Lawyers representing 1,000 people affected by the move to toss out nearly 98,000 immigration applications allege the government had discriminated based on the national origins of the applicants, and as such, breached the Charter of Rights and the rule of law.

“The backlog was not a function of volume (of applications),” said Mario Bellissimo, one of the nine lawyers on the case. “It was a policy choice.”

Also lawyer Matthew Jeffery said Immigration Minister Jason Kenney must follow the rule of law and cannot use his ministerial power to shield “arbitrary state action. Ethically, he is in the wrong.”

But Government lawyer Keith Reimer argued that the lawsuit boiled down to “who gets to control Canada’s immigration programme.”
According to Reimer the government is entitled to change the law and control Canada’s immigration programme, and can do that by eliminating the backlog and ‘just-in-time’ system that responds to Canada’s labour market needs.

However, Justice Donald Rennie questioned why the backlog and the just-in-time approach had to be “mutually exclusive” and warned Reimer to focus his arguments on the new law’s benefits to Canada.
The court heard last week 81.4 per cent of the files in the skilled worker backlog tossed out by Ottawa under the Jobs, Growth and long term Prosperity Act were from countries with a main population of minorities.

The lawyers stressed that while Kenney has the power to set priorities, he must apply the rules equally, consistently, and fairly, as some of the applicants had waited in the immigrant queue for as long as eight years.

Meanwhile, the Supreme Court of Canada was asked on Friday to decide if courts should take into account an offender’s immigration status when handing out a sentence.

Currently, permanent residents convicted of a crime and jailed for two years or more lose their immigrant status and face removals from Canada with no access to appeal. Although prosecutors and defence lawyers often bring up the issue at sentencing, courts are not obliged to consider it.

The judgment could have far-reaching and controversial implications in future sentencing of non-citizen offenders just as Ottawa is pushing through a bill that would lower the threshold for expedited deportation to jail sentences of six months, instead of two-years.