Borderlines Podcast Episode 8 – Lobat Sadrehashemi on Citizenship Revocation for Misrepresentation

On the 8th podcast episode, Lobat Sadrehashemi joins Peter Edelmann, Deanna Okun-Nachoff and I to discuss issues in Canada’s citizenship revocation and refugee determination processes.  The recent controversy around Maryam Monsef guides our discussion.

Lobat Sadrehashemi is an Associate Counsel at Embarkation Law Corporation.  She is also the Vice President of the Canadian Association of Refugee Lawyers (“CARL“).

CARL’s reform proposals for Canada’s inland refugee determination system and other aspects of the immigration system, which we recently submitted to the Ministers, their staff, IRCC, and the Immigration and Refugee Board can be found here.

Lobat’s paper on Refugee Reform and Access to Counsel in British Columbia can be found here.

 

 


Retrospective Legislation

In a recent Borderlines episode, Garth Barriere, Eric Purtzki, Peter Edelmann and I discussed the constitutionality of laws that are retroactive or retrospective.  This episode can be found here:

A link to this episode’s synopsis can be found here.

The following post provides a more detailed written summary of retroactive and retrospective legislation in the immigration context.

Continue reading “Retrospective Legislation”


Borderlines Episode #12 – Tips on making written and oral arguments in court, with Justice Alan Diner

The Honourable Alan S. Diner is a judge with the Federal Court of Canada.   Prior to his appointment, Justice Diner headed Baker & McKenzie LLP’s immigration practice.  He was also involved with managing the establishment and implementation of Ontario’s Provincial Nominee Program for the Ministry of Citizenship and Immigration.

We are grateful to Justice Diner for the time that he took in preparing for this podcast about tips and best practices in appearing before the Federal Court of Canada, including in providing a customised powerpoint, which can be found on our website at http://www.borderlines.ca.  As Justice Diner notes, many of the tips and strategies contained in this episode are applicable beyond judicial review, and will be beneficial to anyone preparing written submissions or making oral presentations.

A review of what we discussed is as follows:

1:18 – Justice Diner describes his history going from being an immigrant in Canada to leading a corporate immigration law practice to becoming a judge with the Federal Court of Canada.

14:30 – We discuss how the practice of immigration law is changing as larger firms and global accounting firms enter the practice area.

18:30 – Justice Diner provides his first three tips to lawyers appearing  in Federal Court, which are to treat everyone with respect, to prepare your case and arguments properly, and to respect timelines.

23:10 – Peter asks Justice Diner whether immigration representatives should consider preparing visa applications with possible litigation in mind and how long judicial review applicant records should be.

28:00 – How many arguments should someone make in a judicial review application?  If one thinks that an immigration officer made 10 mistakes, should the lawyer in a judicial review application list all 10?

35:00 – Given that there is a chance that the judge reading judicial review submissions could be a new judge, how much should lawyers explain what the law is in their legal submissions?

42:30 – When should counsel propose certified questions?

46:00 – Tips for citing cases.

49:30 – Is the increased number of sources of immigration law (legislation, Ministerial Instructions, guidelines, the immigration website, etc.) complicating the Federal Court’s ability to determine whether a decision was reasonable, and counsel’s ability to make arguments?

57:00 – Who makes a better litigator? Someone who is also a solicitor or someone who practices exclusively in judicial reviews and appeals?

1:01:00 – Tips for oral advocacy.

1:12:00 – Justice Diner reminds counsel on the need to balance strong representation of a client with being an officer of the court.

1:17:00 – We end with what might be the most important tip of all – the importance of not procrastinating.


Borderlines Episode #13 – Efrat Arbel on Problems with the Safe Third Country Agreement and Interdiction

Efrat Arbel is Assistant Professor at the Allard School of Law at the University of British Columbia.  She is an executive member of the Canadian Association of Refugee Lawyers.  A list of Dr. Arbel’s recent publications can be found here.

During this podcast we talk about three areas that Dr. Arbel has recently focused her research on.  These include the distinction between physical borders and legal borders in the refugee context, how interdiction works, and the Safe Third Country Agreement.

The Safe Third Country Agreement between Canada and the United States requires that persons seeking refugee protection must make a claim in the first country they arrive in unless they qualify for an exception to the Agreement.  In other words, an asylum seeker who wishes to seek refugee status in Canada will typically be denied the ability to do so if they attempt to enter Canada by land from the United States.

This episode was recorded before President Trump’s recent Executive Order imposed a moratorium on asylum claims in the United States. President Trump’s decision has only intensified and magnified many of the issues that Dr. Arbel discusses in this podcast.

 

 

1:43 – Dr. Arbel explains different concepts of what a country’s border is, and the distinction between the physical border and the legal border.

 

4:10 – We discuss the Canada Border Services Agency’s multiple border strategy, the role of Canada Border Services Agency liaison officers, and interdiction.

mbs

 

16:15 – We briefly summarize Canada’s new Electronic Travel Authorisation.

 

19:00 – Dr. Arbel provides an overview of global refugee flows.

 

22:50 – Can claim asylum at a Canadian embassy abroad.

 

28:30 – Peter Edelmann addresses how the previous government tried to address the supply and demand of refugee intake.

 

33:20 – Steven asks Dr. Arbel what she thinks about the Government of Canada’s recent announcement that if a certain number of Mexicans claim asylum then the visa requirement against Mexico will be re-imposed.

 

41:00 – We introduce the Safe Third Country Agreement.

 

44:00 – Why someone would prefer to claim refugee status in Canada rather than the United States.

 

51:40 – What are the exceptions to the Safe Third Country Agreement?


Borderlines Episode #11 – Dean Sossin on the tension between ensuring political oversight without politicising officer decision making.

Lorne Sossin is the Dean of Osgoode Hall Law School.   Prior to his appointment, he was a Professor with the Faculty of Law at the University of Toronto. Dean Sossin also serves on the Boards of the National Judicial Institute and the Law Commission of Ontario. He has also acted as Research Director for the Law Society of Upper Canada’s Task Force on the Independence of the Bar.

We discuss three topics. The first is the oversight of CBSA and immigration officers in Canada. How do we ensure that there is political oversight and accountability without politicising the day to day operations and decisions of individual officers? The second topic is a discussion of Charter rights and Charter values in the immigration context.  Finally, we discuss whether it is OK that in Canada individual immigration officers can create an apply their own standards of the law.

A review of what we discussed is as follows:

00:00 – Introduction

00:51 – Steve Meurrens says what one of his favorite things about law school is.

01:14 – Overview of topics

02:55 – The role of federalism in police oversight.

06:30 – Is criminal law local or is it national?

09:09 – What are the mechanisms which limit executive oversight and police accountability in Canada and how can this be balanced for the need to avoid political interference in day-to-day police activity. Who decides on the operational day to day activities of police?

13:30 – Can a cabinet minister issue an edict directing police not to arrest people? For example, the Trudeau government wants to legalize marijuana, so can they just issue an edict stating that arrests should stop. Who should make the decision?

17:40 –   If individual decision makers or police units drive decisions there will be inconsistencies. What methods exist for people to address inconsistencies?

19:45    Many jurisdictions are creating independent oversight offices. What is the success of these? As well, what role does prosecutorial discretion play in both insulating decisions and providing oversight?

25:00    What role do departmental guidelines play in decision making?

27:30    In immigration law the Minister can make decisions that differ from visa officers. Indeed, the Immigration Minister has an office to receive applications and intervene in applications. Is this appropriate?

30:30    What is the Charter? What is an administrative tribunal?

34:20    Immigration officers are considered to be administrative tribunals, Should visa officers, IRB members, etc. consider the Charter when making decisions.

37:00    When is the distinction between Charter rights and Charter values?

42:10    Do Charter rights and/or Charter values apply outside of Canada?

43:15    Are Charter values arguable before visa officers or at the IRB?

48:20    Is it a breach of the rule of law that different visa officers can develop different tests for immigration?

57:30    How is standard of review jurisprudence likely to develop/


Borderlines Podcast Episode 9 – Garth Barriere & Eric Purtzki on retrospective laws, plus Donald Trump and Canadian immigration

On the 9th podcast episode, Garth Barriere and Eric Purtzki joins Peter Edelmann and Steven Meurrens to discuss the constitutionality of laws that are retroactive or retrospective.  Peter and Steven also discuss the recent election of Donald Trump as the 45th president of the United States.

Garth and Eric are both criminal defence attorneys in Vancouver.  Both have appeared before the Supreme Court of Canada on numerous occasions.

 


A retrospective law is a piece of legislation that operates going forward, but looks to change the consequence for a past action.

A retroactive law changes the legal consequences of what the act was in the past. It changes someone’s legal status as it was in the past.

There is a presumption against both retrospectively and retroactivity in Canada, however, there is no general Charter protection against it.

The Supreme Court of Canada in R. v. K.R.J.can be found here. Garth and Eric both appeared as counsel in this case, which formed the basis for our discussion.  In this case, the Supreme Court affirmed that while criminal laws should generally not operate retrospectively, an exception would be made in the case of sentencing for sexual offenders involving minors.

In reading this case, and listening to the summary of it, it is helpful to keep section 11(i) of the Charter in mind, which states:

11. Any person charged with an offence has the right …
(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment

It is also helpful to understand how s. 1 of the Charter works.  Section 1 of the Charter states that:

  1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

As such, a breach of s.11(i) of the Charter will still be constitutional if the law is demonstrably justified.

The Supreme Court of Canada decision in Canada (Attorney General v. Whaling) .can be found here. Garth and Eric were both counsel in this case, in which the Supreme Court found that the retrospective changing of parole requirements to make them more onerous was a form of punishment, and unconstitutional.

https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/13543/index.do

Another leading Supreme Court of Canada case on retrospective legislation, which Garth briefly mentions, is R. v. Dineleyin which the Supreme Court of Canada stated that where new legislative provisions affect either vested or substantive rights, retrospectivity is undesirable, and accordingly Parliament must have a clear intent that legislation be retrospective.

The Supreme Court of Canada decision in Canada (Citizenship and Immigration) v. Khosa that Peter mentions can be found here. In this case, the Supreme Court ruled that courts should give a measure of deference to administrative tribunals, including the Immigration and Refugee Board.  Garth was lead counsel in this case.

 

http://www.canlii.org/en/ca/scc/doc/2009/2009scc12/2009scc12.html?searchUrlHash=AAAAAQAQImdhcnRoIGJhcnJpZXJlIgAAAAAB&resultIndex=9

Starting at around the 31 minute mark we discuss the retrospective nature of the 2013 amendments to the Immigration and Refugee Protection Act.  Previously, a permanent resident who had been convicted of an offence and got a sentence of 2 years or more could not appeal a deportation to the Immigration Appeal Division.  In 2013, the 2 year sentence rule was changed to 6 months, and applied retrospectively.

Finally, Peter’s factum in Tran v. Canada (Public Safety and Emergency Preparedness), which the Supreme Court of Canada will hear in January, can be found here:

 

 

 

 


Borderlines Podcast Episode 7 – David Eby and Tom Davidoff on Vancouver’s Housing Market

On the 7th podcast episode, Tom Davidoff and David Eby  joins Peter Edelmann and I to discuss Vancouver’s housing market.

Tom Davidoff is an Associate Professor at the University of British Columbia’s Sauder School of Business.  He is frequently cited in the Vancouver media as being an expert on Vancouver’s housing market, and was part of a team of nine academics who created the B.C. Housing Affordability Fund proposal.

David Eby is the Member of the Legislative Assembly for Vancouver-Point Grey, and was previously the Executive Director of the British Columbia Civil Liberties Association.  He is a passionate advocate for making Vancouver a more affordable place to live.

 

The questions that we discussed in the podcast are:

  • What has been going on in the Vancouver housing market? How fast have prices been rising?
  • Is there evidence that foreign investment / foreign funds has been the cause of the increase in Vancouver housing prices?
  • What data is there regarding the amount of foreign home ownership in Vancouver?
  • What is the property transfer tax, and what are the new rules on how it applies to foreign buyers?
  • Is there evidence that high housing prices impacts the rental market? Does it matter if the landlord is a Canadian or a foreigner?
  • Why should high housing prices matter? Why should people think that they should be able to live in a market that they cannot afford?
  • Should we move beyond the paradigm of valuing single detached homes?
  • What role do international students play in the increase in housing prices?
  • Does the fear of being accused of racism prevent government from addressing the issue of high prices?
  • Is real estate such an integral part of the British Columbia economy such that high prices are now “too big to fail?”
  • Should we move beyond the paradigm of valuing home ownership?

Borderlines Podcast Episode 4 – Jenny Kwan

On the fourth episode of the Borderlines Podcast our guest is Jenny Kwan. Ms. Kwan is the Member of Parliament for Vancouver East and is the New Democratic Party of Canada’s Immigration Critic.  Prior to being elected a Member of Parliament, Ms. Kwan was a Member of the Legislative Assembly (MLA) of British Columbia for the riding of Vancouver-Mount Pleasant, and a senior member of the provincial caucus of the New Democratic Party.

2:30 – 16:13 – We talk about Bill C-6, the Liberal Government of Canada’s reforms to Canada’s Citizenship Act. Ms. Kwan both talked about what she likes and dislikes about Bill C-6.  A specific concern that she has includes the procedural fairness afforded to those facing citizenship revocation due to misrepresentation.  The current process, which is the subject of numerous court challenges, is that an individual’s Canadian citizenship can be revoked by a bureaucrat if the bureaucrat determines that the Canadian citizen obtained their citizenship as a result of fraud. Humanitarian & compassionate concerns are not considered, and the only recourse that a former citizen has once their citizenship is stripped is to seek judicial review in Federal Court.   During this portion of the discussion we also briefly discuss the topic of language testing requirements for grants of citizenship, which Ms. Kwan believes is too stringent.

16:13 – 31:48 – Ms. Kwan explains that one thing that she hopes is urgently changed in Canadian immigration law is the current situation involving the cessation of refugee status. Ms. Kwan has introduced into Parliament Bill C-294, which calls on the government to end the automatic loss of permanent resident status when a refugee’s status as a protected person is revoked.

31:48 – 40:37 – Another topic that Ms. Kwan is passionate about is whether the Canadian government should let American war resisters / dodgers / conscientious objectors remain in Canada. Jenny believes that they should. A specific question that I asked Jenny was whether she is concerned that Canada being too accepting of war resisters in this regard would open the floodgates such that anyone from Russia, South Korea, Taiwan, etc. where the draft exists, could come to Canada and get permanent resident status as a way to avoid serving in their country’s military.

40:37 – 55:23 – As a member of the House of Commons Standing Committee of Citizenship and Immigration, Ms. Kwan shared her thoughts on whether certain vulnerable groups should be given immediate, and some would say preferential, access to refugee resettlement in Canada. Jenny proposed five actions that she believes Canada can immediately take. The first is to work with organisations that deal with the world’s most vulnerable people and give them a pathway to resettlement in Canada. The second is to work with the LGBTQI community to help resettle members of that community in Canada. The third suggestion was to help immediately resettle individuals from northern Iraq using the UNHCR to process these cases. The fourth was to look at reintroducing the source country of origin class completely, and in particular for the LGBTQI community. Finally, the fifth was increase humanitarian aid to vulnerable groups.

55:23 –   1:03:08 – Peter and I discuss about Ouedraogo v. Canada (Public Safety and Emergency Preparedness), 2016 FC 810. In this case the Federal Court determined that an individual can be removed from Canada both during the 90 day restoration period and that they could be removed even after they have applied for restoration. The court’s approach is even stricter than current CBSA policy on the matter, which I have reproduced below.

restoration

1:03:08 – 1:05:51 – Peter briefly mentions the BC Supreme Court decision in R v. Nuttal, 2016 BCSC 1404, and mentions that we plan on having Marilyn Sandford, counsel for John Stuart Nuttall on in a future podcast. For those who do not know, this case involves a stay of proceedings being ordered after the court determined that police had entrapped two individuals into attempting to bomb the BC legislature.

1:04:41 – Finally, we wrap up by briefly talking about Pokemon Go.