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.

 


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.


Espionage and Immigrating to Canada

Section 34(1) of Canada’s Immigration and Refugee Protection Act provides, amongst other things, that a foreign national or Canadian permanent resident is inadmissible to Canada for engaging in an act of espionage that is against Canada or that is contrary to Canada’s interests, or being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in espionage against Canada or that is contrary to Canada’s interests.  It is one of the most serious inadmissibilities in Canadian immigration law.

Guidelines

Immigration, Refugees and Citizenship Canada’s (“IRCC”) Enforcement Manual 2 – Inadmissibilities contains the following definitions and guidance to officers regarding how immigration officials are to determine whether someone is inadmisisble to Canada for espionage.

Espionage is defined as a method of information gathering by spying; that is, the gathering of information in a surreptitious manner, secretly seeking out information usually from a hostile country to benefit one’s own country.

Paragraph A34(1)(a) contains two possible allegations that could render a permanent resident or foreign national inadmissible to Canada for acts of espionage:

1. if the act of espionage is against Canada, or

2. if the act of espionage is contrary to Canada’s interests.

Espionage “against Canada” means espionage activities conducted by a foreign state or organization in Canada and/or abroad against any Canadian public or private sector entity on behalf of a foreign government. It may also include activities of a foreign nonstate organization against the Government of Canada, but does not include acts of industrial spying between private entities where no government is involved.

The following is a non-exhaustive list of activities that may constitute espionage that is “contrary to Canada’s interests”:

 Espionage activity committed inside or outside Canada that would have a negative impact on the safety, security or prosperity of Canada. Prosperity of Canada includes but is not limited to the following factors: financial, economic, social, and cultural.

 The espionage activity does not need to be against the state. It could also be against Canadian commercial or other private interests.

 The use of Canadian territory to carry out espionage activities may be contrary to Canada’s national security and public safety and therefore contrary to Canada’s interests.

 Espionage activity directed against Canada’s allies as it may also be contrary to Canada’s interests.

Note: These guidelines are intented to be dynamic as the concept of what is contrary to Canada’s interest may evolve or change over time.

Spying on Campus Organizations, Churches, Schools, etc. 

Qu v. Canada (Minister of Citizenship and Immigration) is the leading Federal Court of Appeal decision regarding what constitutes espionage under Canadian immigration legislation.

Mr. Qu was a citizen of the People’s Republic of China studying at Concordia University in Montreal.  He was active in the Chinese Students and Scholars Association, a campus group, and regularly reported on that group’s activities to officials at the Chinese Embassy in Ottawa.  The Federal Court of Appeal had to determine whether spying on a campus organization, as opposed to a formal institution of democratic government or process, constituted espionage under Canadian immigration legislation.

The Federal Court of Appeal determined that it did, and that the definition of espionage should be interpreted broadly, and that the ability of individuals to freely belong to associations was integral to the democratic process in Canada. The Court went on to state that:

In Canada, a democratic institution is not limited to a political institution, it includes organized groups who seek through democratic means to influence government policies and decisions.

Canada is a pluralistic society with a variety of autonomous organizations independent of the government and to one and other.

As a free and democratic society, Canada values and protects democratic non-governmental institutions which enhance the participation of individuals and groups in society.

The Federal Court of Appeal accordingly went on to note that an individual could be inadmissible to Canada for espionage if they engaged in spying against an organization that was engaged in lawful activities in Canada of a political, religious, social or economic nature, and as such that this was not limited to trade unions, professional associations and political parties.

Intelligence Gathering vs. Espionage

In Peer v. Canada (Citizenship and Immigration), the Federal Court had to answer the following certified question:

Is a person inadmissible to Canada for “engaging in an act of espionage… against a democratic government, institution or process” within the meaning of subsection section 34(1)(a) of the Immigration and Refugee Protection Act, if the person’s activities consist of intelligence gathering activities that are legal in the country where they take place, do not violate international law and where there is no evidence of hostile intent against the persons who are being observed?

Mr. Peer was a member of Pakistan’s Corps of Military Intelligence and its Inter-Services Intelligence Directorate.  They would monitor individuals, including those from democratic countries, when they were in Pakistan.  Mr. Peer argued that his gathering of intelligence on the activities of foreign nationals was simply intelligence gathering and as it was on domestic soil did not constitute espionage against Canada.

Both the Federal Court and the Federal Court of Appeal disagreed. While the Federal Court of Appeal did not provide any reasoning, Justice Zinn at the Federal Court level wrote:

I have no doubt that many centuries ago one could not easily engage in espionage unless one travelled to a foreign land to gather the relevant information because there was no other way the information could be obtained.  That is quite simply not the case now, if it ever was.  If I were to accept the submission of the applicant that one cannot engage in espionage while remaining in one’s own country, I would have to accept that intelligence agents who monitor telephone and internet communications from the safety of their country are engaged only in “intelligence gathering” and not in espionage, even when the information they gather relates to sensitive state secrets.

The applicant might suggest that those agents are engaged in an illegal activity and thus fall outside his proposed definition of espionage.  However, while the interception of these communications may be an offence in the country from whence the communications originate, I have no doubt that the actions of these interceptors will be perfectly legal and, in fact, are sanctioned in their own country.

….

What matters in this case is the applicant’s surreptitious gathering of information, or spying, on foreign nationals in Pakistan.  The applicant’s motive or his location when doing this spying is entirely irrelevant in determining that his activities on behalf of Pakistan intelligence constituted “espionage.”


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.

Continue reading “Section 7 of the Charter and Canadian Immigration Law”


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.


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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