Canadian immigration law provides circuses with several ways to access foreign talent. First, many circus employees will qualify for work permit exemptions under r. 186(g) of the Immigration and Refugee Protection Regulations. As the Immigration, Refugees and Citizenship Canada website states: Foreign, travelling circus performers should, in most cases, meet the requirements of paragraph R186(g), as they are usually coming for a time-limited engagement and are not in an employment relationship with a Canadian organization. The IRCC website goes on to state the following for Canadian circuses: In cases where the employer is Canadian, there is entry into the Canadian labour market, so [a Labour Market Impact Assessment] is usually required. Some exceptions may apply to Canadian-based circuses, such as Cirque du Soleil, that can demonstrate the significant social, cultural or economic benefit they provide to Canada. In these cases, foreign circus performers, choreographers, artistic directors and others (that is, staff who are essential to the creative and artistic processes) who are working for a Canadian-based circus may be authorized to enter Canada, under the significant benefit exemption. Circuses wishing to benefit from this exemption should be able to demonstrate that their shows are international in nature (for example, in presentation or because … Read More
Borderlines Podcast #26 – Representing Edward Snowden and an Overview of Hong Kong Refugee Law, with Robert Tibbo
Robert Tibbo is a Canadian lawyer based in Hong Kong, where he has an active human rights and refugee law practice. He has served as counsel in many notable cases, including Edward Snowden, a former contractor for the United States government who copied and leaked classified information from the National Security Agency in 2013. Peter and Robert discuss what it is like to practice refugee law in Hong Kong and about Robert’s representation of Edward Snowden, which at one point included arranging for Mr. Snowden to stay with other asylum claimants in Hong Kong to avoid being detected by the authorities. https://embed.acast.com/659f464c3f69070017409684/659f46527d81c00017cf4f3b?theme=light&cover=false 2:00 – What was Robert’s career path that led him to become a human rights lawyer in Hong Kong? 7:12 – What are the primary source countries of people who are coming into Hong Kong to make refugee claims? 9:00 – What is the asylum claim process like in Hong Kong? 17:20 – What does everyday life look like for an asylum claimant in Hong Kong? 26:30 – How did Mr. Tibbo come to represent Edward Snowden? 34:00 – What was Mr. Tibbo’s legal strategy for Edward Snowden? 38:00 – What was the legal context in which Mr. … Read More
The Conservative Case for Confidence in Canada’s Immigration System
From 2008 – 2013, Jason Kenney, currently the Leader of Alberta’s United Conservative Party, then a Member of Parliament with the Conservative Party of Canada, served as Canada’s Minister of Citizenship and Immigration. During his time as the head of Canada’s immigration department, Minister Kenney implemented many comprehensive reforms to Canadian immigration law, most of which remain in place today. He also reached out to visible minority communities across Canada, and in an interview with the Globe and Mail noted that immigrants often reflect conservative ideals, stating that “you observe how these new Canadians live their lives. They are the personification of Margaret Thatcher’s aspirational class. They’re all about a massive work ethic.” Unfortunately, the political parties which bear the conservative banner have either abandoned, or seem close to abandoning, this embrace of immigration. From a political standpoint, it is not difficult to see why this is occurring. At the federal level, supporters of the Conservative Party of Canada appear to have a greater discomfort with visible minorities than supporters of other political parties. According to a 2017 EKOS survey, in response to the question “forgetting about the overall number of immigrants coming to Canada, of those who come would … Read More
The Defense of Necessity and Inadmissibility
In addition to the defence of duress, discussed elsewhere on this blog here, the Federal Court of Canada in Canada (Public Safety and Emergency Preparedness) v. Aly has determined that the defence of duress can apply to negate an inadmissibility finding for criminality. The defence of necessity requires proof that: there exists a clear and imminent peril; there is no reasonable legal alternative available to disobeying the law; and there is proportionality between the harm inflicted and the harm avoided. As the Supreme Court of Canada noted in R v. Latimer, the requirement for “clear and imminent peril” means that: [D]isaster must be imminent, or harm unavoidable and near. It is not enough that the peril is foreseeable or likely; it must be on the verge of transpiring and virtually certain to occur. In Perka, Dickson J. expressed the requirement of imminent peril at p. 251: “At a minimum the situation must be so emergent and the peril must be so pressing that normal human instincts cry out for action and make a counsel of patience unreasonable”. The Perka case, at p. 251, also offers the rationale for this requirement of immediate peril: “The requirement . . . tests whether it … Read More
Borderlines Podcast #25 – Protecting Foreign Workers and Employer Compliance Inspections, with Meera Thakrar
The Government of Canada, as well as several provincial governments, have introduced several measures to protect temporary foreign workers and maintain the integrity of Canada’s foreign worker programs. Meera Thakrar is a Canadian immigration lawyer whose practices focus on helping companies recruit and retain foreign workers. Meera joins Peter Edelmann, Deanna Okun-Nachoff and Steven Meurrens to discuss various measures that different levels of government have introduced to protect foreign workers, challenges do governments face in this task and how employer compliance inspections work. 2:15 – Deanna discusses vulnerabilities that caregivers face. These include nonpayment of wages, excessive hours and more. What aggravates the situation is that because caregivers typically seek permanent residency and reporting abuse could potentially jeapordize this. 4:30 – What are some of the motivations of caregiver employers who exploit their foreign workers? What are some possible solutions to reduce the vulnerability of caregivers? 10:20 – Do what extent does the caregiver program deflate Canadian wages? To what extent does the fact that foreign workers provide cheap labour, making goods and services affordable, create a disincentive to stricter enforcement of foreign worker rights. 12:20 – An overview of how the government’s enforcement of compliance in the Temporary Foreign … Read More
Borderlines Podcast #24 – The Temporary Foreign Worker Program, with Kyle Hyndman and Meera Thakrar
The Temporary Foreign Worker Program, also known as the Labour Market Impact Assessment, is the main program through which Canadian companies hire temporary foreign workers. We discuss numerous aspects of obtaining Labour Market Impact Assessments, including prevailing wage, recruitment, transition plans, processing times, job match, the Global Talent Stream and the Owner – Operator LMIA. Kyle Hyndman and Meera Thakrar are both Canadian immigration lawyers whose practices focus on helping companies recruit and retain foreign workers. 3:00 – What are the first questions or things that Kyle and Meera tell Canadian employers that want to apply for Labour Market Impact Assessments? 3:57 – What is the difference between the Temporary Foreign Worker Program and the International Mobility Program? 8:00 – Why are companies generally reluctant to obtain Labour Market Impact Assessments? 8:20 – What are the recruitment requirements for a Labour Market Impact Assessment? 12:50 – What is Job Match? 19:00 – What do companies have to show and demonstrate through the recruitment process? 23:20 – What is the wage requirement for a LMIA? What is the prevailing wage? 25:00 – Do employers hire foreign workers to undercut Canadian wages? 26:30 – Can employers of foreign workers offer raises or … Read More
Borderlines Podcast #23 – Appellate Advocacy Tips, with Former Supreme Court of Canada Justice Marshall Rothstein
Marshall Rothstein served as a Justice on the Supreme Court of Canada from 2006 – 2015. He previously was a Judge on the Federal Court of Canada and the Federal Court of Appeal. Garth Barriere is a criminal defence attorney in Vancouver. He was counsel in Khosa v. Canada (Citizenship and Immigration, a major Supreme Court of Canada immigration decision in which Justice Rothstein wrote a concurring opinion. In this episode Justice Rothstein provides tips for written and oral advocacy. While the focus is on appellate litigation, anyone interesting in strengthening their advocacy skills will benefit from what he has to say. We also discuss the Supreme Court of Canada’s decision in Khosa v. Canada (Citizenship and Immigration), and its impact on administrative law in Canada. It is a frank conversation. 9:00 – What it was like for Justice Rothstein when he was appointed to the Federal Court of Canada and to adjudicate cases on which he had no previous experience? 12:30 – How was it different being on the Federal Court vs. the Federal Court of Appeal vs. the Supreme Court of Canada? 14:20 – What strategies or approaches would Justice Rothstein suggest for counsel appearing at … Read More
Work Permits for Employers in the Sex Trade
Since July 4, 2012, Minister Instructions have been in place that prohibit temporary foreign workers in Canada from working in a business that is in a sector where there are reasonable grounds to suspect a risk of sexual exploitation of some workers. The Ministerial Instructions define the business sectors where there are reasonable grounds to suspect a risk of sexual exploitation as being strip clubs, escort services and massage parlours. When receiving applications for work permits made by foreign nationals seeking to work in a business that is in a sector where there are reasonable grounds to suspect a risk of sexual exploitation, officers will not process the applications. As well, all work permits advise temporary foreign workers of the restriction, as they typically state “not valid for employment in businesses related to the sex trade such as strip clubs, massage parlours or escort services. Employment and Social Development Canada’s Temporary Foreign Worker Program WIKI provides the following additional guidance. Sex Industry: An employer that engages in striptease, erotic dance, escort services or erotic massage on a regular basis (eg. daily, weekly or monthly). Striptease and erotic dance: activities involving nudity. A business that engages in activities without nudity that may … Read More
Conservatives to End Stripper Visas
The media is reporting that once Bill C-38 passes, the Conservative government has indicated that it will stop issuing work visas to foreign strippers. One of the more insightful reports on the issue is from the Adult Video News’ Ann Oui, who wrote: “Together with other legislation passed this year, provisions under Bill C-38 will take it one step further—all existing temporary work visas to foreign-born strippers will be cancelled, all new applications will be denied and all ‘open’ work visa holders will be barred from working in the adult entertainment industry,” reported the Sun. In spite of the clamor by conservatives, while in power they reportedly granted 496 permits to foreign exotic dancers between 2006 and 2011, and renewed a relatively paltry 100. For Minister of Citizenship and Immigration Jason Kenney, who is blaming the opposition for blocking efforts to amend current law, the number is beside the point. “Now we have the power, which we’ll begin using as soon as those regulations are done this summer, to deny visas to people who we think … might have a high chance of trafficking or exploitation,” he said. That is quite an odd rationalization, however, considering the visas he wants to … Read More
Canada’s Interpretation of Article 1F(b) of the 1951 Refugee Convention
Article 1F(b) of the Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6 (the “1951 Refugee Convention“) states that the provisions of this 1951 Refugee Convention shall not apply to any person with respect to whom there are serious reasons for considering that they have committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee. Section 98 of Canada’s Immigration and Refugee Protection Act (“IRPA” or the “Act“) incorporates Article 1F(b) of the 1951 Refugee Convention into Canadian immigration law. What is the Purpose of Article 1F(b)? Does Is it Restricted to Fugitives? If a Person is Rehabilitated Can They Still be Excluded from Refugee Protection? In Febles v. Canada (Citizenship and Immigration Canada), 2014 SCC 68 (“Febles“), the Supreme Court of Canada (the “Supreme Court“) addressed the issue of whether the application of Article 1F(b) of the 1951 Refugee Convention is simply a matter of looking at the seriousness of a crime when it was committed, or whether it requires consideration of other matters, including, for example, whether a refugee claimant is a fugitive and/or whether an individual is rehabilitated. The Supreme Court found that the purpose of Article 1F(b) … Read More