Asper Centre Symposium

Litigating Equality in Canada Symposium

In the past decade, several decisions from the Supreme Court of Canada have articulated a revised understanding of the way that section 15 of the Charter is to be applied in Charter litigation. In particular, Fraser has been interpreted by some as modifying the approach by claimants in establishing a section 15 breach and placing more focus on the government’s burden of justification. Most recently, Sharma has articulated an evidentiary burden as part of the test. The Courts have also been challenged to examine the implication of equality rights in Charter challenges and sentencing cases in the criminal law context in ways that place a heavy focus on racial inequities. The events of the summer of 2020 and the Black Lives Matter movement have highlighted the importance of cases such as R v Sharma and R v Morris, that have recently been considered by our courts. The Supreme Court of Canada has also shown an increasing interest in scholarship in the analysis of the law, while at the same time, we are seeing an increased interest and influence of interveners in these cases.

In light of the above developments, the Asper Centre convened a one-day Symposium (in-person and via Webinar) on Friday May 26th, 2023, to critically examine the status and future of equality litigation in Canada. The Symposium was aimed at both practitioners (lawyers and NGOs) who are engaged in public interest litigation and scholars and students who study and analyze the impact of these cases.

Some of the themes that were covered in the Symposium include an analysis of the recent Supreme Court rulings under s.15 of the Charter and their impact on litigation strategies on behalf equality seeking groups and the government; whether and how interveners have made an impact on these cases; the nature of the evidence required to successfully argue or defend these cases; and, lessons from successful as well as unsuccessful litigation in this area extracted from individual cases.

This Symposium builds on some of the themes explored in the Asper Centre’s 2018 Public interest Litigation Conference (and the publication following that Conference) in order to contribute to the practical scholarship on equality litigation in Canada and to produce a follow-up publication to this earlier work.

The Symposium included a morning plenary session on the role of interveners in equality litigation in Canada, a closing panel offering reflections and perspectives from the bench, as well as a full day of panel discussions by academics and practitioners focusing on the above-noted issues.

View Symposium AGENDA with Speakers Bios and Abstracts

View archived webcast of the Symposium

Immigration Detention Symposium: CARL Toolkit and Case law Compendium

Posted on 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. 

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

Posted on by Tal Schreier

 

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.