A Common Sense Approach to A44 Reports

Canada’s Immigration and Refugee Protection Act (the “Act“) provides that an officer who believes that a foreign national or permanent resident in Canada is inadmissible to Canada (for criminality, health, overstay, working without authorization, etc.) may prepare a report alleging the inadmissibility (commonly known as an “A44 Report“).   The Act further provides that once an officer prepares an A44 Report, then the Canada Border Services Agency (“CBSA“) (the agency generally responsible for this) may commence removal proceedings, or, when necessary, refer the matter to the Immigration and Refugee Board, an independent administrative tribunal.

I have underlined the word “may” above because the use of the term “may” in the Act has caused much confusion.

In Cha v. Canada (Minister of Citizenship and Immigration), 2006 FCA 126 (“Cha“), the Federal Court of Appeal (the “FCA“) went beyond what even the government was seeking, and declared that the use of the word “may” did not actually grant CBSA officers broad discretion to exercise or not to exercise the power to write A44 Reports and to commence removal proceedings when it believed that someone was inadmissible to Canada.  The FCA stated:

In Ruby v. Canada (Solicitor General), [2000] 3 F.C. 589 (C.A.), at pages 623 to 626, Létourneau J.A. reminded us that the use of the word “may” is often a signal that a margin of discretion is given to an administrative decision maker. It can sometimes be read in context as “must” or “shall”, thereby rebutting the presumptive rule in section 11 of the Interpretation Act, R.S.C., 1985, c. I‑21 that “may” is permissive. It can also be read as no more than a signal from the legislator that an official is being empowered to do something. Even when “may” is read as granting discretion, all grants of discretion are not created equal: depending on the purpose and object of the legislation, there may be considerable discretion, or there may be little.

The FCA went on to hold that in the context of serious criminal inadmissibility CBSA officers must prepare an A44 Report and act on it, and that the use of the word “may” is “no more than an enabling provision, nothing more.”  The Federal Court has since cited Cha for the principle that CBSA officers have very little discretion in deciding whether to write an A44 Report and commencing removal proceedings once they believe that someone is inadmissible (see Nagalingam v. Canada (Public Safety and Emergency Preparedness), 2012 FC 1411).

In practice, if CBSA were to prepare an A44 Report and seek removal for every inadmissible person it would be unmanageable.  Accordingly, they have given officers the flexibility to not write an A44 Report or seek removal where the objectives of the Act may or will be achieved without the need to do so.  Most of the officers that I know like this discretion as they understand that in certain circumstances the preparation of an A44 Report would be extremely disproportionate and/or not in the public interest.  The Citizenship and Immigration Canada Enforcement Manual (the “Manual”) lists numerous factors that officers should consider when deciding whether to write A44 Reports and seek removal.  The Manual states:

Thankfully, the FCA appears to have recently indirectly addressed the issue of what “may” means in B010 v. The Minister of Citizenship and Immigration, 2013 FCA 87.   In this case, which was primarily about whether a person could be inadmissible to Canada for human smuggling if they did not receive a material benefit (they can be), the FCA stated:

 The preparation of a report is permissive, that is, an officer “may” prepare a report. As well, the Minister’s delegate “may” refer the report to the Immigration Division. It is to be expected that common sense will prevail in situations such as when family members simply assist other family members in their flight to Canada, or when a person acting for humanitarian purposes advises a refugee claimant to come to Canada without documents.

I agree.  And much as the FCA is now saying that it is to be expected that common sense will prevail in the human smuggling context, so too should common sense prevail in cases of criminality, non-compliance, misrepresentation, etc.  CBSA Officers deal with countless potential inadmissibility issues every week.  They know which ones warrant an A44 Report, and which ones don’t.  It is time that they were empowered with a “common sense” approach rather than a “no discretion” one.


Inadmissibility Due to Non-Compliance with the Act

Individuals can be inadmissible to Canada for numerous reasons, including criminality, misrepresentation, medical issues, and non-compliance with Canadian immigration legislation.  This latter reason, non-compliance with the Canadian immigration legislation, can seem extremely vague.  Fortunately, the Citizenship and Immigration Canada Manual contains a list of the different frequently used reasons for declaring someone inadmissible for non-compliance with the Act.

They are:

  • Entering Canada to remain on a permanent basis without first obtaining a permanent resident visa.
  • Entering Canada to remain on a temporary basis without first obtaining a temporary resident visa.
  • Entering Canada to study without first obtaining a study permit.
  • Entering Canada to work without first obtaining a work permit.
  • Not answering questions truthfully or producing required relevant documents.
  • Not submitting to a medical examination.
  • Not holding a medical certificate that is based on the last medical examination.
  • Not holding the required documents to enter Canada.
  • Not establishing that the person will live Canada by the end of the authorized period.
  • Where a person is subject to an enforced removal, returning to Canada without authorization.
  • Working without authorization.
  • Studying without authorization.
  • Not leaving Canada at the end of the authorized period.
  • Not reporting to a port of entry examination without delay.
  • Being a permanent resident and not complying with the residency requirement.

Given all this, you might wonder how it is that more people aren’t declared inadmissible to Canada.  The reason is that immigration officers have the discretionary power to decide whether or not to write what is known as an A44(1) inadmissibility report.  In cases where Citizenship and Immigration Canada or the Canada Border Services Agency does not intend to formally remove someone from Canada, officers can advise an individual to simply return at a later date with additional information, or, in the case of individuals who are trying to enter Canada, simply ask them to voluntarily withdraw their attempt to enter Canada, and try again later.

The relevant factors in determining whether to formally render someone inadmissible to Canada are:

  • Is the person concerned a permanent resident or a foreign national?
  • Is the person already the subject of a removal order?
  • Is the person already the subject of a separate inadmissibility report incorporating allegations
    that will likely result in a removal order?
  • Is the officer satisfied that the person is, or soon will be, leaving Canada? And in such a case,
    is the imposition of a future requirement to obtain consent to return warranted?
  • Is there a record of the person having previously contravened immigration legislation?
  • Was the non-compliance unintentional or excusable for a valid reason?
  • Has the person now been fully counselled on the topic of their inadmissibility? And is the
    officer satisfied that the person now understands what is required in future to overcome their
    inadmissibility?
  • Is there any reason to believe that, after having previously been counselled on the topic of
    their inadmissibility, the person simply chose to ignore that counselling?
  • Has the person been cooperative?
  • Is there any evidence of misrepresentation?
  • Has the person applied for restoration of status, and does the person appear to be eligible?
  • Has a temporary resident permit been authorized?
  • How long has the person been in Canada?
  • Has the person been a permanent resident of Canada since childhood?
  • Was the permanent resident an adult at the time of admission to Canada?
  • How long has the permanent resident resided in Canada after the date of admission?
  • Are family members in Canada emotionally or financially dependent on the permanent
    resident? Are all extended family members in Canada?
  • Are there any special circumstances in the likely country of removal, such as civil war or a
    major natural disaster?
  • Is the permanent resident financially self-supporting or employed? Does the person possess a
    marketable trade or skill?
  • Has the permanent resident made efforts to establish themselves in Canada
  • Is there any evidence of community involvement? Has the permanent resident received social
    assistance?
  • Has the permanent resident been cooperative and forthcoming with information?
  • Has a warning letter been previously issued?
  • Does the permanent resident accept responsibility for their actions?
  • Is the permanent resident remorseful, or has the person supplied any necessary
    documentation requested by an officer?

 


Supreme Court Clarifies Elements of Conspiracy

On March 1, 2013, the Supreme Court of Canada (the “SCC“) in R v. J.F., clarified the elements of the offence of conspiracy.  The decision has immigration implications because people who have been convicted of conspiracy may be inadmissible to Canada.

 

Section 465 of Canada’s Criminal Code criminalizes the offence of conspiracy.  Conspiracy is a form of inchoate liability.  In other words, the actual result of the conspiracy need not occur for someone to be convicted under s. 465.  For example, a person can be convicted of “conspiracy to commit murder” even if the murder does not occur.  Furthermore, members in a conspiracy need not personally commit, or intend to commit, the offence which each has agreed should be committed.  Any degree of assistance in the furtherance of the unlawful object can lead to a finding of membership as long as agreement to a common plan can be inferred and the requisite mental state has been established.

Aiding or abetting the formation of an agreement between conspirators amounts to aiding or abetting the principals in the commission of the conspiracy.  Party liability is limited, however, to cases where the accused aids or abets the initial formation of the agreement, or aids or abets a new member to join a pre‑existing agreement.  The SCC ruled that acts that further the unlawful object of a conspiracy are not an element of the offence of conspiracy.  Aiding or abetting the furtherance of the unlawful object does not establish aiding or abetting the principal with any element of the offence of conspiracy.  However, the SCC noted that where a person, with knowledge of a conspiracy, does or omits to do something for the purpose of furthering the unlawful object, with the knowledge and consent of one or more of the existing conspirators, this provides powerful circumstantial evidence from which membership in the conspiracy can be inferred.  Specifically, the Court stated that:

In my view, where a person, with knowledge of a conspiracy (which by definition includes knowledge of the unlawful object sought to be attained), does (or omits to do) something for the purpose of furthering the unlawful object, with the knowledge and consent of one or more of the existing conspirators, this provides powerful circumstantial evidence from which membership in the conspiracy can be inferred.  To be precise, it would be evidence of an agreement, whether tacit or express, that the unlawful object should be achieved.  Ultimately, that issue is one for the trier of fact, who must decide whether any inference other than agreement can reasonably be drawn on the evidence.

A Note on Attempted Conspiracy

It is important to note that there is no such thing in Canada as “attempted conspiracy.”  In R. v. Déry, 2006 SCC 53, the SCC noted that:

When applied to conspiracy, the justification for criminalizing attempt is lost, since an attempt to conspire amounts, at best, to a risk that a risk will materialize.

This differs with some US States, and accordingly any foreign convictions for “attempted conspiracy” would not result in inadmissibility to Canada.


Top Source Countries for A44 Reports at YVR

In 2011, 1,108 people were declared inadmissible to Canada when they arrived at the Vancouver International Airport. The following chart obtained through an Access to Information and Privacy Act request shows these individuals’ source countries.

The top 10 countries were:

Citizenship 2011
United States 247
South Korea 137
Hungary 83
China 72
Taiwan 49
British 40
Australia 35
Iran 30
Hong Kong 26
India 26
Japan 26
Germany 20
Mexico 19

Federal Court Rules on Galloway Inadmissibility

The Federal Court has released its decision on the legality of the “decision” to prohibit former British MP George Galloway from entering Canada for having committed terrorism or been a member of a terrorist organization.
Continue reading →


Supreme Court Clarifies Dangerous Driving Law

The Supreme Court of Canada has clarified the law regarding what constitutes dangerous driving under the Criminal Code.  The decision, R v. Roy, has implications for people who may be inadmissible to Canada for criminality.  Indeed, the Supreme Court’s decision is a timely one, as our firm is currently working on a case for an individual who was declared to be inadmissible to Canada for being convicted outside Canada of an offence that a visa officer equated to dangerous driving under Canada’s Criminal Code.

Section 249 of the Criminal Code provides that:

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

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

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

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

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

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

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

A useful decision, and one that will be cited in the future by representatives whose clients receive criminality fairness letters on this type of offence.


Should People Who Lose Their Refugee Status Be Deported?

Much of the media attention towards Bill C-31 – the Protecting Canada’s Immigration System Act – has been focused on its shortening of the time periods for processing refugee claims and its removal of some appeal rights for refugee claimants that were supposed to be introduced under the Balanced Refugee Reform Act.  This past week, members of the immigration bar raised concerns about another questionable change.  In short, Bill C-31 will make it so that refugees who became permanent residents of Canada will lose their permanent residence status if their refugee status ceases.

Currently, the Immigration and Refugee Board may cease a person’s refugee status.  Amongst other reasons, it may do so if the reasons for which the person sought refugee protection have ceased to exist, or if the person reavails himself to the protection of his country of origin. Until now, the cessation of refugee status did not result in the loss of permanent resident status.  Accordingly, ceasing a refugee’s refugee status was rarely pursued where the refugee had become a permanent resident.

Bill C-31, however, changes this.  It provides that when the IRB ceases a refugee’s refugee status, then the former refugee also loses his/her permanent resident status.  Bill C-31 also provides that such an individual would be inadmissible toCanada.  Through omission it also provides that there will be no appeal to the Immigration Appeal Division, meaning that humanitarian & compassionate grounds (such as hardship and establishment inCanada) cannot be considered in deciding whether to revoke the person’s permanent resident status.

This will apply to refugees who made their claims in Canadaand to those who were resettled to Canadafrom refugee camps from abroad.  It would apply to refugees who recently obtained status, and to refugees who became permanent residents many, many years ago.

Before jumping to conclusions about whether this is or is not good law, it is useful to present some examples of when someone’s refugee status might be ceased.

Tisha is a Tamil fromSri Lanka.  In 2008, she arrived inTorontoand claimed refugee status because of the ongoing war inSri Lanka. In 2010 Tisha’s refugee status was approved.  She became a permanent resident later that year.  She has lived continuously inCanadasince arriving in 2008.  She runs a restaurant that employs 15 people.  In 2012, the IRB determined thatSri Lankawas now safe for Tamils because the civil war had ended.  It ceased her refugee status.

 

Wang is a Chinese citizen who is a Catholic.  In 2008, he arrived inVancouverand claimed refugee status.  He married a Canadian in 2009. His claim was approved in 2010, and he became a permanent resident in 2011.  Wang immediately returned toChina, and has lived there while working abroad for a Canadian company since. In 2012, the IRB determined that Wang was no longer at risk of persecution for being Catholic, and ceased his refugee claim.

 

Kim is fromKorea.  She fled an abusive husband who was a high ranking official in the government, and also had ties to the mafia.  Her refugee status was approved in 2006, and she became a permanent resident of Canada in 2008.  She has two Canadian born children, and is the director of aCanada– Korean business association.  In 2011, her husband died. In 2012, the IRB determined that Kim was no longer at risk of persecution in Korea.

 

As a result of Bill C-31, all of the above individuals would lose their permanent resident status and be removed fromCanada.

When looking at the above three scenarios some may question why it is relevant where the individuals worked.  However, it is important because permanent residents do not live in a vacuum.  They become members of their local community, and conduct their affairs with the legitimate expectation that their residency inCanada is permanent, or at least subject to their control.

Bill C-31 throws a wrench in this.  It provides that refugees who became permanent residents can lose their permanent resident status and be removed from Canadathrough no fault of their own.  The loss of status is not predicated on the refugee having lied.  Rather, it is based on circumstances beyond their control.  Furthermore, there will be no degree of establishment or hardship that the permanent resident can show to keep his status.

Even if one does not believe that Canada does not owe anything to people who are not Canadian citizens, then one should still question whether the automatic revocation of permanent resident status with no appeal right is a good thing for Canada.  There will be the economic costs to Canada in the form of employees and employers abruptly having to leave. There will also be personal costs to Canadians dependent on them.

To me, the solution to the above-mentioned problems appears obvious.  If the government is determined that the cessation of refugee status should lead to a loss of permanent resident status, then it should provide an appeal right to the Immigration Appeal Division where humanitarian & compassionate considerations can be considered.

I cannot think of a single, strong reason why it should not do so.