International Law

Live Judicial Review Proceeding - CBA National Citizenship and Immigration Law CLE Conference

By immlawyer

CBA National Citizenship and Immigration Law CLE Conference - May 16-17, 2008 Niagara-on-the-Lake, Ontario

After sitting through an interminable workshop which was made intolerable not because of the panel, but because of an overzealous moderator who managed to turn an interesting discussion into a morass of her own irrelevant opinions ? a rare opportunity has presented itself in the form of a live judicial review proceeding in the Grand Georgian Ballroom here at the Queen's Landing hotel.

Mr. Justice Yves de Montigny presiding

Counsel for the Appellants: Barbara Jackman

Counsel for the Respondent: Marianne Zoric

Barrack et al and the Minister of Citizenship & Immigration

Issues involve:

- threshold test for risk on a H&C application versus the assessment of risk in a PRRA application

- best interests of the child

- whether evidence/relevant factors were ignored/not considered

- whether H&C policy guidelines were ignored/not considered

Hopefully I don't sound like a legal groupie, but it's very exciting to be in the presence of the great Barbara Jackman. I'm sitting right behind her clients - the applicants, the second row behind counsel.

Jackman doesn't appear to be wearing silk robes, worn by QC - which suggests that the title has yet to be bestowed upon her. I'll have to check this upon my return. Here's a bio ? it does look like she's been conferred an honorary LLD though.

I imagine I'll have to stand (along with the rest of the audience) when Mr. Justice Montigny enters - it'll be a delicate balancing act with my folding keyboard and Treo precarious perched on my lap.

It's a rare opportunity to observe such experienced counsel - living in Alberta doesn't afford the opportunity to observe truly experienced Federal Court litigators like Jackman and Lorne Waldman.

Mr. Justice Montigny has entered - he sports a most impressive moustache and appears very gracious. He begins by thanking counsel for agreeing to proceeding with the application 'live' at the conference.

He assures counsel that he's reviewed the record (which is probably his not so subtle hint that he probably wouldn't appreciate anyone reading the record or argument to him).

Jackman begins ? and started off by indicating that she has a tendency to go over time.

?

While I took extensive notes of the oral argument, in essence Jackman focused on the fact that the officer rendered both the H&C and PRRA decision in a strickingly similar fashion (in fact the Justice even commented that it was 95% 'the same'). She argues ? and this is very fact specific that the officer on not one or two, but on four separate equations seemed to be requiring personalized risk in the context of the H&C decision. Personalized risk however, is only relevant to a PRRA, CR or PINOP analysis. She also took issue with the officer taking what she felt were 'positive factors' and turning them around to make an argument that they supported the family would not suffer undue hardship (a common argument by immigration officers). She also took issue with the officer's sparse analysis of the best interests of the child, a point that Mr. Justice Montigny seemed to appreciate, commenting that the officer devoted less than 2 paragraphs to this analysis.

Marianne Zoric, for the Department of Justice also acquitted herself very well and argued that the officer made the correct assessment given the applicants 'sparse' submissions before her. She also pointed to deference to the officer's decision (however, Jackman clearly felt that the immigration officer was not a specialized tribunal) arguing the standard of review as reasonableness (against Jackman's argument that the appropriate review was correctness as the officer was applying an incorrect legal test).

Justice Montigny asked very relevant questions, and at least in my opinion, seemed to be gravitating towards Jackman's arguments ? especially the best interests of the child (was the officer 'alert, alive and sensitive'? ?).

No decision was rendered and Justice Montigny invited the parties to formulate a certified question.

Full post as published by Canadian Immigration Blawg on May 19, 2008 (boomark / email).