FIPA is grateful and privileged to have post-secondary students drawing and contributing from a variety of experiences. Jerika Caduhada is one of FIPAs University of Victoria Law students who has been working on activities in FIPAs mandate areas. This February, as part of her studies she had the opportunity to participate in The Julius Alexander Isaac Moot held by the Black Law Students Association of Canada. We thought this was a great opportunity to highlight how this type of activity reflects and informs our research at FIPA. The following are her reflections on the moot.
Learn more about The Julius Alexander Isaac Moot here.
Ontario Court of Appeal
The Julius Alexander Isaac Moot (“The Isaac”) is a competitive, for-credit moot historically held at the Ontario Court of Appeal. He is named after the late Chief Justice of the Federal Court, Julius Alexander Isaac, who was the first Black judge to sit on the Federal Court of Canada. Every year since 2008, the Moot has focused on an area of law in which issues of equity and diversity arise.
In the Ontario Court of Justice, Black History Month was rung in with the commencement of the Isaac Moot, the only for-credit and student-run moot in North America. Taking after its eponym, Chief Justice Julius Isaac, the Isaac Moot is dynamic and visionary. This year’s moot problem was an imaginary appeal of Canadian Council for Refugees v Canada (Citizenship and Immigration), 2023 SCC 17. Doctrinally, the case focused on the constitutionality of the US-Canada Safe Third Country Agreement (STCA), as brought into domestic law via the Immigration and Refugee Protection Act (IRPA). Where critical race theory was brought in for persuasive value, the case interrogated the racial dimensions of state sovereignty, border policy, and global migration. This uplifting of critical race theory is what distinguishes the Isaac Moot from other moots and Canadian legal practice in general; at the Isaac Moot’s Diversity High Court of Canada, Canadian doctrine is not binding but instead persuasive, and equally so with critical race scholarship. At the Diversity High Court of Canada, we were bound not to the laws and cases of the past but to the thrilling, vital work of imagining what can be.
Jerika at the Ontario Court of Appeal.
Representing the appellants, my co-counsel and I argued against the STCA’s constitutionality. We submitted that its true legislative objective was the reduction of the refugee population in Canada, and it unjustly limited asylum seekers’ s. 7 Charter rights to do so. We further submitted that it violated the principles of substantive equality and racial justice by stripping asylum seekers of their agency in choosing where to seek protection. Conversely, the opposing counsel from our university, representing Canada, argued in defense of the STCA. They submitted that the broader legislative scheme of the IRPA sufficiently guarded and offered relief to asylum seekers whose s. 7 rights were violated by the STCA. They further submitted that the STCA facilitated Canada’s capacity to support refugee resettlement. In a novel approach, they also upheld the STCA for its alignment with Cree legal principles.
While on its face, this case did not intersect with the work of FIPA, access to information and privacy rights emerged relevant during a judge’s intervention on positive obligations. As the judge recognized, the Supreme Court has long been reluctant to impose positive obligations on governments. Per the Motor Vehicle Reference and Gosselin, for example, unjustifiable violations of Charter rights are ordinarily remedied through the invalidation of the statute, making the remedy negative in nature in apparent accordance with the court’s role in the administration of justice, as contrasted with legislatures’ role in creating public policy. Access to information and privacy law, however, does impose positive obligations on governments: the duty to assist under s. 4(2.1) of the Access to Information Act, for example, requires government institutions to make every reasonable effort to assist a requester. There are increasing developments in provincial legislation to also recognize a duty to document, which would require government institutions to more proactive record-keeping practices to facilitate transparency. Access to information and privacy law is a field that is ripe with possibility—specifically, greater possibilities for justice to be administered in a way that not only fights against what we denounce but also actively fights for the new world that we seek.
The conclusion of the Isaac Moot now makes way for the beginning of my next undertaking: a research project on behalf of FIPA relating to an issue and a community that is dear to my heart. Like the moot itself, this research will affirm that we cannot build a new world with the tools of the old one; it will recognize that relevant, valuable knowledge comes from beyond the four corners of legal doctrine. Critical race theory allows us to interrogate and reimagine existing structures with an eye toward racial justice. The Isaac Moot demonstrated that access to information and privacy law can have a role to play in this interrogation and reimagining. The upcoming work of FIPA, in turn, I believe will demonstrate that critical race theory has a role to play as well in the development of access to information and privacy law.
References.
Canadian Council for Refugees v Canada (Citizenship and Immigration), 2023 SCC 17
A 2023 constitutional law case that reached the Supreme Court. The key issue at appeal was whether the provision in federal immigration and refugee protection regulations designating the United States as a safe third country infringes refugee claimants’ right to liberty and security of the person.
The Isaac Moot is a competitive, for-credit moot historically held at the Ontario Court of Appeal. It is named after the late Chief Justice of the Federal Court, Julius Alexander Isaac, who was the first Black judge to sit on the Federal Court of Canada. Every year since 2008, the Moot has focused on an area of law in which issues of equity and diversity arise.
A 2004 treaty between the United States and Canada which provides that refugee claimants must, as a general rule, seek protection in whichever of the two countries they first enter after leaving their country of origin.
Canadian domestic law respecting immigration to Canada and the granting of refugee protection. Under s. 101(1)(e), refugee claims are ineligible to be considered in Canada if the claimant came from a country designated by the Immigration and Refugee Protection Regulations. Section 102(1)(a) provides that countries may only be so designated if they are viewed as complying with their non‑refoulement obligations under international law, which prohibit directly or indirectly returning a person to a place where they would face certain kinds of irreparable harm, including threats to their life or freedom, torture and cruel or degrading treatment. The United States is a designated country under the Regulations.
Lamer J. at para 31: “… the principles of fundamental justice are to be found in the basic tenets of our legal system. They do not lie in the realm of general public policy but in the inherent domain of the judiciary as guardian of the justice system. Such an approach to the interpretation of “principles of fundamental justice” is consistent with the wording and structure of s. 7, the context of the section, i.e., ss. 8 to 14, and the character and larger objects of the Charter itself. It provides meaningful content for the s. 7 guarantee all the while avoiding adjudication of policy matters.”
Gosselin v Quebéc (Attorney General) [2002] 4 SCR 429
McLachlin C.J. at para 81: “Nothing in the jurisprudence thus far suggests that s. 7 places a positive obligation on the state to ensure that each person enjoys life, liberty or security of the person. Rather, s. 7 has been interpreted as restricting the state’s ability to deprive people of these.
Responsibility of government institutions (2.1) The head of a government institution shall, without regard to the identity of a person making a request for access to a record under the control of the institution, make every reasonable effort to assist the person in connection with the request, respond to the request accurately and completely and, subject to the regulations, provide timely access to the record in the format requested.
