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.

Blencoe v. British Columbia

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

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.


Excessive Demand on Health and Social Services

People applying for a Canadian permanent resident visa are regarded to undergo medical examinations. Many people with certain conditions are understandably apprehensive about how these examinations will impact their ability to immigrate. In this post, I hope to provide an overview about the issue of “excessive demand on health or social services,” which is probably the medical evaluation component that causes the most misconceptions.
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Ezokola and the Test For Complicity

In 2013, the Supreme Court of Canada in Ezokola v. Canada (Citizenship and Immigration) created a new test for determining complicity in Article 1F(a) exclusion cases.

Article 1F(a) of the 1951 Refugee Convention provides that:

The provisions of this Convention shall not apply to any person with respect to whom there  are serious reasons for considering that:

(a)  He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

The issue that Ezokola addressed is how broad Article 1F(a) is.  It if it interpreted too narrowly, then Canada risks creating safe havens for perpetrators of international crimes.  If it is read too broadly, then the humanitarian aims of the 1951 Refugee Convention would be imperilled.

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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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Ministerial Relief Exemption Requests

Foreign nationals who are found to be inadmissible to Canada on the basis of security (including espionage, subversion, engaging in terrorism, or being a member of a group that engages in terrorism), certain human and international rights violations, or organised crime can still visit or immigrate to Canada despite being inadmissible for such serious reasons if they satisfy the Minister of Public Safety and Emergency Preparedness (the “Minister“) that their entry to Canada is not contrary to Canada’s national interest.  Such applications are referred to as “Ministerial Relief applications.”

In assessing a Ministerial Relief application, Canadian immigration law somewhat confusingly provides that the Minister “may only take into account national security and public safety considerations, but, in his or her analysis, is not limited to considering the danger that the foreign national presents to the public or the security of Canada.”

Ministerial Relief applications, previously done under ss. 34(2), 35(2), and 37(2)(a) of Canada’s Immigration and Refugee Protection Act, and now s. 42.1, have long been problematic. As the Government of Canada noted when it introduced a standardised process on March 10, 2017:

A number of issues have contributed to inefficiencies in terms of processing requests for Ministerial relief. These include the lack of a formalized application process, the inability to close applications as appropriate in the absence of a declaration by the Minister, and voluminous applicant submissions of varying degrees of relevance to the ministerial decision-making process. Currently, there is no standardized application form and applicants may seek Ministerial relief at any time. For instance, applicants may simply indicate that they wish to be considered for Ministerial relief, providing little or no supporting explanation or documentation. This means that resources are allocated to processing applications from individuals who may not be found inadmissible and thereby not require Ministerial relief (e.g. they have been granted permanent resident status). Until recently, approximately 50% of the inventory of applications comprised cases pending a final decision on inadmissibility. This has contributed to a significant backlog of cases, all of which must be personally decided upon by the Minister.

How to Submit a Ministerial Relief Application

As of March 10, 2017 Ministerial Relief applications must be made in writing.  An inadmissible individual can only submit a Ministerial Relief application after their application to travel to Canada is refused / they are issued a removal order, their inadmissibility affirmed and then only when either they have decided to not challenge the decision in court or after they have already lost in court.

The Ministerial Relief application must include:

(a) their place of birth, gender and marital status and the names of any former spouses or common-law partners;

(b) their telephone number and email address, if any;

(c) their former countries of citizenship or former countries of nationality;

(d) their education, including the name and address of all elementary and secondary schools and post-secondary, technical and vocational institutions attended and the start and end dates for the periods during which they attended each school or institution;

(e) their work history, including volunteer work, from the age of 16 years, including start and end dates for each period of work, their job title and job description and the employer’s name and address;

(f) their international travel history from the age of 16 years, including a list of the countries visited, the purpose of the visits, the dates and duration of the visits and any immigration status sought from or granted by any country visited; and

(g) why their application was refused.

Incomplete Ministerial Relief application will be returned.  Interestingly, the Government of Canada when it announced that it would return incomplete applications determined that each returned application saves the taxpayer $25,444.00.

The Canada Border Services Agency assesses requests for Ministerial relief and develops a recommendation for the Minister.

Upon being granted relief by the Minister, the matters which had led to a finding of inadmissibility under the above-listed provisions no longer constitute inadmissibility.

A person who has been granted relief may then make applications for temporary or permanent resident status without the applications being rejected on the basis of the grounds of inadmissibility for which relief was granted.

Processing Times

While the above changes are mostly welcome (there is some controversy in requiring that a permanent residence application be refused before one can apply for Ministerial Relief, especially given how long permanent residence applications can take to process) the fact remains that the biggest issue in Ministerial Relief applications is the processing times.  The biggest obstacle appears to be the requirement that the Minister personally sign off on granting Ministerial Relief.

Previously, the Government of Canada has taken the position that because of the Minister’s many duties and responsibilities, the Minister should not be subject to any timeline whatsoever in rendering determinations in respect of such requests.  In Tameh v. Canada (Public Safety and Emergency Preparedness), however, the Chief Justice of the Federal Court strongly disagreed, and opened his decision by writing that:

Ministers of the Crown are typically very busy people. But they are not so busy that they can take as many years as they see fit to respond to requests made pursuant to validly enacted legislation, by persons seeking determinations that are important to them. At some point, they will have an obligation to provide a response.

He went on to state that the Minister must process Ministerial Relief applications “within a reasonable period of time.” What constitutes a “reasonable amount of time” will depend on the actual matrix of a case.

Even in Tameh, the Federal Court accepted that taking several years to process Ministerial Relief applications could be reasonable.  In light of the fact that people who receive Ministerial Relief essentially need to apply for permanent residency twice, and given that the Government of Canada has now standardized the process, processing times will hopefully come down dramatically.

 


When You’ve Worked for a Government that Violated Human Rights

Are you an individual who has served in the government, the public service, the military, or the judiciary of a government that might have engaged in human rights or international rights obligations? Are you considering traveling to, working in, or immigrating to Canada? If you answer yes to either of these questions, you will definitely want to read on to determine whether your application could be in jeopardy.
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