Category Archives: Appeals

SCC Replaces the Oakes Test with the Reasonableness Standard

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Over the last several years, the Supreme Court of Canada has released numerous administrative law decisions where it found that the reasonableness standard of review should replace other standards.  On March 22nd 2012, in Dore v. Burraeu du Quebec, 2012 SCC 12, the Court extended this trend to proclaiming that the reasonableness standard should replace the Oakes test when determining whether an administrative tribunal’s action which limited a right under Canada’s Charter of Rights and Freedoms could nonetheless withstand s. 1 analysis.

Section 1 analysis refers to the judicial process of determining whether a government’s breach (or limitation) of a Charter right is nonetheless constitutional pursuant to s. 1 of the Charter, which states that:

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.

In 1985, the Supreme Court of Canada created the Oakes test for determining whether a Charter breach is reasonable and justifiable in a free and democratic society.  The Oakes test first involves determining whether the government’s limitation of a Charter right is the result of a pressing and substantial objective.  If it is, then the government must demonstrate that the means to achieve its objective are proportional.  Proportionality requires that:

  1. The means be rationally connected to the government’s pressing and substantial objective;
  2. That the means to achieve the objective involve a minimal impairment of Charter rights; and
  3. There must be proportionality between the infringement and the objective.

As the Court noted in Dore, the judiciary has had difficulty applying Oakes in a non-legislative context.  What, for example, is the pressing and substantial objective of an administrative decision?  Who has the burden of defending that decision?  The difficulty is further exemplified in immigration law by the fact that it is often not the tribunal itself that is a party to a proceeding.

Accordingly, the Supreme Court has proclaimed that in administrative law decisions, the reasonableness standard should apply to determining whether a Charter limitation is justified.  The Court adopted the reasonableness standard over the correctness standard because a) it reiterated that administrative law involves a tribunal’s complex interpretation of its enabling statute, of which the tribunal is the most familiar, and b) because the Court was concerned that adopting the correctness standard would lead to judicial review becoming a hearing de novo.

As such, where an administrative tribunal limits a Charter right, then the reasonableness standard will apply to determine whether that limitation is nonetheless constitutional.  The reasonableness analysis will center on proportionality, or ensuring that a tribunal interfere with a Charter guarantee no more than is necessary given a statutory objective.

It may be that the change does not result in any practical difference.  As the Court noted, “a formulaic application of the Oakes test may not be workable in the context of an adjudicated decision, distilling its essence works the same justificatory muscles: balance and proportionality…… in both cases, we are looking for whether there is an appropriate balance between rights and objectives, and the purpose of both exercises is to ensure that the rights at issue are not unreasonably limited.”

On the other hand, moving away from a rigid formula to a more flexible reasonableness standard may actually lead to a flurry of Charter challenges, as reasonableness decisions are inherently factually and contextually based.

Indeed, I can think of a few areas that I think may be ripe for some Charter challenges under the new test.

 

Certified Question on Section 7 Charter Rights

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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.

 

 

Removing Flags at the Port of Entry

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I was recently asked where one can learn how to request that an “enforcement flag” against them be removed so that an individual does not have to go to a secondary examination every time they enter Canada.

This is actually a question that comes up rather frequently, so for all those who are interested, here is the relevant section from the Citizenship and Immigration Canada Manual:

Current Immigration Appeal Division Inventory

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The following is a table that shows the Immigration Appeal Division inventory as of September 30, 2011.  As of that date, there were 11,828 cases pending.  In Western Canada, a disproportionate majority involved sponsorship appeals.  I like to think that Peter Larlee and Vivian Yuen, lawyers with our firm, represented individuals on a disproportionately high number of those appeals.

Type of Appeal East Central West Total
# % # % # %
Removal Order 1,351 43 2,163 34 570 24 4,084
Sponsorship  1,446 46 3,453 55 1,500 64 6,399
Residency Appeal 336 11 713 11 270 11 1319
Minister Appeals 10 0.3 4 0 12 0.5 26
Total 3,143 6,333 2,352 11,828

Implausibility

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One issue that applicants, and in particular refugee claimants, face is that their stories just sound implausible to the third party observer.

A tribunal is entitled to make reasonable findings based on implausibilities, common sense and rationality.  The courts have been clear that the Immigration and Refugee Board is entitled in assessing credibility to rely on criteria such as rationality and common sense.  In order to finding an applicant’s or claimant’s story to be implausible,  it must be clearly out of line with known facts or known norms of behavior.

Of course, it is not sufficient for a tribunal to simply state that a claimant’s story is “implausible” without explaining further the reasoning behind that finding.  In other words, as the Federal Court ruled in Vodics v Canada (Minister of Citizenship and Immigration), 2005 FC 783, adverise findings of credibility must be based on reasonably drawn inferences and not conjecture or mere speculation.

Of course, considerable caution is required when assessing the norms and patterns of different cultures and the practices and procedures of different police, political, and social systems.

Stays of Release

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Individuals who have been ordered released from detention by the Immigration and Refugee Board should not always assume that the matter is finished.  The Department of Justice, at the request of its government client, can seek to overturn that decision.  They can also seek a stay of the release from detention pending the resolution of the underlying application to overturn the release order.

The test for a stay of release from detention is the same tripartite test found in all stay applications.  In order to obtain a stay of release, the Department of Justice must show that:

  1. There is a serious issue to be tried;
  2. There is a risk of irreparable harm; and
  3. The balance of convenience favours preventing the release.
There is a Serious Risk to be Tried
There are many reasons why the Government of Canada might seek a judicial review of an Immigration and Refugee Board Member’s decision to release an individual from detention.  One of the more common ones is where a Board Member releases someone who the Immigration and Refugee Board has already ordered an individual detained.  In Canada (Minister of Citizenship and Immigration) v Thanabalasingham, 2004 FCA 4, Justice Marshall Rothstein stated:

Credibility of the individual concerned and of witnesses is often an issue. Where a prior decision maker had the opportunity to hear from witnesses, observe their demeanour and assess their credibility, the subsequent decision maker must give a clear explanation of why the prior decision maker’s assessment of the evidence does not justify continued detention. For example, the admission of relevant new evidence would be a valid basis for departing from a prior decision to detain. Alternatively, a reassessment of the prior evidence based on new arguments may also be sufficient reason to depart from a prior decision.

The best way for the Member to provide clear and compelling reasons would be to expressly explain what has given rise to the changed opinion, i.e. explaining what the former decision stated and why the current Member disagrees.

However, even if the Member does not explicitly state why he or she has come to a different conclusion than the previous Member, his or her reasons for doing so may be implicit in the subsequent decision. What would be unacceptable would be a cursory decision which does not advert to the prior reasons for detention in any meaningful way.

Irreparable Harm

Generally, the release of an individual who has been found to constitute a danger to the public will result in a finding of irreparable harm.  In Canada (Public Safety and Emergency Preparedness) v. Zaw Zaw, the Federal Court noted that:

[Canada] will suffer irreparable harm if the [detained individual] is released from detention. The Respondent’s release from detention is contrary to the legislative objectives set out in the IRPA, particularly the objectives of protecting the safety of Canadians and maintaining the security of Canadian society.

Balance of Convenience

 

Usually the test is met if there is irreparable harm and a serious issue to be tried.  In addition, the balance of convenience will generally favour the party acting in the public interest as opposed to the individual.
In Dugonitsch v Canada (Minister of Employment and Immigration) (1992), therefore, Justice Andrew MacKay stated:

Absent evidence of irreparable harm, it is strictly speaking unnecessary to consider the question of the balance of convenience. Nevertheless, it is useful to recall that in discussing the test for a stay or an interlocutory injunction in the Metropolitan Stores case Mr. Justice Beetz stressed the importance of giving appropriate weight to the public interest in a case where a stay is sought against a body acting under public statutes and regulations which have not yet been determined to be invalid or inapplicable to the case at hand. That public interest supports the maintenance of statutory programs and the efforts of those responsible for carrying them out. Only in exceptional cases will the individual’s interest, which on the evidence is likely to suffer irreparable harm, outweigh the public interest. This is not such an exceptional case.

 

 

You Omit Information at your Peril

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Flickr photo by kcolwell

It is important that applications be as thorough as possible in their applications.  The Federal Court has consistently said that the onus is on visa applicants have one shot to put their best foot forward.

In Owusu v Canada (Minister of Citizenship and Immigration), the Federal Court of Appeal put the principle differently, but in a way that is just as clear.  It stated that applicants have the onus of establishing the facts on which their claim rests, and that they omit pertinent information from their written submissions at their peril.

Gonzalez Vazquez v. Canada (Citizenship and Immigration) is a perfect example of how important that it is to be as thorough as possible.  There, an applicant wanted to convey in an Application to Immigrate to Canada for Humanitarian & Compassionate Considerations how detrimental removal would have been to her children.  To this effect, she had the child’s teacher write a letter.  The letter stated that:

[T]he same value is not placed on “safe and caring” schools, and children are often in danger of being harassed by others, or having their belongings stolen.  Would their children be a target?  It seems likely, since they have only known Canadian culture, and barely speak Spanish.

The immigration officer in rejecting the application considered this statement in the context in which it was made; the context that their inability to communicate in Spanish was likely to lead to harassment and their being targeted.  The officer read it as an anti-bullying argument. Apparently, the applicant had wanted to convey that the language issue would have an adverse impact on the childrens’ ability to have proper access to and reasonable success at school.  However, the letter did not clearly state this.

As the Federal Court noted, the applicants failed to raise the possible impact the children’s language deficiency in Spanish might have on their schooling and thus the officer was not required to consider it.  The Court also stated

Perhaps this was an oversight by the applicants or their counsel, or perhaps it was not mentioned because their fluency in Spanish is not as lacking as the one teacher believes.  In any event, the officer had to render a decision on the basis of the submissions and evidence placed before her by the applicants.

Applicants are entitled to rely on the submissions made by applicants and need not explore other possible issues that were not clearly and directly raised by them in their applications.  The message to individuals submitting applications is clear: be as thorough and concise as possible.

It is also important to note that applicants should not invite immigration officers to conduct further investigations by providing the contact information of potential references.  In Hui v. Canada, 2011 FC 1098, an applicant had presented to an immigration officer a list of numerous character references, and invited the officer to contact them.  He did not provide any actual reference letters to accompany the contact information.  Justice Barnes stated:

It was Mr. Hui’s obligation to present the strongest possible corroborating evidence.  Instead of marshalling meaningful evidence, he attempted to shift the evidentiary burden to the Visa Officer to conduct further enquiries.  Although it was perhaps not the most prudent statement for the Visa Officer to discount in advance the reliability of the sources Mr. Hui had identified, the fact remains that Mr. Hui had the obligation to produce that evidence.  He had no legal right to impose an investigative burden on the Visa Officer and the Visa Officer cannot be faulted for declining Mr. Hui’s invitation.

A fettering argument might have arisen if Mr. Hui had produced any significant corroborating evidence which was then rejected in a perfunctory way.

 

 

Consistency on Findings of Credibility

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Flickr photo by Jeff Sari (writer)

A huge concern amongst applicants who have previously submitted applications or documentation to a decision maker is whether their further submissions will contradict what they previously submitted, and whether this will materially negatively impact their credibility.

In short, the existence of contradictions or inconsistencies in the evidence of an individual or witness is a well-accepted basis for a finding of lack of credibility.  However, the discrepancies must be sufficiently serious and must concern matters that are relevant to warrant an adverse finding.

In Sheikh, Asad Javed v. Canada (Minister of Citizenship and Immigration), the Federal Court stated the following regarding the factors that should be considered when assessing inconsistencies or discrepancies:

The discrepancies relied on by the Refugee Division must be real. The Refugee Division must not display a zeal “to find instances of contradiction in the [claimant's] testimony … it should not be over-vigilant in its microscopic examination of the evidence”. The alleged discrepancy or inconsistency must be rationally related to the [claimant's] credibility. Explanations which are not obviously implausible must be taken into account.

Moreover, another line of cases establishes the proposition that the inconsistencies found by the Refugee Division must be significant and be central to the claim and must not be exaggerated.

[Citations removed.]

Finally, the Federal Court has cautioned, however, that, as between different cases, “[t]here can be no consistency on findings of credibility.” Credibility cannot be prejudged and is an issue to be determined by tribunal members in each case based on the circumstances of the individual claimant and the evidence.

Given the jurisprudence, it is generally far better to provide the supporting documentation than it is to be concerned about impacts on credibility.