Here is the text that I extracted from the 'media release' document of Tim Leahy that he had attached along with his latest email to me.
News Release
Federal Court authorizes Fraud against itself
Justice James Russell from Saskatchewan ruled that the Crown may commit fraud against the Federal Court without suffering any ill consequence. The case concerned 1,100 immigrant-visa applicants from 28 of countries. The applicants are professionals who had applied to immigrate between 2004 and 2007.
On 27 February 2008, Jason Kenney, then Minister of Citizenship and Immigration (CIC), seeking to be hailed as the Great Administer, had mothballed over 100,000 skilled worker files and had newer cases processed ahead of them in order to boast that the immigration trains ran on time on his watch. In September 2011, the first 100 litigants had asked the Federal Court to order Kenney to active their mothballed files. After Kenney had their files terminated in June 2012, Justice Robert Barnes from Nova Scotia refused for three years to allow their cases to be heard.
In December 2011, Justice Barnes ordered the applicants’ counsel, Tim Leahy, to reach an agreement with the Department of Justice (DoJ) on how to proceed with the first 300 cases. Barnes said that he would impose his own terms if Leahy did not accept Immigration Canada’s terms.
The Agreement Immigration Canada (CIC) imposed required the applicants to discontinue their court cases if their lead case lost and, if it won, CIC, in return, would “be guided by” the decision “on the possible disposition of the remaining cases held in abeyance”. CIC filed the Agreement with the Federal Court on 2 February 2012.
But, Immigration Canada had decided in the fall of 2011, Immigration Canada’s James McNamee swore under oath, to terminate the very applications it later agreed to process if the lead case succeeded. On 29 March 2012, Kenney tucked the termination provision into the Budget Bill, ensuring its passage because, if a budget bill is defeated, a new election must be called, and Harper may bar Tory MP’s who vote against the budget bill from running. The bill passed on 29 June 2012.
On 14 June 2012, Justice Donald Rennie ruled in favour of the lead case, Dong Liang v. M.C.I., 2012 FC 758, and ordered his immigrant-visa application be finalized within sixty days. Rennie limited the impact of his decision by refusing to apply it to the other 1,300 litigants, averring that, per the Agreement, Immigration Canada would process them without a court order.
Rennie, a 29-year veteran DoJ lawyer before Harper appointed him to the Federal Court in 2010, also used as an excuse for abandoning the other litigants the claim that he could not rule in their favour because he could not ascertain whether the applicants were to blame for their files not having been activated – files Rennie knew Kenney had held back while he engaged in queue jumping with newer files in pursuit of his political agenda.
After Immigration Canada refused to promise to honour the Agreement and before the Budget Bill terminated the files, Leahy asked Barnes to enforce the Agreement. Barnes refused and ordered Leahy to prepare, serve and file a motion to that effect so that the files would be terminated before he ruled on the motion to enforce the Agreement he had directed be made.
DoJ argued that Kenney would be “acting contrary to law” if he kept his word. Leahy argued that section 25.2 of the Immigration and Refugee Protection Act gave him the authority to keep his word. On 29 November 2012, Kenney proved that his lawyers had been lying to the Federal Court when he used that provision to issue new visas to skilled worker applicants who had inadvertently been unlawfully issued immigrant visas after their files had been terminated.
Barnes sat on the motion for six months before dismissing it and castigating Leahy, who he held had falsely asserted bad faith on the part of those who signed an agreement they had no intention to honour and who had falsely asserted that it would be unlawful to keep their word and declared that CIC and DoJ had been acting in good faith. Barnes released his venom-filed ruling less than a month before Rennie was to hear the challenge other lawyers had brought to the provision which had terminated the 4-8 year-old, warehoused skilled worker immigration files.
DoJ counsel Martin Anderson told Justice Rennie to refuse to consider enforcement of the Agreement at the January 2013 hearing. Rennie dutifully did Anderson’s bidding. “Turning the law on its head”, according to Leahy, “because plaintiffs, not defendants, define the issues except in the legal apartheid of immigration law where Federal Court jurists dutifully follow instructions from CIC’s lawyers”.
After Leahy pulled his litigants out of the January 2013 hearing, DoJ counsel sent a letter to Barnes, telling him to mothball the Leahy group. Barnes happily, promptly and dutifully did Anderson’s bidding. Barnes did not require Anderson to file a motion but only to make known his desire.
Barnes continued to bar the courthouse door to the Leahy group, some of whose files had been lodged in September 2011, until the spring of 2015. He reversed course only after Anderson told him do so. However, it took Anderson two letters to get Barnes to allow the Leahy group to have a hearing. When he did, Barnes apologized profusely to Anderson for the one-month delay in doing his bidding, claiming that Registry officers had hidden his earlier letter from him. Barnes never apologized to the 1,100 applicants for having stolen for over two years of their lives by refusing to allow their litigation to proceed.
The Leahy group was to have their hearing in April 2014 before Justice Douglas Campbell of British Columbia, one of the few Federal Court jurists known for independent judgment. However, Campbell adjourned the case indefinitely. Campbell knew that his colleagues had rejected all challenges to Kenney’s terminating files and, thus, was expected to follow suit. Instead he ducked the case.
Only on 2 September 2015, did the Leahy litigants finally have a hearing seeking the Court to order Immigration Canada to honour the Agreement, which it had been refusing to honour since June 2012. Justice Richard Russell from Saskatchewan, not Campbell, presided at the hearing.
On 17 November 2015, while Russell was deciding whether to apply the law faithfully to the facts or to advance his professional career, Leahy received an email from a litigant, Maha Ahmed, a Kenney-made refugee stranded in war-wracked Yemen. The distraught mother wrote:
Do you think we may win the litigation? After all these processing delays and waiting for many years before the dream becomes true, I am 40 years old. If I win the litigation, do you think I will be acceptable in Canada labour market?
Dear Mr. Tim I am from Yemen –Aden, where there is civil war. We have no drinking water, no electricity, no internet, no transportation. We had no food to feed my little son and daughter. We have a very bad war. Many people are killed by unidentified gunmen. This happens in Aden even after liberation from the Houthi rebels. The civil war is still going on in other parts of Yemen. Do you think after this misery and suffering, I may get security for my children in Canada?
I am dying every day. When my little son goes to school, I do not what is going to happen to him when he is going and coming by bus school. I not know whether he will return alive.
I want my little son and daughter to live in country where there is open mindedness, equality and security. We are waiting for the hope that is Canada – not the bombs that are falling in Aden.
Please, Mr. Tim, if you could pass this e-mail to Judge Russell to show him how we are losing our life day after day in Yemen. Because of the previous judge’s decision, I lost my youth waiting for the Canada dream to come true.
I am really sorry. I do not know what to write or how to write. I am really upset and disappointed.
After enjoying a jolly Christmas season, Russell, preferring the unreconstructed Scrooge over the compassionate version, released his ruling on 26 January 2016. After finding implicitly [at ¶40] that CIC had drafted the Agreement to read “possible processing” of the cases because it intended to terminate, not finalize, the applicants’ files, Russell castigated Leahy [at ¶¶97-98] for having accepted the terminology CIC had imposed on him and, in effect, either for not being clairvoyant or for not having a mole in Kenney’s office so that he would have known when the Agreement was signed on February 2nd that Kenney would tuck a provision in the Budget Bill on March 29th to terminate the files he had promised to process if the lead case won.
Until Kenney abolished the skilled worker applications, no minister in Canada’s history had abolished immigrant visa applications. The litigants’ files had been lodged from 2004 to 2008. Immigration Canada had consistently promised to process the files “in due course” before Kenney had them terminated on 29 June 2012, rewriting immigration history and destroying the credibility of the Government of Canada. “Russell’s ruling”, Leahy said, “means that no one should trust the Government to keep its word because when it does not, the Federal Court will fabricate a way to let the government get away with it so as not to hinder the jurists professional ambitions.”
“Justice Russell’s blaming me for having acquiesced to Immigration Canada’s wording reveals,” Leahy said, “that he believes either that Justice Barnes had failed in his duty to ensure a just Agreement or facilitated the fraud Immigration Canada perpetrated on the applicants and the Court itself. By refusing in June 2012 to enforce the Agreement he had cajoled the applicants to accept but, instead, ensuring that the files were terminated first, Justice Barnes passed the buck to Russell. This case confirms that in the legal apartheid of immigration law, justice is more alien than the applicants.”
Russell held that, because the files were terminated on 29 June 2012, the pre-existing Agreement was extinguished. Russell rejected the legal rule that permits orders to be dated from the date the litigation commenced – which was on 28 September 2011 – the fact that the terms of the Agreement crystallized on 14 June 2012 – before the files were terminated – when Rennie ruled in favour of the lead case; and that the provision terminating the files did not aver that it was cancelling the Agreement. Because Parliament did not terminate the Agreement, it was still in force when Justice Russell held that Immigration Canada may file with the Federal Court an Agreement it has no intention of honouring, and the Federal Court will slap them on the back and say: “Jolly well done. You hoodwinked the applicants who naively believed that you would act honourably – or that we would require you to be honourable. Keep up the good work!”
Russell also rejected the Federal Court of Appeal’s ruling that Immigration officials are presumed to be acting in good faith when he blamed Leahy for not having presumed that Immigration Canada was acting in bad faith by using “be guided by”, as opposed to “will apply”. The Russell Rule is: “Immigration officials are to be presumed always to be acting in bad faith and, thus, when they do, the fault lies with the person who had trusted them”. Leahy stated: “Immigration Canada could not agree ‘to apply’ the decision because, in additional to meeting selection criteria, the applicant and dependants must not be medically or criminally inadmissible and, thus, use of ‘to be guided by’ was required to address possible inadmissibility of a qualified applicant or dependant”.
Russell also held that s. 25.2, which allows the Minister to grant permanent residence “for reasons of public policy” may not be used in order for the Minister to keep his word, declaring:
[71] It seems obvious why the Minister would not, and could not, exercise a public policy exemption under s 25.2 in favour of the Applicants. To do so would directly contradict the will of Parliament as embodied in s 87.4(1) which expresses a clear intent to terminate all FSW [Federal Skilled Worker] applications, including the Applicants', that fall within its ambit. The Court cannot now order the Minister to do something that would, in effect, be counter to Parliament's clearly expressed will.
Leahy observed: “What Russell finds obvious ignores even the more obvious: Parliament also expressed its will when it passed s. 25.2, authorizing the Minister to override all other statutory provisions and grant permanent residence ‘for reasons of public policy’. So which provision truly expresses the will of Parliament: s. 25.2, passed on a free vote, or s. 87.4(1) hidden in a budget bill?
“The second glaring contradiction, as Russell admitted in the next paragraph, was that Kenney had used s. 25.2 on 29 November 2012 to issue immigrant visas to applicants whose files s. 87.4(1) had terminated. If Justice Russell is correct, they immigrated to Canada illegally and contrary to the will of Parliament, but he did not make such a finding. Instead, he sanitised what he claimed would be unlawful for the Leahy applicants but not Kenney’s chosen by claiming that because, in 2012 Kenney applied it only to ‘a small number’, it was fine. Per Justice Russell’s logic, selling heroin is lawful if only sold to ‘a small number’ of addicts.”
Enforcing the Agreement would apply to 1,100 applicants. According to Rennie [at ¶4], s. 87.4(1) terminated “over 600,000 applications”. Russell did not say how many the “small number” is because he does not know to how many received visas under the November 29th directive. He only knows how to prove himself to be yet another loyal Kenney foot soldier on the Federal Bench.
Before issuing his ruling, Russell knew that all his colleagues who had proven themselves Kenney loyalists on the termination issue were rewarded with elevation to the Federal Court of Appeal.
• Richard Boivin: Boivin, refused Leahy’s motion to adjourn a hearing for federal investors, seeking an order to have their files processed, after he realized that CIC had violated the Federal Court Rules by excluding from the certified record the letter giving the estimated processing time, and to order CIC to adduce the letter or to allow Leahy to do, and then denied the applications on the grounds that no evidence of a promised time-frame was before him; ¶17, 2014 FC 96. Ten weeks later Justice Boivin was elevated to the Federal Court of Appeal, and two months later, Kenney had the applicants’ investor files terminated when the budget bill was passed.
• Mary JL Gleason: Two months after Justice Boivin’s elevation to the FCA, Justice Gleason applied his decision to deny mandamus to 1,400 investor litigants and dismissed the argument that CIC had discriminated against federal investor applicants vis-à-vis those who invested in Québec, which, while having 23% of Canada’s population, was allocated a quota nearly treble that for the federal investors, justifying herself by noting that have-not provinces receive greater federal grants; ¶84 and ¶¶128-131, 2014 FC 596. A week later, their files, too, were terminated, and within a year, Justice Gleason found herself proudly sitting on the FCA within four years of her initial judicial appointment.
• Donald J. Rennie: Before his elevation, however, Justice Rennie had to do penance for having ordered mandamus for the lead skilled worker applicant, Dong Liang, who had sought mandamus over five months before Kenney announced his plan to kill the 5-8 year-old files even though he had limited his ruling to Mr. Liang, leaving 1,300 other litigants at CIC’s mercy, slammed Leahy and gave CIC three chances to posit a proper question for appeal, but he redeemed himself in the so-called class-action litigation by upholding the closing of those files while refusing to allow the other Liang litigants to argue that the Agreement, which had tied their fate to Mr. Liang’s case (but which CIC had refused to honour), was enforceable. Justice Rennie reached his FCA perch eleven days after he confirmed his loyalty by upholding a restrictive regulation which nullified the will of Parliament and refused to allow his decision – one of first impression – to be appealed; 2015 FC 159.
Russell must now decide whether to allow his contrived ruling to be appealed to the Federal Court of Appeal because, in the legal apartheid of immigration law – unlike in any other area – one may appeal a decision only if the judge making it permits the appeal. In deciding whether to allow an appeal, Russell will keep in mind that he is assured success if his fellow travelers, Boivin, Gleason and Rennie, compose the FCA panel. They very well could because Rennie dismissed the appeal of the rulings of Boivin and Gleason, who had applied Rennie’s ruling upholding the termination of skilled worker applications. The appellants’ counsel argued that Rennie should not be on the panel, but Rennie refused to absent himself, promising to provide written reasons for ruling, in essence, on his own decision. He never did. His colleagues, Justices Wyman Webb of Nova Scotia and C. Michael Ryer of Alberta joined him in refusing to dispose of the appeal on its merits but, instead, relied on the termination provision to justify refusing to require Immigration Canada process their files; 2015 FCA 14; a ruling they could lawfully made because the decision on appeal was made before the files were terminated.
In the end, Russell was afraid to risk allowing his decision to be appealed, confirming that he knew that his decision constituted a transparent refusal to apply the law faithfully to the facts. Thus, after 4½ years of hoping to find at least one honest judge in the Federal Court of Canada, 1,100 litigants and their dependants failed in that quest.
--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------Justice Richard Russell’s draft reasons, the pleadings and other orders are available upon request, as is a photo of Maha and family. In addition, queries to the litigants will be forwarded to them.
