Remorse in the Rehabilitation Context

In Chung v. Canada (Citizenship and Immigration), 2015 FC 1329, the Federal Court certified the following rather interesting question of general importance:

Does the Immigration Appeal Division of the Immigration and Refugee Board, in the exercise of its humanitarian jurisdiction, err in law in considering adverse to an appellant lack of remorse for an offence for which the appellant has pled not guilty but was convicted?

The issue of whether one should express remorse for a crime that they are adamant they did not commit frequently arises in the rehabilitation and humanitarian & compassionate context.  Applicants who have criminal records frequently deny guilt, even when convicted, and even including when they entered into a plea bargain (which is perhaps not surprising given the leverage that the state has during plea bargaining).

In Chung v. Canada (Citizenship and Immigration), 2015 FC 1329, the applicant argued that when an accused pleads not guilty, it is an error of law to consider lack of remorse as an aggravating factor for the purpose of sentencing, and that this principle should be extended to the immigration context.

Justice Russell disagreed, stating that in the immigration context, the lack of remorse and failure to take responsibility for past crimes goes to rehabilitation and the likelihood of reoffending, and that adjudicators can assume that where a court issues a “beyond a reasonable doubt” conviction that the events arose.

This was not completely satisfactory answer, especially in light of recently, well publicized incidents of how plea bargaining and biased systems work in certain jurisdiction.

The Federal Court of Appeal took the matter even further.

It found that while a criminal court may not treat a plea of not guilty and lack of remorse as an aggravating factor during sentencing as this would undercut the presumption of innocence, the presumption of innocence does not exist in immigration proceedings.  Indeed, the Court added that where the civil inquiry is conducted after the criminal proceedings are completed, it is difficult to see how the inquiry could have any bearing whatsoever on the presumption of innocence.

As such, and as frustrating as it may be for people who maintain their innocence, it will be open to visa officers to determine that a person maintaining their innocence for a crime that they were convicted of lacks remorse, which would be a very negative factor to showing that they were rehabilitated and admissible to Canada.


Refugees, Article 1F, and Rehabilitation

Article 1F of the 1951 Refugee Convention excludes individuals who have committed serious crimes from being eligible for refugee status under the Convention.  It states:

Article 1F of the 1951 Refugee Convention states:

F. 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;

( b ) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

( c ) He has been guilty of acts contrary to the purposes and principles of the United Nations.

Section 98 of Canada’s Immigration and Refugee Protection Act (the “Act“) provides that a person encompassed by the 1951 Refugee Convention is not a Convention refugee or a person in need of protection pursuant to the Act.

In Hernandez Fables v. Canada (Citizenship and Immigration), 2011 FC 1103, the Federal Court certified the following question:

When applying article 1F (b) of the United Nations Convention relating to the Status of Refugees, is it relevant for the Refugee Protection Division of the Immigration and Refugee Board to consider the fact that the refugee claimant has been rehabilitated since the commission of the crime at issue?

In other words, should a refugee claimant who has committed a serious non-political crime abroad, but has since been rehabilitated, be precluded from claiming refugee status?

The Federal Court of Appeal has definitively answered that it does not matter whether a person who has committed a serious non-political crime abroad has been rehabilitated.  The seriousness of a crime is to be assessed as of the time of its commission; its seriousness does not change over time, depending on whether the claimant is subsequently rehabilitated and ceases to pose a danger to the public.

In rejecting the argument that a purposive approach to Article 1F regarded an analysis of whether an individual was presently a danger to the public, the Federal Court of Appeal cited the European Court of Justice, which wrote in 2010 that:

… the grounds for exclusion at issue were introduced with the aim of excluding from refugee status persons who are deemed to be undeserving of the protection which that status entails and of preventing that status from enabling those who have committed certain serious crimes to escape criminal liability. Accordingly, it would not be consistent with that dual objective to make exclusion from refugee status conditional upon the existence of a present danger to the host Member State.

Rehabilitated individuals who are excluded from refugee protection still have the option of obtaining a stay of removal by obtaining a positive Pre-Removal Risk Assessment.

 

 


Restructuring of the North American Processing Network (Continued)

Restructuring of North American Processing Network (Continued)

In a previous post, I wrote about how on May 29, 2012, Citizenship and Immigration Canada (“CIC”) restructured its North American Processing Network.  The restructuring included the closure of immigration section of the Canadian consualte in Buffalo, as well as the realigninment of Work Permit and Study Permit functions of the Canadian consulates in New York, Los Angeles, Washington D.C., Detroit, and Seattle.  For information on those changes, I encourage you to read that post.

On June 11, 2012, CIC released a further Operational Bulletin detailing additional changes to which consulates which process Temporary Resident Permit applications, Rehab applications, and Authorization to Return to Canada applications. .

Re-Configuring the U.S. Network (TRPs, Rehab, and ARC)

Effectively June 18, the Seattle, Detroit, and New York consulates will no longer be processing new TRP, Rehab, and ARC applications.  Only the Los Angeles and Washington DC consulates will process new applications in these categories.  Furthermore, applicants residing in the United States will not be able to choose which consulate to submit their application to.  Applicants living in the United States east of the Mississippi River (including in Puerto Rico, Bermuda, and St. Pierre et Miqueldon) must apply to the Washington DC Consulate.  Applicants residing in the United States living west of the Mississippi River must apply to the Los Angeles consulate.


The following table more clearly shows the breakdown of the new immigration duties of the US Consulates.

New York Los Angeles Washington D.C. Detroit Seattle
Visitor Visa

Verification of Entry

Returning Resident

Visitor Visa

Verification of Entry

Returning Resident

Visitor Visa

Verification of Entry

Returning Resident

Visitor Visa

Verification of Entry

Returning Resident

Study Permit (U.S. Residents East of the Mississippi) Study Permit (U.S. Residents West of the Mississippi)
Work Permit (U.S. Residents East of the Mississippi) Work Permit (U.S. Residents West of the Mississippi)
TRP TRP
Rehabilitation Rehabilitation
ARC ARC

It’s not that hard to envision the immigration processing functions of the Seattle and the Detroit consulates being closed soon.


Useful Rehabilitation Decision

It’s not often that you see a Federal Court decision specifically discussing whether an officer’s decision to reject an Application for Criminal Rehabilitation was reasonable.  That’s why I read the just released decision in Hadad v. Canada (The Minister of Citizenship, Immigration, and Multiculturalism), 2011 FC 1503, with much interest.

The case affirmed several important principles of rehabilitation applications, including that:

  • The Minister should take into consideration the unique facts of each particular case and consider whether the overall situation warrants a finding that the individual has been rehabilitated.
  • That rehabilitation is forward looking.
  • That an officer commits a reviewable error if he/she attributes too much importance to the fact that an applicant has past criminal activity as opposed to the likelihood that the applicant would be involved in future or unlawful activity.

I have embedded in this post Justice O’Keef’s discussion of these principles.