The Canadian Association of Refugee Lawyers has left quite a mark on the legal landscape since coming into existence in September of 2011. CARL has been granted leave to intervene in fourteen Supreme Court of Canada (SCC) decisions, creating a positive impact on refugees’ legal rights in our country.
L’ACAADR a laissé une marque dans le paysage juridique depuis sa création en septembre 2011. L’ACAADR a reçu l’autorisation d’intervenir dans quatre décisions de la Cour suprême du Canada (SCC), ce qui a un impact positif sur le droit des réfugiés droits dans notre pays.
Interested in acting as CARL counsel? Fill in an application in English or French, and send to info@carl-acaadr.ca with subject heading “COUNSEL APPLICATION”
Below, find brief summaries of our work in the courts.
Canadian Association of Refugee Lawyers v. Canada (Citizenship and Immigration)
2019 FC 1126. CARL was a party. The Federal Court found that a jurisprudential guide (JG) concerning Ahmadis from Pakistan established by the Chairperson of the IRB unlawfully fettered the adjudicative independence of RPD and RAD members. The Court found that a JG concerning internal flight alternatives available in Nigeria did not unlawfully fetter members’ discretion and was not improperly pre-selected. Lorne Waldman represented CARL.
Sebok and CARL v. Canada (Minister of Public Safety and Emergency Preparedness) ;IMM-591-16, which was subsequently consolidated with Feher, et al. v. Canada (Public Safety and Emergency Preparedness), IMM-3855-15 (“Feher”)
2019 FC 335. CARL was a party. The Federal Court found that the differential length of the PRRA bar for refugee claimants from DCOs (36 months) and non-DCOs (12 months) was unconstitutional as it violated s. 15(1) of the Charter. Alyssa Manning represented CARL.
Canada (Minister of Citizenship and Immigration) v. Vavilov (37748)
Pending hearing. 2019 SCC 65 (CanLII). CARL was an intervener. The Supreme Court refined the standard of review set out in Dunsmuir, setting out a more robust description of the factors to be considered upon reasonableness review, which focuses mainly on the logic and justification of an administrative decision maker’s reasons. Notably, the Court stated that the impact of a decision on the affected individual should be considered in assessing the reasonableness of a decision. Audrey Macklin and Anthony Navaneelan represented CARL.
Canada (Minister of Public Safety and Emergency Preparedness), et al. v. Chhina (37770)
Under reserve. 2019 SCC 29 (CanLII). CARL was an intervener. The Supreme Court found that the IRPA does not provide a detention review procedure that is at least as broad and advantageous as habeas corpus for three main reasons: 1) the onus under IRPA is less advantageous than that under habeas corpus; 2) the scope the Federal Court’s jurisdiction on judicial review is narrower than that of the superior court in habeas applications; and 3) habeas corpus is a timelier remedy. Jared Will and Joshua Blum represented CARL.
Rozas, et al v. Canada (Minister of Citizenship and Immigration)
2018 FC 1145. CARL was an intervener. The Federal Court confirmed the standard of review for the RAD set out in Huruglica and rejected an alternative standard put forward by the RAD in a leading case. Anthony Navaneelan represented CARL.
Canada (Minister of Citizenship and Immigration) v. Fisher-Tennant
Pending. CARL was an intervener before the Federal Court of Appeal in Canada (Minister of Citizenship and Immigration) v. Fisher-Tennant on exceptions to the certified question regime and the ability of the Court to make rulings in the nature of a directed verdict. The Court left the door open on both issues. CARL counsel: Michael Bossin and Laïla Demirdache
R. v. Wong
2018 SCC 25 (CanLII), [2018] 1 SCR 696. Intervention before the Supreme Court of Canada with respect to circumstances under which a guilty plea may be withdrawn on the basis the accused was unaware of the collateral immigration consequences. The Court held the accused must demonstrate subjective prejudice, establishing a reasonable possibility that he or she would have either (1) opted for a trial and pleaded not guilty; or (2) pleaded guilty, but with different conditions, had they been aware the of legally relevant consequences at the time of the plea.
Counsel for CARL: Lobat Sadrehashemi and Lorne Waldman
Alvin Brown et al. v Canada (Minister of Citizenship and Immigration)
Pending. 2017 FC 710 (CanLII). Pending intervention before the Federal Court of Appeal with respect to several pivotal issues concerning immigration detention. This includes the grounds for detention, considerations for release, extent procedural fairness, and conditions of detention, as well as whether there is a presumptive limit to the reasonable length of detention. Counsel for CARL: Maureen Silcoff, Ben Liston, Aris Daghighian
Tran v. Canada (Minister of Public Safety and Emergency Preparedness)
2017 SCC 50. CARL was an intervener. Intervention before the Supreme Court of Canada with respect to pivotal issues concerning the intersection of immigration and criminal law. The Court held conditional sentence orders (CSOs) (i.e. “house arrest” orders) do not constitute a term of imprisonment for immigration purposes, and that changes in criminal statutes cannot be applied retrospectively in assessing admissibility.
Counsel for CARL: The Honourable Justice Norris, prior to his appointment to the Federal Court.
Mudrak v. Canada (Minister of Citizenship and Immigration)
Pending hearing. 2016 FCA 178. In Mudrak v. Canada (Citizenship and Immigration) CARL intervened jointly with the CCR at the Federal Court of Appeal on the issue of the proper test for state protection under the Convention refugee definition. The Court did not alter the existing test. CARL Counsel: Maureen Silcoff, Jamie Liew and Aviva Basman
Canada (Minister of Citizenship and Immigration) v. Huruglica
2016 FCA 93. In the Federal Court of Appeal case of Canada (Citizenship and Immigration) v. Huruglica, CARL intervened jointly with the CCR on the type of review undertaken by the RAD when considering an appeal of an RPD decision. The Court agreed with CARL and CCR that the RAD should conduct its own independent assessment of the merits of the refugee claim. CARL counsel: Audrey Macklin and Anthony Navaneelan.
Canada (Minister of Citizenship and Immigration) v. Singh
2016 FCA 96. CARL was an intervener in Canada (Citizenship and Immigration) v. Singh, a Federal Court of Appeal case on the test for admission of new evidence before the Refugee Appeal Division. CARL argued that the test should respect Charter values and the principles of fundamental justice. CARL Counsel: Anthony Navaneelan and Aadil Mangalji
Kanthasamy v. Canada (Minister of Citizenship and Immigration)
2015 SCC 61 (CanLII), [2015] 3 SCR 909. CARL was an intervener. The Supreme Court found that Ministerial Guidelines regarding assessment ofHumanitarian and Compassionate applications under s. 25(1) were not binding and that the words “unusual and undeserved or disproportionate hardship” found in the Guidelines did not create discrete and high thresholds for granting relief. Officers must consider and give weight to all relevant humanitarian and compassionate considerations including the best interests of a child. Audrey Macklin, Joo Eun Kim and Laura Brittain represented CARL.
B010 v. Canada (Minister of Citizenship and Immigration)
2015 SCC 58 (CanLII), [2015] 3 SCR 704. CARL was an intervener. The Supreme Court found that migrants who assist others in their flight to safety, or are fleeing to safety themselves are not inadmissible under s. 37(1)(b) of the IRPA, which renders individuals inadmissible for engaging in people smuggling. CARL was represented by Jennifer Bond, Andrew Brouwer and Erin Bobkin.
Y.Z. and CARL v. Canada (Minister of Citizenship and Immigration and Minister of Public Safety and Emergency Preparedness)
2015 FC 892. CARL was a party. The Federal Court found that paragraph 110(2)(d.1) of the IRPA, which barred individuals from DCO countries from appealing decisions of the RPD to the RAD violated s. 15(1) of the Charter as it discriminated on the basis of national origin. The appeal bar was disproportionate and overbroad and therefore was not a reasonable limit on Charter rights. Jared Will represented CARL.
R. v. Appulonappa
2015 SCC 59. Before the Supreme Court in Appulonappa v. R., CARL intervened on the issue of whether section 7 of the Charter applies to inadmissibility proceedings brought against refugee claimants found guilty of people-smuggling. CARL Counsel: Andrew J. Brouwer, Erin Bobkin And Jennifer Bond
Peter v. Canada (Minister of Public Safety and Emergency Preparedness), Savunthararasa v. Canada (Minister of Citizenship and Immigration), and Etienne v. Canada (Minister of Public Safety and Emergency Preparedness)
2014 FC 1073, 2014 FC 1074, 2015 FC 415. In the related cases of Etienne v. Canada (Minister of Public Safety and Emergency Preparedness), Peter v. Canada (Citizenship and Immigration) and Savunthararasa v. Canada (Citizenship and Immigration), CARL was an intervener at the Federal Court level on the issue of the constitutionality of both the PRRA bar and the removals process itself. CARL Counsel: Andrew Brouwer and Richard Wazana.
Huruglica, et al v. Canada (Minister of Citizenship and Immigration)
2014 FC 799. Lorem ipsum dolor.
Canadian Doctors for Refugee Care, CARL et al v. AGC et al
2014 FC 651. CARL was a party. The Federal Court held that changes to the Interim Federal Health Program instituted by the Harper government in 2012 violated ss. 12 and 15 of the Charter. The Court found that the changes constituted cruel and unusual treatment and discriminated against refugee claimants from Designated Countries of Origin. CARL was represented by Pia Zambelli and Jacqueline Swaisland.
Febles v. Canada (Minister of Citizenship and Immigration)
2014 SCC 68. Intervention before the Supreme Court of Canada with respect to Article 1F(b) of the Refugee Convention excluding refugee claimants who have previously committed a “serious non-political crime.” The Court held the provision applies to anyone who has ever committed a serious non-political crime outside the country of refuge. In terms of what constitutes a “serious crime” under Article 1F(b), consideration of whether a maximum sentence of ten years or more could have been imposed had the crime been committed in Canada is a useful guideline. However, the ten-year rule should not be applied in a mechanistic, decontextualized, or unjust manner. Counsel for CARL: Aviva Basman and Alyssa Manning
Kazemi v. Islamic Republic of Iran
2014 SCC 62. CARL intervened before the Supreme Court in the case of a woman tortured and killed by the Iranian government (Kazemi Estate v. Islamic Republic of Iran). CARL supported the right of victims of gross human rights violations to an effective remedy at international law. CARL counsel: Daniel Sheppard and Tamara Morgenthau
Canada (Minister of Citizenship and Immigration) et al v. Harkat
2014 SCC 37. In the Supreme Court case of Canada (Citizenship and Immigration) v. Harkat, CARL intervened to address the issue of the Charter breaches that may flow from the destruction of original investigative materials in security certificate proceedings. Carl Counsel: Marlys Edwardh and Adriel Weaver.
Ezokola v. Canada (Minister of Citizenship and Immigration)
2013 SCC 40. Intervention before the Supreme Court of Canada with respect to Article 1F(a) of the Refugee Convention excluding refugee claimants if there are “serious reasons for considering that [they have] committed a crime against peace, a war crime, or a crime against humanity.” The Court held there must be serious reasons for considering that the claimant has voluntarily made a significant and knowing contribution to the organization or government’s crime or criminal purpose. Decision makers should not overextend the concept of complicity to capture individuals based on mere association or passive acquiescence. International law and fundamental criminal law principles support the adoption of a contribution‑based test for complicity — one that requires a voluntary, knowing, and significant contribution to the crime or criminal purpose of a group.
Counsel for CARL: Jennifer Bond, Carole Simone Dahan, Aviva Basman and Andrew Brouwer.
Agraira v. Canada (Minister of Public Safety and Emergency Preparedness)
2013 SCC 36. CARL intervened jointly with CCR before the Supreme Court in Agraira v. Canada (Minister of Public Safety and Emergency Preparedness. CARL and CCR were concerned with the impact that overbroad inadmissibility provisions have on refugees in Canada. CARL Counsel: John Norris and Andrew Brouwer.
R v. Pham
2013 SCC 15. Intervention before the Supreme Court of Canada with respect to consideration of collateral immigration consequences in determining a criminal sentence. The Court held a sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, provided that the sentence ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender. The significance of collateral immigration consequences will depend on the facts of the case.
Counsel for CARL: Melinda Gayda and the Honourable Justice Norris, prior to his appointment to the Federal Court.
Government of Canada v. Downtown Eastside Sex Workers
2012 SCC 45 (CanLII), [2012] 2 SCR 524. CARL was an intervener. The case sets out the test for granting public interest standing: 1) whether there is a serious justiciable issue raised; 2) whether the plaintiff has a real state or a genuine interest in it; and 3) whether, in all the circumstances, the proposed suit is a reasonable and effective way to bring the issue before the courts.
Lorne Waldman, Clare Crummey and Tamara Morgenthau represented CARL.