Asper Centre granted intervener status in 2 upcoming Ontario Court of Appeal cases and seeks standing in a third one

City of Toronto v. Attorney General of Ontario et al

On September 10, 2018, Ontario Superior Court Judge Edward Belobaba in City of Toronto et al v. Ontario (Attorney General), 2018 ONSC 5151 declared that the province of Ontario had “substantially interfered” with the Charter section 2(b) freedom of expression rights of both the municipal ward election candidates and City of Toronto voters and struck down the province’s Bill 5 (which reduced the number of City of Toronto wards from 47 to 25) as unconstitutional.

The province appealed the decision to the Ontario Court of Appeal, which on September 19, 2018 stayed the order of the Superior Court pending the appeal, and thus allowed the election to proceed with the reduced number of wards.

The appeal of the lower court decision will be heard on June 10-11, 2019. The Asper Centre has been granted intervener status in this appeal, with its arguments focusing on the role that section 2(b) of the Charter plays “in ensuring a stable and protected election framework which is necessary to foster full engagement in the democratic process.”  Read the Asper Centre’s Intervener Factum here.

R v. Sharma

Ms. Sharma is a bi-racial Indigenous woman, whose ex-boyfriend used her as a drug mule and she was charged and convicted with importing just under 2kgs of cocaine. She would have been a suitable candidate for a conditional sentence but for the prohibition preventing drug importers from receiving a conditional sentence.

Based on a s.12 Charter argument advanced by Ms. Sharma that 2 years in jail would be grossly disproportionate and thus cruel and unusual punishment, the judge in R. v. Sharma, 2018 ONSC 1141, found that the mandatory minimum sentence of 2 years under the Act was unconstitutional and unjustified under section 1 of the Charter.  This aspect of the decision was not appealed.

Ms. Sharma also advanced a s.15 Charter argument that s.742.1(b) and (c) of the Criminal Code disproportionately affects Indigenous women as it removes the ability to serve their sentences as conditional sentences. The judge did not address (b) since he had already found the mandatory minimum to be unconstitutional. As for (c), the judge held that there is no reason to believe that the prohibition on conditional sentences, on the record before it, created an adverse effect such that it can qualify as a distinction based on Aboriginal status. This claim was dismissed.

Ultimately, the judge determined 18 months incarceration to be just, and reduced it by only 1 month given Gladue factors.

Ms. Sharma appealed her sentence to the Ontario Court of Appeal and the Asper Centre jointly with LEAF (the Women’s Legal Education and Action Fund) were granted intervener status in this appeal.

R v. Morris

Mr. Morris is a black male who was charged with multiple offences including possession of illegal firearms and assaulting a police officer. He was convicted only of the firearms offences.

Upon sentencing, the judge considered Mr. Morris’ personal social context, based on reports from psychologists and social scientists with an expertise on black racism in Canada. The Crown sought 4-4.5 years while the defence sought 1 (before Charter breaches were accounted for). In his decision the judge mentions that reports, such as the ones he was presented with, are not new to the law given Gladue reports for Indigenous offenders. He ultimately, in light of  Mr. Morris’s upbringing and social context (among the other mitigating and aggravating factors), sentenced him to 15 months, reduced to 12 months for Charter breaches.

The Crown appealed the sentence stating that the sentencing judge erred by imposing an unfit sentence, erred in his treatment of social context evidence and erred in his treatment of aggravating/mitigating factors.

The Asper Centre has applied for intervener status in this case. The motion is scheduled to be heard on June 13th.

Immigration Detention Symposium: CARL Toolkit and Case law Compendium

by Delia Luca and Jacob Webster

The final panel of the Asper Centre Immigration Detention Symposium held on March 15, 2019 focused on the Immigration Detention Toolkit (Toolkit) recently launched by the Canadian Association of Refugee Laywers (CARL) and the Asper Centre Clinic’s Compendium of jurisprudence related to the Immigration and Refugee Board’s (IRB) External Audit, soon to be available. In conjunction, the panellists advanced strategies for addressing the ongoing challenges in Canada’s immigration detention system and illuminated the discrepancies between the expectations articulated by the courts and the practice of the IRB’s Immigration Division (ID). The panelists were Jamie Chai Yun Liew, Associate Professor at the University of Ottawa and co-leader of CARL working group on Immigration Detention, Aris Daghighian, an Associate at Green and Spiegel LLP and member of CARL’s Working Group on Immigration Detention, Devon Johnson, a JD Candidate at UofT Law and Asper Centre Clinic Student and Jim Molos a JD Candidate at UofT Law and Asper Centre Clinic Student. The panel was moderated by Enbal Singer a 3L at UofT Law and co-leader of the Asper Centre’s student working group on Immigration and Refugee Law.

The Immigration Detention Toolkit

The Immigration Detention Toolkit was devised by CARL in order to provide recommendations on the steps counsel can take to ensure the fairest process possible outcomes for their clients in immigration detention.  The panelists modestly acknowledged that the Toolkit is a “living document”, an evolving document, that ought to be updated to reflect criticisms and recommendations. The Toolkit is the product of laudable advocacy across the country, in response to the Immigration and Refugee Board’s (IRB) External Audit. The panelists cautioned that the Toolkit should not be used in isolation, as it is meant to be employed by counsel in conjunction with the Chairperson’s Guidelines.

While touched on throughout the panel, the need to ensure fair representation for clients in the face of relatively unprincipled judgments strikes us as meriting a more elaborate discussion. How should counsel approach discrepancies and a lack of transparency with respect to the immigration detention system? The Toolkit seeks to aid counsel in discerning what they should demand of the ID. For instance, counsel must ask for sufficient disclosure in order to hold the Canada Border Service Agency’s (CBSA) officials accountable, CBSA should provide reasonable notice of the evidence or information that will be relied upon at the detention review, including any evidence that may exculpate the detainee. Knowing the right questions and making appropriate demands on behalf of clients is especially relevant in a legal forum where government officials and the ID have seemingly broad discretion.

The panel also touched upon the question of how to properly articulate detainee’s mental illness, addiction and other vulnerabilities. As legal practitioners working with vulnerable clients, one must acknowledge and represent their client’s circumstances in a manner that does not disaffirm their agency and active role throughout the process. Despite societal efforts at creating a safe environment where said vulnerabilities may be discussed openly, detainees’ suffering from various conditions continue to be stigmatized. In such cases, counsel must assess their client’s situation, identify the need to appoint a Designated Representation (DR) and inform the ID accordingly.

The Toolkit advances recommendations of how to relate to the vulnerability of detainees and encourage the courts to consider their vulnerability in a substantive, rather than merely procedural manner. Counsel must demonstrate that their client’s vulnerability should not be taken as a flight risk or risk to the public. Furthermore, counsel must highlight that the detainee’s mental health or addiction is not voluntary and may inhibit one’s capacity. In doing so, counsel must not severely victimize the client in a manner that strips the client of their perceived ability to improve their condition. This issue invokes the rising demands upon immigration lawyers to think creatively, as evidenced by the advent of using habeas corpus under section 10(c) of the Canadian Charter of Rights and Freedoms (“Charter”) on behalf of clients, to grant them relief from arbitrary state detention. All in all, in the face of broad discretion, counsel must challenge Canada Border Services Agency (CBSA) submissions and force adequate disclosure. As per the words of one of the panelists, counsel has the duty to “put CBSA’s feet to the fire” in hopes of facilitating a fair and just process.

A Compendium of Federal Court Jurisprudence

As clinic students at the Asper Centre last term, Jim Molos and Devon Johnson conducted a survey of relevant Federal Court case law and compiled a compendium of jurisprudence to assist practitioners in martialling precedent to advocate for their clients’ best interests in immigration detention hearings. Their presentation emphasized the minimum standards for lawful immigration detention and their interpretation under section 7 of the Charter in Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9. Molos stressed the importance of effective advocacy. Although the constitutionality of the Immigration and Refugee Protection Act (IRPA) has been affirmed by courts, particular detentions may still be unconstitutional. With relation to disclosure, it was stressed that section 7 of the Charter protects the right against having a case brought on undisclosed evidence. Thus, counsel should ensure that the Minister’s case is challenged effectively.

The latter half of Molos and Johnson’s presentation focused on alternatives to detention under section 58(3) of the IRPA. The panellists emphasized that all conditions imposed on release should be viewed as an imposition of liberty and thus must be subject to ongoing review in a way that ensures that the impositions do not deprive liberty disproportionate to risk.

In the question and answer period that followed the panel, an audience member questioned whether the CARL Toolkit is written in a manner accessible to unrepresented detainees or published in multiple languages. Liew and Daghighian acknowledged that this was an important suggestion and that while the Toolkit was written in an accessible manner, it was probably not accessible enough for a self-represented litigant. This speaks to the evolving nature of the document.

The CARL Toolkit is available here and the Asper Centre Federal Court Case law Compendium is forthcoming. The presentation used by Liew and Daghighian during the panel is available here and the presentation used by Molos and Johnson is available here.

Delia Luca and Jacob Webster are both 1L JD Candidates at the Faculty of Law and members of the Asper Centre’s Immigration & Refugee Law student working group. 

Immigration Detention Symposium: Habeas Corpus Panel Highlights

 

by Mashoka Maimona and Renuka Koilpillai

The “Habeas Corpus Best Practices” panel was one of the highlights of the Asper Centre’s Immigration Detention Symposium, held on March 15, 2019. The panellists were immigration and refugee lawyers Subodh Bharati, Jared Will, and Swathi Sekhar. The lively panel was moderated by the Refugee Law Office’s Simon Wallace, who explained that the panel would focus on the current status of habeas corpus, and how it can be used as a litigation strategy in immigration detention cases.

Habeas corpus is a common law writ of relief for immigration detainees to challenge their detention as unlawful. Previously in Canada, as Will outlined, habeas corpus applications could not be used by people who were being held in immigration detention, as courts consistently held that they did not have jurisdiction to hear the case. This changed after Chaudhary v Canada, where the Ontario Court of Appeal (ONCA) stated that habeas corpus is a better remedy in cases of long-term detentions. Fast forward two years to 2017, where in Ogiamien v Ontario, the ONCA extended the use of habeas corpus to immigration matters whenever it can be shown to be a more advantageous remedy than the standard immigration processes. Although this was a step in the right direction, according to Will, Brown v Canada determined that habeas corpus applications should not be attached to Charter damages claims, as a Charter claim “distorts what is otherwise intended to be an expeditious process….and gives the Charter damages claim a higher priority for hearing than it would otherwise receive.”  The 2018 SCC appeal in Chhina (decision still pending) will provide important clarification on the scope of habeas corpus, potentially expanding or narrowing the judicial remedies in reviewing a person’s immigration detention.

Bharati’s goal in a detention review is to demonstrate that the immigration detention is unlawful: if it is “unhinged from the immigration purpose” (see Charkaoui and Chaudhary) or if there is any deprivation of liberty that follows from a procedurally unfair process. He called for s. 11 of the Charter to apply to immigration detention matters. Section 11 covers the legal rights that apply to those “charged with an offence,” including (a) the right to be informed without unreasonable delay of the specific offence, (b) the right to be tried within a reasonable time, and (e) the right not to be denied reasonable bail without just cause. Even the SCC has expressed disbelief that any administrative tribunal could imprison someone (see R v Wigglesworth), yet the Federal Court continues to maintain that s. 11 does not apply to immigration matters.

The Chhina appeal demonstrates that there is a greater concern by our courts in extending Charter rights to non-Canadians, as opposed to questioning why everyone does not enjoy the same set of rights, Bharati said. Under s. 11(d) of the Charter, Canadians enjoy the right to be presumed innocent until proven guilty according to the law in a fair and public hearing by an independent and impartial tribunal. Non-Canadians can, however, be placed in a maximum security prison without these safeguards. The defendant in a criminal bail hearing is brought to court in his or her street clothes — because “the presumption of innocence requires the garb of innocence,” as “every defendant is entitled to be brought before the court with the appearance, dignity, and self-respect of a free and innocent” person (see Eaddy v People). However, in immigration detention matters, where detainees are not being held for any criminal purpose, they appear at detention review hearings wearing an orange prison uniform. The detentions themselves can even be held in maximum security prisons. The minds of decision-makers who pass through these gates with armed guards can be reasonably assumed to be tainted. What follows from a procedurally unfair process is by its very nature unlawful, Bharati reminded the audience.

When asked about future litigation strategies, Bharati shared his stark truth: “One realization I’ve had is that the law is not meant to be the vehicle for social reform. It’s very difficult. Laws are made by people in power to keep their power. It’s about keeping the status quo.” Systemic change through the judicial system is about understanding the underlying principles, he added. One of these principles in how we measure the legitimacy of a law in its equal application.

Sekhar flagged how detainees are further criminalized for “non-cooperation” by CBSA officers, who threaten to invoke s. 16 of the Immigration and Refugee Protection Act (IRPA) and charge her clients criminally. This is done without understanding the experiences of the detainees, such as their potential fear of returning to their country, or how months and even years of incarceration affects their mental health.

Will advocated for more rules in this area, pointing to Quebec’s Code of Civil Procedure as an exemplar for its accelerated process for handling habeas corpus applications — a process that affords detention cases the importance and urgency they deserve. Forty-eight hours after providing notice, a detainee can plead in front of a judge (as everything else gets bumped down the list). This seems unsurprising, given the high-stakes in such detention cases that involve the deprivation of people’s liberty, dignity, minds, and lives. However, while the question on the writ is straightforward, boiling down to whether the affidavit raises reasonable and probable grounds to challenge the detention, detainees face “tense resistance” from the Department of Justice and the Ontario courts. The reality is that habeas applications are resource intensive and time-consuming, Will added, and because of the sheer length of the process, a habeas application may not be in a detainee’s best interest. Nevertheless, the first tool in a detainee’s arsenal is the threat of a habeas, he suggested.

Mashoka Maimona and Renuka Koilpillai are 1L JD Candidates at the Faculty of Law. They are also members of the Asper Centre Immigration & Refugee Law student working group this year.

 

Immigration Detention Symposium: Responding to the IRB’s External Audit

 

by Olivia Martin and Adrian Ling

The first session of the Asper Center’s Immigration Detention Symposium, held on March 15, 2019 at the University of Toronto Faculty of Law, featured a panel discussing the 2018 Immigration and Refugee Board’s (IRB) External Audit report on Immigration Detention. Kathy Laird, a Toronto lawyer and author of the report, audited 312 immigration detention hearings for 20 different files selected on a random basis. She opened the panel by explaining that her task in completing the audit was to review the fairness of the process in order to ensure that the results of these detention hearings matched the evidence that was produced.

Laird candidly shared she was “shocked” by what she found when listening to the hearings and elaborated that some key themes were inconsistent and inaccurate factual findings and changing adjudicators within a single file. She shared one particularly impactful example of an individual who, in a single hearing, had his release plan turned down because it did not include drug counselling; it was in an urban setting, and it was too close to family where the last issue had occurred. However, in a subsequent hearing with a different adjudicator, a second release plan for the same individual was also turned down because it included unnecessary drug counselling, it was in a rural setting, and it was too far from family.

Aviva Basman and Nancy Weisman presented after Laird. Both were from the Immigration Division of the IRB, where Basman is Assistant Deputy Chairperson and Weisman is Senior Counsel.  As it turns out, the IRB began formulating a new set of detention policy guidelines in response to the problems found in Laird’s Audit. Additionally, between the time of the report and now, the Board had already begun implementing procedures in an effort to improve the system. Basman described a number of these changes, while Weisman spent the majority of her time outlining some of the new policies that were to be implemented in the guidelines.

Some of the changes Basman described related to the continuity of expertise in a detainee’s file. These included ensuring the same member of the Board (who would roughly fill the role of a judge in these decisions) would preside over each of a detainee’s hearings and making sure that the detainees’ bondspeople were being interviewed by members directly. It was surprising to us that this was not already the case, as it seems like the most intuitive way for these hearings to occur. Additionally, Basman was happy to announce that the new cohort of Board members recently hired all had experience in immigration and refugee law or detention work.

Weisman announced that the IRB’s detention guidelines would be published by the following Monday and highlighted some of its most significant shifts. The new policy de-emphasizes some of the categorical approaches that had been used before. For example, a lack of family ties to Canada is no longer dispositive of a person being a flight risk. Additionally, the new guidelines mandate a Stinchcombe-like breadth of ministerial disclosure and an active consideration of all possible alternatives to detention.

Hanna Gros, from the International Human Rights Program at the University of Toronto, emphasized that immigration detainees are held on administrative grounds, not criminal grounds. She highlighted that immigration detention is not a punishment, despite the fact that nearly a third of detainees were held in corrections centres last year, and immigration detainees are generally detained for reasons completely unrelated to public safety, most often including issues of unclear identity or potential flight risk.

Sarah Boyd, an associate at Jackman and Associates who works directly with detainees, spent time discussing what a procedurally fair detention hearing might look like. Boyd passionately emphasized that a procedurally fair detention hearing would look like any other procedurally fair hearing, featuring two parties coming to the table with the same information and being treated equally by the tribunal. However, from Boyd’s point of view, there are barriers that currently make many detention hearings less than fair for detainees, including the different standards that the detainee’s counsel and the CBSA officers are held to. While the detainee’s counsel is standing at the metal detector removing staples from paperwork as required, the CBSA officer is often in the hearing room chatting about their weekend with the Board member presiding over the hearing.

Despite their criticism, both Gros and Boyd expressed optimism that the IRB’s new detention guidelines would address a number of the concerns they discussed in the panel, with Gros noting that the guidelines are “crucial first steps in the right direction, but not the ultimate solution.”

Overall, the group shared a consensus that there is still need for further improvement and that the required change requires a concerted effort from all the stakeholders involved.

View a recording of the panel here.

Access the RESOURCES from the Immigration Detention Symposium here.

Olivia Martin and Adrian Ling are 1L JD Candidates at the Faculty of Law and members of the Asper Centre Immigration and Refugee Law student working group. 

 

Legal Aid Cuts: Devastating and Short-sighted

 

by Cheryl Milne

Devastating and short-sighted. These are the words that immediately come to mind in response to last week’s announcement that the Legal Aid Ontario budget would be cut by approximately 30% starting with the immediate end to funding for legal services to refugee claimants and immigrants.

To be clear, these are not cuts to lawyers, they are cuts to access to justice for some of the most vulnerable and neediest in our province. Attorney General Caroline Mulroney attempted to justify some of the cuts by citing a statistic that the number of people served by Legal Aid Ontario has dropped 10% over the past several years. But it should be clear to all that this is misleading. The income cut-offs for eligibility for legal aid funding has consistently fallen behind the cost of living so that fewer and fewer people qualify for legal aid funding. Further, any attempt to evaluate the benefit of legal aid must use more sophisticated methods than simply counting heads. As has been noted by other commentators, funding taken away from legal aid leads to increases in other government expenditures, including the costs of increased inefficiency in our justice system, as well as the devastating human toll of homelessness, family breakdowns and unjust incarceration.

Will these cuts infringe constitutional rights? The Charter and Supreme Court decisions have established the right to state funded counsel within the context of criminal prosecutions and state intrusion in the family through the removal of children in child protection proceedings. Legal Aid funding has generally provided the resources when it is clear the individual is unable to pay. But many in the system would say that it has done so inadequately. Child protection counsel decry the small amounts of time allocated by Legal Aid Ontario to representation of families caught up in the child welfare system. Indeed, to maintain the requisite professional competence in representing clients in this area, lawyers routinely spend unpaid hours working on these files. Similarly, the criminal defence bar has long advocated for more realistic funding for criminal files, with many lawyers reducing the number of legal aid cases they take on because of the simple need to earn a living. These cuts threaten the ability of the government to live up to its constitutional obligations while potentially decimating the funding for other critical areas of legal representation for the poor and vulnerable in Ontario.

The most devastating immediate impact is the end to legal aid for immigrants and refugee claimants without warning. Clearly, the provincial government sees this as a political football that it is kicking to the federal government because, “of course”, they are the cause of the immigration crisis in the province. In fact, there is no crisis and to characterize this as wholly a federal responsibility fails to understand the impact of immigration, more frequently positive than negative, on the province as a whole. Will this lead to constitutional arguments under section 7 of the Charter in favour of funded legal services? Perhaps. It might end up being that the federal Department of Justice must pay, but to leave people stranded without representation without warning and without consultation is both heartless and bad policy. People will be deported to face persecution, torture and possibly death. Individuals will languish in immigration detention without proper representation in a detention review system that continues to be in need of serious overhaul. And that is on all of us.

We cannot choose to be citizens of the Province of Ontario and not citizens of Canada when it suits. We are all responsible for this and need to hold our representatives accountable for what the aftermath of these cuts will be for everyone.

Cheryl Milne is the Executive Director of the Asper Centre