Borderlines Podcast Episode 8 – Lobat Sadrehashemi on Citizenship Revocation for Misrepresentation

On the 8th podcast episode, Lobat Sadrehashemi joins Peter Edelmann, Deanna Okun-Nachoff and I to discuss issues in Canada’s citizenship revocation and refugee determination processes.  The recent controversy around Maryam Monsef guides our discussion.

Lobat Sadrehashemi is an Associate Counsel at Embarkation Law Corporation.  She is also the Vice President of the Canadian Association of Refugee Lawyers (“CARL“).

CARL’s reform proposals for Canada’s inland refugee determination system and other aspects of the immigration system, which we recently submitted to the Ministers, their staff, IRCC, and the Immigration and Refugee Board can be found here.

Lobat’s paper on Refugee Reform and Access to Counsel in British Columbia can be found here.

 

 


Borderlines #15 – Gordon Maynard on New Can Consulting and the Biggest Immigration Fraud in Vancouver History

Gordon Maynard is a Vancouver based lawyer who practices exclusively in Canadian immigration law.  He is a past Chair of the Canadian Bar Association’s Immigration Section.

In this episode we discuss the biggest immigration scam in Vancouver’s history, which is still unfolding. Xun (Sunny) Wang was a ghost consultant who is estimated to have made $10 million by filing fraudulent immigration applications for clients of his two firms, New Can Consulting and Well Long Enterprises.  Mr. Wang, who is currently serving an eight year jail sentence, and his staff, apparently put fake passport stamps in peoples’ passports in order to lie about having spent sufficient time in Canada to qualify for various immigration programs.  The Canada Border Services Agency is now endeavouring through what the Department is calling Project New Can to remove over 1,500 former clients of his for having committed misrepresentation to obtain Canadian permanent residency and/or maintain it.  All of the lawyers involved in this podcast have and are representing some of his clients in these removal proceedings.

Topics

1:39 – Gordon provides an overview of the timeline involved in Sunny Wang’s alleged fraud.

7:50 – What constitutes misrepresentation in Canadian immigration applications?

10:30 – We discuss some of the mechanics of what Sunny Wang is alleged to have done.

12:00 – Many New Can clients are saying that they signed blank forms and did not know that the applications were fake. Is this a defence to misrepresentation in Canadian immigration law?  Plus Steven reads a summary of what a typical Project New Can procedural fairness letter or allegation looks like.

19:30 – What is the process for having a permanent resident or a foreign national removed from Canada for misrepresentation?

23:00 – What sorts of misrepresentations can actually lead to removal from Canada?

28:30 – What sort of flexibility is there amongst enforcement officers once they have found a misrepresentation to still not have someone removed?

34:45 – As a lawyer, if a client comes to you and says “I submitted an immigration application with fake stamps in my passport and I knew they were fake,” what would you recommend? Do they have a chance of staying in Canada?  And other issues representatives need to be aware of.

 


Borderlines Podcast Episode 9 – Garth Barriere & Eric Purtzki on retrospective laws, plus Donald Trump and Canadian immigration

On the 9th podcast episode, Garth Barriere and Eric Purtzki joins Peter Edelmann and Steven Meurrens to discuss the constitutionality of laws that are retroactive or retrospective.  Peter and Steven also discuss the recent election of Donald Trump as the 45th president of the United States.

Garth and Eric are both criminal defence attorneys in Vancouver.  Both have appeared before the Supreme Court of Canada on numerous occasions.

 


A retrospective law is a piece of legislation that operates going forward, but looks to change the consequence for a past action.

A retroactive law changes the legal consequences of what the act was in the past. It changes someone’s legal status as it was in the past.

There is a presumption against both retrospectively and retroactivity in Canada, however, there is no general Charter protection against it.

The Supreme Court of Canada in R. v. K.R.J.can be found here. Garth and Eric both appeared as counsel in this case, which formed the basis for our discussion.  In this case, the Supreme Court affirmed that while criminal laws should generally not operate retrospectively, an exception would be made in the case of sentencing for sexual offenders involving minors.

In reading this case, and listening to the summary of it, it is helpful to keep section 11(i) of the Charter in mind, which states:

11. Any person charged with an offence has the right …
(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment

It is also helpful to understand how s. 1 of the Charter works.  Section 1 of the Charter states that:

  1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

As such, a breach of s.11(i) of the Charter will still be constitutional if the law is demonstrably justified.

The Supreme Court of Canada decision in Canada (Attorney General v. Whaling) .can be found here. Garth and Eric were both counsel in this case, in which the Supreme Court found that the retrospective changing of parole requirements to make them more onerous was a form of punishment, and unconstitutional.

https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/13543/index.do

Another leading Supreme Court of Canada case on retrospective legislation, which Garth briefly mentions, is R. v. Dineleyin which the Supreme Court of Canada stated that where new legislative provisions affect either vested or substantive rights, retrospectivity is undesirable, and accordingly Parliament must have a clear intent that legislation be retrospective.

The Supreme Court of Canada decision in Canada (Citizenship and Immigration) v. Khosa that Peter mentions can be found here. In this case, the Supreme Court ruled that courts should give a measure of deference to administrative tribunals, including the Immigration and Refugee Board.  Garth was lead counsel in this case.

 

http://www.canlii.org/en/ca/scc/doc/2009/2009scc12/2009scc12.html?searchUrlHash=AAAAAQAQImdhcnRoIGJhcnJpZXJlIgAAAAAB&resultIndex=9

Starting at around the 31 minute mark we discuss the retrospective nature of the 2013 amendments to the Immigration and Refugee Protection Act.  Previously, a permanent resident who had been convicted of an offence and got a sentence of 2 years or more could not appeal a deportation to the Immigration Appeal Division.  In 2013, the 2 year sentence rule was changed to 6 months, and applied retrospectively.

Finally, Peter’s factum in Tran v. Canada (Public Safety and Emergency Preparedness), which the Supreme Court of Canada will hear in January, can be found here:

 

 

 

 


Borderlines Podcast Episode 7 – David Eby and Tom Davidoff on Vancouver’s Housing Market

On the 7th podcast episode, Tom Davidoff and David Eby  joins Peter Edelmann and I to discuss Vancouver’s housing market.

Tom Davidoff is an Associate Professor at the University of British Columbia’s Sauder School of Business.  He is frequently cited in the Vancouver media as being an expert on Vancouver’s housing market, and was part of a team of nine academics who created the B.C. Housing Affordability Fund proposal.

David Eby is the Member of the Legislative Assembly for Vancouver-Point Grey, and was previously the Executive Director of the British Columbia Civil Liberties Association.  He is a passionate advocate for making Vancouver a more affordable place to live.

 

The questions that we discussed in the podcast are:

  • What has been going on in the Vancouver housing market? How fast have prices been rising?
  • Is there evidence that foreign investment / foreign funds has been the cause of the increase in Vancouver housing prices?
  • What data is there regarding the amount of foreign home ownership in Vancouver?
  • What is the property transfer tax, and what are the new rules on how it applies to foreign buyers?
  • Is there evidence that high housing prices impacts the rental market? Does it matter if the landlord is a Canadian or a foreigner?
  • Why should high housing prices matter? Why should people think that they should be able to live in a market that they cannot afford?
  • Should we move beyond the paradigm of valuing single detached homes?
  • What role do international students play in the increase in housing prices?
  • Does the fear of being accused of racism prevent government from addressing the issue of high prices?
  • Is real estate such an integral part of the British Columbia economy such that high prices are now “too big to fail?”
  • Should we move beyond the paradigm of valuing home ownership?

Borderlines Podcast Episode 5 – Marilyn Sanford

On the 5th podcast episode, Marilyn Sanford joins Peter Edelmann and I to discuss whether the Canada Border Services Agency can search people’s electronic devices.

In addition, we discussed the recent stay of proceedings in the Nuttall decision, a well publicised 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.


Borderlines Podcast Episode 4 – Jenny Kwan

On the fourth episode of the Borderlines Podcast our guest is Jenny Kwan. Ms. Kwan is the Member of Parliament for Vancouver East and is the New Democratic Party of Canada’s Immigration Critic.  Prior to being elected a Member of Parliament, Ms. Kwan was a Member of the Legislative Assembly (MLA) of British Columbia for the riding of Vancouver-Mount Pleasant, and a senior member of the provincial caucus of the New Democratic Party.

2:30 – 16:13 – We talk about Bill C-6, the Liberal Government of Canada’s reforms to Canada’s Citizenship Act. Ms. Kwan both talked about what she likes and dislikes about Bill C-6.  A specific concern that she has includes the procedural fairness afforded to those facing citizenship revocation due to misrepresentation.  The current process, which is the subject of numerous court challenges, is that an individual’s Canadian citizenship can be revoked by a bureaucrat if the bureaucrat determines that the Canadian citizen obtained their citizenship as a result of fraud. Humanitarian & compassionate concerns are not considered, and the only recourse that a former citizen has once their citizenship is stripped is to seek judicial review in Federal Court.   During this portion of the discussion we also briefly discuss the topic of language testing requirements for grants of citizenship, which Ms. Kwan believes is too stringent.

16:13 – 31:48 – Ms. Kwan explains that one thing that she hopes is urgently changed in Canadian immigration law is the current situation involving the cessation of refugee status. Ms. Kwan has introduced into Parliament Bill C-294, which calls on the government to end the automatic loss of permanent resident status when a refugee’s status as a protected person is revoked.

31:48 – 40:37 – Another topic that Ms. Kwan is passionate about is whether the Canadian government should let American war resisters / dodgers / conscientious objectors remain in Canada. Jenny believes that they should. A specific question that I asked Jenny was whether she is concerned that Canada being too accepting of war resisters in this regard would open the floodgates such that anyone from Russia, South Korea, Taiwan, etc. where the draft exists, could come to Canada and get permanent resident status as a way to avoid serving in their country’s military.

40:37 – 55:23 – As a member of the House of Commons Standing Committee of Citizenship and Immigration, Ms. Kwan shared her thoughts on whether certain vulnerable groups should be given immediate, and some would say preferential, access to refugee resettlement in Canada. Jenny proposed five actions that she believes Canada can immediately take. The first is to work with organisations that deal with the world’s most vulnerable people and give them a pathway to resettlement in Canada. The second is to work with the LGBTQI community to help resettle members of that community in Canada. The third suggestion was to help immediately resettle individuals from northern Iraq using the UNHCR to process these cases. The fourth was to look at reintroducing the source country of origin class completely, and in particular for the LGBTQI community. Finally, the fifth was increase humanitarian aid to vulnerable groups.

55:23 –   1:03:08 – Peter and I discuss about Ouedraogo v. Canada (Public Safety and Emergency Preparedness), 2016 FC 810. In this case the Federal Court determined that an individual can be removed from Canada both during the 90 day restoration period and that they could be removed even after they have applied for restoration. The court’s approach is even stricter than current CBSA policy on the matter, which I have reproduced below.

restoration

1:03:08 – 1:05:51 – Peter briefly mentions the BC Supreme Court decision in R v. Nuttal, 2016 BCSC 1404, and mentions that we plan on having Marilyn Sandford, counsel for John Stuart Nuttall on in a future podcast. For those who do not know, this case involves a stay of proceedings being ordered after the court determined that police had entrapped two individuals into attempting to bomb the BC legislature.

1:04:41 – Finally, we wrap up by briefly talking about Pokemon Go.

 


Borderlines Podcast Episode 3 – Raj Sharma on Marriage Fraud

In the 3rd episode of Borderlines, Raj Sharma joined Peter Edelmann and I to discuss marriage fraud.

Raj Sharma is the managing partner of Stewart Sharma Harsanyi.  He is a well known commentator on immigration law. In addition to his active blog and numerous presentations that he has given at immigration conferences and seminars, he has written numerous op-eds on immigration, diversity and multi-culturalism that have been published in many manjor Canadian newspapers. He has debated Martin Collacott of the Fraser Institute and Centre for Immigration Reform on whether Canada accepts too many immigrants; Deepak Obhrai (MP and Parliamentary Secretary) on additional and stricter language requirements for citizens; David Seymour of the Manning Centre on whether Canada’s new immigration policy is too exclusionary; Imam Syed Soharwardy on honour crimes in Canada; and a CSIS agent on the profiling of Muslims.

2:33 – 44:20 – We discuss marriage fraud, and how the previous government introduced several measures to try and prevent it. These measures included introducing a disjunctive test in which a marriage would not facilitate immigration if the marriage was not genuine or if the marriage had been entered into primarily for the purpose of immigration. It also included the introduction of conditional permanent residency, in which immigrants who immigrate to Canada as a result of a marriage or common-law relationship would lose their permanent resident status if the relationship broke down within 2 years of immigrating. Finally, the previous Conservative Government of Canada also introduced a five year spousal sponsorship bar, in which a permanent resident who immigrated after marrying a Canadian could not sponsor a new spouse or common-law partner for five years after immigrating.

Raj was a fantastic guest to have for this topic, given that he represented a Canadian citizen who sued the Canada Border Services Agency to compel them to complete an investigation into whether that person had been the victim of a marriage fraud. Raj during the podcast provided an overview of this case, Zaghbib v. Canada (Public Safety and Emergency Preparedness), 2016 FCA 182. Peter then raised the difficult question of “where do you draw the line?” If a Canadian can compel CBSA to remove someone from Canada for marriage fraud, can a company compel CBSA to do the same for a competitor where the Canadian company knows that that the competitor has engaged in foreign worker fraud? What about an average citizen trying to compel the Vancouver Police Department for visiting the Amsterdam Café and smoking marijuana?

I know I’m biased, but when listening to this podcast after it was recorded I was struck by how this may have been the best and most comprehensive 40 minute discussion on the topic of marriage fraud in the Canadian immigration landscape that I have heard.

44:20 – 49:30 – Peter discusses the ongoing detention situation in Canada, where immigration detainees are often held in provincial prisons. Minister Goodale recently wrote an article in the Huffington Post in which he set out a number of goals in immigration detention, but at the same time also provided justification for the ongoing detention. Peter also showed us a recent tender that CBSA has put out in which they are seeking feedback on alternatives to detention. After providing a brief overview of why people would be detained in Canada, we discuss what possible alternatives there could be. The word “Kafkaesque” makes its first appearance in the podcast, although I’m sure not it’s last.

49:30 – 55:13 Continuing with the theme of detention, we discuss the Federal Court’s recently certified question in Canada (Public Safety and Emergency Preparedness) v. Lunyamila, 2016 FC 324, in which the Federal Court asked whether it can usurp the powers of the Immigration Division to either order release or continue detention.

51:13 – 56:00 – Finally, we conclude by providing a statistic of how what percentage of people who submitted applications to Immigration, Refugees and Citizenship Canada had representatives.

2014reps

 

 


Borderlines Podcast Episode 2 – Jennifer Bond on Refugee Resettlement and Ensuring that Legislation is Charter Compliant

In the 2nd episode of Borderlines, Jennifer Bond joined Peter Edelmann and I to discuss refugee resettlement and ensuring that legislation is Charter compliant.

Jennifer Bond is a professor at the University of Ottawa’s Faculty of Law, and is also a Special Advisor to Minister of Immigration, Refugees, and Citizenship.  Jennifer sat on the founding national executive of the Canadian Association of Refugee Lawyers and is founder and current co-director of the University of Ottawa’s Refugee Assistance Project, a multi-year, national initiative aimed at mitigating and researching the access to justice implications of Canada’s new refugee legislation. She is also the Faculty Coordinator of the University of Ottawa’s Refugee Hub, supervisor of the Refugee Law Research Team, and a member of the Public Law Group.

00:26 – 21:31- We discuss international refugee resettlement law. Specific topics include whether countries are obligated to resettle refugees, Canada’s commitment to resettle 25,000 Syrian refugees, and the role private sponsorship programs in the global refugee resettlement effort.  Jennifer also explained the security screening that Canada undertakes when it resettles refugees, and how this security process compares to Canada’s other immigration streams.  Finally, we asked Jennifer for her take on what we discussed last week, which is whether in the wake of the BREXIT vote and the United Kingdom leaving the European Union, the aslyum crisis in Europe, the potential rise of protectionism and isolationism in the United States with the election of Donald Trump, and now the recently failed coup in Turkey, Canada can continue to buck global trends and remain a nation that loudly and publicly announces its intentions to continue to welcome a record number of immigrants and refugees.

21:31 – 35:50 – We discuss Jennifer’s 2014 paper titled “Failure to Report: The Manifestly Unconstitutional Nature of the Human Smugglers Act,” as well as the ongoing case involving the whistleblower Edgar Schmidt, who sued the Department of Justice for allegedly failing to report to Parliament whether new laws might be so inconsistent with the Charter of Rights and Freedoms they would trigger constitutional challenges.  Mr. Schmidt’s website can be found here.  The Federal Court recently dismissed Mr. Schmidt’s lawsuit, and the decision can be found here.

 

 

35:50 – 39:47 – Peter and I discuss the Standing Committee on Citizenship and Immigration’s current exploration of
Immigration Measures for the Protection of Vulnerable Groups.  I pose the question of how history will judge us if, in the interests of not being seen to favour one group of refugee claimants over others, that group faces a similar result to the Jewish people during World War 2.

39:47 – 42:50 – Peter Edelmann and I discuss the recent misrepresentation decision in Lamsen v. Canada (Citizenship and Immigration).  There, the Federal Court affirmed that a visa application must be considered in its totality and that applications cannot be compartmentalized, particularly when making a finding of misrepresentation carries such serious consequences.

42:50 – 46:20 – The Government of Canada is currently proposing changes to NEXUS eligibility and what will lead to the cancellation of a NEXUS card. After providing an overview of the changes, we discuss how Canadians may soon be privileged travellers domestically within the United States.

46:20 – 49:30 – We wrap up by discussing the recent Supreme Court of Canada decision in Wilson v. Atomic Energy of Canada Ltd., and what it means for the ongoing standard of review debate.