Supreme Court Clarifies Child Luring Laws

18th Mar 2019 Comments Off on Supreme Court Clarifies Child Luring Laws

Last Updated on March 18, 2019 by Steven Meurrens

The Supreme Court of Canada in 2019 clarified the law regarding the requirements to convict someone for child luring under the Criminal Code.  The decision, R v. Morrison, has implications for people who may be inadmissible to Canada for serious criminality.  

Section 172.1(1) of the Criminal Code prohibits communicating, by means of telecommunication, with a person who is, or who the accused believes is, under the age of 18, 16 or 14 (depending on the circumstances) for the purposes of facilitating the commission of certain designated offences against that person, such as sexual offences.

Prior to R v. Morrison, the law was that if someone told someone else they were underage, the law presumed the person believed it. The only exception was if there was evidence that the person didn’t believe it. All the judges at the Supreme Court agreed that this violated the right to be presumed innocent.

As a result, in the context of a police sting where there is no underage person, the offence of child luring has three essential elements: (1) an intentional communication by means of telecommunication; (2) with a person who the accused believes is under the requisite age; (3) for the purpose of facilitating the commission of a designated offence with respect to that person.

The Crown cannot secure a conviction by proving that the accused failed to take reasonable steps to ascertain the other person’s age once a representation as to age was made. Instead, the Crown must prove beyond a reasonable doubt that the accused believed the other person was underage.

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Canada to Track Exits

16th Mar 2019 Comments Off on Canada to Track Exits

Last updated on January 28th, 2020

Last Updated on January 28, 2020 by Steven Meurrens

By the end of 2020 Canada’s system of tracking the exit of people from the country is going to look very different from now.

Regulations are expected to come into force by June 2019 for land and June 2020 for air.

Current System

Under Canada’s immigration and customs laws, all persons seeking to enter the country are required to present themselves at a port of entry and answer all Canada Border Services Agency questions truthfully. Entry information is thus collected on all travellers who lawfully enter the country.

However, the Government of Canada currently does not have access to reliable exit information on all persons leaving Canada.  As a result, it cannot easily determine who is inside or outside the country at any given time, nor can it easily determine when someone left the country.

An exception to this is that since June 2013 the CBSA has exchanged biographic entry records for foreign nationals and permanent residents through an information-sharing arrangement with the United States, such that an entry into one country confirms the departure from the other.  However, it does not obtain de-facto exit information on Canadian citizens.

The Future

People who are exiting Canada will not need to report to the CBSA when leaving.  Rather, CBSA will collect exit information from other agencies (such as the U.S. Customs and Border Protection, where the arrival of a person by land into the United States would count as an exit from Canada) or commercial air carriers.

The Exit Information Regulations will require that commercial air carriers provide traveller information beginning at 72 hours prior to a flight’s scheduled time of departure.

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Inability to Provide Documents

14th Mar 2019 Comments Off on Inability to Provide Documents

Last Updated on March 14, 2019 by Steven Meurrens

Immigration, Refugees and Citizenship Canada often makes requests for documents.

In Paddayuman v. Canada (Citizenship and Immigration), 2019 FC 28, Justice Manson articulated two important principles for this requirement.

First, it is unreasonable to require documents that do not exist. While in Paddayuman this referred testimonies, affidavits and out of court settlement documents, it can also extend to reference letters, custody agreements, etc.

Second, the passage of a significant amount of time, while not determinative, does suggest that the stringency of document requirements should be viewed with a purposive lens.

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Voluntary Disclosures and Administrative Monetary Penalties

4th Mar 2019 Comments Off on Voluntary Disclosures and Administrative Monetary Penalties

Last Updated on March 4, 2019 by Steven Meurrens

In both the Temporary Foreign Worker Program (the “TFWP”) and the International Mobility Program (the “IMP”) employers who have been non-compliant can reduce their potential penalties by voluntarily disclosing the non-compliance.

Voluntary disclosures are only available to mitigate against the consequences for non-compliance that occurred on or after December 1, 2015.

Considerations

A voluntary disclosure must be unsolicited.  It must be complete and voluntary.

Officers will consider several factors in determining whether the voluntary disclosure is acceptable.

First, a voluntary disclosure will only be acceptable for violations that are not severe.  Whether a violation is severe will depend on the number of foreign workers negatively affected by the violation, whether any abuse of a foreign worker occurred, the duration of non-compliance, and any economic gain the employer may have obtained as a result of the violation.

Second, acceptable voluntary disclosures must be made in a timely manner.

Third, the number of times an employer is non-compliant will impact whether a disclosure is voluntary and complete.  Employers will not be allowed to repeatedly use voluntary disclosures to their advantage while making little or no effort to comply with TFWP or IMP requirements.

Fourth, the complexity of meeting a condition can impact whether a disclosure is accepted.  For example, where efforts to prevent abuse are complicated, or National Occupational Classifications are vague, an employer’s non-compliance may be forgiven.

Points Reductions

If it is found to be acceptable by an officer, four points will be deducted from the total points calculated for the violation under the assessment.  Where the point total is four or less the result of a voluntary disclosure is zero points.

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