Latest on court case proceedings by Tim Leahy :
Dear Litigant,
While one should never project how a judge will rule on an issue, a judge's comments at hearing are often indicative of how the judge views the issues. By that standard, the January 14th-16th hearing went extremely well for the applicants.
Without delving into the many legal issues debated at the hearing, I will just share some of the major points. Applicants' counsel argued that the Minister discriminated against the applicants by having forced them to apply at only one visa post and then not allocating a high enough quota to finalize their files in the same time-frame as occurred in Western Europe or the Americas. If the Court agrees that, owing to unlawful discrimination, the backlog issue arose, the Court could declare s 87.4 to be unlawful because, in effect, it would reward CIC for having discriminated against the s. 87.4 victims in the first place.
DoJ (Department of Justice) was unable to present a credible reason to justify closing of the files. Justice Rennie pointedly asked, in effect: "Yes, backlogs are bad and just-in-time processing is good. But, (a) is the only way to achieve the latter to abolish the backlogged files and (b) are clearing the backlog and just-in-time processing mutually exclusive?" (paraphrase). In other words, why cannot CIC institute a just-in-time processing system for new applications while clearing out the backlog: i..e, have two streams of FSW processing? In other words, Justice Rennie reflected the view that most Canadians would have if informed of the facts of the Minister's grand deceit.
Justice Rennie proved himself to be alert and alive to Charter issues, which Rocco Galatti brilliantly articulated. In his reply, Mr. Galatti had the entire courtroom silent, intensely listening to his every word. As one lawyer present put it: "I felt privileged to have been there to hear him". Mr. Galatti praised Justice Rennie after the hearing for appearing to have strong grasp of constitutional law and a keen interest in getting it right. So, we are lucky to have drawn a judge with Justice Rennie's knowledge of constitutional law and interest in deepening his knowledge. In fact, Justice Rennie thanked counsel for the insight they shared into Charter law, adding that his understanding had grown as a result.
So, as I said, one should never be too confident of how a judge will rule but Justice Rennie appears to understand applicants' arguments, to find troubling the arbitrary closing of so many files without any cogent justification beyond "Might makes Right" and to be sympathetic to the applicants' plight. Justice Rennie also mentioned that he expects to permit the losing party to appeal the case to the Federal Court of Appeal. So, even if we win at this stage, it may not be over.
In anticipation of an appeal, Mario Bellissimo asked Justice Rennie if he rules in our favour, to oblige CIC to resume processing of the litigants' files during any appeal. Thus, if Justice Rennie rules in our favour and requires CIC to resume processing while it appeals his decision, your cases will go forward.
With respect to our own group, DoJ has asked Justice Barnes to cancel Justice Rennie's order allowing our cases to proceed and to hold our cases hostage to the s. 87.4 litigation ultimately disposition. Time will tell whether Justice Barnes will reverse course and finally render a decision consistent with duty under the law. Since July, Justice Barnes has been obdurately refusing to comply with s. 74, which requires him to set down for hearing each of our cases because (a) on 7 December 2011, he issued an order stating that each order and direction would apply to each of the litigant's case, (b) on 25 April 2012 ordered out lead case, Dong Liang, be decided on the merits (c) Justice Rennie failed to act in accordance with the December 7th order when he declined to render the same order for the rest of the litigants as he did for Mr. Liang, ruling that he would not be doing so because the Protocol (Agreement) governed disposition of the other files and (d) on July 10th, DoJ advised the Court that it would not honour the Agreement with respect to any file not assessed by March 29th. At that point, Justice Barnes knew -- assuming a minimum degree of competence -- that he was obliged either to enforce the Protocol or set all the cases down for hearings. On December 14th, he refused to do the former, thereby obliging himself to do the latter, assuming a willingness to comply with the law. However, in view of how he has conducted himself vis-à-vis our group to date, there is no basis to be confident that Justice Barnes will at long last do his duty and behave ethically.
So, our fate effectively turns on the outcome of the January hearing, except that, if Justice Rennie strikes down s. 87.4, CIC would have no basis to argue that it would "contrary to law" for the Minister to keep his word. Moreover, on November 29th, when he issued Operational Bulletin 479-B, the Minister confirmed what I had been saying since June: The Minister has the means for keeping his word to our litigants and to the Federal Court.
Now we wait for the next chapters of our saga. Hopefully with a bit more optimism how that our fate is in hands of a jurist who actually appears desirous of issuing a proper decision (as opposed to doing whatever a DoJ lawyer bids him to do).
Regards,
Tim
