Section 7 of the Charter and Canadian Immigration Law

Section 7 of the Canadian Charter of Rights and Freedoms (the “Charter“) provides that:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

There have been several Supreme Court of Canada (the “Supreme Court“) and Federal Court of Appeal decisions involving s. 7 of the Charter and Canadian immigration law.

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Global Skills Strategy – Short Term (15 or 30 days) Work Permit Exemption

On February 6, 2018 Immigration, Refugees and Citizenship Canada (“IRCC”) clarified how its short term work permit exemption under the Global Skills Strategy would work.  Previously, the IRCC website simply stated:

Now, the IRCC website provides a much more comprehensive explanation of how the short term work permit exemption under the Global Skills strategy works.

General Conditions

The short-term (15 or 30 days) work permit exemptions are for certain high-skilled work and apply to foreign nationals coming to Canada to perform work that is both of a short duration (15 consecutive calendar days or 30 consecutive calendar days) and is in an occupation that is listed in skill type 0 (management occupations) or skill level A in the National Occupational Classification (“NOC”) matrix.

Such individuals may work in Canada without a work permit.

The periods can be as follows:

  • 15 consecutive days (if the foreign national has not been granted a work permit exemption under the Global Skills Strategy facilitating entry into Canada for short-term work in the last 6 months); or
  • 30 consecutive days (if the foreign national has not been granted a work permit exemption under the Global Skills Strategy facilitating entry into Canada for short-term work in the last 12 months).

The short-term work permit exemptions do not exempt people from the requirement to obtain a temporary resident visa or an electronic travel authorization, if applicable.

Entering and Exiting Canada

While foreign nationals are allowed to exit and re-enter Canada within the prescribed time frame (15 or 30 consecutive days) of work under the exemption, the authorized work period begins on the date the exemption is granted and is counted consecutively, regardless of whether the person is actually working in Canada.

IRCC is now specifically stating that any travel outside Canada after the date the exemption was granted will not extend the length of the exemption period. They provide the following example:

The foreign national was granted a 15-day exemption on August 1, 2017. If they travel outside Canada for 2 days within that 15-day period (August 6 to August 7, 2017), they may resume work activities on August 8 under this exemption until August 15, 2017, only.

Applicants from Inside Canada

Applicants already in Canada are not eligible to make an initial application within Canada for this exemption.

Renewals

Applicants can benefit from these short-term exemptions only if the necessary amount of time has elapsed since their last short-term exemption was granted. Consecutive uses are not permitted.

IRCC provides the following example on its website:

If a foreign national entered Canada under the 15-day work permit exemption and is required to work in Canada for another 15 days, they will not be eligible to renew their stay as a temporary worker. Six months must pass before foreign nationals are eligible to use the 15 day exemption again.

Working with Multiple Employers

IRCC on February 6, 2018 also clarified that the short term work permit exemption applies to the foreign national and not to the employer.

As well, if a foreign national enters Canada under the 15-day or 30-day work permit exemption and intends to work for more than one employer during that period, the foreign national is required to demonstrate that the work they intend to perform during that period meets the requirements of the short-term exemptions for all of their employers.

 


Minors in Immigration Detention

On November 6, 2017 Ralph Goodale, Canada’s Public Safety Minister, issued a Ministerial Direction to the Canada Border Services Agency (“CBSA”) titled Minors in Canada’s Immigration Detention System (the “Ministerial Direction”), as part of its National Immigration Detention Framework (the “NIDF”).  The Ministerial Direction notes that:

  • Canada’s immigration detention program is based on the principle that detention shall be used only as a last resort, in limited circumstances and only after appropriate alternatives to detention (“ATDs”) are considered and determined to be unsuitable or unavailable;
  • The well-being of children, family unity and the use of ATDs shall be core tenets underpinning policy direction, in accordance with the expectations and values of Canadians;
  • The best interests of a child shall be a primary consideration to be assessed against other primary and mandatory factors in legislation;
  • That Canada has the objective to stop the detention or housing minors and family separation, except in extremely limited circumstances;
  • That Canada will ensure that the detention or housing of a minor or the separation of a minor from his/her detained parent(s) or guardian(s) is for the shortest time possible; and
  • That Canada will never place minors in segregation or segregate them.

Prior to the NIDF and the Ministerial Direction the number of minors that the CBSA had been holding in detention had been steadily decreasing.

According to internal government statistics, from April 1, 2016 to December 31, 2016 the parents of accompanied minors were detained for the following reasons: 78.95% (90) for unlikely to appear, 10.52% (12) for examination, and 10.52% (12) for identity.

As well, the average length of time that a minor was detained also had fallen dramatically.

Given the current influx of refugees arriving in Canada from the United States, it will be interesting to see if CBSA is able to maintain the trend, even with the introduction of the NDIF.  If it does, then I think it would be reasonable to presume that the NDIF was a success.


The CBSA Search of Electronic Devices

Although it is uncommon for the Canada Border Services Agency to search the electronic devices of people entering Canada, it does happen. In an episode of the Borderlines Podcast, which I co-host with Peter Edelmann and Deanna Okun-Nachoff, we discussed the constitutional legalities of the CBSA searching electronic devices with Marilyn Sanford, a criminal defence attorney.

This post provides a summary of the CBSA’s actual policies on the searching of electronic devices at Canadian ports of entry.  The statutory ability of officers to do so derives from s. 139(1) of Canada’s Immigration and Refugee Protection Act, which provides that an officer may search any person seeking to come into Canada and may search their luggage and personal effects, including the means of transportation that conveyed the person to Canada, if the officer believes that doing so would be relevant to their admissibility.  This can include discovering possible criminal offences, unauthorized work, or a sole intention to reside permanently in Canada without having first obtained permanent resident status.

According to PRG-2015-31, officers are expected to understand and apply the following guidelines:

    • Where the the admissibility of a traveller is in question, officers are justified in performing examinations of digital devices and media to discover documentary evidence pertaining to admissiblity, or a false identity.
    • CBSA officers shall conduct examinations of digital devices and media with as much respect for traveller’s privacy as possible, considering that these examinations are usually more personal in nature than baggage examinations.
    • Prior to examination of digital devices, officers will where possible disable wireless and internet connectivity (including by setting the phone to airplane mode) to limit the ability of the device to connect to remote hosts.
    • CBSA officers shall only examine what is stored in the device.  Officers are not to read emails on digital devices and media unless the information is already downloaded and has been opened (meaning that it has been marked as read).
    • CBSA officers shall notate in their notebooks the indicators that led to the progressive search of the digital device, what areas of the device was searched, and why.
    • With the exception of devices that are biometrically protected, CBSA officers shall not allow a traveller to input a password into a digital device themselves. Rather, officers are to request the password.
    • Passwords are not to be sought to gain access to any type of account (including social, professional, corporate or user accounts). However, should travellers voluntarily provide their usernames and passwords, then CBSA officers will be authorized to view external accounts.
    • Where a person refuses to provide a password to a digital device, then CBSA may seize the digital device.  However, until the courts have settled the issue of whether this is legal, CBSA shall not arrest a person solely because they have not provided a password to their device.

A full copy of PRG-2015-31 can be found here.


Borderlines Podcast Episode 5 – Marilyn Sanford

On the 5th podcast episode of Borderlines, Marilyn Sanford joined Peter Edelmann and Steven Meurrens to discuss whether the Canada Border Services Agency (the “CBSA”) can search people’s electronic devices.

In addition, we discussed the recent stay of proceedings in the Nuttall decision, a well publicized case in which two individuals were charged with attempting to blow up the BC legislature. Marilyn was counsel to Mr. Nuttall, and provided her insights on the case.

Finally, Peter and Steve touched on recent developments in Canadian immigration law, including the Owner Operator Labour Market Impact Assessment recruitment exemption, a puzzling case in which the Federal Court upheld an officer’s determination that people who extend their visitor status in Canada cannot complete short term courses during that extension without first leaving Canada, and the Supreme Court of Canada dismissing leave in the Torres case.


The Caring for Children Class, and the Caring for People with High Medical Needs Class

[UPDATE FEBRUARY 5, 2018]

The Government of Canada has very quietly announced that it is closing the Caregiver programs described below on November 29, 2019.  Applicants who did not start working as caregivers prior to that date will be unable to apply under these programs.

 

[ORIGINAL POST]

On November 28, 2014, the Government of Canada issued Ministerial Instructions completely overhauling Canada’s caregiver immigration programs.

The changes consist of:

  • Suspending the in-take of applications under the existing Live-in Caregiver Program;
  • Establishing the Caring for Children Class; and
  • Establishing the Caring for People with High Medical Needs Class.

The above changes all take effect on November 30, 2014.

Continue reading “The Caring for Children Class, and the Caring for People with High Medical Needs Class”


Enforcement Flag Removal Policy Change

Many people entering Canada find themselves at customs being constantly referred to secondary examination.  There, they are often told by the Canada Border Services Agency (“CBSA“) that their referral to secondary examination was the mandatory result of an enforcement flag being on their file.

Referral to secondary examination is time consuming.  Unnecessary referrals are a burden on both travellers and CBSA.  Because of this, CBSA was traditionally quite facilitative when it came to individuals requesting that an enforcement flag on their file be removed.  As a supervisor from the CBSA explained to me in an e-mail, enforcement flag removal works as follows:

The flag removal process doesn’t delete information, it merely closes the connection between the immigration database and the integrated system on the primary inspection line on that specific client.  The process is not visible to the naked eye – I use this analogy:

You get a lamp for a wedding present from “her” mom. You hate it. It’s a motion sensor lamp and it is hardwired into the wall. You can’t get rid of it, you can’t unplug it, you can’t take the light bulb out but you want the thing to stop lighting up every time you walk by. So, you unscrew the light bulb just enough that it doesn’t make contact. It’s still there, it’s still safe but it won’t ever light up again.

That’s what the flag removal does… we leave everything in place, but alter it slightly so that when the client shows up at the primary line, his name doesn’t light up!

As evidenced from the above e-mail, individuals could traditionally  e-mail the CBSA directly to ask that the enforcement flag be removed.  The CBSA almost always responded favourably within 48 hours.   It was excellent customer service.

While the process is a bit more cumbersome than before, it is still possible to request that an enforcement flag be removed before an individual attempts to enter Canada.

Border service officers are extremely busy.  It is very unlikely that many officers who want to help an individual remove an enforcement flag on their file will be able to take the time to make a written request to their supervisor.  The disadvantage for an officer in making a flag removal request (increased delays and a resulting increased workload for the officer’s co-workers) will almost always outweigh the benefit (that at some point in the future a different officer won’t have to deal with the unnecessary referral).

As an aside, considering that an individual border officer has the ability to deny someone entry to Canada, it is surprising that they don’t have the ability to quickly remove an enforcement flag.