It’s a rare experience – even for seasoned lawyers, but a select group of students at Osgoode Hall Law School can now add the Supreme Court of Canada to their resumes through their work on a case that will be heard Nov. 29.
The eight students involved are working at Osgoode’s Community & Legal Aid Services Program (CLASP), which has been granted intervenor status in Earl Mason, et al v Minister of Citizenship and Immigration, et al (SCC Case No. 39855). The case deals with the application of the reasonableness review to questions of statutory interpretation.
“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,” said Scarlet Smith, the acting director of CLASP.
Subodh Bharati, CLASP’s supervising lawyer for the Immigration Law Division, said the students worked overtime researching the argument and preparing materials. “There was a substantive amount of work,” he said. “They have to first successfully bring a motion seeking intervenor status and then prepare a concise factum. The students are now helping to develop our oral submissions, which can be no more than five minutes.
“It’s really important for our students to be involved in such high-level cases,” he added. “They were pretty excited about this opportunity.”
As a lasting memento of the experience, Owain Guinn, a second-year student at Osgoode from Atlanta, Ga., who was involved in writing the 10-page factum, said he framed the first page and is keeping it above his desk.
“I thought it was the coolest thing ever that we could say that we worked at the Supreme Court level,” he said. “I really enjoyed the process. It just felt important and it was very much a team effort.”
Constitutional questions
The case is concerned with 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 section 36 of IRPA, which requires a criminal conviction, the Canadian Border Services Agency attempted to deport him under section 34, which deems a person inadmissible to Canada on “security grounds.” But through increasingly higher levels of court, Mason’s lawyers have argued that section 34 was only intended to apply to cases of terrorism, war crimes and organized criminality.
In a novel argument, CLASP submits that any interpretation of section 34 that includes charges that did not result in convictions engages section 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,” said Bharati. “When stuff like this happens, it’s pretty shocking,” he added. “If sections 7 and 11 of the Charter are supposed to apply to everyone then why are exceptions being carved out for non-Canadians?”
CLASP is one of 17 clinical programs available to Osgoode students and exemplifies the law school’s leadership in experiential legal education in Canada. CLASP cases 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. CLASP intervened in two other Supreme Court of Canada cases in 2018.
“One of the most important things CLASP offers students is on-the-ground experience,” said 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.”