Borderlines Episode 22 – The Implications of R v. Wong

24th Jul 2018 Comments Off on Borderlines Episode 22 – The Implications of R v. Wong

R v. Wong is a 2018 Supreme Court of Canada decision in which the Supreme Court of Canada had to determine whether a person could withdraw a guilty plea if they they did not know that their pleading guilty would lead to deportation.

Peter Edelmann and Erica Olmstead are lawyers at Edelmann & Co. They represented the accused at the Supreme Court. Lobat Sadrehashemi represented one of the invervenors, the Canadian Association of Refugee Lawyers.

2:00 – The facts of the case. Mr. Wong pleads guilty to trafficking cocaine. He learns afterwards that this will lead to his deportation. He did not know this when he pled. Can he reverse his plea?

4:29 – How does a guilty plea work? Is it like in the movies?

7:40 – What was the judicial history of this case?

8:50 – What was the perspective of the Canadian Association of Refugee Lawyers regarding whether previously unknown immigration consequences should result in a person being able to set aside their guilty plea?

14:00 – When Peter, Erika and Lobatt talk about whether people should know about the immigration consequences of a guilty plea, what does “immigration consequences” mean? How did the court rule?

19:00 – If the Crown or a judge now have the obligation to ensure that an individual is informed about immigration consequences when they make a guilty plea, should defense counsel worry that this might usurp their role?

19:30 – What is problematic about the incompetence of counsel framework?

23:40 – What was the majority ruling in R v. Wong?

25:06 – The court ruled that to set aside a guilty plea a person has to show that their plea would have been different.

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Law Cans Episode 7 – R v. Wong (Informed Plea Bargains and Immigration) with Peter Edelmann

24th Jul 2018 Comments Off on Law Cans Episode 7 – R v. Wong (Informed Plea Bargains and Immigration) with Peter Edelmann

R v. Wong is a 2018 Supreme Court of Canada decision in which the Supreme Court of Canada had to determine whether a person could withdraw a guilty plea if they they did not know that their pleading guilty would lead to deportation.

Peter Edelmann and Erica Olmstead are lawyers at Edelmann & Co. They represented the accused at the Supreme Court. Lobat Sadrehashemi represented one of the invervenors, the Canadian Association of Refugee Lawyers.

2:00 – The facts of the case. Mr. Wong pleads guilty to trafficking cocaine. He learns afterwards that this will lead to his deportation. He did not know this when he pled. Can he reverse his plea?

4:29 – How does a guilty plea work? Is it like in the movies?

7:40 – What was the judicial history of this case?

8:50 – What was the perspective of the Canadian Association of Refugee Lawyers regarding whether previously unknown immigration consequences should result in a person being able to set aside their guilty plea?

14:00 – When Peter, Erika and Lobatt talk about whether people should know about the immigration consequences of a guilty plea, what does “immigration consequences” mean? How did the court rule?

19:00 – If the Crown or a judge now have the obligation to ensure that an individual is informed about immigration consequences when they make a guilty plea, should defense counsel worry that this might usurp their role?

19:30 – What is problematic about the incompetence of counsel framework?

23:40 – What was the majority ruling in R v. Wong?

25:06 – The court ruled that to set aside a guilty plea a person has to show that their plea would have been different.

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Biometric Requirements to Enter Canada

21st Jul 2018 Comments Off on Biometric Requirements to Enter Canada

On July 31, 2018 Canada is imposing new biometric requirements on individuals wishing to visit Canada.

Biometrics refers to the taking of fingerprints and a photograph.

Biometrics collection is being expanded to include all persons (with certain exemptions) applying for temporary or permanent residence, including all those applying for a temporary or permanent resident visa or status, work permit, study permit, or temporary resident permit.

The Government of Canada is also introducing systematic fingerprint verification for all biometrically enrolled travellers at Canada’s major airports and expand fingerprint verification capacity at additional ports of entry.

Finally, Canada will enhance biometric information sharing between Canada and the United States and introduce biometric information sharing with other the Migration 5 partners, which are Australia, the United Kingdom and New Zealand.

The change is part of a worldwide trend.  More than 70 countries worldwide have implemented or are planning to implement biometrics in their immigration and border programs, including allies such as the United States, the United Kingdom, Australia, New Zealand and the European Union.

Who is Required to Provide Biometrics

Since 2013, citizens of 29 visa-required countries and one territory have been required to provide biometrics.  Biometrics have also been collected from overseas refugee resettlement applicants since late 2014.

As of July 31, 2018, subject to certain exceptions, all persons applying for a temporary or permanent resident visa or status, work permit, study permit, temporary resident permit, or refugee protection, whether claimed inside or outside Canada, must provide biometrics.

There are numerous exceptions.

First, Americans are exempted.

Second, a person who is eligible to apply for an electronic travel authorization (an “eTA”), rather than a temporary resident visa, is not required to provide their biometrics if they are travelling to Canada as a tourist.

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Certified Questions and the Federal Court of Appeal

13th Jul 2018 Comments Off on Certified Questions and the Federal Court of Appeal

The Federal Court of Canada has the ability to review the decisions of administrative tribunals, including decision makers with Immigration, Refugees and Citizenship Canada and the Canada Border Services Agency.  Most people familiar with judicial systems know that decisions of lower courts can be appealed to higher courts.  However, section 74(d) of Canada’s Immigration and Refugee Protection Act and s. 22.2(d) of the Citizenship Act provide that an appeal to the Federal Court of Appeal may only be made if a Federal Court judge, when rendering judgement, the judge certifies that a serious question of general importance is involved and states the question.

It is important to note that once a judge certifies a question an appeal to the Federal Court of Canada is not limited to the question that the judge certified.  In  Kanthasamy v. Canada (Citizenship and Immigration), the Supreme Court stated that (citations removed):

Once an appeal has been brought to this Court by way of certified question, this Court must deal with the certified question and all other issues that might affect the validity of the judgment under appeal. The certification of a question “is the trigger by which an appeal is justified” and, once triggered, the appeal concerns “the judgment itself, not merely the certified question.” Simply put, “once a case is to be considered by the Federal Court of Appeal, that Court is not restricted only to deciding the question certified”; instead, the Court may “consider all aspects of the appeal before it.”

Exceptions

Despite the firm wording in the IRPA and in the Citizenship Act, the Federal Court of Appeal has allowed certain exceptions to the rule that an appeal cannot be made to the Federal Court of Canada without leave. 

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Law Cans Episode 6 – Office of the Children v. Baldev (International Child Abduction) with Ari Wormeli

11th Jul 2018 Comments Off on Law Cans Episode 6 – Office of the Children v. Baldev (International Child Abduction) with Ari Wormeli

Office of the Children’s Lawyer v. Balev is a 2018 Supreme Court of Canada decision in which the Supreme Court had to determine what the test should be for determining where to return a child under the Convention on the Civil Aspects of International Child Abduction (the Hague Convention).

Ari Wormeli is a lawyer at YLAW Group, a prominent Vancouver family law firm.

We discuss the Supreme Court decision, and Ari discusses what it is like being a family law lawyer, what he thinks is the number one indicator of whether a marriage will end in divorce and whether he has ever felt threatened by an opposing party.

1:00 – The facts of the case.  A couple is married in Ontario.  They move to Germany in 2001 where their two children are born. They struggle with school in Germany so the father gave his time‑limited consent for the children to move to Canada with the mother for the 2013‑14 school year. The children attended school in Ontario where they resided with the mother and their grandparents. Because he suspected that the mother would not return the children to Germany at the end of the school year, the father purported to revoke his consent, resumed custody proceedings in Germany, and brought an action under the Convention on the Civil Aspects of International Child Abduction (“Hague Convention”) for an order that the children be returned to Germany.

2:53 – What is the Hague Act?

4:11 – How often do interjurisdictional

5:10 – The Hague Convention says that children have to be returned to the country where they are habitually resident, without defining residency.  How do you determine what a child’s residence is?

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Visiting Canada? How to fill out a successful temporary visa application

Visiting Canada? How to fill out a successful temporary visa application

6th Jul 2018 Comments Off on Visiting Canada? How to fill out a successful temporary visa application

In recent years, more than one million people annually have been applying for visitor visas to visit Canada. Several hundred thousand more apply for work permits or study permits each year. Immigration, Refugees and Citizenship Canada will refuse around 20 per cent of these applications, sending a generic refusal letter, providing vague reasons off a checklist.

What most refused applicants don’t realize is that behind these decisions are additional, often very detailed reasons that aren’t provided in the refusal letter. These internal reasons can range from a few short sentences, to sometimes even more than a page of reasoning that IRCC does not share with the applicant. It is important for refused applicants to apply for and obtain the full internal reasons for IRCC’s refusal of their application before they try to reapply. (Learn how at canadianimmigrant.ca/immigrate “Application refused? What CIC states in refusal letters is not the whole story.”)

It is also important to understand the numerous factors that visa officers consider when assessing temporary residency applications to determine whether someone will leave Canada by the end of their authorized stay. By knowing what these factors are, applicants can maximize the likelihood of successfully assembling a strong visa application.

The first, and arguably most significant, factor is travel history.

Lengthy travel history?

It is probably not surprising that a lengthy travel history is a very positive factor for visa officers when determining whether to issue someone a temporary visa. Indeed, if there’s no significant change in someone’s personal history since their last trip, a passport that is filled with entry stamps to other countries is a good sign. If those stamps are from developed countries, and there is nothing to suggest that a visa applicant failed to comply with the laws of other countries that they visited,

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DUIs to Become Serious Criminality

5th Jul 2018 Comments Off on DUIs to Become Serious Criminality

On June 21, 2018 Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts (“Bill C-46”) received Royal Assent.

Bill C-46 is the companion legislation to Bill C-45, The Cannabis Act, which essentially legalized the possession of regulated marijuana for personal use in Canada.  Bill C-46 reforms the transportation related offences in Canada’s Criminal Code including drinking and driving, dangerous driving, fleeing the scene of an accident, refusing to give a breathalyzer, fleeing the police and operating a vehicle while prohibited from doing so.  Bill C-46 repeals all existing Criminal Code provisions regarding these offences and replaces them with offences that have slightly different wording and new maximum sentences.

The changes in Bill C-46 will come into force 180 days after Royal Assent, which is December 21, 2018.  On that day, as a result of the changes, many individuals who could previously travel to or stay in Canada will become inadmissible for serious criminality.  People who could previously enter Canada will now instead be denied entry.  Permanent residents who commit any of the above actions could be deported.  While the Liberal  government has indicated that it is aware that these harsh consequences are problematic, it has not proposed any solutions nor offered any timeline for when it may.

The government has, however, indicated that it is open to overhauling how Canada determines whether someone should be inadmissible for criminality. This is a welcome development, and one which hopefully lead to a system that considers public risk and individual offences, rather than blanket exclusions.

Understanding Criminal Inadmissibility

Section 36 of Canada’s Immigration and Refugee Protection Act regulates when foreign nationals and permanent residents will be inadmissible to Canada for having been convicted of,

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