Osgoode Hall law students make their case before the Supreme Court of Canada

“In their entire legal career, they may never be involved in a Supreme Court of Canada case, so this is a phenomenal opportunity for our students,” says Scarlet Smith, the acting director of CLASP.

Owain Guinn, a second-year Osgoode Hall law student from Atlanta, Ga., who was involved in writing the 10-page factum sent to the SCC, said he framed the first page and is keeping it above his desk. Students Hafsah Memon and Nathan Reeves also contributed to the writing.

“I thought it was the coolest thing ever that we could say that we worked at the Supreme Court level,” said Guinn. “I really enjoyed the process. It just felt important, and it was very much a team effort.”

"I was so proud to see our clinic's hard work culminate in oral arguments at the SCC," said Reeves, a division leader at CLASP, adding he felt grateful for the opportunity to be a part of the work that led up to it.

"I learned how far effort and teamwork can go. When I was writing the factum with Owain, we both had next to no background in the relevant legal areas. But we worked together for nearly a week straight and came up with the research and arguments that underpinned the factum's final draft and, ultimately the oral argument."  

Memon described the process as "surreal, adding that "finally getting to see it all come together was exciting and a proud moment for both myself and everyone else who worked on it. Being part of a case that will have an impact on how the law progresses "is a moment I never thought I'd have - and definitely not so early in my career, she said. "It's fascinating and very humbling to see a potential shift or addition, however small, in the law from up close like this."

Subodh Bharati, CLASP’s supervising lawyer for its immigration law division, says there was a “substantive amount of work” that needed to be done by the students. “They must first successfully bring a motion seeking intervenor status and then prepare a concise factum.” The students also helped develop the oral submissions given to the Supreme Court justices, which can be no more than five minutes.”

He adds: “It’s really important for our students to be involved in such high-level cases. They were pretty excited about this opportunity.”

Mason, along with a similar case, Dleiow v Canada (Minister of Citizenship and Immigration), revolves around interpreting the inadmissibility provisions in the federal Immigration and Refugee Protection Act (IRPA). It stems from a 2012 incident in which Earl Mason, a foreign national, became involved in a dispute during a Surrey, B.C. concert and discharged a firearm eight times, injuring two people. The Crown charged him with attempted murder but, for reasons that remain unclear, the charges were stayed.

Instead of attempting to deport Mason using s. 36 of the Immigration and Refugee Protection Act (IRPA), which requires a criminal conviction, the Canadian Border Services Agency attempted to deport him under s. 34, which deems a person inadmissible to Canada on “security grounds.” But through increasingly higher levels of court, Mason’s lawyers argued that s. 34 was only intended to apply to cases of terrorism, war crimes and organized criminality. The foreign national in Dleiow was also deemed inadmissible within the parameters of s. 34(1)(e).

However the Federal Court of Canada overturned the administrative body decisions in both Dleiow and Mason. In turn, the Federal Court of Appeal overturned the lower court decision. It found that the federal court correctly identified reasonableness as the proper standard of review. However, it did not appropriately conduct the reasonableness review.

As an intervenor, CLASP submits that any interpretation of s. 34 that includes charges that did not result in convictions engages s. 11 of the Canadian Charter of Rights and Freedoms. Such circumstances, it argues, could allow for the imprisonment of individuals who have not been found guilty of a criminal offence on a lower standard of proof.

“It’s an interesting topic that no one else has raised,” says Bharati. “If ss. 7 and 11 of the Charter are supposed to apply to everyone then why are exceptions being carved out for non-Canadians?”

During his presentation, Bharati pointed out that if two individuals are charged with the same crime that would result in jail time – one a Canadian citizen, the other not – and the non-Canadian is not convicted, but the Canadian is, both would face incarceration. The Canadian would serve their sentence and be released, but the non-Canadian could remain incarcerated even longer, waiting for deportation.

“And that is the reality of immigration detention,” Bharati told the court. He added that s. 11 of the Charter should apply because detention is a “true penal” consequence of being subjected to s. 34. It is also not just a potential consequence but a “probable consequence,” he said.

Other lawyers presenting to the SCC looked at the question of “reasonableness.” Section 34(1) (e) of IRPA provides that if foreign nationals or permanent residents engage in violent conduct that could endanger the lives or safety of people in Canada, they will not be admissible to Canada on security grounds. The central issue in Mason is whether this provision was reasonably interpreted by an administrative body to apply to conduct that does not have a nexus with national security.

The SCC panel will have to evaluate the appropriate approach to reasonableness review, as applied to statutory interpretation by an administrative decision-maker, especially in light of the Vavilov decision.

Vavilov dealt with the review of the Canadian Registrar of Citizenship’s decision to cancel Alexander Vavilov’s citizenship certificate because of his parents’ being covert Russian agents. The case hinged on an interpretation of s. 3(2)(a) of the Citizenship Act. The Supreme Court of Canada affirmed the Federal Court of Appeal’s decision to quash the Canadian Registrar of Citizenship’s decision because it was unreasonable.

CLASP is one of 17 clinical programs available to Osgoode students. CLASP intervened in two other Supreme Court of Canada cases in 2018. The cases it deals with touch on immigration, criminal and administrative law, including human rights and tenants’ rights disputes and appeals related to employment insurance and the Ontario Disability Support Program.

“One of the most important things CLASP offers students is on-the-ground experience,” says Bharati. “They work very hands-on with cases and their clients, but they also get to balance this by having the opportunity to work on these high-level arguments that they might not get in practice.”