Charter section 7

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. 

Legal Aid Cuts: Devastating and Short-sighted

Posted on by Tal Schreier

 

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

What they don’t know will hurt them: no consent, gender identity or social media in the Ontario sex ed curriculum

Posted on by Tal Schreier

By Leslie Anne St. Amour

In my opinion, to call the court’s decision dismissing the case against the Ontario government in respect to the repeal and replacement of the sex ed curriculum disappointing would be an understatement. I would consider instead: disheartening, or infuriating.

In 2018 the Ontario government issued a directive to repeal the 2015 sexual education curriculum and replace it with the 2010 curriculum, which had the same sexual education content as the 1998 curriculum. The previous curriculum did not include among other things consent, gender identity and expression, cyberbully or sexting. The Elementary Teachers’ Federation of Ontario (ETFO), the Canadian Civil Liberties Association (CCLA), and a parent of a child affected brought two applications to judicially review this directive, which essentially required the determination of one question: whether the directive and the events surrounding the decision infringed the Charter rights of teachers, students, and/or parents.

Arguments were made regarding sections 2(b), 7 and 15(1) of the Charter of Rights and Freedoms in this case by the ETFO and the CCLA. Several interveners also took part to provide other perspectives including: Grand Council of Treaty 3, Justice for Children and Youth and Canadian HIV/AIDS Legal Network and HIV & AIDS Legal Clinic Ontario.  This article provides my opinion on the Charter analysis provided by the court, but I will note there was also a discussion of jurisdiction and standing.

I understand how the court came to dismiss the applications, but I still believe it was incredibly important that the case was brought. We need queer youth, young women and girls and survivors of sexual violence to know we stand with them. The court did clarify that teachers can teach from the 2015 curriculum with no fear of professional repercussions and in many ways, that is a win for students with willing teachers. But the concern remains for students of teachers unwilling to teach this content for personal reasons or because of the opinions of those around them.

2(b) – Freedom of Expression

In addressing the section 2(b) freedom of expression analysis, the court examined the combination of the removal of topics from the curriculum along with statements made by members of the government and the creation of a website which allowed for the submission of information on teachers and classrooms. The complainants alleged that this constellation of factors established a violation of teachers’ freedom of expression by preventing them from teaching facets of the 2015 curriculum which were removed by the replacement with the 2010 curriculum.

In finding that there was no 2(b) violation, the judge appears to rely on the fact that counsel clarified the positions of the Minister in respect to what was fair game for teachers to teach under the new curriculum. I am frustrated by this result as this clarification would not have come had this not been brought to court and runs counter to the common understanding of the statements made by the government, which the court itself called “Ill-considered”. However, I expect some teachers will find solace in this decision as it confirms their ability to provide necessary information on consent, gender identity, sexual orientation, sexting and cyberbullying to their students without fear of professional sanctions.

7 – Guarantee to Life, Liberty and Security of the Person

While working with the Asper Centre, within our working group, I focused on the s. 7 arguments and I knew this would be a difficult argument to make but I hadn’t expected the court’s focus on a lack of evidence of harm stemming from the 2010 curriculum. Jurisprudence on s. 7 does not require direct scientific evidence, but rather a sufficient casual connection is enough to draw a reasonable inference on a balance of probabilities.

In my mind, every sexual assault which was committed by a person who had been taught sex ed in Ontario during the time period the 2010 curriculum was in use or was perpetrated against someone had been taught sex ed in Ontario during that time arguably had a link to the curriculum. This is due to a lack of education around the requirement of consent to engage in sexual activity. I thought of the young men and women who didn’t know they needed to say yes, didn’t know how to say no or didn’t know what to do when their no or lack of yes meant nothing to someone else. I think of the young men and women now having to face the reality of having engaged in sexual misconduct or assault because no one taught them any better in a world which rewards toxic masculinity and rape culture and encourages women to bite their tongue and let it go.

And so, I knew this argument would be hard to make because a government does not have a positive burden to ensure life, liberty and security of the person and because a policy of one government does not bind the next, but I hadn’t expected part of the issue to be a conceived lack of harm.

15(1) – Equality

In addressing the s 15(1) arguments the court references the characterization of the curriculum as a benefit which is not available to certain groups however, does not address this point specifically in its reasons. The court reiterates the jurisprudence surrounding the fact that the repeal of a policy does not constitute a Charter violation if it removes a benefit that previously existed. However, my understanding of the framing of the issue as a benefit which is not available to certain groups such as LGBTQ students is a desire to see the current curriculum, separate from the repeal itself, as a violation.

By providing a sexual education curriculum which does not teach content relevant to diverse gender identities or sexual orientations, cis and straight students are receiving a benefit from the government that other students cannot receive. That benefit is a sexual education curriculum which is relevant to them. The court does not address the s. 15 claim from this angle, addressing only the lack of requirement to continue to provide a benefit that had previously been received.

I want to end this article by saying that I and many others will continue to stand with the students impacted by the repeal and this decision and continue to do what we can to support them and their access to the necessary information they are no longer guaranteed in the classroom. Therefore, I’ve provided a list of links below to resources that are working to fill this gap:

My Sex Ed – Resources

Youthline

Planned Parenthood- Factsheet

Teen Health Source

Leslie Anne St. Amour is 2L JD Candidate at the Faculty of Law and a former Asper Centre clinic student. [read Leslie Anne’s previous blog post reflecting on her work on this case as an Asper Centre Clinic student.]