24 TH ANNUAL Immigration Law Summit

Transcription

1 24 TH ANNUAL Immigration Law Summit 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 day two November 23, 2016 *CLE A-PUB*

2 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 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 2N6 Phone: or Ext Fax: cpd@lsuc.on.ca Library and Archives Canada Cataloguing in Publication 24rd Annual Immigration Law Summit Day Two ISBN (Hardcopy) ISBN (PDF)

3 24 TH ANNUAL Immigration Law Summit DAY TWO 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, :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 CLE 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 1

4 Claire le Riche, Deputy Regional Director and Senior Counsel, Immigration Law Division, Ontario Regional Office, Department of Justice 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 2

5 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 3

6 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 4

7 24 TH ANNUAL Immigration Law Summit DAY TWO 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 SKU CLE Table of Contents DAY TWO: TAB 1 The Federal Court: Update to 1 51 The Honourable Paul Crampton, Chief Justice, Federal Court of Canada 1

8 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 TAB A Country Research: Distinguishing Fact from Fiction 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 to 4 15 Dr. Paul Daly, Senior Lecturer in Public Law, University of Cambridge and Derek Bowett Fellow in Law, Queens' College 2

9 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 3

10 TAB 1 24 TH ANNUAL Immigration Law Summit DAY 2 The Federal Court: Update The Honourable Paul Crampton, Chief Justice, Federal Court of Canada November 23, 2016

11 The Federal Court: Update Chief Justice Paul Crampton Toronto November 23,

12 Overview 1. 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 Note 2 1-2

13 1. Judicial Complement 3 1-3

14 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

15 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

16 2. Workload and Scheduling 6 1-6

17 Immigration Filings (January 1 st to October 31 st ) IMM applications are down over 7% from 4,820 in 2015 to 4,467 in 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 Refugee/non-refugee split is 27%/73% in comparison to 36%/64% in

18 Federal Court-Immigration: New Proceedings Filed All types of proceedings including Actions and Certificates for Debts due to the Crown Filed Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec Total 6,772 5,513 5,687 6,710 7,710 9,841 12,970 8,315 8,410 5,826 4, Source PMSYS_COPY.D01PRCDG Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec 8 1-8

19 Federal Court-Immigration: New Proceedings Filed RPD (and RAD) Applications for leave and for judicial review Filed Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec Total 3,920 2,513 2,808 3,626 4,652 5,940 6,248 4,119 3,194 1,984 1, Source PMSYS_COPY.D01PRCDG Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec 9 1-9

20 Federal Court-Immigration: New Proceedings Filed Other (non RPD) Applications for leave and for judicial review Filed Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec Total 2,849 2,998 2,876 3,080 3,057 3,898 6,720 4,195 5,215 3,842 3, Source PMSYS_COPY.D01PRCDG Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec

21 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 ,373 for corresponding period in

22 Immigration Leave Applications All Types Proceedings Commenced / Disposed 12,000 10,000 8,000 6,000 4,000 2,000-1,800 1,600 1,400 1,200 1, Applications for Leave Granted 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 Proceedings Commenced 7,699 11,061 6,930 7,372 4,814 4,464 Total Dispositions 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,

23 Proceedings Commenced / Disposed 7,000 6,000 5,000 4,000 3,000 2,000 1,000 - Immigration Leave Applications - RPD/RAD matters Applications for Leave Granted 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 Proceedings Commenced 5,516 5,926 3,820 3,104 1,992 1,496 Total Dispositions 5,121 5,343 4,892 3,359 2,839 1,707 Applications for Leave Granted

24 Proceedings Commenced / Disposed Immigration Leave Applications Other (i.e. non-rpd/rad matters) 6,000 5,000 4,000 3,000 2,000 1, Applications for Leave Granted 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 Proceedings Commenced 2,183 5,135 3,110 4,268 2,822 2,968 Total Dispositions 1,996 2,889 4,448 2,896 3,005 3,147 Applications for Leave Granted

25 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

26 IMM Leave Grant Rates (Perfected applications) For perfected applications, the leave grant rate has been stable at approx % 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 % vs. 31% for FY

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

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

29 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 )*

30 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!

31 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%)

32 Stays Heard Comparison Year Granted Dismissed Other Rate Grand Total Jan.1/15-Oct.31/ % 410 Jan.1/16-Oct.31/ % 361 Jan.1/15-Dec.31/ % 481 Jan.1/15-Oct.31/ %

33 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

34 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

35 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

36 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 days: Scheduling for beginning of

37 3. Citizenship Revocation Files

38 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

39 4. Certified Questions

40 Certified questions (Nov ) NB: some judgments have multiple questions / quelques jugements ont plusieurs questions

41 5. Issuance of Decisions

42 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

43 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

44 Members of the Court are being encouraged to consider issuing more judgments with short endorsements, as well as oral decisions, to expedite issuance of decisions The 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)

45 6. Work of the Rules Committee

46 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)

47 Sub-committee on Substantive Amendments (2) Additional amendments to Citizenship, Immigration and Refugee Protection Rules are being drafted. See above re: anonymization orders

48 Sub-committee on Implementation of Global Review Amendments related to proportionality and to control of abusive practices are at drafting stage

49 Sub-committee on Unbundling Amendments are also at drafting stage

50 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

51 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

52 Sub-committee on Miscellaneous Amendments Draft amendments soon to be pre-published in Canada Gazette for public comment

53 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)

54 7. File Retention

55 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 Draft Notice to the Profession being published on Court s website

56 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) andrew.baumberg@fct-cf.gc.ca

57 8. Recent/Ongoing Cases of Note

58 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)

59 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

60 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)

61 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

62 TAB 2A 24 TH ANNUAL Immigration Law Summit DAY 2 International Developments Professor Jennifer Bond, Associate Professor, Faculty of Law, University of Ottawa November 23, 2016

63 Presentation to Law Society of Upper Canada 24 th 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: _addressing_large_movements_of_refugees_and_migrants.pdf New York Declaration ( Refugee Compact ): UNHCR Global Trends 2015: UNHCR Projected Global Resettlement Needs (2017): Canada s 2017 Immigration Levels Plan: News Release re. Global Private Sponsorship of Refugees: Refugee Sponsorship Support Program: 2A - 1

64 TAB 2B 24 TH ANNUAL Immigration Law Summit DAY 2 Recent Developments in Immigration and Refugee Law Angus Grant Legal Aid Ontario November 23, 2016

65 Atrium on Bay, 40 Dundas Street West, Suite 2 00 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: / Courriel: laolaw@lao.on.ca Recent Developments in Immigration and Refugee Law Presented at the 24 th 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 ) and the constitutionality of the PRRA Bar (Atawnah, SCC Court File No ). 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

66 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 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 asylumseekers in the course of their collective flight to safety. 2B - 2

67 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 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

68 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 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 peoplesmuggling. 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

69 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

70 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 ). 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 ): 2B - 6

71 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: Saif v. Canada (MCI) 2016 FC 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. 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

72 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

73 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

74 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

75 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 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

76 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

77 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

78 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 The court considered the following certified questions: 2B - 14

79 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 As a result, while there may clearly have been other defensible interpretations of the 2B - 15

80 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 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

81 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 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

82 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 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

83 TAB 2C 24 TH ANNUAL Immigration Law Summit DAY 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

84 The Law Society of Upper Canada 24 rd Annual Immigration Law Summit Toronto, Ontario November 23, 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 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 Judicial review bars to relief adequate alternate remedies 2C - 1

85 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 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 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

86 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 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 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 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

87 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 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 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) 2C - 4

88 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 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 Supreme Court of Canada Bulletin of September 2, 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

89 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 Supreme Court of Canada Bulletin of September 2, 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 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

90 DIRECTIONS FROM THE COURT Bernard v. Canada (Customs and Revenue Agency), 2015 FCA Rule 54 and directions from the court on how to proceed Paragraphs 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 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 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

91 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 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 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 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

92 Canadian Copyright Licensing Agency (Access Copyright) v. Alberta, 2015 FCA 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 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 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

93 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 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 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, crossexaminations (paragraphs ). British Columbia (Workers Compensation Appeal Tribunal) v. Fraser Health Authority, 2016 SCC 25 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

94 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 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 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, 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

95 belief without a proper foundation contrary to Rule 89 of the Rules of the Supreme Court of Canada, SOR/ 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 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 , 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 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 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

96 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 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 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 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

97 JUDICIAL REVIEW Canadian Broadcasting Corporation (Radio-Canada) v. Canada (Attorney General), 2016 FC 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 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 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

98 Canada (National Revenue) v. McNally, 2015 FCA 195 Canada (National Revenue) v. McNally, 2015 FCA 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 Reconsideration Remaining 2 judges can hear motion to vary where 3 rd 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 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

99 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 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 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 C - 16

100 Service Outside Ontario - Convention vs. Non-Convention States Rule 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 nonconvention 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 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 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

101 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 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 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

102 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, , 194) Canadian Pacific Railway Company v. Canexus Chemicals Canada, LP, 2015 FCA 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 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 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

103 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 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 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

104 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 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 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 Using legislative histories in statutory interpretation 2C - 21

105 At paragraphs 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 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 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 Statutory interpretation basic principles 2C - 22

106 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 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 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 Applications summary judgment 2C - 23

107 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 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 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

108 TAB 3A 24 TH ANNUAL Immigration Law Summit DAY 2 Human Rights Watch s Research Methodology: Distinguishing Fact from Fiction Bill Frelick, Director, Refugee Rights Program, Human Rights Watch November 23, 2016

109 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 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. 1 3A - 1

110 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 2 3A - 2

111 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 3 3A - 3

112 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 4 3A - 4

113 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 5 3A - 5

114 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, 6 3A - 6

115 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? 7 3A - 7

116 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, 8 3A - 8

117 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. 9 3A - 9

118 TAB 3B 24 TH ANNUAL Immigration Law Summit DAY 2 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

119 Law Society of Upper Canada (LSUC) 24 th 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

120 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 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

121 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

122 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

123 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

124 The Research Directorate and Country of Origin Information Presentation by Youliana Daskalova and Heidi Sprung IRB Toronto, November IRB/CISR 528 (02/07) 3B - 6

125 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

126 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 3 3B - 8

127 RD products and services Country-of-origin Research Unit (COI) Knowledge and Management Information Unit (KIM) Specific Information Research Unit (SIRU) Responses to Information Requests (RIRs) National Documentation Packages (NDPs) Supplemental Country-of-Origin Information (SCOI) 4 3B - 9

128 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 5 3B - 10

129 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 6 3B - 11

130 RIRs do not draw conclusions from the information provided by sources provide analysis by the Research Directorate assign weight to the sources being used 7 3B - 12

131 ERI 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. Overview The 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 a decree 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, International Christian 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 Movement Sources 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 Alem movement, 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

132 References Amnesty International (AI). 7 December Eritrea: Religious Persecution. < [Accessed 11 Feb. 2015] British Broadcasting Corporation (BBC). 27 September Tanya Datta. "Eritrean Christians Tell of Torture." < [Accessed 11 Feb. 2015] Professor, Hebrew University of Jerusalem. 26 February 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 Medhane Alem 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

133 RIR Methodology and Standards Evaluating every source using specific criteria Compare, corroborate, contrast Standard presentation of information Quality check process 10 3B - 15

134 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

135 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 12 3B - 17

136 COI Research Methodology Researching a variety of publicly available sources to 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 13 3B - 18

137 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 14 3B - 19

138 COI Research Methodology 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 15 3B - 20

139 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

140 Oral Source Information Interview or correspondence Disclaimer Follow-up and clarification Clarity of information Contrast and corroboration Credibility issues 17 3B - 22

141 Research Challenges Oral Sources Country 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 18 3B - 23

142 Presenting oral sources in RIRs In correspondence with the Research Directorate, a professor of comparative religion at the Hebrew University of Jerusalem indicated that Objective presentation No weight assigned to the source Generally not identified by their name 19 3B - 24

143 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

144 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) 21 3B - 26

145 National Documentation Packages Exist on Intranet and IRB website in both official languages for 160+ countries and are updated annually Support quality and consistency by creating a uniform evidentiary base when claims are reviewed Contain comprehensive, current, publicly available country of origin information while respecting copyright Documents are selected using RD methodology and evaluation criteria 22 3B - 27

146 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 thirdparty sources 23 3B - 28

147 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 copyrightprotected 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 disclose additional information on a supplemental basis depending on the particulars of a claim 24 3B - 29

148 Immigration and Refugee Board of Canada Commission de!'immigration et du statut de refugie du Canada 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 China [+) [] 1. General Information and Maps 1+1 [] 2. Human Rights [+) [] 3. Identification 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 National Documentation Package 31 October China list of Documents For the purposes of disclosure too claimants 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 versions of documents, some of which are available to the public only in hard-copy fomjat 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: July201 1 URL: hltpjtwww.lib.utexas.edu/maps/micldle_east_and_asiajtxu-pclmaps-oclc khi na_pol-2011.jpg Accessed Date: 20 October2014 Keywords: map; transport infrastructure 1.2. Title: Source: URL: Accessed Date: Keywords: 1.3. TiUe: Source: URL: Accessed Date: Keywords: 1.4. TiUe: Source: URL: Accessed Date: Keywords: China. Education. National Geographic hlt(jj/education_nationalgeographic.comleducation/mapping/outline-map/?map=china&a r_a=1 29 October2014 map Fujian Map ChinaMaps.org hltp:jiwww. chinamaps.org/china/provi ncemapslfujian~ap.h tml 17 October2013 map Guangdong Map ChinaMaps.org hltpj! 20 October2014 map 1.5. Title: Chine. l 'Encydopedie en ligne. Source: larousse URL: hlt(jjtwww.larousse.fr/encydopedie/flashfixe/chine/ Accessed Date: 8November 2012 Keywords: map 25 3B - 30