Arguing Incompetence of Counsel in an Appeal

Many lawyers when they meet with clients often find themselves reviewing rejected applications and/or hearings where it is obvious that an individual’s previous representative was incompetent.  The examples of incompetence range from missed deadlines to not understanding the law.  Some specific scenarios that clients have told me about include:

  • former counsel being told by an Immigration Appeal Division member to “sit down” because they were incompetent;
  • an immigration consultant not knowing the difference between a “conviction” and a “dismissal”;
  • an immigration consultant that the “Prevailing Wage = the wage paid to Canadians at the employer’s company”; and
  • a lawyer filing late because “deadlines are policy, not statute.”

The previous representative’s incompetence may serve as a ground for relief in a judicial review.  However, cases based on incompetence and/or negligence of previous counsel are exceptionally difficult cases.  The Federal Court’s March 7, 2014, Procedural Protocol on arguing incompetence of counsel only make these cases more challenging.   

The Law on Incompetence of Counsel

As the Supreme Court of Canada stated in R v. GDB for incompetence/negligence of previous counsel/representative to count as a ground for judicial review, it must be established that (1) previous counsel’s acts or omissions constituted incompetence and (2) that a miscarriage of justice resulted from the incompetence.

The Federal Court has closely followed the above two requirements when determining whether an alleged incompetence is a ground for review.  In the frequently cited case of Memari v Canada (Minister of Citizenship and Immigration), the Court stated that:

…the performance component must be exceptional and the miscarriage of justice component must be manifested in procedural unfairness, the reliability of the trial result having been compromised, or another readily apparent form.

In Galyas v. Canada (Citizenship and Immigration), Justice Russell stated that it is generally recognized that if an applicant wishes to establish a breach of fairness on this ground, he or she must:

a. Provide corroboration by giving notice to former counsel and providing them with an opportunity to respond;

b. Establish that former counsel’s act or omission constituted incompetence without the benefit and wisdom of hindsight; and

c. Establish that the outcome would have been different but for the incompetence.

In the often cited case of Shirwa v. Canada (Minister of Employment and Immigration), [1994] 2 FC 51, the Federal Court explained that there must be sufficient evidence to establish the “exact dimensions of the problem.”  Where the incompetence or negligence of an applicant’s representative is sufficiently specific and clearly supported by the evidence, such negligence or incompetence is inherently prejudicial to an applicant.  For example, in Kim v. Canada, 2012 FC 687, the Federal Court held that where an officer specifically refers to the lack of evidence, and where the submissions by a consultant are limited, then the failure to submit evidence causes a prejudice to the Applicants amounting to a miscarriage of justice.

Over time, as it began to become apparent that many allegations of previous counsel’s incompetence/negligence may have been factually inaccurate the Federal Court began to develop jurisprudence that current counsel could only argue incompetence/negligence of previous counsel/representative if there was evidence that either a complaint had been filed with the previous counsel’s/representative’s licensing body, or that the current counsel notified the previous counsel/representative of an intention to make an incompetence argument.  The March 7, 2014, Procedural Protocol affirms this jurisprudence, and makes it mandatory.

March 7, 2014 Procedural Protocol

The March 7, 2014, Procedural Protocol describes the procedure that counsel must follow where an applicant alleges professional incompetence, negligence, or other conduct against an applicant’s former legal counsel, or other authorized representative, which includes consultants, within the context of an application for leave and judicial review.

To paraphrase the Procedural Protocol (which I have embedded below), the procedure is:

  1. Prior to pleading incompetence, negligence or other conduct by the former counsel/representative as a grounds for relief, current counsel must satisfy him/herself, by means of personal investigations or inquiries, that there is some factual foundation for this allegation. In addition, current counsel must notify the former counsel/representative in writing with sufficient details of the allegations and advise that the matter will be pled in an application described above. The written notice must advise the former counsel/representative that they have seven days from receipt of the notice to respond, and include a copy of the Procedural Protocol.  In cases where privilege may be applicable, current counsel must provide the former counsel/representative with a signed authorization from the applicant releasing any privilege attached to the former representation.
  2. Current counsel should, unless there is urgency, wait for a written response from the former counsel/representative before filing and serving the application record. If the former counsel/representative intends to respond he or she must do so, in writing to current counsel, within seven days of receipt of the notice from current counsel.
  3. If after reviewing the response of the former counsel/representative, current counsel believes that there may be merit to the allegations, current counsel may file the application or appeal record. Any perfected application which raises allegations against the former counsel/representative must be served on the former counsel/representative and proof of service be provided to the Court.
  4.  Where  it becomes apparent that current counsel’s pursuit of this investigation may delay the perfection of the application record or appeal record beyond the timelines provided for by the Rules, then current counsel may apply by motion for an extension of time to perfect the record.
  5. If the former counsel or authorized representative wishes to respond to the allegations made in the record, he or she may do so in writing by sending a written response to current counsel and to counsel for the government within ten days of service of the application or appeal record or such further time as the Federal Court may direct.
  6. Current counsel who wishes to respond to the communication received from the former counsel/representative must file a motion for an extension of time and for leave to file further written submissions with respect to the new material received.
  7. If no response from the former counse /representative is received within ten days of service, and no extension of time has been granted, current counsel must advise the Court and the lawyers for the government that no further information from the former counsel/representative is being submitted and the Court shall base its decision without any further notification to the former counsel/representative.

While the Procedural Protocol adds several new mandatory steps to Applications for Leave to Commence Judicial Review involving allegations of incompetence/negligence, it also removes uncertainty involving such applications.  As well, if the Procedural Protocol results in the Federal Court removing the previously developing requirement that current counsel file a complaint with the previous counsel’s/representative’s licensing body, then there may actually be less steps, and time consumed, in these applications.


Espionage and Immigrating to Canada

Section 34(1) of Canada’s Immigration and Refugee Protection Act provides, amongst other things, that a foreign national or Canadian permanent resident is inadmissible to Canada for engaging in an act of espionage that is against Canada or that is contrary to Canada’s interests, or being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in espionage against Canada or that is contrary to Canada’s interests.  It is one of the most serious inadmissibilities in Canadian immigration law.

Guidelines

Immigration, Refugees and Citizenship Canada’s (“IRCC”) Enforcement Manual 2 – Inadmissibilities contains the following definitions and guidance to officers regarding how immigration officials are to determine whether someone is inadmisisble to Canada for espionage.

Espionage is defined as a method of information gathering by spying; that is, the gathering of information in a surreptitious manner, secretly seeking out information usually from a hostile country to benefit one’s own country.

Paragraph A34(1)(a) contains two possible allegations that could render a permanent resident or foreign national inadmissible to Canada for acts of espionage:

1. if the act of espionage is against Canada, or

2. if the act of espionage is contrary to Canada’s interests.

Espionage “against Canada” means espionage activities conducted by a foreign state or organization in Canada and/or abroad against any Canadian public or private sector entity on behalf of a foreign government. It may also include activities of a foreign nonstate organization against the Government of Canada, but does not include acts of industrial spying between private entities where no government is involved.

The following is a non-exhaustive list of activities that may constitute espionage that is “contrary to Canada’s interests”:

 Espionage activity committed inside or outside Canada that would have a negative impact on the safety, security or prosperity of Canada. Prosperity of Canada includes but is not limited to the following factors: financial, economic, social, and cultural.

 The espionage activity does not need to be against the state. It could also be against Canadian commercial or other private interests.

 The use of Canadian territory to carry out espionage activities may be contrary to Canada’s national security and public safety and therefore contrary to Canada’s interests.

 Espionage activity directed against Canada’s allies as it may also be contrary to Canada’s interests.

Note: These guidelines are intented to be dynamic as the concept of what is contrary to Canada’s interest may evolve or change over time.

Spying on Campus Organizations, Churches, Schools, etc. 

Qu v. Canada (Minister of Citizenship and Immigration) is the leading Federal Court of Appeal decision regarding what constitutes espionage under Canadian immigration legislation.

Mr. Qu was a citizen of the People’s Republic of China studying at Concordia University in Montreal.  He was active in the Chinese Students and Scholars Association, a campus group, and regularly reported on that group’s activities to officials at the Chinese Embassy in Ottawa.  The Federal Court of Appeal had to determine whether spying on a campus organization, as opposed to a formal institution of democratic government or process, constituted espionage under Canadian immigration legislation.

The Federal Court of Appeal determined that it did, and that the definition of espionage should be interpreted broadly, and that the ability of individuals to freely belong to associations was integral to the democratic process in Canada. The Court went on to state that:

In Canada, a democratic institution is not limited to a political institution, it includes organized groups who seek through democratic means to influence government policies and decisions.

Canada is a pluralistic society with a variety of autonomous organizations independent of the government and to one and other.

As a free and democratic society, Canada values and protects democratic non-governmental institutions which enhance the participation of individuals and groups in society.

The Federal Court of Appeal accordingly went on to note that an individual could be inadmissible to Canada for espionage if they engaged in spying against an organization that was engaged in lawful activities in Canada of a political, religious, social or economic nature, and as such that this was not limited to trade unions, professional associations and political parties.

Intelligence Gathering vs. Espionage

In Peer v. Canada (Citizenship and Immigration), the Federal Court had to answer the following certified question:

Is a person inadmissible to Canada for “engaging in an act of espionage… against a democratic government, institution or process” within the meaning of subsection section 34(1)(a) of the Immigration and Refugee Protection Act, if the person’s activities consist of intelligence gathering activities that are legal in the country where they take place, do not violate international law and where there is no evidence of hostile intent against the persons who are being observed?

Mr. Peer was a member of Pakistan’s Corps of Military Intelligence and its Inter-Services Intelligence Directorate.  They would monitor individuals, including those from democratic countries, when they were in Pakistan.  Mr. Peer argued that his gathering of intelligence on the activities of foreign nationals was simply intelligence gathering and as it was on domestic soil did not constitute espionage against Canada.

Both the Federal Court and the Federal Court of Appeal disagreed. While the Federal Court of Appeal did not provide any reasoning, Justice Zinn at the Federal Court level wrote:

I have no doubt that many centuries ago one could not easily engage in espionage unless one travelled to a foreign land to gather the relevant information because there was no other way the information could be obtained.  That is quite simply not the case now, if it ever was.  If I were to accept the submission of the applicant that one cannot engage in espionage while remaining in one’s own country, I would have to accept that intelligence agents who monitor telephone and internet communications from the safety of their country are engaged only in “intelligence gathering” and not in espionage, even when the information they gather relates to sensitive state secrets.

The applicant might suggest that those agents are engaged in an illegal activity and thus fall outside his proposed definition of espionage.  However, while the interception of these communications may be an offence in the country from whence the communications originate, I have no doubt that the actions of these interceptors will be perfectly legal and, in fact, are sanctioned in their own country.

….

What matters in this case is the applicant’s surreptitious gathering of information, or spying, on foreign nationals in Pakistan.  The applicant’s motive or his location when doing this spying is entirely irrelevant in determining that his activities on behalf of Pakistan intelligence constituted “espionage.”


Addressing Newfoundland Nurses

On December 15, 2011 the Supreme Court of Canada (“Supreme Court“) issues its decision in Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR 708 (“Newfounland Nurses“).

In Newfoundland Nurses, the Supreme Court essentially abolished “adequacy of reasons” as a stand-alone ground for judicial review.  Rather, the Supreme Court stated that an officer’s reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes.  The Supreme Court further stated that (citations removed for ease of reading):

Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis. A decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion. In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met.

The fact that there may be an alternative interpretation of the agreement to that provided by the arbitrator does not inevitably lead to the conclusion that the arbitrator’s decision should be set aside if the decision itself is in the realm of reasonable outcomes. Reviewing judges should pay “respectful attention” to the decision-maker’s reasons, and be cautious about substituting their own view of the proper outcome by designating certain omissions in the reasons to be fateful.

As one immigration lawyer put it, the Department of Justice (the “DOJ“) has since argued that under the Newfoundland Nurses reasonableness standard the Federal Court must uphold a tribunal’s decision as long as it falls within the most extremely close to unreasonable range of possibilities that the most extreme officer dictates.  In one case of mine, the DOJ even argued that there could basically be no reasons so long as the Federal Court thought that the decision was a possibly correct one that the tribunal could reach.  But is this really the case?

Continue reading “Addressing Newfoundland Nurses”


PRRA Officer Did not Consider Important Country Report

On June 7, the Federal Court released its decision in Ariyaratnam v. Canada (Citizenship and Immigration), 2010 FC 608 (“Ariyaratnam“) The case involved a 28 year old from Sri Lanka whose Pre-Removal Risk Assessment (“PRRA“) and Humanitarian & Compassionate applications were refused.

The appellant argued in Federal Court that the assessing officer (the “Officer“) had a duty to consider a UNHCR report that would have bolstered the applicant’s claim (the “Report“). The Report was released a few weeks before the Officer released her decision, and the Officer did not consider it.

Continue reading “PRRA Officer Did not Consider Important Country Report”


Immigration Appeal Division Must Address Bona Fides Before H&C

The Federal Court has confirmed that s. 65 of the Immigration and Refugee Protection Act requires that the Immigration Appeal Division determine whether an applicant is a member of the Family Class before considering humanitarian & compassionate considerations (“H&Cs“).

Accordingly, people appearing before the Immigration Appeal Division in a Family Class appeal should be prepared to prove that the applicant is a member of the family class before arguing H&Cs.  This is the case even if the visa officer did not make a determination, or made a negative determination, regarding membership in the Family Class.

For example, if a visa officer rejects a spousal-sponsorship application on the basis of criminality, then at the Immigration Appeal Division the appellant must be prepared to demonstrate bona fides of the relationship prior to analyzing the inadmissibility, and any H&Cs to overcome it.

 


Certified Question on Section 7 Charter Rights

Does the Immigration and Refugee Board (“IRB”) violate the provisions of section 7 of the Canadian Charter of Rights and Freedoms (the “Charter”) if it declines to postpone a hearing based on risk to life where there is a pending humanitarian and compassionate application also based on risk to life?

The above question was certified by the Federal Court in Laidlow v. Canada, 2012 FC 144, released today.  The Federal Court of Appeal will soon answer the question.

The facts in Laidlow giving rise to the question were essentially that an individual had a pending H&C claim which was based on risk to life (availability of medical treatment reasons) at the time that he appeared for his refugee hearing.  He asked that the refugee hearing be adjourned until the H&C application was determined.  The IRB refused to do so, and heard the refugee claim, which was dismissed.

The Court’s answer to the question was that refusing to adjourn the hearing did not breach section 7 of the Charter.  Relying on Poshteh v. Canada, [2005] 3 FCR 487, and Gosselin v. Quebec (Attorney General of Canada), [2005] 4 SCR 429, the Court articulated the following principles:

  • A finding of inadmissibility does not engage an individual’s section 7 Charter rights.  The reason is because a number of proceedings may take place before an individual reaches the stage at which his deportation from Canada may occur.
  • Section 7 does not place upon the state a positive obligation to ensure that each persons enjoys life, liberty or security of the person.  Rather, it restricts the state’s ability to deprive people of these.

Considering that the jurisprudence is fairly settled on the first point, I find it surprising that the Court certified the question that it did.  I also do not see how from a practical standpoint the question can be answered in the affirmative.  Requiring that the IRB postpone refugee hearings every time a claimant files an H&C application based on risk to life would create a scheduling nightmare for the Division.  You could forget about the soon to be introduced 60 day and 90 day deadlines for refugee hearings.  Everyone would take advantage of this.  Indeed, I would probably consider a representative who did not encourage a refugee claimant to file an H&C application in order to buy more time to prepare for the hearing to be negligent.  And it wouldn’t just be limited to medical availability… Lawful sanctions… Generalized risk.. any H&C claim really could be used to buy time.

And that, combined with the established jurisprudence that the existence of further avenues to stay in Canada, and that s. 7 of the Charter does not create positive obligations on the state, is why I would be stunned if the Federal Court of Appeal answered the above question in the affirmative.