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.

When an Applicant’s and a Visa Officer’s Account Differs

It is not uncommon for applicants to have a differing account of what transpired during a visa interview or a port of entry matter from what an immigration officer says occurred.  As such, it is very important that applicants take detailed notes of every interaction that they have with government officials.

The Federal Court recently dealt with the issue of inconsistencies in Gedara v. Canada (Citizenship and Immigration), 2016 FC 209.  The Federal Court stated (emphasis added, and citations removed for ease of reading):

The affidavits filed by the Applicant and by the Interviewing Officer present opposing accounts of the tone of the interview and whether concerns were specifically communicated. I find the Applicant’s affidavit more persuasive and assign it more weight for the following reasons.

I agree with the reasoning in Rukmangathan, above, at paras 30, 31, citing Parveen v Canada (Minister of Citizenship and Immigration), that “…[v]isa officers deal with many applications, one can expect that they will not have as precise a memory of the event as does the applicant” The interview took place on March 11, 2015, yet the Officer’s affidavit was sworn in December 4, 2015 – approximately nine months later. The extended passage of time and the number of interviews this Officer would have conducted in the interim calls into question the reliability of her attested statements made months later.

As well, the Officer’s affidavit essentially reiterates the GCMS notes, adding very little to their substance.

The takeway from this decision is clear, and it is the importance of taking notes at the same time (or as shortly thereafter) as the interaction with the government official.

The Federal Court issued a similar statement in Rukmangathan v. Canada (Minister of Citizenship and Immigration), 2004 FC 284, when it stated at paragraph 31 that (emphasis added):

Here, the memory of the visa officer has been placed in doubt, given that she has attested to writing the notes at the time of the interview, when clearly she wrote them close to a month past that time. The events of the interview cannot be said to have occurred precisely as the officer has attested to them. Further, her account of the interview is vulnerable due to the fact that she failed to record her impressions of it during the interview, or closely thereafter.

Finally, in Canada (Citizenship and Immigration) v. Tian, 2018 FC 65, Justice Barnes strongly expressed his displeasure with the Canada Border Services Agency (the “CBSA“) when it was revealed that it was (apparently) the routine practice of an officer at the Vancouver International Airport to not take notes on certain removal matters.  That case involved Citizenship and Immigration Canada seeking judicial review of an Immigration and Refugee Board decision (the “IRB”) where an IRB member determined that because of the lack of notes it was going to favour the immigrant’s contention that the CBSA was completely incorrect as to whether he had even been interviewed by a CBSA officer as the officer claimed.

Justice Barnes stated that:

While is true that the Board did not refer to the evidence of Officer [for privacy reasons I have removed the officer’s name, and will going forward replace it with ABC] usual practices in its concluding analysis, it is implicit that this evidence was found to be insufficient. This was not an unreasonable conclusion where, by his own admission, Officer ABC failed to follow the required procedure. Officer ABC admitted that he did not take notes of his interview with Mr. Tian despite being aware that important rights of appeal were at stake and that the subsection 44(1) Highlights Report was a document of some consequence (see p 98 and p 110 of the CTR). Indeed, his usual practice was not to take notes in such cases (see p 100 of the CTR). He also admitted that he failed to follow the required protocol for completing the part of the subsection 44(1) Highlights Report where reasons and a signature are required (see p 108 of the CTR).

In the face of these breaches of protocol, it should hardly surprise the Minister that the Board was not willing to accept that, in all other respects, Officer ABC must have followed his usual procedure….

It was not unreasonable for the Board to conclude on this record that the conduct of a proper subsection 44(1) review had not been established. Indeed, any other outcome would have been surprising. A finding of inadmissibility is profoundly significant to a permanent resident like Mr. Tian. The Minister Delegate’s performance of the statutory duties required by subsection 44(1) is not to be done in a perfunctory way. Without exception, it requires careful consideration and documentation of the permanent resident’s explanations, most notably those bearing on the potential to grant humanitarian and compassionate relief. The decision must also be supported with adequate reasons. To the extent that the practices followed in this case may be common at the Vancouver airport, they should in no circumstances continue to be followed.

Although Tian is an extreme example, it does highlight the importance of taking notes, and why it is important that visa applicants also take them.


When the Port of Entry Can Issue Exclusion Orders

Each day thousands of people cross Canadian ports of entry.  There, the Canada Border Services Agency (“CBSA“) will interview them to determine if they are admissible to Canada.  If CBSA has concerns about whether someone is inadmissible to Canada, or determines that they are in fact inadmissible to Canada, then the CBSA can either further (or pause) the examination and require that the foreign national appear back at the port of entry a later date for the examination to continue, ask the person to voluntarily withdraw their attempt to enter Canada, refer the matter to the Immigration Division, or issue the individual a removal order.

Section 228(1) of the Immigration and Refugee Protection Regulations (“IRPR“) stipulates when CBSA can issue the removal order directly instead of referring the matter to the Immigration Division.  It states:

228. (1) For the purposes of [determining someone inadmissible to Canada], …, if a report in respect of a foreign national does not include any grounds of inadmissibility other than those set out in the following circumstances, the report shall not be referred to the Immigration Division and any removal order made shall be

(a) if the foreign national is inadmissible under paragraph 36(1)(a) or (2)(a) of the [Immigration and Refugee Protection Act, (the “Act“)] on grounds of serious criminality or criminality, a deportation order;

(b) if the foreign national is inadmissible under paragraph 40(1)(c) of the Act on grounds of misrepresentation, a deportation order;

(b.1) if the foreign national is inadmissible under subsection 40.1(1) of the Act on grounds of the cessation of refugee protection, a departure order;

(c) if the foreign national is inadmissible under section 41 of the Act on grounds of

(i) failing to appear for further examination or an admissibility hearing under Part 1 of the Act, an exclusion order,

(ii) failing to obtain the authorization of an officer required by subsection 52(1) of the Act, a deportation order,

(iii) failing to establish that they hold the visa or other document as required under section 20 of the Act, an exclusion order,

(iv) failing to leave Canada by the end of the period authorized for their stay as required by subsection 29(2) of the Act, an exclusion order,

(v) failing to comply with subsection 29(2) of the Act as a result of non-compliance with any condition set out in section 184 or subsection 220.1(1), an exclusion order, or

(vi) failing to comply with the requirement under subsection 20(1.1) of the Act to not seek to enter or remain in Canada as a temporary resident while being the subject of a declaration made under subsection 22.1(1) of the Act, an exclusion order;

(d) subject to paragraph (e), if the foreign national is inadmissible under section 42 of the Act on grounds of an inadmissible family member, the same removal order as was made in respect of the inadmissible family member; and

(e) if the foreign national is inadmissible on grounds of an inadmissible family member in accordance with paragraph 42(2)(a) of the Act, a deportation order.

It is important to note that CBSA cannot issue the Exclusion Order directly except in the scenarios outlined above.  In Gupta v. Canada (Public Safety and Emergency Preparedness), 2015 FC 1086, our firm successfully applied to have a removal order quashed, partially on the grounds that the CBSA acted outside of their jurisdiction.  The Federal Court agreed, and stated that:

The applicant also argues that an exclusion order is not the appropriate sanction in these circumstances. He asserts that concerns about alleged violation of a work permit should instead be referred to the Immigration Division for consideration and, if necessary, sanction. The applicant points to subsection 228(1) of the IRPR which provides for various grounds of inadmissibility. Some grounds of inadmissibility can lead to an exclusion order, whereas others cannot and must instead be referred to the Immigration Division. The applicant notes that the list of grounds in paragraph 228(1)(c) (which concern inadmissibility under section 41 of the IRPA and which can lead to an exclusion order) is limited to matters that are quite straightforward to determine, e.g. whether a person failed to appear, failed to leave Canada, or failed to obtain an authorization. Other matters are not dealt with by an exclusion order. The applicant notes also that this list of grounds that can lead to an exclusion order includes subparagraph 228(1)(c)(iii) which refers to “failing to establish that they hold the visa or other document as required under section 20 of the Act.” The applicability of this provision in the present situation is at the center of this section of my analysis.

The applicant argues that the determination of whether the holder of a work permit has contravened or will contravene the terms of that permit is far from the kind of straightforward determination that is contemplated in the rest of paragraph 228(1)(c) of the IRPR. For example, there may be issues of doubt as to the meaning of certain conditions, as discussed in Singh Brar v Canada (Citizenship and Immigration), 2006 FC 1502. In the absence of any jurisprudence on this question, and recognizing the important consequences the Exclusion Order would have for the applicant, I am inclined to agree with the applicant. I do not conclude that any issues of doubt about the applicant’s contravention of the conditions of his work permit necessarily exist in the present case, but the possibility of such issues does serve to demonstrate that this type of situation (concern about alleged violation of a work permit) should be referred to the Immigration Division, and was not intended to be dealt with by means of an exclusion order. It is certainly possible, based on the facts on the record, that the applicant knowingly acted in violation of his work permit (and even that he intended to continue working in violation of his work permit), but that is a matter that should be addressed in a forum other than a decision leading to an exclusion order.

It is important to note that in Gupta the CBSA tried to also argue that IRPR r. 228(1) applied because they believed that the applicant was trying to enter Canada to work without a work permit because he may have been entering Canada to work in contravention of one or more terms of his existing work permit.  The Federal Court disagreed, stating that:

The specific contravened provision of the [Act] cited in the Exclusion Order is paragraph 20(1)(b), which requires every foreign national (with exceptions not applicable here) who seeks to enter Canada as a temporary resident to establish “that they hold the visa or other document required under the regulations.”

The “regulations” referred to here are the IRPR, and the pertinent provision thereof cited in the Exclusion Order is section 8, which provides that “[a] foreign national may not enter Canada to work without first obtaining a work permit.” Accordingly, the accusation against the applicant is that he entered Canada to work “without first obtaining a work permit.”

Regardless of whether the Exclusion Order was based on past violation of the work permit, or concern about possible future violations, one key issue in the present application is whether a person can be found to have entered Canada without first obtaining a work permit (in contravention of section 8 of the IRPR) where they have a work permit, but intended to work in violation of its conditions. It appears that there is no jurisprudence directly on point.

Section 8 of the IRPR is short and not ambiguous. I find it easy to understand. It simply requires that a foreign national who enters Canada to work must first obtain a work permit. The Minister’s Delegate’s decision, as well as the respondent’s position, essentially reads in a requirement that is not included in section 8: that the work to be done under the work permit be in compliance with the conditions thereof.

Certainly, violations of the terms of a work permit are of concern, and there are measures that can be taken against the holder of a work permit who ignores the conditions of the permit. However, there is no indication that section 8 was intended to address such a situation. A reading of section 8 in its grammatical and ordinary sense harmoniously with the scheme and object of the IRPA and the intention of Parliament does not permit this.

In my view, it was unreasonable for the Minister’s Delegate to read in a requirement, especially in view of the important consequences for the applicant of the Exclusion Order. In order to conclude that violation of the conditions of a work permit could lead to an exclusion order under section 8 of the IRPR, that provision would have to be more explicit.