Law Times

Law TiMes • March 5, 2012 FOCUS PAGE 11 BY MICHAEL McKIERNAN Law Times I mmigration lawyers are hoping the Supreme Court of Canada will make ministerial exemptions from the broad inadmissibility provisions of the Immigration and Refugee Protection Act a more realistic possibility. In December, the country's top court agreed to hear the case of Muhsen Ahmed Ramadan Agraira after the Federal Court of Appeal upheld then-minister of public safety Peter Van Loan's decision to deny the Libyan an exemption because of his membership in an anti-Gadhafi group. "The courts have narrowed the ministe- rial relief subsection to the point where it is really almost irrelevant," says Steven Meurrens, an immigration lawyer with Larlee Rosenberg in Vancouver. "Hopefully, the Supreme Court will help sort it all out." Agraira fled his home country in 1996 and claimed refugee status on the basis of his member- ship in a Gadhafi oppo- sition group, the Libyan National Salvation Front. But since there was was using the test that is outlined in the guidelines, but to everyone's surprise, the Court of Appeal said that's not the case." Permanent residents and foreign nation- als can be declared inadmissible to Canada under sections 34, 35, and 37 of the act. Chantal Desloges, a Toronto immigration lawyer, says the "inordinate delay" associated with exemption requests, along with the low success rates, has rendered ministerial relief "practically unavailable." "Most of the public would be shocked to know how broad those provisions are and how many people they apply to that you would never ever think would be danger- ous," she says. "Nelson Mandela falls under s. 34 because he has been a member of a group that historically used vio- lence. It doesn't matter if you're still a member or if the group has reformed. It's frozen in time and you're stuck forever, so not to have any effective relief really is a kick in the pants." Desloges used a evidence the group had engaged in terrorism in an attempt to overthrow a government, an immigration officer told Agraira in 2002 that it was her opinion that he was inadmissible to Canada under s. 34(1) of the act. Subsection 34(2) allows for an exemption if applicants can convince the minister their presence in Canada "would not be detrimental to the national interest." An immigration officer subsequently rec- 'The courts have narrowed the ministerial relief subsection to the point where it is real- ly almost irrelevant,' says Steven Meurrens. recent case to challenge the constitutionality of the three sections. She argued the Federal Court had accepted the broad- ness of the inadmissi- bility criteria in the past because of the safety valve of ministerial relief. "There are cases that are just sitting there forever. What's the point of having a relief mechanism if you have to wait 10 years to get an answer on it? Hardly anyone gets it and after Agraira, they've ripped the guts out of it, so they can only consider a very limited range of factors." Her client Mark Stables, a permanent ommended Agraira's application for min- isterial relief, but Van Loan rejected it in 2009. Agraira then won judicial review when a Federal Court judge found the minister's decision unreasonable. The judge said the minister had failed to consider a list of factors in the department's own guidelines for the processing of minis- terial relief applications, including whether the applicant's presence in Canada would be offensive to the public and whether the appli- cant had cut ties with the organization or had ever benefited from membership. They also included the extent to which the appli- cant had adopted the democratic values of Canadian society. Then in March 2011, Federal Court of Appeal Justice Denis Pelletier reversed the lower court ruling after finding the min- ister didn't have to consider the guideline factors and that humanitarian and com- passionate considerations had no place in the decision on relief. "The notion of 'national interest' in the context of subsection 34(2) must be under- stood in terms of the minister of public safe- ty's mandate," Pelletier wrote. "In my view, this means that the principal, if not the only, consideration in the processing of applica- tions for ministerial relief is national secu- rity and public safety. The minister of public safety is not required to balance the possible contribution to the national interest by an applicant against the possible detriment to the national interest and to refuse only those applications that result in a net detriment to the national interest." That line of thinking "goes a bit against what everyone thought that section was about," Meurrens says. "I think every lawyer resident who had been in Canada for more than 40 years after moving here with his family from Scotland at the age of seven, was found inadmissible to Canada in 2010 on the grounds of organized criminality under s. 37 of the act for his membership in the Hells Angels. Stables joined the group in 2000 and was its treasurer in Ontario for seven years before leaving in 2009. Stables said he was never involved in any criminal activity and claimed to have been vocal in his opposition to the membership of individuals who were. Desloges filed an access-to-information request with the Canada Border Services Agency that showed that none of the 12 appli- cations for ministerial relief under s. 37 since the act came into force in 2002 had been successful. Under s. 35, the government had granted just three out of 18 applications dur- ing the same period. Under s. 34, there were 24 successful applications out of 247 of them. In his Nov. 17 judgment, however, Federal Court Justice Yves de Montigny said Stables shouldn't be able to raise his constitutional arguments because he had failed to bring them forth earlier in the process. In any case, de Montigny said the huge number of pend- ing cases made it difficult to tell what the actual success rate is for ministerial relief. "These delays are no doubt troubling, but there may be a number of valid and compel- ling explanations for each and every case," the judge wrote. In the meantime, Stables has been deport- ed to his native Scotland and can only wait until the minister gets around to his exemp- tion request. "Maybe he'll be able to come back in 10 years when he is 60. It's kind of crazy," Desloges says. LT www.lawtimesnews.com Immigration lawyer vows long fight with CIC BY MICHAEL McKIERNAN Law Times Canada all the way to the Supreme Court of Canada. Timothy Leahy was at the Federal A Court of Appeal last week seeking to over- turn a decision that denied him access to documents the government claimed were privileged or third-party information. "From a privacy point of view, there are some very serious issues in this," says Leahy. "I'll see what the Court of Appeal does, but because of the novelty of some of these issues, I think it's a case that should go to the Supreme Court." Leahy notes he's hoping to use his case to narrow the circumstances under which governments can claim solicitor- client privilege. "If you look at the origins of solicitor- client privilege, it's primarily to protect the little guy from the Crown. It's not to pro- tect the government from the electorate." Leahy wants to uncover the chain of events that led to a September 2007 operational directive from the depart- ment ordering visa offices to have no contact with him because he was "con- sidered not to be an authorized repre- sentative" under the Immigration and Refugee Protection Act. Because the Law Society of Upper Canada listed his status at the time as "not practising law - employed," the depart- ment took the position that Leahy wasn't a member in good standing of a Canadian law society, a requirement for authorized representatives who aren't licensed immi- gration consultants. The department also sent out let- ters to any applicants listed as clients of Leahy's instructing them either to find another representative or proceed on a self-represented basis with their applica- tions. When Leahy attempted to act for a client before the immigration appeal division of the Immigration and Refugee Board in November 2007, ministry lawyer Kimberley Foreman objected to his pres- ence on the grounds that he had no status to appear. Rather than delay his client's hearing, Leahy withdrew as counsel. After Leahy's law society categoriza- tion later changed to "practising law - employed," the department sent out a new directive in January 2008 indi- cating that it now considered him an authorized representative. Leahy made his access-to-information in May 2008 demanding that request the department hand over all correspon- dence, e-mails, and phone messages relat- ing "directly or indirectly" to him. Nine months later, the ministry turned over 87 pages of documents but withheld some it said were exempt. At the Federal Court, Leahy applied for judicial review of the decision, arguing that the dominant purpose of the with- held documents wasn't for legal advice but, rather, to drive him out of business. Even if the department's activity was legal, Leahy says the government should only be able to assert privilege when it receives legal advice in the pursuit of the public interest. "When the government is the client, it has to be for a proper public purpose," says Toronto immigration lawyer has vowed to take his access- to-information dispute with Citizenship and Immigration Leahy. "Trying to wipe me out because I've got a big mouth ain't no public purpose." On Aug. 18 last year, Federal Court Justice John O'Keefe said Leahy was right to submit that solicitor-client priv- ilege doesn't apply where the purpose of the advice is to further unlawful activity and noted that litigation privilege won't apply where the party seeking disclo- sure can show an actionable wrong by the other side. "However, the burden to demon- strate a claim of wrongdoing rests with the applicant . . . and he has not met this burden in this case," wrote O'Keefe in dismissing Leahy's application with costs. "He has not demonstrated any unlawful conduct or actionable wrong on the part of the respondent." Leahy has a number of ongoing actions against the department related to the question marks over his status. "It destroyed my practice," he says. "People were being crucified because they were associated with me. I still see actions that I think are because I'm counsel." Leahy notes he's determined to boost his case with the access request. "This is the smoking gun. If I can get these notes, then I think the court will be hard-pressed not to rule in my favour." The access request is just the latest chapter in a long-standing story of friction between Leahy and immigration officials. In 2002, the law society admonished Leahy for directing improper correspon- dence to immigration officials sent out of indignation on behalf of his clients. According to Leahy, the officials complained in response to his strongly worded complaints about allegedly abu- sive behaviour by immigration officers towards his clients. In one case complained of, according to Leahy, the department returned an immigration application filed on behalf of a 70-year-old rice farmer from Hong Kong because he'd failed to include the man's intended occupation in Canada. He sent it back again, writing "Federal Court judge." After that, a new investigation into Leahy's practice began and in 2004, the law society suspended him for nine months for practising while uninsured between 1997 and 2001. Leahy argued at a hearing that he hadn't been engaged in the private prac- tice of law but said he was working as corporate counsel for a company he had formed, a situation he believed exempt- ed him from paying insurance fees. He said he had formed the corporation to get around the law society's ban on pay- ing referral fees. Leahy also claimed that since immi- gration statutes are federal, he wasn't practising the law of Ontario but instead was acting as an immigration consultant. Although he admitted to using lawyer letterhead in correspondence with the immigration officials, he said that was only to get better treatment. At the same time, he insisted he had never held himself out as a lawyer to clients. A panel rejected his case, finding that his appearances for his company's clients at the Federal Court constituted the private practice of law. He was also found guilty of practising while suspended. In addition to his suspension, Leahy had to retroactively pay the insurance fees and levies for the four years he missed. LT SCC to consider ministerial exemptions

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