Immigration Detention Symposium: CARL Toolkit and Case law Compendium

Posted on May 3, 2019May 7, 2020 by Tal Schreier

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.

Asper Centre students call for Canada to suspend STCA on Refugee Rights Day

Posted on April 5, 2019May 7, 2020 by Tal Schreier

via @UTLaw: https://www.law.utoronto.ca/news/students-call-on-canada

Thursday, April 4, 2019

Image of Canadian border sign

By Karen Chen and Mackenzie Claggett

Canada presents itself to the world as a place where “those fleeing persecution, terror and war” are welcome. It is a reputation that Prime Minister Justin Trudeau touted on Twitter following the decision in the U.S. to institute a travel ban against several Muslim-majority countries and refugees. It is a reputation the Supreme Court affirmed when it released its Singhdecision 34 years ago on this day, April 4, finding that the constitutional right to life, liberty and security of a person extends to those seeking refuge in this country. It is a reputation we must uphold.

As law students engaged in refugee advocacy at the University of Toronto’s Asper Centre for Constitutional Rights, on this Refugee Rights Day, we call on the government to suspend or terminate the Safe Third Country Agreement (STCA).

Under the agreement, asylum seekers who attempt to enter Canada from the United States at border ports of entry are turned away and forced to seek protection under the American system.

This means that while Canada’s internal laws and policies may reflect our commitment to refugee rights, we are complicit with America’s asylum system under the Trump administration.

This will be especially true if the government decides to expand the agreement to cover all asylum-seekers to Canada, who were previously in the U.S. It was reported this week that Canada and the US have moved towards doing so.

By continuing the STCA, the Canadian government forces asylum seekers to choose ever more dangerous and clandestine routes of entry.

On Refugee Rights Day, let us remember the choices Canada has made as a country that respects the rights of those fleeing violence. After 157,000 displaced persons immigrated to Canada following the Second World War, Canada signed the 1951 Refugee Convention to recognize its willingness to take in refugees. In the 1980s, Canada developed a world-renowned private-sponsorship program to assist thousands of Vietnamese, Cambodian, and Laotian refugees find secure settlement. Over the past decade, Canadians have aided more than 40,000 Syrian refugees with this program. This past December, the Canadian government signed the United Nations Global Compact for Safe, Orderly, and Regular Migration. The compact provides a non-binding framework for governments to develop human-rights based migration policies, including objectives to reducing vulnerabilities in migration, strengthening certainty in migration procedures, and empowering migrants to achieve social cohesion.

Being part of the STCA means American refugee policy becomes Canadian policy. When the STCA came into effect in 2004, the underlying rationale was that both countries offer “generous systems of refugee protection” and therefore are safe for asylum seekers.

Much has changed since then.

Since the start of the Trump Administration, there is ample evidence to suggest that “safe” is a mischaracterization of the American asylum system. The family separation policy is one example of this. In November 2018, the Trump administration attempted to deny refugee protection to all claimants who did not enter the United States through a formal port of entry. This rule contradicts Article 31 of the Refugee Convention which imposes an obligation that countries not punish asylum seekers for the manner in which they enter the country. While two Guatemalan children died in immigration custody, the Trump administration announced in December 2018 it would force asylum seekers at the southern American border to remain in Mexico until their court hearing. The result has been a humanitarian crisis that puts the health and safety of asylum seekers at risk due to the lack of support services available to provide housing, medical care, and other necessities. By February 2019, President Trump used this government-manufactured crisis as the basis for declaring a “national emergency” to secure additional funds and build a barrier on the southern border.

Although we recognize the benefit of international cooperation when it comes to processing asylum seekers, such benefit no longer exists if our cooperation is with a country that does not adhere to international refugee law or the ideals Canada espouses with respect to refugee rights. The Canadian government must recognize the harm the STCA is currently imposing on asylum seekers and act accordingly.

Karen Chen is a second-year student at the Faculty of Law where she leads the Asper Centre’s Refugee and Immigration Law student working group. She is also a member of the Canadian Association of Refugee Lawyers.

Mackenzie Claggett is a first-year student at the Faculty of Law and is a member of the Asper Centre’s Refugee and Immigration Law student working group.

Dunsmuir Revisited: Questioning the Standard of Review

Posted on December 21, 2018May 7, 2020 by Tal Schreier

by Catherine Ma

Earlier this month, the Supreme Court of Canada heard the appeals in Minister of Citizenship and Immigration v Alexander Vavilov, Bell Canada et al v Attorney General of Canada, and National Football League et al v Attorney General of Canada. The Supreme Court explicitly declared that these cases offered “an opportunity to consider the nature and scope of judicial review of administrative action” as set out in Dunsmuir v New Brunswick. The Supreme Court allowed 27 intervenors to make submissions on the issues, as well as appointed amici curiae to provide further insights.

It is impossible to overstate my initial excitement for this trilogy of cases. As a summer law student this past year, I assisted with the intervention by the Attorney General for Ontario, and I personally believe that the standard of review analysis needs reform. The current approach appears to be nothing more than an intellectual exercise. It fosters endless debate about the proper standard of review, diverting attention from the real impacts of administrative decisions. Yet, the law is about the experiences of individuals who must navigate the legal system, and the function of judicial review is ensuring that all individuals are treated fairly under the law.

My initial excitement increasingly faded as more factums were submitted; after the hearings, I lost all expectations of genuine reform. These cases narrowly focused on the standard of review applicable to an administrative decision-maker’s interpretation of a statute. The oral submissions for Bell Canada and NFL and Vavilov discussed piecemeal adjustments to the current approach to the standard of review, such as establishing a new category where a standard of correctness would apply and eliminating the category of “true questions of jurisdiction.” The parties obsessed over whether the standard of review should change in light of statutory rights to appeal and/or a decision-maker’s level of independence from the legislature.

I found it interesting that the parties only made fleeting references to the Charter of Rights and Freedoms in their factums, as the impact of many administrative decisions on individuals’ Charter and human rights is often profound. Counsel for Mr. Vavilov mentioned that the impugned decision had “enormous importance,” as having citizenship would mean that Mr. Vavilov had a Charter right to enter and remain in Canada. During oral submissions, his counsel Barbara Jackman asserted that a standard of correctness must apply to administrative decisions that involve human rights. She explained that such issues engage the Charter, and “deference is not part of the constitutional scheme.” The courts must be the ultimate decision-maker due to the significance of those decisions.

The amici curiae remarked that a standard of correctness should apply when decisions implicate the Charter since the courts must have the “last word” on interpretations of the Charter and purported infringements of Charter rights [79-82].

The intervenor Community & Legal Aid Services Programme (CLASP) provided the most comprehensive submission regarding the Charter. It advocated for a “nuanced approach” that would consider the nature of a decision, the nature of the decision-maker, the nature of the decision-making process, and the Charter right at issue in order to determine the proper standard of review.

In light of the relative silence around the Charter, it seems unlikely that the Supreme Court of Canada will adjust the standard of review as it pertains to administrative decisions that implicate the Charter. I suspect that the Supreme Court of Canada will only make minor tweaks to the current approach to the standard of review, leaving the Doré / Loyola framework untouched.

[Click on picture for link to archived webcast of SCC hearing on Dec 4, 2018]

Catherine Ma is a 3L JD Candidate at the Faculty of Law and was a student leader of the Asper Centre’s Indigenous Rights student working group in 2017-2018. She was a summer law student at the Ministry for the Attorney General in 2018.

Reflections at the Asper Centre’s Ten Year Anniversary Event

Posted on November 8, 2018June 10, 2020 by Tal Schreier

by Josh Foster

On October 17th, the University of Toronto Faculty of Law opened its doors in celebration of the David Asper Centre for Constitutional Rights’ 10th Anniversary. To borrow from the submissions of Joseph Arvay in Carter v Canada (Attorney General), the Asper Centre’s 10th Anniversary was a “momentous occasion”.

Founded through the generous donation of UofT Law alumnus David Asper (LLM ’07), the Asper Centre has marshalled students, faculty and members of the bar toward advancing Canadian constitutional law, and access to constitutional rights since September 2008. This effort has afforded the Asper Centre the opportunity to intervene on multiple constitutional appeals, twenty of which have been before the Supreme Court. These appeals have included such noteworthy cases as: Conway v Her Majesty the Queen, et al, Prime Minister of Canada et al. v Omar Khadr, Attorney General of Canada v Downtown Eastside Sex Workers United Against Violence Society and Sheryl Kiselback, and Canada v Bedford. In addition to its role as an intervenor, the Asper Centre has prepared policy briefs for numerous Senate Standing Committees, hosted panel discussions on topical constitutional issues, and contributed to legal scholarship.

In recognition of the Asper Centre’s dedication to legal advocacy, education, and research, the Faculty of Law hosted a discussion between Mary Eberts and Joseph Arvay. Eberts, a former Asper Centre Constitutional Litigator-in-Residence, has acted as counsel to parties and intervenors at all levels of court and before administrative tribunals and inquests.  Further, she advocated for the present language of section 15 of the Charter, and was one of the founders of the Women’s Legal Education and Action Fund (LEAF). Since 1991, Eberts has been litigation counsel to the Native Women’s Association of Canada (NWAC). Arvay, the first Constitutional Litigator-in-Residence for the Asper Centre, is recognized as one of Canada’s foremost constitutional litigators. In 1990, he co-founded the firm of Arvay Finlay Barristers and has been awarded honourary doctorates of law from both York University and the University of Victoria. Together, Arvay and Eberts have appeared before the Supreme Court in more than fifty constitutional appeals. Both were made Officers of the Order of Canada this year for their work.

The discussion between Eberts and Arvay, moderated by former Supreme Court of Canada Justice Thomas Cromwell, focused on wide-ranging topics relevant to public interest litigation, five of which are highlighted here.

First, Eberts and Arvay shared their views on early Charter jurisprudence as well as the development of the s. 15(1) equality guarantee. By now it is clear that the Supreme Court’s interpretation of s. 15(1) has been inconsistent. However, both Eberts and Arvay agreed that it has now stabilized. Importantly, Eberts would welcome greater judicial consideration for the meaning of “equal protection and equal benefit of the law” within the equality guarantee.

Second, Eberts and Arvay were asked to express their views on the development of Aboriginal law and Indigenous rights. Notwithstanding the progress made through cases like Delgamuukw v British Columbia and Tsilhqot’in Nation v British Columbia, the Asper Centre’s distinguished speakers agreed that there is more to be done. For instance, Eberts suggested that s. 35 of the Constitution Act, 1982 has been thus far, interpreted too narrowly. Moreover, greater regard must be had for the role of “the emerging Indigenous nations in Canadian federalism”. From the perspective of counsel for Indigenous litigants, Arvay articulated the difficult task of seeking relief from Canadian courts while limiting the room for those same courts to make pronouncements on Indigenous law.

Third, Cromwell asked Eberts and Arvay to share their opinions on the role of interveners in constitutional litigation. Of course, having acted as counsel for numerous interveners, each were well positioned to answer. For both Eberts and Arvay, interveners play an integral role to constitutional litigation, namely, ensuring that all interests/perspectives relevant to an issue are fairly represented. Unfortunately, the Supreme Court’s continued shift toward minimizing the time given for interveners to make oral submissions tempers their efficacy and utility. The Asper Centre, as a frequent intervener in the Supreme Court has equally been impacted by these temporal limitations.

Fourth, and perhaps most surprisingly, Eberts and Arvay expressed their views on large law firm environments and whether they are conducive to pubic interest litigation. The fact that most public interest litigation is done on a pro bono basis presents an obvious challenge to any private practice, including large firms. Drawing on their respective experiences in large firms, both Eberts and Arvay suggested that they can serve as excellent environments to facilitate public interest and constitutional litigation. With that said, young lawyers in these settings must be careful not to over commit to pro bono litigation and thereby become unable to meet competing demands.

Lastly, Eberts and Arvay explored their experiences in seeking advanced or special costs orders. For Eberts and Arvay, the law on advanced costs is in an unsatisfactory state. A failure to receive advanced costs for litigants is at the least disheartening and at the worst, prohibitive of meritorious claims. Presently, the bar for granting an advanced costs order is simply too high while revealing the financial vulnerability of the moving party.

In summary, the Asper Centre’s 10th Anniversary celebration was an engaging and informative event. Mirroring the Asper Centre’s mandate, the questions posed to its esteemed guests were oriented around topical issues in constitutional law and access to constitutional rights. At the Direction of Cheryl Milne, and with the support of its Program Coordinator, Tal Schreier, as well as UTLaw’s faculty and students, the Asper Centre has made significant strides in advancing constitutional rights, research and public policy in Canada. Further, the Asper Centre’s involvement in constitutional advocacy initiatives and litigation has provided students with the opportunity to gain practical experience under the tutelage of experienced advocates such as Mary Eberts and Joseph Arvay.

Josh Foster is a 3L JD Candidate at the Faculty of Law and an Asper Centre Clinic alumnus

From L to R, Dean Ed Iacobucci, Cheryl Milne, Joseph Arvay (sitting), David Asper, Mary Eberts, and Thomas Cromwell (photos by D. Chang)

Asper Centre Students in Focus: Jason Lamb

Posted on June 28, 2018May 7, 2020 by Student

Meet Jason Lamb, a rising second-year J.D. candidate and one of the Asper Centre’s student research assistants this summer.

Lamb’s main project is to help publish a special edition of the Supreme Court Law Review based on presentations at the Asper Centre’s public interest litigation conference in March. The journal edition will “be a lasting document to preserve this moment of our thinking,” he notes.

The papers examine the intersection of law and advocacy in a public context. “It’s a very wide-ranging topic that can cover all sorts of issues [such as] ethics in the legal profession, access to justice, advocating for housing rights, intervening at the Supreme Court — there are all kinds of ways that practitioners and academics approach that question,” Lamb says.

The project also involves significant inter-disciplinary research, which draws upon Lamb’s history and political science background.

“I’ve had to get abreast of all different areas of sociology [and] political science that I’ve left dormant since I’ve gone into law school,” he says. “I’m reviving a lot of stuff that I’ve learned in the past and am now applying it in the context of advocacy and lawyers, which is not something I’ve thought of before.”

Lamb wanted to work with the Asper Centre this summer because of his experience volunteering with the Refugee and Immigration Student Working Group during the school year. It made him realize the connections between the law and current affairs, and that law students “can start playing a small role in as an actual actor in the overall scheme of things, rather than someone who just observes.”

A long-time debater, Lamb is considering a litigation career, but is wary of working in a constantly adversarial environment. “I can see why it can wear someone down over time, he says. “But it’s an interesting challenge.”