Fettering Discretion

30th Dec 2016 Comments Off on Fettering Discretion

Last Updated on December 30, 2016 by Steven Meurrens

In Gabriel v. Canada (Citizenship and Immigration), the officer stated:

Unfortunately, the regulations are silent regarding medical conditions of dependent children and determining their eligibility as dependents. Since there is no mention of [ ] medical condition exceptions Michael is not considered a dependent. While I empathize with Michael and his mother I am not satisfied that an exception should be made in this case. The decision to remove Michael from the application stands.

The Federal Court noted that this amounted to fettering discretion, stating that:

In my view the Decision shows that the Officer believed that, because the Regulations did not mention the possibility of an exception from the requirement for continuous study for students who became ill, she could not give Michael the benefit of such an exception and include him in Rose’s application for permanent residence as a dependent child notwithstanding the Absence.

 » Read more about: Fettering Discretion  »

Read more ›

Retrospective Legislation

25th Dec 2016 Comments Off on Retrospective Legislation

Last Updated on December 25, 2016 by Steven Meurrens

In a recent Borderlines episode, Garth Barriere, Eric Purtzki, Peter Edelmann and I discussed the constitutionality of laws that are retroactive or retrospective.  This episode can be found here:

A link to this episode’s synopsis can be found here.

The following post provides a more detailed written summary of retroactive and retrospective legislation in the immigration context.

 » Read more about: Retrospective Legislation  »

Read more ›

Parent & Grandparent Sponsorship Program to be a Lottery in 2017

14th Dec 2016 Comments Off on Parent & Grandparent Sponsorship Program to be a Lottery in 2017

Last Updated on December 14, 2016 by Steven Meurrens

On December 14, 2016 the Government of Canada announced that it would be changing the application process in Immigration, Refugees and Citizenship Canada’s (“IRCC“) Parent & Grandparent Sponsorship Program (the “PGP“).

For the past several years IRCC’s PGP has been capped at between 5,000 and 10,000 applicants.  Applications were treated on a first-come, first-served basis. The PGP would typically open in early January, and the cap would be reached in under 48 hours.  This caused most applicants to scramble to submit applications early in the new year.

The process in 2017 will more resemble a lottery system.

Between January 3 and February 2, 2017, Canadian citizens and permanent residents who want to apply as sponsors must first complete an online form on the IRCC website indicating their intention to IRCC that they wish to sponsor their parents and/or grandparents for immigration.

The online form will be available for 30 days, from noon Eastern Standard Time (EST) on January 3, 2017, to noon EST on February 2, 2017.

The form will ask basic questions about the sponsor, including biographical and contact information. Once the information is successfully submitted through IRCC’s online form, the individual will get a confirmation number.

At the end of the 30 days, IRCC will randomly choose 10 000 people and ask them to complete full applications to the PGP.

Those who were invited to apply will have 90 days to submit their complete application to IRCC

The 2017 PGWP application kit and guide will be available on IRCC’s website on January 9, 2017.

More information about the Government of Canada’s announcement can be found here.

 » Read more about: Parent & Grandparent Sponsorship Program to be a Lottery in 2017  »

Read more ›

Borderlines Episode 10 – Canadian National Security Law, Bill C-51 and Trudeau’s Reforms, with Professor Kent Roach

13th Dec 2016 Comments Off on Borderlines Episode 10 – Canadian National Security Law, Bill C-51 and Trudeau’s Reforms, with Professor Kent Roach

Last updated on October 24th, 2020

Last Updated on October 24, 2020 by Steven Meurrens

This episode contains an overview of the history of national security law in Canada, starting with the MacDonald Commission and the October Crisis of 1970, the formation of the Canadian Security and Intelligence Service, the Air India bombing, the Arar Inquiry, 9/11, and Bill C-51.

We also discuss the roles of CSIS, the Communication Security Establishment, the Royal Canadian Mounted Police, and the Canada Border Services Agency, in administering Canadian national security legislation.

Finally, Professor Roach provides an in depth analysis of several controversial elements of the previous Conservative Government of Canada’s Bill C-51, and the current Liberal Government of Canada’s response under Prime Minister Trudeau.

Kent Roach is a Professor of Law and the Prichard-Wilson Chair of Law and Public Policy at the University of Toronto. He is a Member of the Order of Canada and is considered to be one of the foremost experts on national security legislation in Canada.

Kent begins by providing an overview of national security law in Canada, starting with the MacDonald Commission and the October Crisis of 1970, the formation of the Canadian Security and Intelligence Service, the Air India bombing, the Arar Inquiry, 9/11, and Bill C-51.

He then summarises the roles of CSIS, the Communication Security Establishment, the Royal Canadian Mounted Police, and the Canada Border Services Agency.

Finally, Kent provides an in depth analysis of several controversial elements of Bill C-51, and the current Liberal Government of Canada’s response.

His book, False Security The Radicalization of Canadian Anti-terrorism, can be found here.

The paper that he authored which he references throughout the podcast, 

 » Read more about: Borderlines Episode 10 – Canadian National Security Law, Bill C-51 and Trudeau’s Reforms, with Professor Kent Roach  »

Read more ›

Staying Removal at Federal Court

9th Dec 2016 Comments Off on Staying Removal at Federal Court

Last Updated on December 9, 2016 by Steven Meurrens

The Federal Court of Canada can provide interlocutory stays, including staying removal.

There is a three-stage test to be applied when considering an application for an interlocutory injunction.

A court must determine that there is a serious issue or question to be tried, that the applicant would suffer irreparable harm if the injunction were to be refused, and that the balance of convenience (assessed by examining which of the parties will suffer the greater harm from granting or refusing the injunction) rests with the applicant.

As well, it is important to note that a stay of removal is an equitable remedy that is typically only available to an individual who has not committed an inequity.

Irreparable Harm

The Supreme Court of Canada describes ‘irreparable harm’ as follow:

“Irreparable” refers to the nature of the harm suffered rather than its magnitude.  It is harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other.

In other words, harm which can be avoided, or if unavoidable can be cured, is not irreparable harm.

Irreparable harm is often the deciding factor in an interlocutory motion.  In British Columbia Civil Liberties Association v. Canada (Citizenship and Immigration), for example, the Federal Court found that there was no irreparable harm for Canadian citizens facing loss of their citizenship. The reason for this was because there was (and as of writing is) currently a consolidated Federal Court proceeding through which anyone who files an Application for Leave to Commence Judicial Review will receive an automatic stay.  As Justice Zinn noted:

Here,

 » Read more about: Staying Removal at Federal Court  »

Read more ›

Procedural Fairness in LMIA Applications

6th Dec 2016 Comments Off on Procedural Fairness in LMIA Applications

Last Updated on December 6, 2016 by Steven Meurrens

Procedural fairness in Labour Market Impact Assessment (“LMIA“) applications is relatively low.  In Frankie’s Burgers, the first reported Federal Court decision on the matter, the Court stated that (citations removed):

The requirements of procedural fairness will vary according to the specific context of each case. In the context of applications by employers for [Labour Market Impact Assessments], a consideration of the relevant factors that should be assessed in determining those requirements suggests that those requirements are relatively low. This is because, (i) the structure of the [LMIA] assessment process is far from judicial in nature, (ii) unsuccessful applicants can simply submit another application, and (iii) refusals of [LMIA] requests do not have a substantial adverse impact on employers, in the sense of carrying “grave,” “permanent,” or “profound” consequences.

However, as noted in the Kuzol decision, while the duty of procedural fairness in a LMIA application may be at the low end of the spectrum, it is not non-existent.

Extrinsic Evidence

If an officer with the Department of Economic and Social Development (“ESDC“) relies on extrinsic evidence in reaching a decision, then there is a duty to disclose that evidence to the employer prior to the decision being made.

Extrinsic evidence does not include information that is publicly available on websites that are generally accessible to the public.

It does, however, include information derived from third parties that is not publicly available.  For example, in the LMIA context, if an ESDC officer calls a third party to confirm whether there is a labour shortage in an area, and the information that the third party contradicts what the employer submitted to ESDC,

 » Read more about: Procedural Fairness in LMIA Applications  »

Read more ›

Borderlines Podcast Episode 9 – The Constitutionality of Retrospective Laws, with Garth Barriere & Eric Purtzki

2nd Dec 2016 Comments Off on Borderlines Podcast Episode 9 – The Constitutionality of Retrospective Laws, with Garth Barriere & Eric Purtzki

Last updated on October 24th, 2020

Last Updated on October 24, 2020 by Steven Meurrens

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,

 » Read more about: Borderlines Podcast Episode 9 – The Constitutionality of Retrospective Laws, with Garth Barriere & Eric Purtzki  »

Read more ›

Canada Lifts Visa Requirement Against Mexico; Bulgaria, Romania, Brazil Soon to Follow

1st Dec 2016 Comments Off on Canada Lifts Visa Requirement Against Mexico; Bulgaria, Romania, Brazil Soon to Follow

Last Updated on December 1, 2016 by Steven Meurrens

On December 1, 2016, the Government of Canada lifted the requirement that Mexican nationals obtain a temporary resident visa (a “TRV”) prior to travelling to Canada.  

As with all TRV exempt travellers, excluding Americans, Mexican nationals are still required to obtain an Electronic Travel Authorisation (an “ETA”) prior to boarding aircraft to travel to Canada.  
The Government of Canada has also committed to gradually expanding eTA eligibility in 2017 to citizens of Bulgaria, Romania, and Brazil. 

Electronic Travel Authorisation
 
The eTA is a new electronic document requirement for visa-exempt air travellers to Canada, excluding citizens of the United States. Travellers apply online for an eTA by providing basic biographical, passport and personal information, and includes questions about their health, criminal history, and travel history.

An automated system then compares this information against immigration and enforcement databases to determine if the traveller is admissible to Canada. The vast majority of applications are approved automatically, with a small percentage referred to an officer for review.  Typical reasons for a further review include a previous denial of admission to Canada, a criminal record, or a pending permanent residence application.

The cost to apply for an eTA is $7.00. Applicants must have a valid passport, credit card, and e-mail address.

An eTA is only required for travel to Canada by air. It is not required for travel to Canada by land or sea.

Mexican citizens who already have a valid TRV do not need to apply for an eTA while their TRV is valid.

Future Visa Lifting for Brazil, Romania, and Bulgaria

The Government of Canada has also committed to expanding eTA eligibility to travellers from Brazil,

 » Read more about: Canada Lifts Visa Requirement Against Mexico; Bulgaria, Romania, Brazil Soon to Follow  »

Read more ›