Episode 23 – Appellate Advocacy Tips, with Former Supreme Court of Canada Justice Marshall Rothstein

Marshall Rothstein served as a Justice on the Supreme Court of Canada from 2006 – 2015. He previously was a Judge on the Federal Court of Canada and the Federal Court of Appeal.

Garth Barriere is a criminal defence attorney in Vancouver. He was counsel in Khosa v. Canada (Citizenship and Immigration, a major Supreme Court of Canada immigration decision in which Justice Rothstein wrote a concurring opinion.

In this episode Justice Rothstein provides tips for written and oral advocacy. While the focus is on appellate litigation, anyone interesting in strengthening their advocacy skills will benefit from what he has to say. We also discuss the Supreme Court of Canada’s decision in Khosa v. Canada (Citizenship and Immigration), and its impact on administrative law in Canada. It is a frank conversation.

9:00 – What it was like for Justice Rothstein when he was appointed to the Federal Court of Canada and to adjudicate cases on which he had no previous experience?

12:30 – How was it different being on the Federal Court vs. the Federal Court of Appeal vs. the Supreme Court of Canada?

14:20 – What strategies or approaches would Justice Rothstein suggest for counsel appearing at the appellate level instead of at the trial division?

18:23 – What is the most important thing to remember in written advocacy? What is “point-first writing?” A helpful piece to read on this can be found here. http://www.ontariocourts.ca/coa/en/ps/speeches/forget.htm

21:10 – What tips does Justice Rothstein have for oral advocacy at the Supreme Court of Canada?

31:30 – What makes a good factum? Does Justice Rothstein believe that the IP bar produces the best factums?

36:20 – What was the Supreme Court of Canada decision in Canada (Citizenship and Immigration) v. Khosa about?

41:15 – How did Khosa change the standard of review analysis?

45:00 – Justice Rothstein discusses his dissent in Khosa and his thoughts on Dunsmuir v. New Brunswick, the leading case on standard of review.

57:40 –  Garth Barriere, who was counsel in Khosa, offers a critique of the Supreme Court of Canada’s standard of review jurisprudence.

1:01:20 – What, if any, guidance should be given to judges regarding when they should show deference and when they shouldn’t?

1:08:00 – At the time of Khosa did Justice Rothstein predict how far along the deference path that standard of review deference would develop?

Episode 22 – The Implications of the Supreme Court of Canada Decision in R v. Wong

R v. Wong is a 2018 Supreme Court of Canada decision in which the Supreme Court of Canada had to determine whether a person could withdraw a guilty plea if they they did not know that their pleading guilty would lead to deportation.

Peter Edelmann and Erica Olmstead are lawyers at Edelmann & Co. They represented the accused at the Supreme Court. Lobat Sadrehashemi represented one of the invervenors, the Canadian Association of Refugee Lawyers.

2:00 – The facts of the case. Mr. Wong pleads guilty to trafficking cocaine. He learns afterwards that this will lead to his deportation. He did not know this when he pled. Can he reverse his plea?

4:29 – How does a guilty plea work? Is it like in the movies?

7:40 – What was the judicial history of this case?

8:50 – What was the perspective of the Canadian Association of Refugee Lawyers regarding whether previously unknown immigration consequences should result in a person being able to set aside their guilty plea?

14:00 – When Peter, Erika and Lobatt talk about whether people should know about the immigration consequences of a guilty plea, what does “immigration consequences” mean? How did the court rule?

19:00 – If the Crown or a judge now have the obligation to ensure that an individual is informed about immigration consequences when they make a guilty plea, should defense counsel worry that this might usurp their role?

19:30 – What is problematic about the incompetence of counsel framework?

23:40 – What was the majority ruling in R v. Wong?

25:06 – The court ruled that to set aside a guilty plea a person has to show that their plea would have been different. What does this subjective requirement look like?

33:18 – At what point in the criminal justice system would someone’s immigration system become known?

34:45 – How complicated are the immigration consequences of a guilty plea? What level of immigration consequences should determine whether a guilty plea is informed? Is it just deportation? Or should it be other things, such as inability to sponsor a spouse, or being ineligible to apply for citizenship, for example.

Episode 20 – An Overview of Canadian Medical Inadmissibility Law, with Erin Roth

Erin Roth is a Lawyer with Edelmann & Co. Her work involves court proceedings regarding Extradition and Mutual Legal Assistance requests from foreign states and civil litigation on behalf of government agencies.

In this episode Deanna and Erin discuss issues in Canadian medical inadmissibility law.  When can someone be inadmissible to Canada because they are sick?  How does one confront such an allegation? What changes are upcomming?

Episode #18 – The Deportation Consequences of Criminal Records

The Supreme Court of Canada in October issued its decision in R v. Tran, a case which Peter litigated. Deanna, Peter and Steve discuss the issues that the Supreme Court addressed in this landmark decision, including whether conditional sentences are terms of imprisonment for the purposes of deportation and retrospectivity in law.

This was the first of two Supreme Court cases that Peter arguedin Ottawa this year. While he was in Ottawa for the second case, he joined Michael Spratt and Emilie Taman, the creators of the Docket, a fantastic podcast about criminal law in Canada. Peter, Emilie and Michael discussed all sorts of issues regarding the intersection of immigration and criminal law, and Peter even explained how he got into practicing immigration law.