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),  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),  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.
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.
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.