Effect of Rocco Galati's petition against Bill C-24

[links18]

So is the legal issue here more one of legal standing or has Galati's challenge been rejected on substantive grounds?

 

[CanadianCountry]

It seems that Galati is being punished by the Tories for the Nadon challenge. First he was only going to get 5k against 50k legal fees, and now total costs for the Bill C24 challenge.

just my 2cents.

 

[bambino]

So is the legal issue here more one of legal standing or has Galati's challenge been rejected on substantive grounds?

Both on procedural and substantive grounds.

 

[dpenabill]

So is the legal issue here more one of legal standing or has Galati's challenge been rejected on substantive grounds?

Actually Justice Rennie ruled that Galati and Azevedo had standing, what the court describes as "public interest standing."

The decision to dismiss is based on two grounds:

-- the matter is not justiciable

-- the named defendants are not proper parties, not subject to the suit brought

Notwithstanding his ruling that there was no cause upon which the court could rule (there being no justiciable issue in the case), Justice Rennie nonetheless also proceeded to issue a ruling on the substantive merits of the challenge itself.

Frankly I don't think this was properly before the court, since what was before the court was a motion to dismiss on specific narrow grounds. And Justice Rennie makes multiple allusions to there being no need for any further evidence, argument, reference to legal authority, as to justify his decision to go ahead and decide a matter he rules the court cannot properly decide.

Despite the sweeping language of the decision, I have serious doubts that its proclamations regarding the nature of nationality and citizenship constitute law. Justice Rennie may be right, but I don't think this decision amounts to a statement of law on the subject, but is rather more or less his editorializing.

I was looking for a brand new decision, not for one from a week or two ago.

The decision is dated January 22 but it was just published by the Federal Court late yesterday (along with more than a dozen other cases involving CIC decided in the month of January). It is about as new as decisions get.

It's a good that the judge went to such great lengths to address the substantive issues raised by the application. Often judges will do that, saying basically: I rule thus on issue A, so issue B is moot; however if I am wrong about issue A, here is what I think re: issue B. That way if it goes to appeal, the higher court can rule on both issues.

One question I have is about the extent to which the substantive merits were briefed and argued, since my understanding of the motion and hearing which took place were focused on the issues of standing, proper parties, and justiciability, with the underlying substantive cause only being addressed to the extent it overcomes the threshold of not being so unlikely to succeed that its outcome is a "foregone conclusion."

It is one thing to say that this or that issue decides a matter, which if overturned on appeal leaves open other questions. There are principles of judicial economy which favour this approach. A typical example is a suit for damages arising from a tort. If the court rules a tort was not committed, that renders the issue of damages moot. But the court may nonetheless rule on damages as well.

In that case the court has authority to rule on the other issues, like damages, even if ultimately the damages issue is moot given the lack of liability based on there having been no tort proven.

On the other hand, if the argument is that the court lacks jurisdiction, it would be at the least incongruous for a court to rule against its having jurisdiction and proceeding to nonetheless hear and decide the issues otherwise.

In this case Justice Rennie ruled that the matter was not justiciable, not a matter properly before the court, that is, not a matter regarding which he has any authority to judge. That is not merely an element in a claim which makes other issues moot . . . it is a ruling which, if followed, precludes Justice Rennie from ruling on the matter. He rules on the matter, on the substantive issues, anyway.

Oddly enough, Justice Rennie rules the matter is not justiciable, but along the way makes statements like this: ". . . .this proceeding is a reasonable and effective means of bringing to court the question of the legislative competence of Parliament in respect of citizenship. . . . [and this proceeding is an] effective vehicle for determining the narrow question raised in this application.

One is tempted to ask Justice Rennie which is it, is the matter not a proper one for the court to hear and decide, or as he states in paragraph 27, is it a reasonable and effective means of bringing to court the question of the legislative competence of Parliament in respect of citizenship?

 

[dpenabill]

Galati challenge of Bill C-24 footnote:

In a Federal Court decision last month (February 2015), regarding a separate challenge brought against the Strengthening of Canadian Citizenship Act (Bill C-24) by David Prabakar Jayaraj, Justice Hughes made a general statement about the decision by Justice Rennie in the action brought by Galati:

"Were it necessary to go further, I would accept and follow Justice Rennie’s reasoning in the Galati case and find, for the same reasons he gave in respect of the substantive issues, that judicial review is not available in the circumstances of this case."

I have suggested I thought at least some of Justice Rennie's ruling on substantive issues was overreaching, probably not binding law. The most salient issue, in this regard, was Justice Rennie's ruling that stated, in effect, that even for those persons born in Canada, there is no constitutional right to citizenship, no jus soli, but rather that all citizenship is derived from a statutory grant of status.

Justice Hughes reference is so cursory I cannot say it really constitutes an affirmation of all elements of Justice Rennie's decision, including the part which regards the absence of a constitutional right to citizenship even for those born in Canada, but in contrast it bears no hint of disagreement let alone dissent.

At this stage I suppose all that can be said is that this story is . . . to be continued . . .

 

[dpenabill]

Galati challenge of Bill C-24 footnote II:

Now former Federal Court Justice Donald Rennie has been recently appointed to the Federal Court of Appeals of Canada. A big promotion.

Quid pro quo? for his decision in the Galati challenge to Bill C-24?

 

[CanadianCountry]

Ofcourse it is. Penalize Galati for all the challenges, dont give the legal costs for Nadon challenge. $5000 was a joke.

Justice Rennie got promoted for sure on upholding the Bill C-24. And thats how this govt rolls.

Galati challenge of Bill C-24 footnote II:

Now former Federal Court Justice Donald Rennie has been recently appointed to the Federal Court of Appeals of Canada. A big promotion.

Quid pro quo? for his decision in the Galati challenge to Bill C-24?

 

[behrooz66]

For someone who doesn't understand much of law language, can someone simply explain if this whole case is over and the new law is in effect for good or is there still potential for change?!

 

[dpenabill]

For someone who doesn't understand much of law language, can someone simply explain if this whole case is over and the new law is in effect for good or is there still potential for change?!

Last I saw, the case is not over but is in the hands of the Federal Court of Appeal.

The SCCA is now entirely in force and is the law that CIC is applying.

Galati's case only challenges some provisions in the SCCA and generally does NOT involve questions about the revised requirements for grants of citizenship. Which is to say, even if Galati wins his case, the new rules for naturalization will not be affected.

Galati's challenges are mostly aimed at the new grounds for revoking citizenship.

It is worth noting, however, that there are many aspects of the new law which will be challenged in the years to come, piece by piece. Many new laws face some degree of uncertainty in how they will be interpreted and applied, and how the courts will construe the statutes. These things can take years to sort out.

Note, for example, the Federal Courts were still wrestling with the correct interpretation and application of the old law, more than three decades after it became law.

 

[behrooz66]

Last I saw, the case is not over but is in the hands of the Federal Court of Appeal.

The SCCA is now entirely in force and is the law that CIC is applying.

Galati's case only challenges some provisions in the SCCA and generally does NOT involve questions about the revised requirements for grants of citizenship. Which is to say, even if Galati wins his case, the new rules for naturalization will not be affected.

Galati's challenges are mostly aimed at the new grounds for revoking citizenship.

It is worth noting, however, that there are many aspects of the new law which will be challenged in the years to come, piece by piece. Many new laws face some degree of uncertainty in how they will be interpreted and applied, and how the courts will construe the statutes. These things can take years to sort out.

Note, for example, the Federal Courts were still wrestling with the correct interpretation and application of the old law, more than three decades after it became law.

Thanks for the info sir

 

[dpenabill]

No news about the Galati challenge.

But there is news about the long-ago promised challenge by CARL and the B.C. Civil Liberties Association.

Multiple sources are reporting that the British Columbia Civil Liberties Association and the Canadian Association of Refugee Lawyers (CARL) are indeed, finally, filing a lawsuit challenging provisions in the SCCA related to revocation of citizenship. These groups initially indicated they would make this challenge in June 2014, based in significant part on reasons stated in the comments they had submitted earlier during the legislative process as Parliament debated Bill C-24 (which is formally now known as the SCCA).

Unfortunately, so far I have seen no source reporting more in depth regarding the basis for the challenge, most only offering a few rather superficial quotes from Lorne Waldman (CARL) and Josh Paterson (the B.C. Civil Liberties Association Executive Director). I have seen no public posting of the content of the lawsuit purportedly filed.

Issues regarding the procedure for revoking citizenship are somewhat obvious.

Apparently, though, this challenge also involves the new intent requirement, raising criticisms which, frankly, it is hard to see getting traction before the courts. For example, Waldman's assertion that the intent requirement clause is "ambiguously worded" does not make it ambiguously worded.

That noted, in conjunction with the new procedure, there is perhaps a viable Charter argument to be made given the relatively low threshold which mere bureaucrats need to meet, that there is a Charter-level chilling of fundamental rights guaranteed by the Charter.

I look forward to seeing more detail about the challenge itself . . . and of course how it fares in the Federal Court.

 

[Laurel]

Hows the bill now?