Examinations

Anyone who presents themselves at a Canadian port of entry is making an application to enter Canada.  As such, that person is subject to an examination by an officer.  The purpose of such an examination is to determine whether or not the person can enter Canada as a visitor, student or foreign worker, and also to determine whether the individual is inadmissible to Canada.

Canadian immigration legislation requires that a person who is under examination must answer truthfully all questions put to them and also produce all relevant documents and information that an officer requires.

An officer during an examination can also compel a person to appear at a later date for further questioning.

When an Examination Ends

The examination of a person who seeks to enter Canada ends only when:

  • a determination is made that the person has a right to enter Canada, or is authorized to enter Canada as a temporary resident or permanent resident, the person is authorized to leave the port of entry at which the examination takes place and the person actually leaves the port of entry;
  • if the person is an in-transit passenger, the person departs from Canada;
  • the person is authorized to withdraw their application to enter Canada and an officer verifies their departure from Canada; or
  • an officer determines that someone is inadmissible to Canada and the person leaves the port of entry.

Refugee Claimants

There are special rules for when examination ends for refugee claimants.  In order to understand these rules, it is important to understand the process that a refugee claimant goes through when they file their initial claim.

When an individual makes a refugee claim when they are entering Canada, the Canada Border Services Agency will examine them.  The CBSA will determine whether the person is admissible to Canada and whether the refugee claim can be referred to the Refugee Protection Division.  A similar process occurs for inside-Canada refugee claimants.

A claim will be ineligible to be referred to the Refugee Protection Division for a refugee hearing if any of the following applies:

  • the person has already received protection as a refugee;
  • the Refugee Protection Division has already rejected claim by the person;
  • a prior claim by the person was determined to be ineligible to be referred to the Refugee Protection Division or if a previous claim had been withdrawn or abandoned;
  • the claimant has been recognized as a refugee by a country other than Canada and the claimant can be returned to that country;
  • the Safe Third Country Agreement with the United States applies; or
  • or the claimant has been determined to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality.

When a refugee makes a refugee claim to a border officer, a decision on whether the claimant meets specific eligibility criteria must be made within three working days. If a determination of eligibility is not made within three working days of the claim being made to an officer, the claim is deemed referred to the Refugee Protection Division for a refugee protection hearing. However, the officer can suspend and terminate the refugee protection hearing before the Refugee Protection Division where information comes to an officer’s attention that a claim is ineligible to be referred after the claim has been referred but before a decision has been rendered on the claim.

When an Examination Ends for Refugee Claimants

As of March 27, 2018 Canadian immigration legislation provides that an officer’s examination of an individual who is making a refugee claim ends when the later of the following occurs:

  • an officer determines that their claim is ineligible to proceed to the Refugee Protection Division or the Refugee Protection Division accepts or rejects their claim;
  • a decision in respect of the person is made that they are inadmissible to Canada and, in the case of a claim made at a port of entry, the person leaves the port of entry.

Prior to March 27, 2018 Canadian immigration legislation was silent as to when the examination of a refugee claimant ended. As a result of these amendments, it is now clear that an officer can continue to examine a refugee claimant well after they file their claim and leave the port of entry.

During the period of examination, CBSA officers will be able to question refugee claimants and require the claimant to produce all relevant evidence and documents that the officer reasonably requires.  This includes documents that validate a person’s identity; criminal history; or involvement in organized crime, groups that pose a security risk, or government regimes involved in crimes against humanity.


Borderlines Episode 18 – An Introduction to Canadian Extradition Law, with Amanda Lord

Amanda Lord is a lawyer in the Criminal Law and International Assistance group at the Department of Justice of Canada. 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 we discuss the Extradition and the State of Law.

2:30 Amanda Lord clarifies the distinction between extradition and immigration deporting proceedings. It is a different process with a different set of principles that apply, so it is important that people understand what extradition entails.

6:30 She explains the conditions for which a country will extradite an individual, the international treaties that must have been ratified by the Parties as well as the concept of double criminality.

8:50 Amanda explains the second criteria for extradition which is that it be an indictable offence with a minimum prison sentence of two years.

13:00 We ask about the process of extradition from foreign countries to Canada. Amanda explains that her department is not responsible for these, and she describes the procedures to be followed in such scenarios.

14:45 Amanda explains the extradition treaties to which Canada abides to and the differences between them.

18:45 An overview of the committal process and Charter protections.

25:45 The question of where an individual can be prosecuted is one that is commonly misunderstood. Amanda explains that certain offences such as child pornography or terrorism are to be prosecuted in Canada even if the offence took place in a foreign country.

36:13 An overview of how to challenge the prosecutor’s evidence.

43:00 Amanda provides examples of cases that resolve by way of a voluntary agreement at the Committal stage.

49:20 Amanda and Peter discuss the surrender stage.  Will a person be surrendered? If so, will there be conditions?

56:00 When should assurances be given? Would Canada extradite to countries that torture?

 

 

 


Danger Opinions

Section 115 of Canada’s Immigration and Refugee Protection Act provides that Canada shall not deport a protected person or a refugee to a country where they would be at risk of persecution of reasons of race, religion, nationality, membership in a particular social group or political opinion or at risk of torture or cruel and unusual treatment or punishment.

There are exceptions, however, for people who are:

    • inadmissible to Canada for serious criminality and the government believes that the person is a danger to the public in Canada; or
    • inadmissible to Canada on grounds of security, violating human or international rights or organized criminality and the government believes that the person should not be allowed to remain in Canada on the basis of the nature and severity of the acts committed or of danger to the security of Canada.

Determining Whether to Issue a Danger Opinion

In considering whether to issue a Danger Opinion for criminality, officers will go beyond looking at just the conviction and the sentence, and will also analyze a person’s past and current offences and activities to determine whether a person is a danger to the public.

The following are some of the factors that are considered:

    • criminal history and established patterns of violent criminal behaviour or threats of violent behaviour that suggest present and future danger to the public, and evidence to support the person’s pattern of behaviour;
    • convictions for serious offences involving but not limited to violence, weapons, drug trafficking, human smuggling and trafficking, sexual offences and economic crimes;
    • documents illustrating an escalation of violence or of gravity in the convictions;
    • convictions for actions by the person that caused or might reasonably be expected to have caused death, serious physical or psychological harm or significant property damage;
    • evidence to substantiate the link between the criminal conviction, the likelihood that the person will re-offend and a pattern of increasingly serious criminal activity;
    • police, correctional services or other credible source information indicating that the person continues to pose a danger to the public;
    • the circumstances of the offence(s) in order to provide insight into the level of risk the person may present to the public
    • evidence of rehabilitation on the part of the individual (education or training certificates, psychological reports, reports from the parole officer, evidence of employment, etc.);
    • multiple convictions, including serious offences, that could form the basis for a danger opinion.  It should be noted that a single conviction may sustain a finding of danger to the public if it is clearly demonstrated that the person poses a present or future risk of danger to the public, as evidenced by the nature and circumstances of the offence.

For Danger Opinions involving national security, officers will examine the seriousness and nature of the person’s actions or the actions of the organization of which the person was a member.  They will also consider whether there are reasonable grounds to believe the individual will continue to engage in nefarious activities in the future.  Some of the relevant factors include the:

    • acts committed by the individual or the group, if applicable;
    • activities undertaken by the person in the furtherance of the group’s objectives;
    • level of involvement of the person in the acts committed by the organization; and
    • level of threat either direct or indirect that the person presents to the security of Canada.

Reconsideration Requests

If a Danger Opinion is refused the Canada Border Services Agency will only consider a reconsideration request if new evidence is submitted that meets all of the following criteria:

  • Reliability – the evidence must be reliable, considering its source and the circumstances in which it came into existence.
  • Relevance – the evidence must be relevant to the decision type, in the sense that it is capable of proving or disproving a fact that is relevant to the proceeding.
  • Material – the evidence must be material, in the sense that the decision maker may have come to a different conclusion if it had been known.
  • Newness: The evidence must be capable of proving the current state of affairs in the country of removal, proving a fact that was unknown at the time of the original decision, or contradicting a finding of fact made by the original decision maker?

Reconsideration requests can also occur where it was discovered that there was a breach of procedural fairness.

Sample Documents

The following is a sample letter that the Canada Border Services Agency will send to an individual to ask them to provide submissions as to why a Danger Opinion should not be issued.

 

 

The following is an example of the Canada Border Services Agency’s template for determining whether to issue a Danger Opinion against an individual.


Law Cans Episode 2 – Google Inc. v. Equustek Solutions Inc. (Global Injunctions) with Daniel Cowper

Google Inc. v. Equustek Solutions Inc. is a 2017 Supreme Court of Canada decision in which the Supreme Court had to determine whether a British Columbia company could seek a worldwide injunction to to enjoin Google from displaying any part of another company’s websites on any of Google’s search results worldwide.

Daniel Cowper is an Associate at Robert Fleming Lawyers, the law firm which represented Equutsek Solutions Inc. He can be found at @DanielCowper online.

0:56 – An overview of the facts of the case. Equustek, a small technology company in British Columbia launched an action against Datalink, a former distributor who allegedly copied and sold their product.  Datalink left British Columbia and continued to carry on its business from an unknown location. Equustek sought a worldwide interlocutory injunction to enjoin Google from displaying any part of Datalink’s websites on any of its search results worldwide.

6:30 – An overview of the test for an interlocutory injunction. There needs to be (1) a serious issue to be tried, (2) irreparable harm, and (3) the balance of convenience must favour the party seeking the injunction.

7:40 – Can someone seek an injunction against a non-party?

9:40 – Can a British Columbia court issue a world wide injunction against a company? In this case, it is appropriate for a British Columbia court to order Google to de-index a website from its search engines globally rather than just in British Columbia or Canada?

14:40 – Would requiring that Google de-index websites breach Google’s freedom of expression?

16:45 – Is there a risk of inconsistent judgements where courts start making global declarations as to what a company should do which render it impossible for the company to do both?

24:00 – An overview of the dissent. Should an injunction be granted if it will be difficult to enforce?

36:20 – Dan talks about how he balances being a poet and being a lawyer.

44:30 – What advice does Dan have for people who feel guilty whenever they are doing non-law activities?

Daniel’s Tumblr page can be found here.  You can purchase his book of poems, The Gods of Doors, here.



Authorizations to Return to Canada

Section 52(1) of Canada’s Immigration and Refugee Protection Act provides that a person who has been removed from Canada cannot return to Canada unless the person first receives specific authorization from immigration authorities.  This authorization is known as “authorization to return to Canada” (an “ARC“).  Whether an ARC is needed will depend on what type of removal order the person received.

Types of Removal Orders

There are three types of removal orders in Canada.  These are the “Departure Order,” the “Exclusion Order,” and the “Deportation Order”.

A Departure Order requires that a person leave Canada within 30 days after the order becomes enforceable.  Failure to do so causes the Departure Order to become a Deportation Order.

An Exclusion Order provides that the removed person cannot return to Canada for one year unless the person obtains ARC. For Exclusion Orders resulting from misrepresentation the bar is five years.

A Deportation Order results in a person being permanently barred from returning to Canada. Such a person may not return unless he/she receives ARC.

Authorizations to Return to Canada

An ARC is not routinely granted. Individuals applying for an ARC must demonstrate that there are compelling reasons to consider an ARC when weighed against the circumstances that necessitated the issuance of the removal order. Applicants must also show that they post minimal risk to Canadians and to Canadian society.

The factors that an immigration officer should consider include:

  • The severity of the immigration violation that led to the removal.
  • The applicant’s history of cooperation with Immigration, Refugees and Citizenship Canada (“IRCC“).  Pursuant to the Federal Court decision in Singh v. Canada (Immigration, Refugees and Citizenship), the filing of multiple applications to remain in Canada, such as humanitarian & compassionate requests as well as pre-removal risk assessments, should not be seen as a negative in terms of a history of co-operation with IRCC, nor should it be seen as having imposed an unreasonable cost of Canada.
  • Whether there any previous immigration warrants.
  • Whether the applicant complied with the terms and conditions of the document issued by IRCC.
  • Whether the applicant paid for the removal costs.
  • Whether compelling or exceptional circumstances exist.
  • Whether there alternative options available to the applicant that would not necessitate returning to Canada.
  • Whether there are factors that make the applicant’s presence in Canada compelling (e.g., family ties, job qualifications, economic contribution, temporary attendance at an event).
  • Whether there are children directly implicated in the application whose best interests should be considered.
  • Whether the applicant supports him or herself financially.
  • How long the applicant intends to remain in Canada.
  • Whether there are benefits that Canada may derive.

 


Arguing Incompetence of Counsel in an Appeal

Many lawyers when they meet with clients often find themselves reviewing rejected applications and/or hearings where it is obvious that an individual’s previous representative was incompetent.  The examples of incompetence range from missed deadlines to not understanding the law.  Some specific scenarios that clients have told me about include:

  • former counsel being told by an Immigration Appeal Division member to “sit down” because they were incompetent;
  • an immigration consultant not knowing the difference between a “conviction” and a “dismissal”;
  • an immigration consultant that the “Prevailing Wage = the wage paid to Canadians at the employer’s company”; and
  • a lawyer filing late because “deadlines are policy, not statute.”

The previous representative’s incompetence may serve as a ground for relief in a judicial review.  However, cases based on incompetence and/or negligence of previous counsel are exceptionally difficult cases.  The Federal Court’s March 7, 2014, Procedural Protocol on arguing incompetence of counsel only make these cases more challenging.   

The Law on Incompetence of Counsel

As the Supreme Court of Canada stated in R v. GDB for incompetence/negligence of previous counsel/representative to count as a ground for judicial review, it must be established that (1) previous counsel’s acts or omissions constituted incompetence and (2) that a miscarriage of justice resulted from the incompetence.

The Federal Court has closely followed the above two requirements when determining whether an alleged incompetence is a ground for review.  In the frequently cited case of Memari v Canada (Minister of Citizenship and Immigration), the Court stated that:

…the performance component must be exceptional and the miscarriage of justice component must be manifested in procedural unfairness, the reliability of the trial result having been compromised, or another readily apparent form.

In Galyas v. Canada (Citizenship and Immigration), Justice Russell stated that it is generally recognized that if an applicant wishes to establish a breach of fairness on this ground, he or she must:

a. Provide corroboration by giving notice to former counsel and providing them with an opportunity to respond;

b. Establish that former counsel’s act or omission constituted incompetence without the benefit and wisdom of hindsight; and

c. Establish that the outcome would have been different but for the incompetence.

In the often cited case of Shirwa v. Canada (Minister of Employment and Immigration), [1994] 2 FC 51, the Federal Court explained that there must be sufficient evidence to establish the “exact dimensions of the problem.”  Where the incompetence or negligence of an applicant’s representative is sufficiently specific and clearly supported by the evidence, such negligence or incompetence is inherently prejudicial to an applicant.  For example, in Kim v. Canada, 2012 FC 687, the Federal Court held that where an officer specifically refers to the lack of evidence, and where the submissions by a consultant are limited, then the failure to submit evidence causes a prejudice to the Applicants amounting to a miscarriage of justice.

Over time, as it began to become apparent that many allegations of previous counsel’s incompetence/negligence may have been factually inaccurate the Federal Court began to develop jurisprudence that current counsel could only argue incompetence/negligence of previous counsel/representative if there was evidence that either a complaint had been filed with the previous counsel’s/representative’s licensing body, or that the current counsel notified the previous counsel/representative of an intention to make an incompetence argument.  The March 7, 2014, Procedural Protocol affirms this jurisprudence, and makes it mandatory.

March 7, 2014 Procedural Protocol

The March 7, 2014, Procedural Protocol describes the procedure that counsel must follow where an applicant alleges professional incompetence, negligence, or other conduct against an applicant’s former legal counsel, or other authorized representative, which includes consultants, within the context of an application for leave and judicial review.

To paraphrase the Procedural Protocol (which I have embedded below), the procedure is:

  1. Prior to pleading incompetence, negligence or other conduct by the former counsel/representative as a grounds for relief, current counsel must satisfy him/herself, by means of personal investigations or inquiries, that there is some factual foundation for this allegation. In addition, current counsel must notify the former counsel/representative in writing with sufficient details of the allegations and advise that the matter will be pled in an application described above. The written notice must advise the former counsel/representative that they have seven days from receipt of the notice to respond, and include a copy of the Procedural Protocol.  In cases where privilege may be applicable, current counsel must provide the former counsel/representative with a signed authorization from the applicant releasing any privilege attached to the former representation.
  2. Current counsel should, unless there is urgency, wait for a written response from the former counsel/representative before filing and serving the application record. If the former counsel/representative intends to respond he or she must do so, in writing to current counsel, within seven days of receipt of the notice from current counsel.
  3. If after reviewing the response of the former counsel/representative, current counsel believes that there may be merit to the allegations, current counsel may file the application or appeal record. Any perfected application which raises allegations against the former counsel/representative must be served on the former counsel/representative and proof of service be provided to the Court.
  4.  Where  it becomes apparent that current counsel’s pursuit of this investigation may delay the perfection of the application record or appeal record beyond the timelines provided for by the Rules, then current counsel may apply by motion for an extension of time to perfect the record.
  5. If the former counsel or authorized representative wishes to respond to the allegations made in the record, he or she may do so in writing by sending a written response to current counsel and to counsel for the government within ten days of service of the application or appeal record or such further time as the Federal Court may direct.
  6. Current counsel who wishes to respond to the communication received from the former counsel/representative must file a motion for an extension of time and for leave to file further written submissions with respect to the new material received.
  7. If no response from the former counse /representative is received within ten days of service, and no extension of time has been granted, current counsel must advise the Court and the lawyers for the government that no further information from the former counsel/representative is being submitted and the Court shall base its decision without any further notification to the former counsel/representative.

While the Procedural Protocol adds several new mandatory steps to Applications for Leave to Commence Judicial Review involving allegations of incompetence/negligence, it also removes uncertainty involving such applications.  As well, if the Procedural Protocol results in the Federal Court removing the previously developing requirement that current counsel file a complaint with the previous counsel’s/representative’s licensing body, then there may actually be less steps, and time consumed, in these applications.


When an Administrative Delay is an Abuse of Process

The subject unreasonable delays often arise in the immigration context.  In one case that I was previously involved with, an individual was in Canada for 11-years before the Canada Border Services Agency expressed concerns that he might be inadmissible to Canada for previous involvement in a group accused of terrorism.  In another case, an individual who had been in and out of Canada numerous times was suddenly denied entry to Canada because of a criminal conviction that occurred eight years ago.  In both cases, the client asked whether the delay amounted to an abuse of process, and if so, what the remedy was.

As the Federal Court of Appeal noted in Mahjoub v. Canada (Citizenship and Immigration), 2017 FCA 157, the Federal Court of Canada has the jurisdiction to issue a permanent stay of proceedings, and less drastic measures, as a result of an abuse of process.

Blencoe v. British Columbia

The leading Supreme Court of Canada decision on this issue is Blencoe v. British Columbia, 2000 SCC 44 .

In Blencoe, three women filed complaints of sexual harassment to the British Columbia Human Rights Council.  Due to delays the tribunal hearings were not resolved for 30 months after the first filing.  The accused challenged that the 30 month delay was an abuse of process, an argument which the Supreme Court of Canada ultimately rejected, and also found that the Charter was not engaged.  Importantly, the Supreme Court found that a state caused delay, without more, does not warrant a stay as an abuse of process at common law, and that there must be significant prejudice to the individual as a result of the delay.

The following principles emerged from Blencoe:

  • The administrative process must be conducted in a manner entirely consistent with the principles of natural justice and procedural fairness.
  • Unreasonable delay is a possible basis on which to raise questions of natural justice, procedural fairness, abuse of process and abuse of discretion.
  • Delay, without more, will not warrant a stay of proceedings as an abuse of process.
  • Administrative delay may impugn the validity of the proceedings where it impairs a party’s ability to answer the complaint against him or her – where memories have faded, essential witnesses are unavailable, or evidence has been lost.
  • Where the fairness of the hearing has not been compromised, delay may nevertheless amount to an abuse of process, but few lengthy delays will meet this threshold.
  • The court must be satisfied that, “the damage to the public interest in the fairness of the administrative process should the proceeding go ahead would exceed the harm to the public interest in the enforcement of the legislation if the proceedings were halted.
  • If the delay has directly caused significant psychological harm to a person, or attached a stigma to a person’s reputation, such that the [administrative] system would be brought into disrepute, such prejudice may be sufficient to constitute an abuse of process.
  • Determination of whether the delay is unreasonable is, in part, a relative exercise in which one compares the length of delay in the case at bar with the length of time normally taken for processing in the same jurisdiction and in other jurisdictions in Canada.

In R. v. Babos, 2014 SCC 16the Supreme Court of Canada articulated a three-part test for determining when an abuse of process should result in a stay of proceedings.  The Supreme Court stated:

(1) There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome” (Regan, at para. 54);

(2) There must be no alternative remedy capable of redressing the prejudice; and

(3) Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits” (ibid., at para. 57).

Unreasonable Delays in the Immigration Context

Beltran v. Canada (Citizenship and Immigration) provides an example of the application of Blencoe in the immigration context.  There, the Canadian Security Intelligence Services determined that an individual was not a threat to Canada’s national interest.  Fourteen years later, without any explanation, and without any explanation, a new security officer expressed concerns, causing further delays in inadmissibility proceedings being commenced.  The court also found that a new investigation caused undue prejudice to Mr. Beltran.  The Court was also critical of the government’s decision not to reveal certain information that it had kept confidential for twenty years, only to use it later.

In Hassouna v. Canada (Citizenship and Immigration) the Federal Court determined that when applying Blencoe to citizenship revocation courts should consider (1) the time taken compared to inherent time requirements, (2) the causes of the delay beyond the inherent time requirements of a matter, and (3) the impact of the delay, including prejudice and other harms.  There, the strain on resources caused by a 700% increase in citizenship revocation proceedings resulted in a delay not being an abuse of process.

Unreasonable Delay at the Immigration Division

Torre v Canada ( Citizenship and Immigration) is the leading case on bringing unreasonable delay claims at the Immigration and Refugee Board.  There, a permanent resident in Canada was  arrested for drug trafficking in 1996. Seventeen years later, in 2013, two inadmissibility reports were prepared and referred to the Immigration Division for an admissibility hearing, which could lead to his removal. The Immigration Division refused to hear the applicant’s motion for a stay of proceedings for unreasonable delay, holding that it lacked jurisdiction to do so because it could only consider the period between the preparation of the inadmissibility report and the Immigration Division hearing.  Upon judicial review, the Federal Court affirmed that the Immigration Division has little discretion to determine whether there was an abuse of process beyond the proceedings immediately before it.

This principle has been upheld in numerous cases.  In Kazzi v Canada (Citizenship and Immigration), Justice Gascon wrote:

I note that it is not the Immigration Division’s role to determine if the process leading to the inadmissibility report was procedurally unfair, as the only question for the ID is whether the person is inadmissible, and the ID has “no other option than to make a removal order against the foreign national or the permanent resident i[f] he or she is inadmissible” […]

In Sharma v Canada (Public Safety and Emergency Preparedness), the Federal Court of Appeal stated that:

Considering that, once referred, the options of the Immigration Division appear to be very limited since it “shall make” a removal order if satisfied that the foreign national or the permanent resident is inadmissible, it would appear that the only discretion (albeit very limited) to prevent a foreign national or permanent resident from being removed rests with the immigration officer and the Minister or his delegate [during the preparation and/or referral of the s. 44 report] [emphasis added].

S. 11(b) of the Charter

Section 11 of the Canadian Charter of Rights and Freedoms provides that any person charged with an offence has the right to be tried within a reasonable time. The Federal Court has ruled, however, that this does not apply to immigration proceedings, and in Montoya v. Canada even ruled that it does not apply to citizenship revocation.