However, the right of appeal before the RAD did not exist for Ms. Kreishan and the four other applicants whose cases were consolidated with hers in their recent Federal Court and Federal Court of Appeal cases. The applicants in Kreishan,[1] challenged the constitutionality of paragraph 110(2)(d) of the Immigration and Refugee Protection Act (IRPA), which prohibits claimants who “came directly or indirectly to Canada from” the US from having their appeal heard by the RAD.

All of the applicants had entered Canada through a land border port of entry with the US and made refugee claims without first having made a refugee claim in the US. Even though the Canada-US “Safe Third Country Act”[2] (STCA) generally prohibits individuals who enter Canada this way from making a refugee claim in Canada, all of the applicants were exceptions to this rule because they each had a family member in Canada who met at least one of the requirements of section 159.5 of the Immigration and Refugee Protection Regulations (IRPR).[3]

The Refugee Protection Division (RPD) heard the applicants’ claims in Canada and the applicants were unsuccessful. The applicants then tried to appeal the RPD decisions by going to the Refugee Appeal Division (RAD). However, the RAD dismissed the appeals on the basis of paragraph 110(2)(d) of the IRPA.

The applicants challenged the RAD decision by asking the Federal Court to conduct a judicial review. They argued that paragraph 110(2)(d) violated section 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, which provides:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

More specifically, the applicants contended that because they lacked access to the RAD they faced serious psychological stress due to the threat of being removed from Canada and were at a heightened risk of refoulement – the forced return of a refugee to a country where they are at risk of persecution on certain protected grounds or at risk of torture or cruel and unusual treatment or punishment. They also highlighted several advantages of having access to the RAD:

• The RAD allows appellants to introduce new evidence if it did not exist, was not available or could not have been provided to the RPD when the RPD made its decision;
• When reviewing the RPD decision, the RAD considers whether the decision was correct;[4]
• The RAD has the power to grant protected person status without having to send the case back to the RPD; and
• Removal orders are automatically stayed until the RAD renders its decision.

The Honourable Justice Heneghan of the Federal Court noted that even though the “loss of a right of appeal to the RAD has consequential effects”,[5] the applicants had benefited from the STCA exemptions and still had the “opportunity to seek judicial review”[6] and “a judicial stay of removal”[7] before the Federal Court. Justice Heneghan dismissed the applications, holding that paragraph 110(2)(d) is constitutionally valid:

Access to the RAD and access to the Federal Court are different remedies. However, the difference in those remedies does not make them non-compliant with section 7 of the Charter.[8]

The Federal Court certified the following question, which enabled the applicants to appeal before the Federal Court of Appeal:

Does paragraph 110(2)(d) of the [IRPA] infringe section 7 of the [Charter]… and, if so, is this infringement justified by section 1?[9]

The Federal Court of Appeal decided on 19 August 2019 that paragraph 110(2)(d) did not infringe section 7 of the Charter.[10] Writing for the appellate court, Honorable Justice Rennie held that the Federal Court erred when it “assumed, but did not decide, that section 7 was engaged”.[11] The appellants had argued that their right to security of the person was engaged by paragraph 110(2)(d). After conducting an analysis of the appellants’ engagement arguments, Justice Rennie determined that section 7 was not engaged for the following reasons, among others:

…the psychological stress asserted here is indistinguishable from the ordinary stresses of deportation and, consistent with the Supreme Court’s holding in Medovarski, does not engage section 7.[12]

[…]

Section 7 is engaged at the point of removal, and is protected by the opportunity to seek a deferral of removal administratively, failing which, to seek a stay in the Federal Court. Nor does the Charter require that, in order to void the possibility of refoulement, an appellant tribunal be put in place.[13]

[…]

If parliament was not obliged to enact the RAD in the first places, it cannot be the case that any limitation on the scope of its ameliorative reach can give rise to a section 7 engagement.[14]

Although both the Federal Court and Federal Court of Appeal dismissed their case, the appellants may apply for leave to appeal before the Supreme Court of Canada. Let’s see if they pursue this option.

Sources

The post Federal Court of Appeal Dismisses Constitutional Challenge by Refugee Claimants in Kreishan first appeared on Bellissimo Law Group.

Tennant involves a judicial review of an application for a Canadian citizenship certificate. The Applicant, a minor, was born in the USA and claimed to be a Canadian citizen by way of descent. Because his father had also become a Canadian by descent, in order for the Applicant to be issued evidence of Canadian citizenship the officer had to be satisfied that at the time of his father’s birth outside of Canada the Applicant’s paternal grandfather had been employed by the Government of Canada.[2] The officer refused the citizenship application as she was not satisfied that the grandfather had been a government employee at the relevant time. The Honourable Justice Ahmed of the Federal Court came to “the only logical conclusion”[3] based on the evidence and took the unusual step of making a declaration that the Applicant is a citizen of Canada. The Federal Court did not certify a serious question of general importance yet the Minister of Citizenship and Immigration proceeded to the Federal Court of Appeal on the basis that the Federal Court had exceeded its jurisdiction.

For those who are unfamiliar with the Federal Court’s role in immigration, refugee and citizenship cases, when a person’s application for permanent residence or citizenship, for example, is refused by Immigration, Refugees and Citizenship Canada (IRCC) and the person believes the IRCC officer made a factual or legal error, they may ask the Federal Court to review the negative decision.[4] This process is referred to as judicial review and consists of two stages. At the first stage – the application for leave – the judge must determine whether there a serious issue to be tried. If the judge is of the view that such an issue exists, leave will be granted and the case will proceed to the second stage. At the second stage, the judge will review the officer’s decision and determine if the decision should stand or if some sort of relief is warranted. Under subsections 18(1) 18.1(3) of the Federal Courts Act, a Federal Court judge may order a wide variety of remedies including a declaration. It is not unusual for the judge to ask a different immigration officer to make a decision on the permanent residence application, or whatever the application may be. Such an approach is generally understood by the judiciary to reflect the deference properly owed to the executive branch of government.

The Federal Court judge may also certify a serious question of general importance, which would allow one of the parties to commence an appeal before the Federal Court of Appeal.

Although Justice Ahmed’s judgment was exceptional in that it included a declaration, the majority of the Federal Court of Appeal decided to quash the Minister of Citizenship and Immigration’s appeal last month. The Honourable Justice Laskin (with Justice Webb in agreement), wrote that the Federal Court’s remedy constituted a type of substitution, which is an exceptional remedy provided when “there is only one reasonable outcome”.[5] The majority added, “this Court should not be taken either to endorse or to disapprove of the application judge’s approach.”[6]

In a dissenting opinion, the Honourable Justice Near wrote that the Federal Court of Appeal should have allowed the appeal as “it is not at all clear that the Federal Court’s factual declaration that the respondent is a Canadian citizen was the only reasonable determination of the matter.”[7]

The Federal Court of Appeal’s judgment in Tennant is an interesting read that explains why declarations will likely continue to be the exception to the rule in successful Federal Court cases.

Sources

The post Judicial Review Case Highlights an Exceptional Remedy first appeared on Bellissimo Law Group.

Ms. Toussaint’s diabetes and hypertension led one of her doctors to declare in a 2010 affidavit that Ms. Toussaint would be at extremely high risk of suffering severe health consequences if she does not receive health care in a timely fashion. Despite the severity of her condition, Ms. Toussaint was found to be ineligible for the program because she was not a refugee or other protected person, victim of human trafficking or detained migrant.

A citizen of Grenada, Ms. Toussaint had initially been admitted to Canada with a temporary resident visa and had worked in Canada from 1999 to 2006 without status. She found herself unable to work due to her medical condition and pleaded with health care professionals for assistance. In September 2008, Ms. Toussaint applied for permanent residence on humanitarian and compassionate grounds. However, her application was not reviewed because she could not afford to pay the processing fee and was denied a fee waiver. She applied for IFHP coverage but her application was refused in July 2009.

In December 2013, Ms. Toussaint filed a petition with the UN Human Rights Committee. The Committee adopted the view on 24 July 2018 that Canada had violated her rights to life, to equality before the law and to equal protection of the law without discrimination, recognized in the International Covenant on Civil and Political Rights. Canada was obligated to provide Ms. Toussaint “with adequate compensation for the harm she suffered” from 2009 to 2013 and under an obligation to take steps to prevent similar violations in the future, including reviewing its national legislation to ensure that irregular migrants have access to essential health care to prevent a reasonably foreseeable risk that can result in loss of life.

The road to some semblance of justice for Ms. Toussaint was certainly long. She had previously challenged the decision to deny her IFHP coverage in the Federal Court and Federal Court of Appeal without success. Additionally, the Supreme Court of Canada refused leave to appeal. In the domestic courts she argued that her rights under the Canadian Charter of Rights and Freedom to life, liberty and security of person and to non-discrimination had been violated. She alleged discrimination against her on the basis of disability and citizenship. Her application for judicial review was dismissed by the Federal Court, which interpreted Order-in-Council P.C. 157-11/848 – in force from 1957 to 2012 and the root of the IFHP eligibility criteria – in line with the Citizenship and Immigration Canada director’s decision to refuse her application. The Court found that the purpose of the IFHP is to provide temporary healthcare to legal migrants. Canada also provides IFHP coverage to some illegal migrants, such as victims of trafficking, who are often unwittingly illegal migrants. Canada feels responsible for such illegal migrants because of the fact that they have been exploited by unscrupulous human traffickers. Ms. Toussaint is neither a legal migrant nor is she unwittingly an illegal migrant. Although she entered this country legally, she chose to remain here illegally; there is nothing stopping her from returning to her country of origin. She has chosen her illegal status and, moreover, she has chosen to maintain it…

(Source)

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For Canadian convictions, an expungement is only available for historically unjust acts (laws), i.e.: concerning prior laws criminalizing same sex couples.  The more prevalent option is a Record Suspension (previously a pardon). A Record Suspension can be revoked in Canada. Record Suspensions are governed under the Criminal Records Act (CRA) and the provisions for approval are rigorous.

 Section 36 of the Immigration and Refugee Protection Act (IRPA) governs the criminal inadmissibility provisions.  Inadmissibility captured under subsections (1) and (2) may not be based on a conviction in respect of which a Record Suspension has been ordered and has not been revoked or ceased.

With respect to the operation of paragraphs 36(1) (b) or (c) of the IRPA the Federal Court of Appeal in Saini[1] summarized the law as it relates to the effect given to a foreign discharge or pardon. It is a three-part test:

[24]   To summarize, our jurisprudence requires that three elements must be established before a foreign discharge or pardon may be recognized: (1) the foreign legal system as a whole must be similar to that of Canada; (2) the aim, content and effect of the specific foreign law must be similar to Canadian law; and (3) there must be no valid reason not to recognize the effect of the foreign law.

The Court went on to elaborate on these requirements, and the Canadian law regarding pardons, as follows:

[29] … The systems must be “similar” not “somewhat similar”… It does require, however, that there be a strong resemblance in the structure, history, philosophy and operation of the two systems before its law will be given recognition in this context.

For example, questions to ask as it relates to this branch of the test include, is it a democracy, common law based, are the legal systems similar, corruption levels, etc.?

[32] Second, we must address the content of Canadian laws as compared to the foreign law regarding pardons, which includes the process as well as the factual basis upon which it may be granted…

With respect to this prong, important questions include: does the legislation have the same intent, is the pardon automatic, is there a similar wait time, can it be revoked, is there discretion, etc.?

[35] Third, we must explore the effect of a pardon in Canada as compared to the effect of the foreign pardon…

 [42] Thus, we must assess the third requirement of Burgon, that there was, “no good reason for Canadian immigration law to thwart the goal of [the] British legislation”. This Court expressly stated in that case that we ought to respect the legislation of countries similar to ours, “unless there is some valid basis for deciding otherwise” or there is a “solid rationale” for not doing so. …

 [43] In our view, the seriousness of the offence can be considered under this third requirement. … The gravity of the crime of highjacking is obvious; it is universally condemned and punished severely…

 [44] In our view, the gravity of the offence can and should be considered when deciding whether or not to give effect to a foreign pardon. Even if the Pakistani legal system were similar, and even if the pardon were given under a law similar to Canadian law, the conviction in this case was for an offence so abhorrent to Canadians, and arguably so terrifying to the rest of the civilized world, that our Court is not required to respect a foreign pardon of such an offence.

As such, the third prong of the test in Saini involves an assessment under the rehabilitation provisions.  The recent decision in Havlikova, 2018 FC 691 last month spoke to the depth of the analysis.  In upholding the reasonableness of the decision, the Honourable Mr. Justice Diner wrote at length about the Officer’s analysis:

[32]  The Officer then considered the document of the Bruntal Court dated November 3, 2014, expunging Mr. Istok’s convictions, and noted that the Court considered only (a) the passage of five years, (b) the fact that Mr. Istok was convicted of no further offences during those years, and (c) a police report dated October 13, 2014, indicating that Mr. Istok had no record of criminal activity. The Officer concluded that the Bruntal Court had had no choice but to expunge Mr. Istok’s convictions since the conditions of paragraph 105(1)(c) were met.

 [33]  The Officer contrasted paragraph 105(1)(c) of the Czech Criminal Code to the record suspension provisions under the CRA. The Officer consulted the Decision-Making Policy Manual for members of the Parole Board, noting that members considered multiple factors when considering “good conduct”under paragraph 4.1(1)(a) of the CRA.

 [34]  Further, the Officer observed that a Parole Board member’s analysis under the CRA is not limited to assessing “good conduct”, but also the “measurable benefit” of a record suspension, the applicant’s rehabilitation, and whether the granting of a record suspension would bring the administration of justice into disrepute. Significantly, the Officer concluded that the Parole Board may refuse to grant a record suspension even if the prescribed period has elapsed and the applicant has not been convicted of any further offences, and that a record suspension may be revoked. In the Officer’s view, these all constituted significant distinctions from the Bruntal Court’s expungement considerations in Mr. Istok’s case.

 [35]  Consequently, the Officer found that there were reasonable grounds not to recognize the Czech expungement of Mr. Istok’s offences under Canadian law. However, the Officer, as a matter of further fairness, decided to solicit submissions from Mr. Istok. After reviewing Mr. Istok’s further submissions and materials, the Officer resumed the analysis of Mr. Istok’s application, undertaking a further lengthy analysis of Mr. Istok’s convictions in the Czech Republic, which I need not summarize here as they are not disputed. Suffice it to say that, according to the GCMS notes, Mr. Istok was convicted of at least eight criminal offences in the Czech Republic, five of which were equivalent offences for the purposes of IRPA’s “serious criminality” provisions, and that his prison sentences were, in total, approximately five years in length.

 [36]  In considering whether Mr. Istok’s Czech expungement should be recognized in Canada, the Officer dealt first with the specific evidence tendered by Mr. Istok, and found that his materials had not addressed the concerns previously raised. The Officer confirmed the earlier conclusion that a Czech court must expunge a criminal conviction if the conditions of paragraph 105(1)(c) of the Czech Criminal Code are met, which is a very different process than the highly discretionary one undertaken by the Parole Board under the CRA in deciding whether to grant a record suspension. The Officer further observed that the provisions of the CRA are more severe than those in the Czech Criminal Code, since the CRA provided for only two time categories — five or ten years — with the fact of indictment resulting in a waiting period of ten years. Further, the Officer noted that certain offences in Canada’s regime are ineligible for a record suspension altogether.

 [37]  To underline this distinction, the Officer pointed to the CRA’s Decision-Making Policy Manual, which directs the Parole Board to consider numerous factors when deciding whether or not to grant a record suspension. By contrast, the Bruntal Court document, being short in length with a single page of analysis, did not demonstrate the same “rigour” that one would expect from the Parole Board. Thus, the Officer concluded that the second Saini factor had not been satisfied on the facts of Mr. Istok’s application.

 [38]  With respect to the last Saini factor — namely, whether any valid reason exists not to recognize a foreign pardon — the Officer observed that the severity of Mr. Istok’s criminal history constituted a valid reason not to recognize his expungement. The Officer noted that some of the judgments in respect of his convictions pointed to Mr. Istok’s lack of repentance, and that his lengthy prison stays did not seem to have reduced his risk of re-offending. The Officer further noted that, on the facts of his case, Mr. Istok would not be able to satisfy the Minister of his rehabilitation under  under paragraph 36(3)(c) of IRPA, and that there was reason to doubt that he would have received a record suspension in Canada.

 Therefore, representatives and applicants alike have many factors to consider and cannot assume a foreign pardon means to no criminal inadmissibility.

[1] Canada (M.C.I.) v. Saini [2002] 1 FCR 200.

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In Dunsmuir, the Supreme Court reconsidered the analytical process of judicial review and clarified that the function of judicial review was to ensure “the legality, the reasonableness, and the fairness of the administrative process and its outcomes.” The court also highlighted that in judicial review, although the court’s inquiry into whether a decision is reasonable is “concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process, it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” [emphasis added].

The question of standard of review is now being revisited. On 10 May 2018, the Supreme Court granted leave in Minister of Citizenship and Immigration v. Alexander Vavilov, which will be heard together with the appeal in Bell Canada, et al. v. Attorney General of Canada and National Football League, et al. v. Attorney General of Canada.

In Vavilov, the Registrar of Citizenship (Registrar) revoked Mr. Vavilov’s citizenship under subparagraph 3(2)(a) of the Citizenship Act on the basis that Mr. Vavilov’s parents were foreign employees (spies) who had adopted assumed identities of two-deceased Canadians. The parents moved to Boston, Massachusetts where they became naturalized American citizens using their assumed Canadian identities. In 2010, the United States Federal Bureau of Investigation (FBI) arrested the parents and removed them to Russia “in a spy swap.”

Although Mr. Vavilov was born in Canada, the Registrar justified his citizenship revocation on the basis that his parents worked for a foreign government as spies and were not “lawful Canadian citizens” at the time of his birth. The Federal Court found that the standard of review is correctness and that “the interpretation of subparagraph 3(2)(a) of the Citizenship Act is a question of law of general application across Canada and raises a pure question of statutory interpretation.” It upheld the Registrar’s decision on judicial review.

The Federal Court of Appeal, however, found that the Registrar’s determination was unreasonable pursuant to Dunsmuir. The court stated that “deference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity.” The court concluded that despite affording the Registrar deference under the reasonableness standard, the decision in the circumstances of the case “is not supportable, defensible or acceptable” because the parents were not employees of a foreign government within the meaning of subparagraph 3(2)(a). The Minister of Citizenship has now challenged the decision before the Supreme Court for which leave has been granted and the court has invited oral and written submissions from the appellant and respondent specifically on the issue of standard of review.

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The Applicant who brought the challenge is Zunera Ishaq, a permanent resident of Canada originally from Pakistan. In 2013, she refused to take part in a Canadian citizenship ceremony which required her to remove her niqab during the ceremony itself. She was, however, willing to remove her niqab in front of a female officer in order to confirm her identity.

Ms. Ishaq took the matter to the Federal Court where the Honourable Mr. Justice Boswell determined that the government’s 2011 policy introducing the ban is in fact inconsistent with citizenship legislation (2015 FC 156). Specifically, subsection 17(1)(a) of the Citizenship Regulations states that:

17. (1) The ceremonial procedures to be followed by citizenship judges shall be appropriate to impress on new citizens the responsibilities and privileges of citizenship and, without limiting the generality of the foregoing, a citizenship judge shall, during a ceremony held for the presentation of certificates of citizenship,

[…] (b) subject to subsection 22(1), administer the oath of citizenship with dignity and solemnity, allowing the greatest possible freedom in the religious solemnization or the solemn affirmation thereof;

Justice Boswell held that the ban was incompatible with the regulations because a citizenship judge could not possibly allow the greatest possible freedom in the religious solemnization if an individual taking the oath was required to “violate or renounce a basic tenet of their religion.” The ban was therefore deemed unlawful by the Federal Court; a decision which the Federal Court of Appeal reinforced last week.

The government announced that it will seek leave to appeal to the Supreme Court of Canada, and further that it will be seeking a stay of the Federal Court of Appeal’s ruling. Ms. Ishaq’s counsel has said that they hope to argue the stay as soon as possible so that if the court denies the stay, Ms. Ishaq can still obtain her citizenship in time to vote in the upcoming federal election.

(Sources)

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1. Is the disjunctive element of subsection 4(1) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (as amended SOR/2010-208) ultra vires the enabling statute (the Immigration and Refugee Protection Act, SC 2001, c 27) because subsection 4(1) would prohibit the sponsorship of a spouse when the marriage was found to be entered into primarily for the purpose of gaining status, notwithstanding a finding that the marriage always was or subsequently became genuine, and would therefore frustrate the aims and objectives of the Act, in particular section 3(1)(d), “to see that families are reunited in Canada”? IMM-5204-13, Brown J. November 13, 2014, 2014 FC 1077

2. Can a writ of mandamus be issued to compel the Minister of Public Safety and Emergency Preparedness or the Canada Border Services Agency to investigate a complaint of marriage fraud made by a private citizen? IMM-7972-13, Manson J. January 16, 2015, 2015 FC 97

3. Are individuals who will be subject to a lengthy waiting period, prior to the assessment of their immigration applications under the Investor class, due to the effect of annual targets and Ministerial Instructions made under s. 87.3 of the IRPA, entitled to an order of mandamus to compel immediate processing? He v. Canada (Citizenship and Immigration) 2014 FC 92, Zhang v. Canada (Citizenship and Immigration) 2014 FC 93, Fang v. Canada (Citizenship and Immigration) 2014 FC 94, Jiang v. Canada (Citizenship and Immigration) 2014 FC 95, Kearney v. Canada (Citizenship and Immigration) 2014 FC 96, Wurm v. Canada (Citizenship and Immigration) 2014 FC 97 and Jia v. Canada (Citizenship and Immigration) 2014 FC 596

4. Does such a delay violate the applicants’ rights under either sections 7 or 15 of the Charter or the rule of law? (Jia v. Canada (Citizenship and Immigration) 2014 FC 596)

5. Is paragraph 58(1)(c) of the Immigration and Refugee Protection Act only available as a ground for continued detention where it follows a detention under subsection 55(3) of the IRPA? IMM-1934-14Mactavish J. 2014 FC 390, April 25, 2014

Hope these all proceed to hearing as the results will make for interesting reading and potentially, changes to the law!

The post 5 Serious Legal Questions Being Decided by the Federal Court of Appeal first appeared on Bellissimo Law Group.

What is meant by “membership” was recently re-examined by the Federal Court of Appeal in Kanagendren v. Canada (M.C.I.), 2015 FCA 86. In Kanagendren, the appellant admitted to being a member of the Tamil National Alliance (TNA). The Immigration Division found that membership in the TNA constituted membership in the LTTE (Liberation Tigers of Tamil Eelam), and that Mr. Kanagendran was inadmissible to Canada for being a member of an organization which was involved in terrorism.

The Federal Court of Appeal was asked to answer the following certified question:

Does Ezokola v. Canada (M.C.I.), 2013 SCC 40, change the existing legal test for assessing membership in terrorist organizations, for the purposes of assessing inadmissibility under paragraph 34(1)(f) of the IRPA?

The Supreme Court’s decision in Ezokola examined membership in the context of section 98 of the IRPA, which looked at Article 1F(a) of the United Nations Convention Relating to the Status of Refugees. Article 1F(a) prevents refugee claimants from being found to be refugees if there are “serious reasons for considering that [they have] committed a crime against peace, a war crime, or a crime against humanity”. The Supreme Court determined that complicity, the actual act of having committed a crime, required that the individual have voluntarily made a significant and knowing contribution to the group’s criminal purpose. This is similar to the complicity requirements in criminal law.

The Federal Court in Joseph v. Canada (M.C.I.), 2013 FC 1101, adopted the Supreme Court’s reasoning for membership and brought it into the assessment of subsection 34(1)(f). Justice O’Reilly concluded:

[14] In my view, while Ezokola dealt with the issue of exclusion from refugee protection, the Court’s concern that individuals should not be found complicit in wrongful conduct based merely on their association with a group engaged in international crimes logically extends to the issue of inadmissibility…

This extension of the principles of Ezokola to admissibility findings under subsection 34(1)(f) has been reversed by the Federal Court of Appeal’s decision in Kanagendren. The Court of Appeal concluded that complicity is not required of subsection 34(1)(f) and that findings under this provision differ from the analysis of Article 1F(a), providing:

[22] In contrast, nothing in paragraph 34(1)(f) requires or contemplates a complicity analysis in the context of membership. Nor does the text of this provision require a “member” to be a “true” member who contributed significantly to the wrongful actions of the group. These concepts cannot be read into the language used by Parliament.

The Federal Court of Appeal’s stance is not unexpected, and does reflect back on previous jurisprudence such as, the often cited, Poshteh v. Canada (M.C.I.), 2005 FCA 85. Membership, for the purposes of subsection 34(1)(f) will continue to have an “unrestricted and broad interpretation”, such that actual participation in the inadmissible behaviour is not required.

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The Honourable Denis Gascon, a lawyer with Norton Rose Fulbright Canada in Montréal, is appointed a judge of the Federal Court to replace Mr. Justice D.J. Rennie, who was appointed to the Federal Court of Appeal.

For more information on the announced appointment, please click here.

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