Sourcing Outside Our Silos

A refreshing aspect of Slaw.ca is that professionals from various backgrounds contribute to this content. Outside this space, the vast majority of my scrolling is focused on caselaw, commentary, and news related to immigration laws and policies. Extremely limited, I admit. Slaw.ca exposes me (and you, I suppose, as another reader) to think about areas of law outside my silo, possibly to our benefit.

Would it be an overstatement to assert that silo thinking has undermined our advocacy? Have our resources & energy become so focused within our specialized little areas of expertise that we have neglected developments in other areas to the detriment of our practice? Hold that thought. I gave a presentation to family law professionals from an immigration perspective. There is scant overlap between immigration law and family law. I avoid family law issues like the plague and I have a few friends who act as amazing referral partners for our clients. I know they are in good hands when they come to me with a family law issue and I pass them along to one of our referral partners.

At the family law presentation, I was asked to present on the question, “How does an immigration officer assess whether a couple has a genuine marriage?” From the onset, the question befuddled my audience. “Obviously,” a lawyer stated, “they simply need a Marriage Certificate. There you go. Easy. Done.” From a family law perspective, within his silo, that was the obvious answer. I imagine among family law lawyers, once they see that legal, valid Marriage Certificate, that’s an easy conclusion. In immigration law, that is only the starting point. My audience balked as I described the fact that our spousal sponsorship applications may include 300 to 500 pages of documents to prove the marriage is genuine. They balked again when I added that many spousal sponsorship applications that include a valid, legal Marriage Certificate are refused (not our applications) on the basis the Officer (still) does not accept the marriage is genuine, per section 4 of the Regulations. In those cases, we may appeal the decision to the IAD and we may examine multiple witnesses, on both sides of the marriage, to provide oral evidence on the genuineness of the marriage. Different silos, different perspectives.

Recently, I was drafting legal submissions to support a spousal sponsorship and I was thinking about family law decisions. Wouldn’t it be nice, for example, to simply include a decision from the Manitoba Court of King’s Bench to establish our client’s marriage is genuine as the Government of Manitoba deemed it so? Easy. Done! Then I started to think about other potential sources, outside my immigration silo, may be added to my client’s application to buttress my submissions? Increasingly, I find myself asking this question and my creative juices get flowing.

Seeking sources outside the immigration silo is not a novel endeavour. My mentor and former Queen’s Law professor Barb Jackman made a passionate speech at our last CBA Immigration Law conference in Ottawa along the same lines. Even mild laryngitis would not stop her from pushing the bar to seek and apply non-immigration law principles and non-immigration law caselaw to our practices. She is absolutely right.

The problem is that most practitioners don’t know where to look. We are so used to scouring, for example, the “objective evidence” in the NDPs and our usual sources. In my practice, I schedule 30 mins many mornings to review Federal Court decisions (5 new decisions were issued just today). I scan the 100s of emails daily from various listservs and try to stay up to date with the firehose of updates from IRCC and from other sources. Who knows what further changes we may see in 2024! Finding the time to then do more, to reach outside my comfort zone and seek sources outside my silo is daunting.

As Barb preached, I believe this endeavour is important. Both for advocates and also for our clients. I believe that by exposing myself, immigration officers and, to be frank, Federal Court judges to sources outside our silos, we may be able to cast a fresh perspective on the fact pattern and this may, in turn, benefit my client. This may lead to better decisions and may mitigate some of the current issues in immigration litigation. This may lead to better corroboration among different areas of law and, as noted by Barb, greater consistency in the application of general legal principles.

For this article, I reached out to Barb to see if there was anything she wanted to add. Her comment:

The problem with our silo is that the principles applied are narrower or distinct from other areas of law. E.g. BIOC – the court decided it is normal to harm a child through deportation therefore it is not considered harm. Would not be accepted in other areas of law, like family law, school closings.

She is absolutely correct. In the same manner that the family law lawyer above could not imagine the amount of evidence we must include in spousal sponsorship applications to establish a “genuine” marriage, he may also balk at the notion that our Federal Court justices regularly dismiss potential harm to the children directly affected. Here is a recent, my view troubling, decision on this point by Justice Ann Marie McDonald. 

Seeking sources outside the silo is not, of course, just a worthy endeavour for immigration lawyers. I was reminded of Barb’s words as I was perusing the Book Review on Law and Mental Health in Canada on Slaw. Clearly, this text was published to benefit the criminal law bar. The citations seem to be limited to that context and, as a representative who regularly deals with refugee claimants with mental health issues, it was both frustrating and disappointing that the author limited the scope of that text to their silo. There are many immigration decisions that consider the law and mental health in Canada and it does not appear the author considered those decisions – or other decisions outside the context of criminal law.

It is already February so it may be too late to add a New Year’s resolution. But let’s do it anyhow. Let’s try to spend a little bit more of our most limited resource (time) to seek out and apply principles and caselaw from other silos. Are you with me?