Category Archives: Canadian Immigration Law Blog

New Post (via Edelmann Blog), Some Updates, and Some Thoughts

Hello VIB Readers:

I have been on a bit of a summer hiatus with writing new posts. I am currently teaching two courses and as well winding down a third job supervising law students at Allard’s Law Students Legal Advice Program.

I am going to be shifting my attention back (hopefully) to trying to get a grasp on how to shift my practice more sustainably in the new digital-COVID age and as well pick up a few more tools in my toolbox (a proper critical race theory lens/possibly opening up a few more economic streams to balance out the heavy litigation/H&C work). I am looking forward to it. I have always been ‘busy’ for the sakes of being busy, so it is quite difficult for me to to try and carve out time to just think, but it is that time that I believe is so precisely important for me right now.

August and September are also panning out to be very busy on the appeals front with a few matters coming down the pipeline.

In this post I wanted to share three things.

1) New Blog Post;

First, I wrote a new blog post. I have been thinking a lot about judicial reviews recently and dissecting my own experience in the recent case of S v. Canada (Public Safety and Emergency Preparedness), 2020 FC 718. I read Justice Favel’s decision in Ouansa v. Canada (Citizenship and Immigration),2020 FC 632.

The post is available here.

2) News About Vancouver Immigration Blog

After 5+ long years, I am finally doing a major revamp of Vancouver Immigration Blog. I am working with a local website/business development company to rebuild my site, make it more navigable and more accessible. It is probably the biggest investment I have made in my online presence since starting the blog so I am excited for it and hoping it inspires more creative content;

3)  On Laws, Regulations, and Enforcement

I have had a very interesting long weekend. I went out to the Sunshine Coast for a little fishing. I did not realize how big the Filipino/Vietnamese/and Chinese diasporic and tourist communities are there. Fishing (it turns out) is a social gathering spot. There is a very interesting place in Davis Bay on the pier. Half of it is dedicated to swimming, mostly local kids jumping off incredible heights into the water. The other half is for fishing, mostly Filipino families gathering and sharing knowledge and stories. Recently, this place has come under some fire with efforts made by the local Davis Bay community to try and regulate an end to fishing off the pier.

Overfishing is certainly a problem. I witnessed some very bad practices – including fishers that took the lives of two shark as bait. Others openly defied the ban on crabbing after dark. I was grateful that a few local members of the Filipino community (who lived there) made sure to emphasize the regulations. At the same time, I could not help but think a total ban (mostly in favour of the non-POC children swimming and sending it off cliffs) also comes from a place of privilege. Several local (more affluent) community members own boats allowing them to fish and crab in the Ocean rather than use the pier. Yet, the pier was where I saw multi-generational families – young adults with their elderly grandmas and grandpas, share an activity together. Regulations that ultimately re-enforce privilege, from my perspective, turn into a sword rather than a shield, cutting apart communities of colour and re-asserting spacial dominance.

At the same time, I had another experience on B.C. ferries where every driver coming in was required to carry masks and there were several announcements of the requirement for all those not socially distancing within their cars to wear a mask. Other than one other Asian brother, I think I was the only mask I saw during the whole ferry boarding and ride. The staff themselves did not wear masks. No one was enforcing as a whole slew of non-POC gathered at the front of the boat, not socially distancing, and not wearing masks. Given where this regulation was coming from, I found it ironic that in this case it could be easily ignored or not complied with – with no consequences.

What type of society are we building where those that institute policy and regulations (often side-stepping the arduous process of needing to go through the introduction of instituting laws) don’t follow them and do not want to lose their own freedoms, but at the same time will institute the same policy and regulations to control the freedoms of others for their own benefit.

I am starting to really think we need a stronger race equity lens to be able to formulate the language of opposition, the language of pointing out the blatant double standards. To show that colourblindness has been leveraged against POCs to maintain white privileges.

Until then, we will continue to be in this situation where we are defending and enforcing against our own rather than challenging the foundations and improving them in a more equitable way.

Lots that I am chewing on – on this B.C. day long weekend.

Federal Court’s Decision in Lo and Three of My Interpreter/Interpretation ‘Best Practices’ at the Immigration Appeal Division (IAD)

The Lo Decision

In Lo v. Canada (Citizenship and Immigration) 2020 FC 684, Justice Elliot heard the judicial review of a Sponsor who received a negative decision from the Immigration Appeal Division relating to his sponsorship. The IAD found that the Applicant did not demonstrate on a balance of probabilities that his marriage was genuine and not entered into for the primary purposes of acquiring status under the Immigration and Refugee Protection Act [IRPA] also colloquially known as a ‘R.4 refusal.’

The main issue in this case was interpretation. Mr. L argued that there was inadequate interpretation from Cantonese to English that led to a breach of procedural fairness thus leading the IAD to conclude erroneously that they were providing vague answers in their testimony (para 11).

Justice Elliot sets out the law for adequate interpretation citing the seminal case of Mohammadian v. Canada (Minister of Citizenship and Immigration, 2001 FCA 191  at paras 4 to 6.

Paragraphs 18-20 of the decision set out the relevant law in this area:

[18]  It is accepted that while interpretation must be continuous, precise, competent, impartial and contemporaneous it is not required to be perfect. Nor is proof of actual prejudice required to obtain relief: Mohammadian v Canada (Minister of Citizenship and Immigration), 2001 FCA 191 [Mohammadian] at paragraphs 4 and 6.

[19]  To ground a finding that there has been a breach of procedural fairness, the Applicant must show that there are serious, non-trivial, problems with the interpretation: Siddiqui v Canada (Citizenship and Immigration), 2015 FC 1028 [Siddiqui] at paragraph 72. The Applicant is not required to demonstrate that an interpretation error underpins a key finding if they can establish that there was a real and significant interpretation error: Mah at paragraph 26; Siddiqui at paragraph 68.

[20]  In Mohammadian, the principle or purpose of interpretation was acknowledged to be “linguistic understanding”, based on statements made by Chief Justice Lamer in R v Tran, [1994] 2 SCR 951.

Paragraph 21 of the decision is particularly important giving a precursor to Justice Elliot’s decision that linguistic understanding can still be found while there are problems with the interpretation:

[21]  An example of when linguistic understanding may be found, despite there being a variety of problems with the interpretation, is provided by Mr. Justice Boswell in Dhaliwal v. Canada (Public Safety and Emergency Preparedness), 2015 FC 157 at paragraph 67:

[67]  In my view, the interpretation was not as precise as it could have been. The interpreter occasionally interpreted in the third person instead of the first person; she paraphrased a lot; she sometimes added information that was not said; and she was sometimes mistaken. However, as the Supreme Court has recognized, interpretation is “an inherently human endeavour which often takes place in less than ideal circumstances” (Tran at 987). Despite the imperfections in this case, I think the Applicant always understood what was being said and was herself understood. There was linguistic understanding between the parties on the essential issues before the IAD. (emphasis added)

There are some strategic issues with the decision that I will not spend too much time delving into. The Applicant relied on an affidavit from the Applicant’s daughter who created an unofficial transcript to compare to the hearing transcript. I likely would have utilized a different third party (official interpreter) assuming costs were not an issue.

Justice Elliot’s Decision 

Paragraph 38 of the decision highlights the common challenges in this area, reflective of the case law.

[38]  Keeping in mind that adequacy, not perfection, is the required standard for interpretation I find that the interpretation was adequate. I also find that any errors were not material to the outcome, therefore it is not necessary to consider the question of waiver. (emphasis added)

Justice Elliot then goes into three specific areas – a disagreement over the discussion of financial support by way of rent, pauses on questions related to compatibility, and information relating to the Applicant’s stepson.  Justice Elliot compares the two transcripts (the official and the unofficial) and finds that in many of these sections where concerns were raised, the transcripts said essentially the same thing. Justice Elliot did not see any differences as affecting the vagueness of the answers.

She concludes in her written decision:

[86]  As I have set out in these reasons, I am unable to agree that any interpretation errors were material or that they prevented the Applicant from having a linguistic understanding of the hearing or his ability to express himself. The interpretation at the hearing was not perfect but it was adequate.

[87]  The Applicant contributed to the difficulties experienced by the interpreter. The transcripts show that at several times during the hearing the IAD and the interpreter each had to caution the Applicant and remind him: (1) not to interrupt whoever was speaking; (2) wait for a question to be completed before answering and (3) use short sentences, with pauses between them.

[88]  The Decision was based on the Applicant’s answers. When an answer was not clear or was not detailed, either the Respondent or the IAD persisted with questions to clarify the answer or obtain more detail. By that process, any uncertainty or interpretation error that might have left a wrong impression was corrected. The Applicant’s failure to provide sufficient detail cannot be traced back to the quality of the interpretation at the hearing.

[89]  Notwithstanding the able and clear arguments of counsel for the Applicant, I am unable to conclude that the IAD hearing was procedurally unfair to the Applicant or that an unreasonable finding was made about the genuineness of his marriage. (emphasis added)

 

Three Interpreter Best Practices for the IAD

With the decision and case law being where they are, how does one prevent, if possible interpreter issues coming up at the IAD.

Below I will outline three tips I try to utilize in most cases

(1) Practice Oral Examination/Cross-Examination at least Once  with Certified Interpretation

As much as we or our office staff may speak the third-language of the appeal, we ultimately are not certified and many times can assume our questions asked are being asked the way we have framed them and the answers we hear are the ones we want to hear.

Ensuring that at least one round of examination/cross-examination is done with a third-party certified interpreter with no history of the case can provide at least a context or understanding of the way questions can be asked in a confusing manner and responses can often appear vague. It also provides the Applicant an opportunity to practice the very hard task of separating statements for which they wish to speak for a significant time into one sentence at a time. Trust me when I say this skill does not come easily, particularly with older clients who have poorer memories and require streams of thought to spur memories. It is also good to have the Applicant hear what other individuals are answering and be able to correct them on factual mistakes.

The cost of interpretation is often around $30-$50 dollars per hour. While it does cost an additional $200+ dollars is expensive, in the scope of how much legal fees are for appeals and how crucial it is to the client’s success, it is a necessary disbursement from my perspective.

(2) Find a Family Member/Friend as a Liaison Who Speaks Both English/Second Language of Appeal Fluently

Knowing certified interpretation is expensive but that most clients do need time to work on their testimony, I also employ the practice of having a trusted family member/family friend be part of interpreting until that final session. Many of my clients that I work with on appeals speak no English (ironically a factor that the Minister often tries to attack establishment with). I find that there are several benefits of having a family member/friend act as a liaison, particularly when they themselves are also involved as a witness and more clarity can be gained by hearing the principal applicant/sponsor talk about their situation. Remember though that as a result of their involvement, they need to be careful to separate what they knew before and what they knew after assisting. I find that time continuum/dates are a major issue in appeals and testimony congruity.

Remember also to seek the client’s written consent to bring the individual into preparation or assistance. In some cases materials shared made be very sensitive and by having the third-party in the room, it may affect the manner in which the evidence is received or responses are provided.

(3) Have Someone in the Room During the Hearing

One recommendation I always make is to have one of the family friends who attends as a witness be fluent in both languages. They themselves will not be a witness (allowing them to stay in the room through the proceedings). They will hear the interpretation

Ensure to let them know that they are not to interrupt the Member or proceedings with their responses/reactions during the hearing. Those reactions are not addressed positively.  Create some sort of code signal or utilize breaks to confer with them on interpretation. As counsel, you should not be afraid to approach the Member with your concerns.

It also is worth mentioning that in many law firms there are second language skills – either with support staff or with lawyers themselves. This is a good opportunity to allow support staff to get some practical experience of attending a hearing or for more senior lawyers to allow junior lawyers with language skills to showcase their litigation abilities. Being Mandarin-speaking myself I have attended several hearings for clients and in circumstances was able to step in to correct interpretation on the spot or ask for clarification.

One of the recommendations I gave in my paper titled Re-Centering the Resilience and Resistance of Migrant Women of Colour: Exploring the Potential of Intersectionality and Indigenous Approaches to Immigration Appeals  was the possible employment of community elders (particularly within one’s ethno-cultural community) in cases where appellants are unrepresented. This also may (if my recommendations are pursued in the future) be something that can be implemented.

What are your tips?

Share them with is and hopefully we can create more best practices to ensure our clients are able to put their best foot forward through immigration appeals.

 

CBA Immigration Section Founder’s Award Paper and Some Sharing of Gratitude

Hi Readers:

I have been relatively quiet of late, grappling, as many are with the  deaths of George Floyd, Breonna Taylor, Ahmaud Arbery, Regis Korchinski-Paquet, Chantel Moore and thinking about how my own work and positionality as a lawyer requires me to do more and say more with respect to Anti-Black and Anti-Indigenous racism. I have been working on drafting a response for an organization but even those words seem like they fall short, as I have.

It is with these complex feelings that I wish to share an award I received today, but I hope to divert attention from the award itself more to the paper I wrote, before drawing on a few Thank You’s.

 

Paper – Re-Centering the Resilience and Resistance of Migrant Women of Colour: Exploring the Potential of Intersectionality and Indigenous Approaches to Immigration Appeals

I have shared the paper below. It is shared with the permission of the Canadian Bar Association and I am grateful for their support.

WT – Founders Award Paper – FINAL

The reason I wanted to share this paper is that it represents for me a first major (academic/creative) deep dive into the issues of intersectionality, racism, and Indigenous approaches to Canadian immigration law. I have been thinking about these topics for some time, tweeting and blogging, but in this piece I tried to mold it into something more prescriptive. I also wanted to take a critical lens, something we often fail to do when we simply celebrate diversity and multiculturalism without seeing how it is working below the surface and in white spaces.

With organizations considering how they can respond to recent events, particularly in taking anti-Racist approaches, I do hope we can begin through looking at long-standing institutions/laws and how they may not be creating space for resilience, resistance, nor recognizing the experiences of migrants of colour.

I ask you to spend some time with my paper, particularly if you are a decision-maker or a Government official (particularly from the Immigration Appeal Division, for the purposes of this piece) with the ability to implement change. I do feel that this is an area where Canadians can demonstrate anti-racism is more than just a current rhetoric and to work towards past reparations by resourcing (read: paying/investing) for Indigenous advisors to help rethink our Immigration system. This is just a start, but I hope it sparks something or some ideas for needed reform.

I also wanted to specifically highlight that I was influenced by writer Gloria Anzaldúa’s Borderlands/La Frontera, The New Mestiza’ for the way she mixes literature and prose.

 

Thank You’s

I want to start by thanking the CBA (the Award’s Committee, Exec/Table Officers/Staff) for this award and the below generous write up. I do not do this work for the accolades, but to know others are watching is great.

I am continuously cautious of the effects of when organization’s difference you up and how that could impact your work and what you say. I am being very careful to not compromise for me the core value of living/practicing with authenticity and transparency at all times.

I would like to my mentors/colleagues at Edelmann and Co., including now-Justice Edelmann and my former mentor/colleagues at Larlee Rosenberg and Heenan Blaikie prior to that – as well as the University of Ottawa Faculty of Law for being such a beautiful place to learn the law and for supporting my work.

I would also like to thank my mentees who assisted on helping me review my paper and give me feedback. Specifically, Karen Jantzen, Tamara Yang, and Astitwa Thapa were instrumental for this particular piece. Chats with the exceptional Partner at my firm Erica Olmstead and the ideas of the brilliant researcher/thinker Leanne Dixon Perera helped shaped this piece as well.

I also wanted to thank those at the UBC’s Allard School of Law where I serve as a Supervising Lawyer for the LSLAP Clinic for inspiring me to look beyond the sometimes too-safe practice I do as part of my regular work.

Finally my best friend Davinder,  my Assistant Edris, my spouse, Olivia who supporting me through thick and thin, and my mother and sister. I did not dedicate the paper to my late father (he hated public attention), but I want to recognize his influence in raising me the right way.

I am taking most of today off to write (although some of it is for my case work). I hope to publish the piece on anti-Black racism and experiences in my circles shortly as I think that is the conversation we need to have today.

I hope you do not mind this short interlude.

Recently quoted in CBA National Magazine’s: ‘The pandemic and the long-term impact on immigration’

Panellist Will Tao, a lawyer at Edelmann & Co. Law Offices in Vancouver, worries that international graduates or students have the most trouble advocating for themselves, and are unable to access the benefits on offer because their immigration status plays a role.

“I’ve heard from a lot of research assistants personally who had jobs and grants during the summer, and who had those unceremoniously cancelled because there are some of the stigmas around who are we helping in times of crisis,” says Tao.

Some students rely upon transfers from overseas accounts, says Tao. They may have been cut off, or can no longer get support from their families in the middle of their studies. They are now facing the challenge of extending their permits.

“Many of these issues are going to become more pronounced as we move forward, and these are almost not necessarily travel ban issues,” says Tao. “But they are things we will see the consequences of in the months and years to follow.”

You can read the rest of the piece: here.

I look forward to continuing the conversation at the CBA Conference this Friday at 10am PST (1pm EST)

Study Permit: COVID-19 Program Delivery – What It Says and What It Doesn’t

Oh, the joys of our immigration practice and the frequent changes it brings along.

I am scheduled to speak on study permits this upcoming Friday for the Canadian Bar Association’s National Conference. I finished my materials a week and a half ago – presumptively thinking that I covered almost everything I could regarding study permits (combining both pre-COVID materials I had prepared and post-COVID guidance).

Friday rolled around and there is a whole new program delivery guide was posted. I found out Saturday morning as I was midway through watching the MJ/Bull’s documentary The Last Dance (I’m a bit behind on these type of things). H/T to Toronto-based immigration lawyer/specialist Robin Seligman for the Linkedin update that caught my eye.

I pulled a marathon Saturday, wrote about the Federal Court/prepared my judicial review Sunday, and now I finally have some time to breakdown the delivery instructions with you. I will also touch briefly on the CBSA’s guidance on international student entry subject to the Orders in Council that superstar litigator (someone who I personally foresee as a future Federal Court judge), Aris Daghighian received as part of his litigation against IRCC on the application of the Order in Councils (OICs) which refused the entry of a father to attend his child’s birth.

For reference materials, follow along here (for the Program Delivery Instructions). We will discuss the CBSA guidance/directives through screenshots shortly.

IRCC Not Refusing Applications for Non-Compliance

As stated on the instructions:

Until further notice, IRCC offices will not refuse an application for non-compliance. IRCC officers will continue to request additional supporting documents or necessary actions (such as biometrics and medical exams) as part of the application process and will keep the applications open until documents are received or evidence is provided that action has been taken.

This, along with the 90 day response periods are generous, but at the same time can create challenges with other third parties (employers, schools, etc.). While processing officers are also bringing forward the applications and paperng applications, you should do the same on your end as an applicant/study permit holder.

I would also make sure to save a copy of the instructions so you can share with those who may not be familiar with the changes and may challenge your ability to work.

Submitting Applications Without Certain Documentation

As I wrote in my post for Edelmann’s blog last week, updating files and timing further submissions is going to become an important skill.

As a temporary facilitation measure, students applying to extend their status will be allowed to submit an application without a letter of acceptance or proof of enrolment. In lieu of the letter of acceptance, the applicant should submit a letter of explanation indicating that they are unable to submit the requested document due to their school’s closure.

Once these documents become available, applicants should submit the documents using the IRCC Web form. If no documents are submitted by the time CPC-E is ready to process the application, the documents will be requested by the processing officer as per the instructions above.

It should be noted that this is a temporary policy. It is foreseeable that at a certain point in time these instructions will be rescinded. While it is hoped that applicants will have sufficient time to respond, it is not unheard of to have to have anywhere from one week, to two weeks, to a month to obtain documentation. This still may be an issue down the road so I see very little benefit in not trying to stay on top of things.

Post-Graduate Work Permits

IRCC has provided a helpful exception – allowing individuals to apply for a PGWP while they are awaiting a letter of completion or final transcript. This is crucial as it allows students to start working, assuming they still hold a valid study permit at the time of their PGWP application.

The relevant instructions state:

As a temporary facilitation measure, applicants who apply for a post-graduation work permit will be allowed to submit an application without their letter of completion or final transcript. Applicants should submit a letter of explanation indicating that they are unable to submit the requested documents due to school closure. Once these documents become available, applicants should submit the documents using the IRCC Web form. If no documents are submitted by the time CPC-E is ready to process the application, the documents will be requested by the processing officer as per the above procedures.

Restoration to Student/PGWP

I still think IRCC needs to provide more detailed ‘step-by-step’ instructions on how to apply for restoration to PGWP, via a restoration first to student.

The relevant instructions state:

IRCC has clarified that applicants who need to restore their status will also be eligible to apply without their letter of completion or final transcript.

Documentation – Designated Learning Institutions (“DLIs”) Need to Take a Bigger Role.

As the instructions state, there are going to be several points where international students are being requested to provide updated documents which largely originate from the institution.

Applicants may have to submit additional documents from the DLI confirming which part of the program was completed in Canada.

There is also an important note that states as follows:

Note: For applicants currently outside Canada who are scheduled to begin studying in May or June 2020 but who do not have either a study permit or approval on their study permit application, time spent pursuing their studies online will not count toward their eligibility for a post-graduation work permit.

Right now international students (both abroad and at home) are in a weird limbo around part-time studies and whether or not they need a permit to engage in online studies. While IRCC has given an exemption for students who are unable to study full-time as a result of institutional issues in maintaining their status, they likely be reminded of this only years from now when they are preparing their PGWP applications and recognize this huge gap. DLIs need to take added steps to document and be able to assist students in the preparation of letter of completions that may contain more detail than usual. Many times, and especially with turnover, these important notes to file are lost and students find themselves having to put the blame on the institution if their applications are refused, leading to both liability and litigation risk.

More on International Student Advisors (RISIAs) shortly.

One Policy Recommendation

IRCC states the eligibility to work after submitting PGWPs as follows. Note that the wording of ‘before the expiry of their study permit’ presumptly suggests that implied status applicants who were awaiting a study permit prior to making their post-graduate work permits. must wait until their PGWP is approved before they start working.

Work authorization after submitting a post-graduation work permit application

As per paragraph R186(w), graduates who apply for a work permit, such as a post-graduation work permit, before the expiry of their study permit are eligible to work full time without a work permit while waiting for a decision on their application if all of the following apply:

  • They are or were the holders of a valid study permit at the time of the post-graduation work permit application.
  • They have completed an eligible program of study.
  • They meet the requirements for working off campus without a work permit under paragraph R186(v) (that is, they were a full-time student enrolled at a DLI in a post-secondary academic, vocational or professional training program of at least 8 months in duration that led to a degree, diploma or certificate).
  • They did not exceed the allowable hours of work under paragraph R186(v).

Unfortunately, much of this processing time is out of the students control. Also, with many students having had to navigate COVID and changes to their final semesters, many have had to put in a last extension prior to graduating. The reality is it could be several (read: five, six plus months) before they are able to obtain their PGWP.

I suspect this is just a small gap but one that should be filled immediately.

The March 18th Rule

One of the reasons international students and their issues at the border may have been heard about less than other groups during COVID-19 is as a result of the firm date of March 18th, chosen by IRCC at which time either students must need to hold an existing study permit or have their letter of introduction dated before.

In a way, the strictness of this date, has masked the many challenges applicants in Canada are having with their study permits and as well the challenges institutions are having in predicting their numbers for Fall/Winter programs.

Disclosure from the CBSA Directives

We learned from the directives the following on international students who are seeking to enter Canada.

We know the situation is very dynamic with different provinces and schools taking different positions as it relates to online or in-person classes (with social distancing).

Notwithstanding the March 18th rule, student who hold valid study permits may still face challenges returning and are advised to bring proper paperwork to the Port of Entry.

Institutional and Applicant Mistakes On the Rise

As I discussed above, I think this a period of time where institutional and applicant mistakes may be magnified, with delayed consequences that may be felt even possibly several years down the road.

Unfortunately, in my own practice I have had to step in on many a recent case where the mistake emanated from a international student as the College/University. This may be as simple as endorsing the completion of forms without an adequate knowledge of the applicant’s entire immigration history, to advising a student to indicate an excessive set of available funds without those funds actually being available.

With international students bringing so much revenue to schools and program, the very least a DLI can do (from my perspective) is pay for the training of staff to the take the RISIA course or possibly even the RCIC course.  Advisors themselves should build in as many caveats into their advice as possible. Twenty/thirty minute consultation sessions are helpful but I cannot count how many times I learned disclosure from clients weeks and months later. Many students have had little-to-no role in past applications that were coordinate by parents, family members, or agents.

I also recommend that schools consider engaging immigration lawyers as part of their staff team. The average immigration lawyer makes $75,000 (as I learned from Marina Sedai) from a recent talk for the CBA National Online Immigration Conference.  That $75,000 is not coming easy either for many of my colleagues. It may be a good opportunity to get legal expertise and advice (particularly on the research/documentation/risk management side).

For student applicants, this is also a time to be extra diligent about document collection, storying, version management, form completion, among other areas.

I think it is also a time for student advocacy and for institutions to do a better job at listening to students and incorporating students into their programming and advisory services. I recently did an interview for a newspaper based in Montreal expanding on my some of my policy recommendations in general but I thought I’d tackle the new changes in this piece.

As discussed, I will be chatting more about Study Permits, pre/post-COVID this on Friday at the Online National Conference.

See you then :).

Reflections on Chief Justice Crampton’s “Best Practices on Judicial Review (Written Submissions)” and My Own Three Tips

Chief Justice Paul Crampton in a recent piece for the CBA’s National Immigration Section’s COVID’s 20:20 A Vision for Lawyer Expertise During a Pandemic and Beyond presented a conference paper titled “Best Advocacy Practices on Judicial Review.”

Given this is an area I would like to pivot more of my work and that I have had some of my own very favourite practice experiences over the past five years (I’m a five-year call as of next Friday!) in this area, I thought I’d share my reflections.

I am purposely reflecting on only the Written Submissions portion. Many of my Edelmann colleagues have much more experience making oral submissions in front of the Federal Court (“FC”). I have only done a handful of hearings as first Chair so I will leave that article to be written either by someone else or later when I feel prepared to do so. Part of this has to do with the nature of the cases I take on, which tend to be in the temporary resident/permanent resident spectrum – often creating less actual hearings than more contentious cases in the refugee/inadmissibility area.

As a side note, I still find it somewhat problematic that reasons are not issued with leave decisions, and I am hoping (and it appears the FC is in conversations to step towards that direction) that more interim guidance from the FC and proposals towards settlement could be worked towards.

Further, I have a teleconference JR hearing next Thursday so the FC has been on my mind!

Without further ado, here we go.

CJ Crampton Tip 1: Never compromise your own credibility/integrity

This is a great tip reminding Counsel on their professional obligation towards justice and the court, and as well to practice with credibility/integrity.

There are a lot of areas that could be exploited by Applicant’s Counsel – altering dates when decisions were received, trying to add things into an Applicant’s Record that clearly were not in front of the decision-maker/not fitting any of the exemptions. The same thing goes with navigating between parallel reconsideration processes and going around Department of Justice Counsel to try and communicate with the visa office during a judicial review. There’s a fine line between good/creative advocacy and sharp practice and I think often times we have to strike that balance and pick and choose our battles. For example, the FC is opening up more feedback and routes for follow-up on systemic issues. Maybe an issue affecting many of your clients would be better brought up in those settings so as to influence the Courts/Stakeholders to make changes.

CJ Crampton Tip #2 – Understand that judges routinely deal with a broad range of different areas of the law. He recommends – “A brief overview of how the issues fit into the statutory framework can be helpful, especially for more complicated applications.”

This is an area where I am personally trying to work on and improve my written advocacy. My mentor (now Justice) Peter Edelmann did a great job of this in his memorandums. Often times, especially when we spot what we perceive to be egregious errors, we jump straight to them or start shooting at different issues without thinking about that broader framework. What is the broader framework within IRPA and IRPR that is leading to this decision being rendered that is problematic in your decision and perhaps has been in other decisions as well? This is particularly helpful when the case law doesn’t necessary go your way or if there is a split in the FC jurisprudence. Going back to the foundational principles (and foundational cases) can very much set the tone for your more pointed analysis. In some cases (and space depending), it may even be useful to specifically set out The Law and highlight which sections are relevant.

CJ Crampton Tip #3 – Respect the page limits – in fact and in spirit

This is another key tip that I have been learning the hard way recently. Especially pre-leave, there’s no need for a 30 page memo. A rule of thumb that was shared by my mentor Erin Roth (and I believe this was repeated by Peter Edelmann as well), is that you should be able to summarize your argument into 10-12 pages. Often times you will find that pages get eaten up by unnecessarily long case law citation or trying to argue 5 points instead of highlighting the top 3.  My new Rule of Thumb is to keep Leave Memos to 10 – 12 pages and then only add additionally if there is something in the CTR worth highlighting.

It is to be noted that the FC is moving towards requiring red-lining (showing your changes within the memos) which may further limit your ability to back-end arguments after leave. It’ll be more important to be concise and strike a right balance between breadth and depth of argument.

CJ Crampton Tip #4 – Use headings and subheadings to organize your arguments

This one kind of speaks for itself but I would add that another tip that I would suggest is also to use headings and subheadings for the supporting affidavits to the written submissions. I find that anywhere block texts without guidance makes for difficult reading and then to have to extract it into arguments while making it difficult to trace adds another layer of annoyance.

One heading that counsel often forget too is the last one to address how the test for leave has been met.  Ultimately, this is an administrative law exercise – and without drawing those in under appropriate headings, the entire piece can read as an attempt to have the FC re-weigh and redecide, which is not it’s function.

CJ Crampton Tip #5: Focus your written brief on your strongest issues – and keep those issues to a very small number (3 or 4)

I got a bit ahead of myself but yes, I have also learned this the hard way when I went to one JR hearing and it was clear I was trying to throw the kitchen sink rather than suss out the strongest three to four arguments. Sometimes you may have to abandon a strong argument for a stronger one. Other times you may want to briefly highlight residual arguments under one subheading rather than try and fully build out all of them.

CJ Crampton Tip #6: Ensure your references to the jurisprudence are up-to-date and on point

With the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov 2019 SCC 65 and Canada Post Corp v Canadian Union of Postal Workers, 2019 SCC 67  being the new foundations to Canadian administrative law and especially Vavilov’s direct link to immigration make those two cases a seminal starting point on standard of review. However, I think Counsel (when I say that, I am referring to myself in a self-critical way) can do a better job of extracting sections of the decision and moving beyond the one line/phrase repetitions of applicable principles.

For example, I think Vavilov paragraphs 133-135 where the Majority examines how the impact of the decision on an individual and how that affects the choices of procedure chosen to be an area that has not yet received its full due. I believe it expands on Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 and would love to see the FC engage in bringing procedural fairness to light more in terms of recent jurisprudence.

I also similarly feel that Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61 (CanLII), [2015] 3 SCR 909  isn’t often given it’s proper due in conversations of statutory interpretation/guidelines/and particularly the broad implications of best interest of the child (BIOTC). It’s tough to often revisit decisions when you feel yourself familiar enough with the underlying principles, but it is worth the exercise from my perspective to look at new ways and factual similarities.

CJ Crampton Tip #7: Ensure the relevant facts are sufficiently described

At the CBABC’s Spring Immigration Conference, there was a very good debate between Keith Reimer and my mentor Steven Meurrens. Keith was advocating for not flooding the memorandum of argument with unnecessary facts (and copying and pasting affidavits) while Steven argued that the facts section can be very crucial to setting out and preparing the legal argument and that they should be robust where possible. CRJ Crampton’s advice addresses this. Where the facts are particularly helpful or relevant, it is very crucial to set them out. Cases in the FC often turn on facts, less so on definitive precedent.

CJ Crampton Tip #8: Support your positions with the most reputable, objective sources of evidence

I often see counsel under-cite in their Memorandums of Argument. When doing so it increases of the risk that you are either speculating on the evidence or trying to re-argue/re-weigh. Setting out what is fact and then expanding on it with law should be practice. This tip is well-directed.

CJ Crampton Tip #9: Deal directly with the weaknesses in your case

I call this one the ‘elephant in the room’ advice. When you do not point out the elephant, it will make its presence felt. Especially when the Department of Justice has the ability to read your argument and reply and many of their counsel our seasoned practitioners, they will point out the deficiencies. Where there is weakness a good strategy is to acknowledge it and then seek to differentiate. For example, recently I did a case involving the Best Interest of the Child where I acknowledged that certain submissions were not made within a particular expert document, but that this did not impact the underlying decision of the Officer on another point. Failure to address weakness/different strengths from those weaknesses can open up counter-arguments that expose those holes and combine your strong arguments into those weaknesses.

CJ Crampton Tip #10: Pay attention to the standard of review 

CJ Crampton advises to explain how the application of reasonableness leads to the result you are seeking, so as not to read like an appeal on the correctness standard. Jurisprudence from the FC now seems pretty clear that procedural fairness issues should still be argued on the correctness standard, something that wasn’t made apparently clear on the face from the wording in Vavilov‘s Majority judgment.

Another point CJ Crampton makes is to ensure pre-Dunsmuir jurisprudence is still good law. Many self-help JR guides and non-profit organization resources unfortunately are from many years back, many citing old case law. Especially for self-represented litigants, it may be worth trying to at least seek advice on that point. I am hopeful (and in gratitude) of work done by lawyers such as Michael Battista  who have been doing wonders for self-represented litigants. I have been trying to figure out solutions as well for the legal clinic I supervise to take a bigger role in trying to provide resources, but this is certainly an area where law is complex and needs simplifying (across the board).

Again on this point, it is crucial to spend time with Vavilov’s expansion of the reasonableness analysis. It certainly is a decision that has created results on two sides of the spectrum, one supporting the DOJ’s position that errors must go to the heart of the decision and another helping Applicants where decisions are the necessary elements to allow one to apply reasonableness.

Overall Thoughts

These are sage tips from CJ Crampton. I have not always agreed with his analysis on certain decisions, but I think the Crampton Court is taking all the right steps in trying to elevate the quality while making the process more accessible.

 

My Tips

WT Tip #1: Find Senior Lawyers to Collaborate With and Bounce Theories Off Of

I think too often badly prepared JRs are a result of narrow examples and not enough time spent hashing out legal questions. Immigration law is complicated by the fact that most times it is one client and one lawyer, but the best litigators I know keep a strong network of mentors/partners with whom they share ideas and cooperate on cases with.

I am by no means a senior practitioner (recall earlier note on being in my fifth year of practice) but I would love to develop more networks among other junior to mid-level lawyers and as well to seek the wisdom and guidance of sage mentors and experts.

When I speak to older lawyers with more experience, I usually leave the conversation feeling more confident to put my foot forward. Most of my weaknesses in argument is in trying to do much or not digging beyond the surface on a legal issue, things mentors with more experience can help parse out. They are also very good at helping you trim the fat on unnecessary arguments that detract from the overall point you are trying to make.

WT Tip #2: The Incompleteness of a Rule 9 Opens Up Strategic Options

One of the major challenges in judicial review is that many times, as Applicant’s counsel, you must make your arguments based on a very thin Rule 9 which may just be the written decision you have an a short subset of electronic notes.

Unfortunately, leave decisions are made on this record, making the Applicant’s Affidavit and perhaps an Affidavit from your legal assistant even more important to put forth the key missing pieces (perhaps the information that makes very clear why the decision is unreasonable or not procedurally fair). In many cases, your emphasis of the fact the Respondent has not even made clear what is on the Record, can be part of a reply, and leave may be granted if there is a major question to be answered. Indeed, the publishing of the Certified Tribunal Record (or key omissions) may also be a settlement point shortly after leave is granted.

WT Tip #3: Don’t Leave the Memo for the Last Minute

As a rule of thumb I try to finish citations at least the day (ideally two days) before the final deadline, giving me one day to edit and put together the Applicant’s Record. The Applicant’s Record flows together – in that through a strong affidavit, and citations, you can highlight your key arguments with the evidence CJ Crampton mentioned in his advice.

If you can also finish early, you can send it around to a few others (other counsel, other lawyers in your Firm) for feedback. I find myself often refining arguments, only because I was able to finish early, think and read more following the first draft, and polish it off later.

While currently timelines are suspended for coronavirus, you cannot bank on being able to navigate extensions of time in all cases. On that related note, the Federal Court Registry is such a crucial resource for the little administrative hiccups (solicitor’s service, proof of consents, e-Filing, etc.) that often bog down the process. Finishing earlier allows for you to make sure those steps are done appropriately as well.

Conclusion: What do you think about the Federal Court? What are your tips for written submissions?

As we work to develop our practices here I invite you to join me in conversation. I’m still learning the ropes and would love to learn alongside all of you.

Five Immigration Tips for Coming Out of the Pandemic (Part 1)

I wrote this hopefully relevant piece with five immigration tips on coming out of the pandemic.

While no one has a crystal ball, I would expect that there is a greater emphasis on the back end (people with status issues and difficulties staying in Canada).

What do you think? Are there ways we can collaborate on these areas for the betterment of access to justice?

Five Immigration Tips for Coming Out of the Pandemic (Part 1)

International Students – A Recent Podcast, an Upcoming Presentation, and a Future Priority

Hi VIB Readers:

It’s been a minute.

A Recent Podcast

I wanted to share something I did not too long ago (Pre-COVID).

I recently joined Canadian Immigration Lawyer, Mark Holthe on his podcast, Canadian Immigration Podcast, to discuss some of the challenges international students experience when studying in Canada and some essential tips to avoiding the most common pitfalls.

International Students in Canada

I really want to thank Mark Holthe for his tireless efforts to bring the conversation about immigration law to the mainstream. He is an incredible mentor, a bastion of positivity, and a great lawyer – evidenced by recently winning the Best Lawyers – Best Lawyer in Alberta award. I am grateful that he took time to interview me and I am happy to share this conversation.

 

Upcoming Presentation

I will also will be speaking at the CBA National Immigration Section’s conference titled “20:20 A VISION FOR LAWYER EXPERTISE DURING A PANDEMIC AND BEYOND” on study permits.

You can register for the conference and find more information here: https://www.cbapd.org/details_en.aspx?id=NA_NA20IMM04J 

My session is at 10:00am – 11:15am PST (1:00pm – 2:15pm EST).

Future Priority

My assistant Edris and I have been working on putting together new content and new materials to assist international students, along with migrant families and migrant workers – the focus of our practice moving forward.

As I discussed in my podcast, international students have a special place in my heart – part of both my late father’s journey to Canada (the reason I am here) and my own spouse’s journey to joining.

We’re going to be looking specifically at issues Post-COVID that affect these groups and brainstorm ways from policy and non-profit perspectives that we can help or push changs. I continue to represent individual students, workers, and collective families in achieving their immigration goals.

Thanks for all your continued support of my practice and the work we are doing for our clients and hope to do for community!

 

 

Are we R.228-ing too many R.229s? – New COVID-Based Quarantine Act Inadmissibility and the Case for Procedural Fairness Amid Changing Administrative Efficiencies

Introduction

I did an earlier-COVID post about the criminal inadmissibility consequences of the Quarantine Act. In today’s post I want to update the Government’s approach here but also bring a larger critique – that we should be advocating for the right of foreign nationals to access the Immigration Division (R.229 of the Immigration and Refugee Protection Regulations [IRPR]) where it is clear their case requires a balancing of evidentiary facts and greater (if still minimum by administrative legal standards) procedural fairness.

I see a worrisome trend of addressing (ramming) new inadmissibility through CBSA Minister’s Delegate [R.228] because it is administratively convenient. As technology improves and the ability of more hearings to be run administratively efficiently, is it still fair to deny foreign nationals at the heart of these matters, the ability to have an independent decision-maker preside over their cases and to present their full evidence?

The New Inadmissibility – Violation of Emergencies Act or Quarantine Act

On 20 April 2020, the Federal Government introduced a new inadmissibility for foreign national (visitors, students, and workers) who violate the Quarantine Act.  

The change adds an inadmissibility under s.41(a) of the Immigration and Refugee Protection Act (“IRPA”) and does so by also creating automatic inadmissibility for any Foreign National with a Quarantine Act conviction.

22.1 For the purpose of determining whether a foreign national is inadmissible under paragraph 41(a) of the Act for having failed to comply with the condition set out in paragraph 43(1)(e) or 183(1)(d) of these Regulations, if the foreign national has been convicted for having contravened an order or regulation made under the Emergencies Act or the Quarantine Act, the facts on which the conviction is based shall be considered to be conclusively established.

This operates through the adding of a General condition under s.183(d) which applies to all temporary residents:

General conditions

  •  (1) Subject to section 185, the following conditions are imposed on all temporary residents:

    • (a) to leave Canada by the end of the period authorized for their stay;

    • (b) to not work, unless authorized by this Part or Part 11;

    • (b.1) if authorized to work by this Part or Part 11, to not enter into an employment agreement, or extend the term of an employment agreement, with an employer who, on a regular basis, offers striptease, erotic dance, escort services or erotic massages;

    • (b.2) if authorized to work by this Part or Part 11, to not enter into an employment agreement, or extend the term of an employment agreement, with an employer referred to in any of subparagraphs 200(3)(h)(i) to (iii);

    • (c) to not study, unless authorized by the Act, this Part or Part 12; and

    • (d) to comply with all requirements imposed on them by an order or regulation made under the Emergencies Act or the Quarantine Act.

The law also applies by way of adding a condition under Regulation 43(1)(e) in the context of continued examinations under s.23 IRPA.

Conditions

  •  (1) An officer must impose the following conditions on every person authorized to enter Canada under section 23 of the Act:

    • (a) to report in person at the time and place specified for the completion of the examination or the admissibility hearing;

    • (b) to not engage in any work in Canada;

    • (c) to not attend any educational institution in Canada;

    • (d) to report in person to an officer at a port of entry if the person withdraws their application to enter Canada; and

    • (e) to comply with all requirements imposed on them by an order or regulation made under the Emergencies Act or the Quarantine Act.

It is important hear that the IRPA imposes an obligation beyond the criminal context, to require compliance with ‘all requirements.’ There are several Quarantine Act requirements that do not directly attach a conviction for. Furthermore, this brings into the realm of immigration inadmissibility several convictions found in s.67-72 of the Quarantine Act that would not have rendered a foreign national inadmissible by way of a sole summary offence conviction.

There are major questions of its overbreadth and as well whether the inadmissibility will be disproportionately pursued against low-skilled workers working in fields such as agricultural, largely at the whim of the direction of the employer or their agents. While there are also employer compliance issues (which this piece will not explore) it is foreseeable that a wrong of the employer could be attached to the employee by way of inadmissibility.

The Regulatory Impact Analysis Statement acknowledges as much in what I still feel is a severely short assessment:

Gender-based analysis plus (GBA+)

The power imbalance inherent in most employment relationships is intensified for foreign workers as a result of their temporary status in Canada, and in the case of employer-specific work permit holders, the conditional nature of their authorization to only work for one employer. This imbalance can be further exacerbated by factors such a lack of proficiency in English or French, lack of knowledge of their rights, and misinformation. Gender and intersectional factors (e.g. age, race, low-wage level) may further increase vulnerability to workplace abuse.

One of the policy objectives of these regulatory amendments is to protect temporary foreign workers to help ensure that they are not put in situations where they are at risk of being infected by COVID-19 and/or at risk of infecting others. The proposal is expected to safeguard against an employer encouraging a worker to violate any requirements under the Quarantine Act or the Emergencies Act.

Colour me sceptical but I do not see how putting punitive immigration consequences on foreign workers protects temporary foreign workers. I do see individuals who are racialized and in low-paying jobs (with assumed lower levels of language ability and presumed less shelter-at-home circumstances) being subject to greater surveillance and immigration consequences.

 

No Referral to the Immigration Division

Where I think this provisions steps into the line of being a major problem in my perspective is is listed as a R.228 IRPR inadmissibility rather than as a s.229 IRPR admissibility.

11 (1) Subparagraph 228(1)(c)(v) of the Regulations is replaced by the following:

  • (v) failing to comply with subsection 29(2) of the Act as a result of non-compliance with any condition set out in paragraph 183(1)(d), section 184 or subsection 220.1(1), an exclusion order,

(2) Paragraph 228(1)(c) of the Regulations is amended by adding “or” at the end of subparagraph (vi) and by adding the following after that subparagraph:

  • (vii) failing to comply with the condition set out in paragraph 43(1)(e), an exclusion order;

The difference between R.228 and R.229 IRPR is that R.228 IRPR allows a Minister’s Delegate of the Canada Border Services Agency (including at the Port of Entry) to issue an exclusion order.

Subsection 44(2) of the Act — foreign nationals

 (1) For the purposes of subsection 44(2) of the Act, and subject to subsections (3) and (4), if a report in respect of a foreign national does not include any grounds of inadmissibility other than those set out in the following circumstances, the report shall not be referred to the Immigration Division…

R.229 inadmissibilities require the Minister Delegate to refer the matter to the Immigration Division (ID):

Paragraph 45(d) of the Act — applicable removal order

  •  (1) For the purposes of paragraph 45(d) of the Act, the applicable removal order to be made by the Immigration Division against a person is

At an Immigration Division hearing, the burden of proof is on the Minister to prove that the person concerned is inadmissible to Canada. The ID Member who makes a decision is a third-party, impartial decision-maker. They are obligated to assess the submissions and the evidence submitted by the person concerned.

In a Minister’s Delegate-issued removal order, evidence is assessed but the MD’s are acting on the arresting officer, other law enforcement/public authorities, and other interviewing inland enforcement officers to render their decision. They are carrying out the decision effectively “in-house” thus eliminating a real need for additional procedural fairness (opportunities to respond) or in many cases adequate opportunities to provide further evidence. Most clients have no counsel for MD-issued removal orders and counsel are often given limited ability to advocate in this setting.

 

Continuing a Recent Trend of No Justification

One of the problems as well is that the RIAS does not provide further justification on why the inadmissibility was chosen for s.228 and not s.229.

The RIAS merely repeats four times a state similar to this:

The Regulations provide the authority for the Minister of Public Safety or the Minister’s delegate to issue a removal order for non-compliance with the new conditions that require compliance with an order or regulation under the Quarantine Act or the Emergencies Act, once a person has been found to be inadmissible. 

The last inadmissibility added – in February 2014 (effective June 2014) for non-compliance and not actively pursuing studies (IRPA s.29(2) x. s.41(a) x IRPR s.220.1) also contained similar language in it’s RIAS.

The Regulations allow for issuance of a removal order by delegated officers in circumstances where students are not complying with new study permit conditions, rather than being referred to the Immigration Division of the Immigration and Refugee Board for a hearing.

In the international student context, this led to border officers removing international students for one-day trips to the United States during studies, poor grades, and until recently, as secondary admissibilities to inland admissibility investigations/matters (allegations of criminality, misrep, etc.).

I think a question needs to be legitimately asked about why two admissibilities both of which go against the usual R.228 black and white assessment (e.g. are expired permits – overstay, not holding required immigration document, failing to appear for examination, criminal conviction inside Canada as examples) are being put in the same box.

Given the limited application (at least documented) of the Quarantine Act as we explored last blog, should not an independent decision-maker who develops specific expertise to assess evidence be required? What happens if the allegation is not based solely on a conviction but actually on an issue such as the truthfulness of a disclosure or response (s. 15 -s.16 of the Quarantine Act). How would these proceed without witnesses and the type of evidentiary disclosure needed?

Remember when we frame this issue, we also look at the primary elements of procedural fairness as set out of by IRCC.

https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/service-delivery/procedural-fairness.html 

The right to be heard or the right to reasons is not too hard in the context of an individual who violates a clear law on the face, but this law is far from clear and arguably with construction that is far from perfect.

It is my hope that it is used infrequently and that we move through this COVID period with discretion and seeking understanding before applying punitive measures, but we have seen in the ways that fines have been levied for COVID offences generally that this has not been the case.

In the interim, we need to hold the Government to account to explain and justify why the Immigration Division could not have been given jurisdiction to issue the removal order.

Immigration Division

One of the main arguments for an R.228 removal in administrative efficiency. The idea being these issues are so important and emergent that they need to be dealt with quickly, and possibly even at the Border.

With COVID one of the things we are seeing is an improvement in the ability to hear cases virtually or leverage technology to make things more efficient. Subject to the very important aim of giving individuals the right to an oral hearing (and ideally in person) particularly in the context of long-term detainees and refugees, I don’t see why the administrative efficiency argument still stands.

Post-COVID I expect that we will see many more hearings (including admissibility hearings) operate via online video conferences. These conferences can include the ability to share and provide evidence quickly, disclose immediately, and likely timelines can be shortened for scheduling. With all these things, what is the continued justification for not referring cases that do require an assessment of evidence to render a reasonable and fair decision?

Judicial Review as a Possible Outcome

Unfortunately, if there is unfortunately a second wave or if the Quarantine Act becomes engaged increasingly for inadmissibility, I suspect that we will have quick removals and unfortunately little basis for stay of removals. For workers, it is likely that inadmissibility would also sever the employer/employee relationship removing the argument they likely had for significant harm. Students and Visitors will probably have similar difficulties establishing significant harm in most cases if their entry was for studies or family-based visits (which are already being scrutinized).

Ultimately, I believe we will probably get poorly justified removals that will require judicial reviews to sort out. However, unlike the actively pursuing studies provision of R.220.1 IRPR which the Federal Court has generally upheld in reported decisions, I think the Quarantine Act will be much more difficult to navigate. There are also holes around issues such as overbreadth and vagueness, and certainly procedural fairness issues, that will emerge in such litigation.

I am interested to see how this will all pan out. If you  have a case on the basis of this new inadmissibility, I am eager to hear from you: will@edelmann.ca

Take care and stay safe!