R. v. Mian: A “new issue”

R. v. Mian: A “new issue”

The Supreme Court recently provided new guidance to appellate courts on how to use their discretionary powers to “do justice”, while maintaining impartiality.  In a unanimous decision, R. v. Mian, 2014 SCC 54 [“Mian”],  the Supreme Court pronounced a new test on when appellate courts can raise a “new issue”:  where there is good reason to believe that failing to do so would risk an injustice.

Mian was acquitted of all criminal charges, after the trial judge found that his Charter rights were breached.  The Crown appealed.  The Alberta Court of Queen’s Bench (“the Court of Appeal”) allowed the appeal, after raising a new issue: whether the counsel for the defendant had improperly cross-examined a witness.  The Court of Appeal found that he had, and that the trial judge erred in law by relying on the impermissible cross-examination.  A new trial was ordered.

The court’s ability to intervene, by raising new issues on appeal or asking questions of parties directly, is important in allowing the bench to rectify injustices, and carry out its truth-finding role.  Before Mian, the power to intervene was limited primarily by the court’s role as an impartial arbiter.  If by intervening, the appellate court could be seen as advocating for one side, the use of its discretion to do justice could be rendered meaningless by its apprehension of bias.

Though the appellate court’s impartiality was not an issue in Mian, the Supreme Court took it into great consideration.  Specifically, it took issue with the ambitious use of this discretion, which may call into question the court’s role as an unbiased arbiter.  As stated by Justice Rothstein, at para 42, “[C]ourts cannot be seen to go in search of a wrong to right” (R. v. Mian, supra, para 42).  To protect against such an outcome, the Supreme Court tied the discretion of raising new issues directly to the Court’s function to prevent an injustice, and only for that purpose.  In doing so, it reiterated the role of appellate courts as independent and impartial decision-makers, as well as their deferential role on appeals.

In crafting the threshold, the Supreme Court attempted to reconcile between two competing considerations: preserving the adversarial system for the fact-finding mission, and the judiciary’s role to uphold justice. 

The adversarial system in place allows the parties to present their versions of the truth to an unbiased third-party for a rendering.  Central to the proper functioning of this adversarial system is the appearance of impartiality of the decision-maker.  While an appellate court may intervene to better understand the truth, the manner in which it does this could also undermine the court’s unique role in the resolution process. 

Notwithstanding this, as highlighted by the Supreme Court, it is equally an appellate court’s function to review errors of laws, seek the truth and correct any injustices.  To do so, the court must have certain procedural powers to take on an active role during proceedings to satisfy itself of the truth, where the parties’ have been unable to do so.

To strike a balance between these two roles, the Supreme Court limited the appellate courts’ discretion to raise new issues on appeal only in order to correct an injustice.  It cited examples of situations where a self-represented litigant may need assistance, or where intervention would be required to correct a seemingly unreasonable criminal sentence. 

The Supreme Court recognized that a preliminary assessment would be needed to determine whether the new issue meets the injustice threshold.  Where there are no early indications of an injustice by failing to raise a new issue however, a failure to carry out a preliminary assessment would not be an error of law. 

Other considerations include whether the court has jurisdiction to consider the issue, whether there is sufficient evidentiary record to determine the issue, and whether doing so would cause procedural prejudice to either party.  There are also procedural safeguards put in place, many of which already exist, such as providing notice to parties of the new issue. 

LAO Piloting Independent Legal Advice Authorizations for Mediation

Beginning today, Legal Aid Ontario (LAO) is piloting special duty counsel authorizations in Family Law Information Centres to provide mediation clients with independent legal advice (ILA). Clients should contact the Client Service Centre at 1-800-668-8258 to determine eligiblity for ILA services.

The pilot will be available in this district and 13 other locations. LAO will cover the cost of a duty counsel panel lawyer for up to six hours (in accordance to duty counsel rates) for all ILA services before, during and after mediation to help reach a sustainable agreement and transform it into a legally-binding document.

Duty counsel panel lawyers retained by eligible ILA clients must notify LAO by completing the authorization form found on the LAO website (under the Forms Library under the “Information for Lawyers” tab) and faxing the district offices of the participating pilot location. Lawyers need to provide a copy of the mediation agreement and a final order where appropriate to be paid the full six hours.

For more information, please visit LAO’s website.

Refugee litigation in Canada

The United Nations High Commission for Refugees recently released a report looking at trends in refugee litigation in Canada. The report examined 740 refugee and Pre-removal Risk Assessment cases litigated before the Federal Court of Canada from 2010-2012. Following are the study’s main findings: 1) in 60% of the cases, the Court upheld the lower court’s decision (whether dismissing or allowing the refugee/PRRA applications); 2) the top countries from which the applicants originated were Mexico, China and Colombia and; 3) credibility, state protection and internal flight alternative (IFA) were the top three issues analysed by the Court in those cases. 

The report also assessed the Court’s discussion on the common legal issues against international norms, and found mixed results. The paper’s quantitative analysis is quite useful for grounding the jurisprudence in refugee law, which can be often seem inconsistent  and inconclusive when read on a case-by-case basis.

Congratulations to Nadine Edirmanasinghe of Edirmana Law for completing this ambitious project. Areesha Zubair is glad to have had the opportunity to assist with the completion of this project.

Litigating Refugees: An Empirical Examination of Trends in Canadian Federal Court Jurisprudence Prior to Refugee Reform And Legal Analysis of Common Issues Against Internal Norms: http://www.unhcr.ca/resources/documents/RPT-2013-11-18-litigating_refugees-e.pdf

Immigration, Abuse and Exploitation:

Posted by: Areesha Zubair

Jennifer Wood, Leah Simeone and I recently gave a presentation on Immigration and Family Law, focusing on issues of abuse and exploitation. Below is an overview of the immigration law aspect of the presentation. 

Migrating to Canada has plenty of rewards, but doesn’t come easy. From the selection process to settlement, each step comes with a set of challenges. There is a growing number of services to assist new comers in this regard, but it is up to the individual to reach out. For someone new to Canada, its language, laws and institutions, speaking out about abuse and exploitation can become their toughest challenge. For example, a Canadian may be oblivious to his foreign partner’s eagerness to marry him for immigration purposes; a recently sponsored spouse may be afraid of leaving her abusive husband, for fear of being deported; or a foreign worker may remain silent about her/his exploitative work conditions out of fear of losing her/his job. While there are regulations in place to deal with these situations, the challenge is to get the information out to the right people at the right time and remove any fear of immigration repercussions for speaking out.

Spousal sponsorship, fraud and abuse

In 2009, around 17% of permanent residents (PR) entered Canada under the spouse, common-law or conjugal partner category.[i] If we include all dependents, including children, who obtained PR under all of the immigration categories, that number increases to 54.3%.[ii] This figure is partly due to the less onerous requirements imposed on family members, and reflects the Immigration and Refugee Protection Act’s[iii] stated objective of family reunification. It also shows the distance we’ve traveled from the draconian Chinese head tax.

At the same time, the federal government has expressed concern about programs like spousal sponsorship making the immigration system seem too lenient and thus vulnerable to exploitation. Specifically, their concern is that persons who do not qualify under any other program can (and do) marry a Canadian to apply under the less onerous spousal category, thereby entering Canada through the “back door”. The law already requires that a marriage, common-law or conjugal relationship be “genuine”, and not entered into primarily for immigration purposes. However it can be difficult for an immigration officer (or an unsuspecting Canadian sponsor) to differentiate between a fraudulent and a genuine relationship.

To crack down on marriage frauds and challenge the image of a lenient Canadian immigration system, the government recently introduced the following regulatory changes: 1) a sponsored spouse or partner[1] are now required to live with their sponsor for 2 years from the day they receive their PR status, or else they may lose that status and; 2) a sponsored spouse or partner can no longer sponsor another spouse or partner for at least 5 years after receiving their PR status. 

While the changes may help the government achieve its policy objective, they can also leave a victim of domestic abuse more vulnerable, particularly when they’re new to a country. For example, a spouse who moves to Canada to live with her sponsor for the first time may find herself in an abusive relationship, something that may come as a complete shock. While dealing with the emotional trauma, the sponsor may further intimidate the spouse based on her immigration status, claiming to have her deported by leaving her. The psychological, social and cultural challenges of domestic violence are already well documents. The conditional PR further marginalizes sponsored spouses, based on their immigration status, and can make it more difficult for them to speak out.

In recognition of this potential injustice, the regulations provide an exception for spouses who leave their sponsors within 2 years due to abuse (physical, sexual, psychological or financial) or intimidation. Thus in the above example, the sponsored spouse would not have to worry about her PR being revoked, if she can produce evidence of the abuse or intimidation that she faced at home. Again, this is an evidentiary burden unfairly placed on the victim of abuse. To overcome this, spouses facing domestic violence are encouraged to reach out to victims’ services, a counsellor, a health care provider or a similar professional, so that they can verify the situation at home and provide supporting documentary evidence, such as consultation notes or a psychiatric assessment.

For further clarification, the conditional PR does not apply to a spouse, common law or conjugal partner who enters Canada as an accompanying family member, or a dependent, of a principal applicant under any category. For example, a person who comes to Canada as the spouse of a principal applicant, who is accepted under the economic class, does not have a condition on their PR status.

Temporary Foreign Workers

The temporary foreign worker program (TFWP) has also been at the centre of recent changes, in response to reports of misuse of the program. In short, TFWP allows Canadian employers to hire foreign workers for positions that they cannot be filled with Canadian workers. While the arrangement is temporary, some temporary workers may be eligible to apply for a PR status, depending on the program they applied under, such as the Live-in Caregiver Program.

The program is quite popular amongst employers and foreign workers alike; the rate of admissions have doubled in size in the last 10 years.[iv] At the same time, reports continue to surface about the exploitation of foreign workers. Recently, the federal and Ontario governments implemented changes in response to these concerns, and Ontario has proposed its own reforms. The federal regulations mainly target the conduct of employers and serve the interests of the Canadian labour market more so that foreign workers individually. However, changes proposed by the Ontario Minister of Labour are aimed directly at protecting temporary foreign workers, by banning recruitment fees or the collection of personal documents by employers and recruiters, among other changes. These changes are in addition to existing regulations that serve to protect foreign workers’ rights, such as minimum wage requirements.

However, as with spousal sponsorships, the real challenge is to enforce these regulations. Unless an employer is flagged as having violated the law or regulations, it is difficult to hold them accountable. Thus, it comes down to individual employees coming out when their wages are being held back, they’ve had to pay illegal recruitment fees, or to perform dangerous tasks. This is no easy task, as the fear of getting fired or being deported from Canada can intimidate many foreign workers to remain silent. However, information on foreign workers rights can help ease these fears and empower workers to reach out for help.

All employers hiring temporary foreign workers must satisfy certain minimum requirements for wages and work conditions, which are to be specified in the employment contract. For example, employers must pay foreign employees a prevailing wage for the occupation, which may be higher than the provincial minimum wage. This is to ensure that the program is not used to pay below the prevailing wage, thus exploiting foreign workers. If a foreign worker believes that their employer is violating the employment contract or the provincial employment standards, he/she may have a claim and should contact their provincial/territorial labour ministry (in Ontario, call 416-326-7160), and/or the human rights tribunal (in Ontario, call the Human Rights Legal Support Centre at 1-866-625-5179).

Foreign workers can also apply to change their employers who they are not happy with, without being penalized or removed from Canada. For live-in caregivers, their LCP and LMO applications can be expedited to quickly process their transition to a new employer. If the Ontario legislation, Stronger Workplaces for a Stronger Economy, 2013, passes, then the cap on recovery of owed wages will also be eliminated, making it worth employees’ while to take action.  

Standing up to abuse, intimidation or exploitation can be difficult for anyone, regardless of their immigration status in Canada, level of education, employment history, or knowledge of support groups. Sometimes, an abuse victim who finally reaches out may not be able to connect with the right person or get accurate information, which can be further discouraging. That is why it is important for professionals to treat each client facing this situation with sensitivity and work through the challenges as a team.

This presentation is for information purposes only and is not intended to be legal advice. Full and complete legal advice can only be given by a lawyer who has detailed information about your individual circumstances. If you would like legal advice on your matter, please contact Wood Gold LLP at 904.451.4646 to book your consultation.

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[1] The conditional PR only applies to those spouses/partners in a relationship of two years or less, who do not have a child in common, and who filed an application on or after October 25, 2012.

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[i] Citizenship and Immigration Canada (CIC), “Facts and figures 2009- Immigration overview: Permanent and temporary residents”, retrieved January 19, 2014 at: http://www.cic.gc.ca/english/resources/statistics/facts2009/permanent/02.asp. 

[ii] Ibid.

[iii] Immigration and Refugee Protection Act, S.C. 2001 c. 27.

[iv] CIC, “Facts and figures 2012- Immigration overview: Permanent and temporary residents”, retrieved January 19, 2014 at: http://www.cic.gc.ca/english/resources/statistics/facts2012/temporary/01.asp.