When an Administrative Delay is an Abuse of Process

The subject of an unreasonable delay often arises 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 Immigration Context

Beltran v. Canada (2011 FC 516) 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. Blencoe.  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 Torre v Canada ( Citizenship and Immigration), 2015 FC 591, the applicant was a permanent resident in Canada, 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.

Upon judicial review, the Federal Court found that the Immigration Division has little discretion to determine whether there was an abuse of process because the Immigration and Refugee Protection Act and jurisprudence provide that the Immigration Division hold an admissibility hearing quickly, and if it finds the person inadmissible, it must make a removal order.

In Hassouna v. Canada (Citizenship and Immigration), 2017 FC 473 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 that a 700% increase in citizenship revocation proceedings caused resulted in a delay not being an abuse of process.

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.

The Right to be Heard

On May 19, 2017 the Federal Court of Canada issued a scathing criticism of how the Department of Employment and Social Development Canada is breaching procedural fairness in how it bans companies from the Temporary Foreign Worker Program.

In Ayr Motors Express Inc. v. Canada (Employment Workforce Development and Labour), Justice Le Blanc noted that the Department had not respected a trucking company’s “basic right to be heard” before it banned them for two years from hiring foreign workers.

Citing the Federal Court decision in Tiedeman v Canada (Human Rights Commission), Justice Le Blanc further found that “[t]o solicit the representations of a party and, subsequently, to fail to consider them, renders hollow the hallowed principle of the right to be heard”.

The breach of procedural fairness arose during an inspection involving whether Ayr Motors Express Inc. had failed to comply with the Temporary Foreign Worker Program.  Canada’s Immigration and Refugee Protection Regulations require that the Minister of Employment, Workforce Development and Labour be the individual who actually bans a company from hiring foreign workers under the Temporary Foreign Worker Program.  However, because that individual is as a federal Cabinet Minister understandably very busy, she instead based her decision on a six page memo that her Department provided her.  This memo contained none of Ayr Motors Express Inc.’s representations, and instead simply contained the Department’s summary conclusions.

Justice Le Blanc found that this was unacceptable, and it will be interesting to see how the Department responds.

The Super Visa

Parents and grandparents of Canadian citizens and permanent residents can apply for two types of Temporary Resident Visas to visit their relatives in Canada.  The first is a standard, multiple-entry visa.  The second is what is known as a Super Visa.

A normal Temporary Resident Visa generally is a multiple entry-visa valid for the duration of an applicant’s passport, or 10 years, whichever is shorter.  Unless the Canada Border Services Agency authorizes indicates, it allows applicants to stay in Canada for up to six months without having to apply to extend their temporary resident status.

A Super Visa is also valid for up to 10 years, or the duration of the applicant’s passport, whichever is shorter.  It allows parents and grandparents to stay in Canada for up to two years without having to renew their status. Parents and grandparents who are from visa-exempt countries can also apply for Super Visas in order to receive Letters of Introduction that will allow them to stay in Canada for up to two years without having to renew their status.  It is important to note that the two year entry only applies to the initial stay.

A parents or grandparent is eligible for a Super Visa if the parent or grandparent has:

  • provided proof of the parent or grandparent relationship to the Canadian citizen or permanent resident;
  • undergone a medical examination and is admissible to Canada on health grounds;
  • provided satisfactory evidence of private medical insurance from a Canadian insurance company, valid for a minimum period of one year from the date of entry which:
    • covers the applicant for health care, hospitalization and repatriation;
    • provides a minimum of $100,000 coverage; and
    • is valid for each entry to Canada and available for review by the examining officer upon request; and
  • provided a written and signed promise of financial support, e.g. a letter of invitation, from the host child or grandchild for the entire duration the parent or grandparent intends to stay in Canada. The letter must be accompanied by evidence of their means of providing such support.

The Super Visa is meant to be a facilitate program, and if an applicant meets the Super Visa eligibility criteria, and is not otherwise inadmissible to Canada, Citizenship and Immigration Canada will normally issue the visa.

Continue reading “The Super Visa”

Misrepresentations and H&C

Several large scale immigration frauds in recent years have resulted in thousands of permanent residents facing removal of Canada for misrepresentation.  Many are filing appeals based on humanitarian & compassionate considerations.

In assessing such appeals, both the Canada Border Services Agency and the Immigration Appeal Division face the task of weighing an individual’s previous misconduct against the compassionate mitigating factors which may exist.

To quote Justice Russel in Yu v. Canada, the decision in Dowers v Canada (Minister of Immigration, Refugees and Citizenship, 2017 FC 593 at paragraphs 2 to 6, stresses the point that concern about the past must be separated from concern about the future:

A situation such as the Applicant’s, where a person comes to Canada and stays without adhering to the immigration laws, but, nevertheless, succeeds to be a positive, productive, and valuable member of society must be given careful attention. Section 25 has no purpose if that person is easily condemned for her or his immigration history. The history must be viewed as a fact which is to be taken into consideration, but within a serious holistic and empathetic exploration of the totality of the evidence, to discover whether good reason exists to be compassionate and humanitarian. The discovery requires full engagement:

Applying compassion requires an empathetic approach. This approach is achieved by a decision-maker stepping into the shoes of an applicant and asking the question: how would I feel if I were her or him? In coming to the answer, the decision-maker’s heart, as well as analytical mind, must be engaged (Tigist Damte v Canada (Citizenship and Immigration), 2011 FC 1212, para. 34).

[Emphasis added]


Supreme Court Clarifies Dangerous Driving Law

The Supreme Court of Canada in 2012 clarified the law regarding what constitutes dangerous driving under the Criminal Code.  The decision, R v. Roy, has implications for people who may be inadmissible to Canada for criminality.  Indeed, in Jolly v. Canada (Citizenship and Immigration), the Federal Court of Canada affirmed that it will be a reviewable error if visa officers do not assess criminal equivalency for dangerous driving based on the mens rea standard articulated in Roy.

Section 249 of the Criminal Code provides that:

249. (1) Every one commits an offence who operates

(a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place;

In R v. Roy, the Supreme Court was noted that (emphasis added):

It is, therefore, critically important to ensure that the fault requirement for dangerous driving has been established.  Failing to do so unduly extends the reach of the criminal law and wrongly brands as criminals those who are not morally blameworthy.  The distinction between a mere departure, which may support civil liability, and the marked departure required for criminal fault is a matter of degree.  The trier of fact must identify how and in what way the departure from the standard goes markedlybeyond mere carelessness.

Accordingly, the actus reus of s. 249 of the Criminal Code is driving in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place.  The focus of the actus reus inquiry is on the risks created by the accused’s manner of driving, not the consequences.

The mens rea for the offence is a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances.  Simple carelessness, to which even the most prudent drivers may occasionally succumb, does not meet the mens rea requirement.

Finally, even where the manner of driving is a marked departure from normal driving, s. 249 requires that the dangerous driving be a result of the marked departure from the norm.

Deferring Removal

People who either face removal or who have received a removal order should contact a lawyer immediately to determine what their options are. The purpose of this post is to provide an overview of the legislative scheme for deferring removal orders. It provides a general framework, and cannot substitute the advice that a lawyer can give when he applies these facts to your situation.
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What is the Citizenship of the Children of Diplomats Born in Canada?

Canadian citizenship law provides that a person is generally a Canadian citizen if they are born in Canada.  Since 1952, however, there has been an exception to those who are born in Canada if neither of the child’s parents are Canadian citizens or permanent residents and if either parent was, at the time of the child’s birth:

  • a diplomatic or consular officer or other representative or employee in Canada of a foreign government;
  • an employee in the service of one of the people listed above; or
  • an officer or employee of a specialized agency of the United Nations or an officer or employee in Canada of any other international organization who benefits from diplomatic privileges and immunities in Canada.

(While the precise wording has changed over time, the above restrictions have remained more or less consistent.)

Diplomatic Immunity is Critical

In Vavilov v. Canada (Citizenship and Immigration Canada), 2017 FCA 132, the Federal Court of Appeal answered the following certified question:

Are the words “other representative or employee of a foreign government in Canada” found in paragraph 3(2)(a) of the Citizenship Act limited to foreign nationals who benefit from diplomatic privileges and immunities?

The Federal Court of Appeal answered in the affirmative. In doing so, it found that the reason why Canadian citizenship law prohibits the children of diplomats from becoming Canadian citizens at birth is because persons who have diplomatic privileges and immunities do not have duties and responsibilities to Canada and are not subject to all Canadian laws.

The Vavilov case, which as of writing is currently before the Supreme Court of Canada, is an interesting one, and specifically deals with the issue of whether children who are born in Canada to parents who are foreign spies are Canadian.  Because such individuals do not benefit from diplomatic immunity, the Federal Court of Appeal found that they are citizens.