentially adverse) evidence. You can advise the witness that if this occurs in questioning by the tribunal or opposing counsel and further explanation is required, you will revisit the matter in subsequent questioning (re-examination or re-direct). Truth is the only option.

• Advise witnesses to take their time answering questions and not to feel rushed; taking a moment after the question is asked allows counsel to object and also allows the witness to formulate an organized answer. Witnesses should be told to speak up, articulate

7 Gavin Mackenzie, Lawyers & Ethics: Professional Responsibility and Discipline (Toronto: Thomson Reuters Canada, 2016-Release 1) at 4-32.4. 8 See Rule 5.4-2. 9 See, e.g., Finlay, Cromwell and Iatrou, Witness Preparation: A Practical Guide (Aurora, Ont.: Canada Law Book, c2010) at 9.2, Appendix A.

7C - 3

clearly and to speak “for the record” by avoiding hand gestures, referring to amounts as “this much,” and so on.10 They should be told to speak in their own voice, but in a deliberate and serious manner. While allowance must be made for cultural differences, speaking and looking at the trier of fact when giving evidence are to be recommended.

• Advises witnesses to answer the questions they are asked and to avoid evasiveness and combativeness. On the other hand, they should also avoid volunteering additional information if being asked leading questions on cross-examination, unless this is necessary to properly answer the question.

• If the witness does not understand or fully hear a question, he or she should ask for counsel to repeat the question or clarify it. If the witness does not know the answer to a question or can only provide an estimate, he or she should say so. Witnesses should generally be advised to avoid guessing and only testify as to matters within their knowledge.

• Beyond providing advice on giving testimony, counsel should review with the witness all prior oral and written statements he or she has made – to help refresh his or her memory. In addition, counsel should review with the witness all documents, exhibits or photographs that bear on his or her testimony. Mock examinations or questioning are advisable, although the scope and nature of these exercises is somewhat controversial and their dangers are discussed below.

Prohibitions

• Counsel must not encourage or countenance perjury, misrepresentation or dissimulation of any sort. This includes suggesting or indirectly inducing evidence for the witness to give, or recommending that certain evidence not be given if it is relevant.11

• Counsel should not tell witnesses how to answer questions or what words to use, or repeatedly practice until evidence is memorized.12 Beyond improperly influencing the witness’s testimony, on a very practical level this sort of preparation will leave the witness unprepared for unexpected questions and the task of simply telling the truth.

• Counsel must not advise witnesses of other witnesses’ testimony, with the exception client witnesses to whom duties of loyalty and representation are owed, and to whom exclusion orders typically do not apply. Group witness preparation is to be avoided and counsel must be aware of the dangers of tailoring.

10 Geoffrey Adair, On Trial: Advocacy Skills Law and Practice (Toronto: LexisNexis Butterworths, 2006) at 9.07. 11 See Rule 5.1-2 discussed above. 12 See Alan Mewett and Peter Sankoff, Witnesses (Scarborough, Ont: Carswell, c2016) at 6-4 and Justice John Griffiths, “Some Ethical Issues for Legal Practitioners” (5 March 2014) College of Law, Professional Skills Development Programs, The Banco Court at 8.

7C - 4

Grey Areas

The most controversial areas of witness preparation relate to how far mock examinations and the exploration of potential vulnerabilities should go. While the line here has often been said to lie “between making the evidence relevant and effective which is permissible, and tampering with the evidence, which is not,” it has been noted that this distinction is not always easy to draw or enforce.13

For example, in reviewing the witness’s prior statements, one Canadian author recommends drawing discrepancies or inconsistencies to the witness’s attention “so that he can explain to you the reason for the inconsistency. Often there is a logical explanation for the contradiction.”14 Another suggests it is “proper for lawyers to direct the witnesses’ attention to relevant issues, to probe in an attempt to refresh their memories by suggesting and referring to known facts or other evidence, even if an effect of so doing is to prompt answers that witnesses might not have volunteered without such prodding. Lawyers may prepare witnesses to meet a hostile cross-examination.”15

While this is undoubtedly true, due regard must be had to the fact that memory is malleable and subject to influence based on the form and content of counsel’s practice questions, as well as the witness’s own perceived interest – even when the witness is trying to answer as honestly as possible.

The work of American legal ethicist Monroe Freedman has illustrated this challenge to great effect. In one study, for instance, it was established that witnesses to a car accident believed the car involved to be traveling at different speeds depending simply on the verb used to describe the accident. When the car was described as having “contacted” the other car, the witnesses estimated its speed to be 31.8 mph. When it “hit” the other car, that changed to 34 mph. “Bumped” led to a speed estimate of 38.1 mph, while the use of “collided” entailed an increase to 39.3 mph. Finally, when the car was described as having “smashed” into the other car, witnesses pegged its speed at 40.8 mph on average. Twice as many witnesses in this study also reported seeing non-existent glass on the ground when the verb “smashed” was used rather than “hit.” 16

The importance of word choice and questioning style (leading vs open) in witness preparation and potential for the shaping of evidence cannot be ignored. For this reason, several authors note that sequencing and question style are important when conducting mock examinations or discussing witnesses’ testimony with them.17

13 Finlay, Cromwell and Iatrou, supra at 9.3. 14 John A. Olah, The Art and Science of Advocacy (Toronto: Thomson Reuters, 2016 – Release 1) at 7-14, 7-15; see also 15 Gavin Mackenzie, supra 4-32.4. 16 Gavin Mackenzie, supra at 4-32.5-6, citing several of Monroe Freeman’s leading articles on the subject. 17 See Mewett and Sankoff, supra at 6-8 – 6-9; Finlay, Cromwell and Iatrou, supra at 9.3; and Mackenzie, supra at 4-32.5-8.

7C - 5

Preparation should commence with a thorough canvassing of the witness’s own evidence, using his or her own words, before reference is made to conflicting or contextualizing evidence. The initial questioning should be open-ended and non-suggestive, to draw out useful information that the witness might be withholding, consciously or unconsciously. This places counsel in a good position to appreciate the full evidentiary picture, and assist in determining how the witness’s evidence might best be organized and developed, while limiting the mischief of tailoring and improper influence. From a practical perspective, it also familiarizes the witness with the format of examination-in-chief and non-leading questioning.

Only once this preliminary form of questioning has taken place should contradictions and other problems in a witness’s evidence be probed. Counsel should be wary when preparing impressionable witnesses, and avoid providing chronologies to a witness or telling them they are wrong in their prior evidence – which has been described as bordering on counseling false testimony.18 These last two considerations led to a mistrial in an Ontario murder case in 2011, wherein the trial judge adopted a number of the Guy Paul Morin Inquiry’s recommendations regarding witness contamination by the Crown and police.19

Advising clients with respect to the law also raises thorny issues for counsel. While providing legal advice is an essential function of good representation, and counsel plainly need to advise their clients of important issues in the proceeding, this sort of guidance raises the risk of distorting even the most honest witness’s evidence. People tend to recollect matters in a way that favours their interests, and legal advice informs those interests.

Again, one way of proceeding is to seek an unaided recollection of the facts before providing legal advice – to minimize the possibility of one’s legal advice generating (false) evidence to satisfy an evidentiary burden or legal test. But Freedman is critical of this notion, and favours counsel providing legal advice upon which the client decides how to act. The idea is that counsel would benefit from this knowledge if he or she were in the client’s position, and the client should not be disadvantaged simply because of his or her lack of legal expertise. This leads some authors to favour a more expansive understanding of the duty to provide legal advice, irrespective of how that advice is used – unless counsel believes this advice is inducing the witness to tailor evidence or commit perjury. 20

18 Alan Mewett and Peter Sankoff, Witnesses (Scarborough, Ont: Carswell, c2016) at 6-8. 19 See the discussion of R v Spence, 2011 ONSC 2406 at para 26 in Mewett and Sankoff, supra at 6-7 – 6-8. 20 See Finlay, Cromwell and Iatrou, supra at 9.3 and Mackenzie, supra at 4-32.6-8, citing Monroe Freeman’s leading article on the subject “Counselling the Client: Refreshing Recollection or Prompting Perjury?”, ch. 6, in Lawyer’s Ethics in an Adversary System (Indianapolis: Bobbs-Merrill, 1975).

7C - 6

Conclusion

The line between appropriate witness preparation and the distortion of a witness’s evidence can be a fine one. In today’s world, the traditional proscription of witness “coaching” seems blunt and unhelpful when thorough witness “preparation” involving mock examinations is considered good practice. Rather than dwelling on labels, counsel are best served by considering their client’s interests and their duty to the administration of justice. Instinct and good judgment remain important barometers in assessing whether witness “proofing” is passing the threshold between diligent preparation and improper influencing of testimony. If one is in doubt, caution should be exercised. It may also be worthwhile to seek the advice of a trusted colleague and get a second opinion.

7C - 7