Right to appeal deportation, family reunification have continued to be curtailed, says Jackman
In the 40-plus years that Barbara Jackman has been practising immigration law, perhaps the most significant change has been the introduction of technology – for the better and for the worse.
“The work we do is online and through computers,” Jackman says from her Toronto office. “But now, compared to what it was 25 years ago, we never see a live person who's making the decision on normal immigration cases.” A would-be immigrant applies to remain in the country and an officer looks at the application, she says, but “that officer may be in Vancouver, may be in Niagara Falls, may be in Nova Scotia; you never see them.”
Jackman is among the lawyers working today who, in 1997, appeared in the very first edition of Canadian Legal Lexpert® Directory; in April the 25th-anniversary edition was published.
When she started practising (and at least 25 years ago this was still the case, she says), “we still had interviews where [immigrants] talk to the officer and the officer made a judgment call. They've cut that all out.” Hearings for refugees and permanent residents being deported, for example, may still get to court, but during the COVID-19 pandemic those hearings are conducted via Zoom, she says.
“A lot of work in immigration is making applications to immigrate [and in] most of those cases, an officer never interviews the person.”
In “discretionary” cases, such as humanitarian ones, “when you actually engaged with someone on a one-on-one level at an interview, you could convince the officer sometimes; it was a human contact in [that] these were very human cases. That's gone with technology, I think.”
At the same time, she adds, an entire record can be prepared to present in Federal Court without having to print out a page; all that’s needed is a USB key with the record on it. “That part makes a difference.”
Jackman’s practice has focused on cases involving national security, domestic and international human rights issues, torture and other cruel or unusual punishment, allegations of membership in and/or support of terrorist organizations, rights under the Canadian Charter of Rights and Freedoms, and Canada's responsibilities under international treaties.
Called to the bar of Ontario in 1978, Jackman was appointed to the Order of Canada in 2019 for her efforts championing the rights of immigrants and refugees and shaping human rights law in Canada. She has also been awarded three honorary doctorates, from the Law Society of Upper Canada (now the Law Society of Ontario) in 2007; the University of Windsor in 2010; and the University of Ottawa in 2016.
Changes to immigration law
Changes have also been made to immigration legislation over the years, she says, from the 1952 Immigration Act until a revised Act in 1978, which was changed again in 2001. “We've gone through so many amendments to the legislation over the years that you can't say it's a stable area of law, because you never know, from one year to the next, what's going to be changed,” says the Toronto-based lawyer, who today is the principal of Jackman & Associates.
“One trend is how mean-spirited we are towards people as a country,” she adds. “Canada accepts young people with skills, but it no longer accepts their parents; that’s done by a lottery,” which hasn’t been open for two years, she says. In the past, parents were included in family that an immigrant could bring to Canada with him or her, “until recent years.”
There were also three traditional categories for immigration, she says: refugee and social, humanitarian and family, and economic migrants. But over the years the Conservative government “put a big push towards the economic” immigrants, as did the Liberal government, says Jackman. The family category “went by the wayside first,” first by cutting siblings out, and then parents.
Jackman also laments the loss of “a sense of forgiveness” that may forgive MPs who have been caught driving while drunk, for example, “but we don’t give immigrants a second chance.” Security grounds have been broadened to include those who present no threat to Canada, she says, including being associated with a certain political party that may be in opposition somewhere.
As well, appeal rights have been restricted. Permanent residents who were to be deported for breaching the Immigration Act used to have a right to appeal to the Immigration Appeals Division of the Immigration and Refugee Board of Canada on humanitarian grounds and might be given “a second chance.” Those appeal rights were removed first for anyone convicted of a criminal offence and considered a danger to the public, she says; “then they decided that was too awkward to apply, and changed it to anyone with a two-year sentence imposed on a criminal conviction, then they changed it to six months,” and took out other criminality cases as well.
“So, in the end, there’s very few permanent residents who have a [right to] appeal.”
Permanent residents who came to Canada as refugees but didn’t adopt Canadian citizenship have also lost their rights to residency, she says. Those who came from countries such as Chile and Argentina, which had repressive political regimes in the 1970s and ‘80s, are now considered to be no longer in danger if they return to those countries and may lose their status in Canada even if they may have lived here for decades and raised families here. They may not have taken up Canadian citizenship because they didn’t speak either official language well enough, or had property in their home countries that they would lose if they took another citizenship, she adds.
It is “just change after change after change, narrowly picking out people who shouldn't be allowed to have any kind of exceptional relief; it’s just mean.”
Of the cases she has argued, Jackman considers that Toth v. Minister of Employment and Immigration, (1988) 86 N.R. 302 (FCA) had the broadest impact.
“The Federal Court didn't recognize that interim orders can be given by the court to stay deportation while you were testing a decision that was made by the [Immigration and Refugee] Board or the minister, until Toth,” she says. “That one I think had the biggest impact,” as an immigrant may get an order from a judge stopping his removal while he is in court arguing against that.
Her most difficult cases have been those involving national security certificates, she says: Mahmoud Jaballah, Mohammad Zeki Mahjoub and Hassan Almrei. “I found those personally really painful because our clients were detained in solitary confinement for years. It’s the first time I felt powerless as a lawyer.” Almrei was an appellant in Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9 (CanLII),  1 SCR 350, a landmark Supreme Court of Canada decision in which the court found the national security status proceedings were unconstitutional.
Her first time in front of the Supreme Court was in arguing R. v. Singh; 1985 1 SCR 177, as a counsel for the intervener Federation of Canadian Sikh Societies, and it was also her most exciting.
“If I remember correctly, we filed the motion to intervene on the Monday, it was heard on Friday, and the appeal was going ahead the following Tuesday. We did it all in a week,” cutting and pasting key paragraphs and copying on a Xerox machine. The decision, she says, “recognized that non-citizens have human rights under the Charter of Rights,” in a refugee case, including the right to life, liberty and security of the person.
Advancements in immigration law
What advances have been made have come from the courts, says Jackman. “The government would say there are broader economic classes that have opened up, but that’s in our self-interest. We need immigrants. And Canada's picking the cream of the crop, with less and less attention to any social responsibility it may have to the immigrants that it's taken,” including allowing family members to come.
“We should be burden-sharing on refugees” with the rest of the world, she says.