The Liberal Government of Canada has introduced legislation that will expand the use of preclearance facilities by United States border officials in Canada, and authorize Canada to set up such facilities in the United States. Michael Greene, Q.C. is an immigration lawyer in Calgary. He served as the National Chair of the Canadian Bar Association’s Citizenship & Immigration Section in 2000-2001. He can be reached at mgreene@sgimm.ca Michael joins to provide an overview of Bill C-23, the Preclearance Act, and resulting issues including the presence of armed US border officials in Canada, detention, the application of the Charter and the potential denial of entry to Canadian permanent residents. The United States currently operates border preclearance facilities at a number of airports and ports in Canada. These are staffed and operated by U.S. Customs and Border Protection officers. Travelers pass through U.S. Immigration and Customs, Public Health, and Agriculture inspections before boarding their aircraft, ship, or train. Bill C-23 will: provide United States preclearance officers with enhanced powers, including the ability to carry firearms; establish that the exercise of any power and performance of any duty or function by a United States preclearance officer is subject to Canadian law, including the Canadian … Read More
The Canada-European Comprehensive Economic and Trade Agreement
On September 21, 2017 the immigration provisions of the Canada-European Comprehensive Economic and Trade Agreement (“CETA”) came into effect. Chapter 10 of CETA facilitates the temporary entry of business persons. The European Union’s commitments are the most ambitious that the European Union has ever negotiated in a free trade agreement. For Canada, CETA’s temporary entry provisions contain similar ideas to those contained in the North American Free Trade Agreement (“NAFTA“), although there are very significant differences. CETA is significant from a Canadian immigration perspective because prospective foreign workers who are eligible for work permits under CETA do not require Labour Market Impact Assessments (“LMIAs“). This means that companies do not have to first test the Canadian labour market before hiring a foreign worker, nor do they have to commit to labour market benefits. Any Canadian businesses seeking to hire United States or Mexican nationals will typically begin by determining whether their prospective employees are eligible for work permits under NAFTA. When CETA takes affect, the same will be true for Canadian employers hiring citizens from the European Union. If you are a Canadian business seeking to employ a European Union national, or you are a European national seeking to work in Canada, the following are things that you … Read More
Upfront Medicals in the Family Class
On September 20, 2017 Immigration, Refugees and Citizenship Canada affirmed that upfront medical examinations are no longer available for Family Class applicants. http://www.cic.gc.ca/english/resources/tools/updates/2017/09110950.asp The inability of Family Class applicants to do upfront medical examinations was one of the changes introduced when the Liberal Government of Canada announced that it had reformed the Family Class application processing system to reduce backlogs. At the time it was unclear why removing the ability of applicants to complete their medical examinations before applying for permanent residence would speed things up, and it is still not clear if (or why) this is the case. It is also problematic for those who want to work in Canada during the processing of their application in certain occupations. The issue involves Inside-Canada Spouse or Common-Law Partner in Canada Class (“SCPCC“) applicants who work in health or education professions and who are eligible for SCPCC work permits. Because of IRCC’s announcement, applicants have had difficulty obtaining work permits that do not have medical restrictions. Indeed, in at least one case a Panel Physician refused to do a medical exam for a nurse who needed the medical restriction on her work permit removed, on the basis of IRCC’s instructions. I … Read More
The Right to be Heard
On May 19, 2017 the Federal Court of Canada issued a scathing criticism of how the Department of Employment and Social Development Canada is breaching procedural fairness in how it bans companies from the Temporary Foreign Worker Program. In Ayr Motors Express Inc. v. Canada (Employment Workforce Development and Labour), Justice Le Blanc noted that the Department had not respected a trucking company’s “basic right to be heard” before it banned them for two years from hiring foreign workers. Citing the Federal Court decision in Tiedeman v Canada (Human Rights Commission), Justice Le Blanc further found that “[t]o solicit the representations of a party and, subsequently, to fail to consider them, renders hollow the hallowed principle of the right to be heard”. The breach of procedural fairness arose during an inspection involving whether Ayr Motors Express Inc. had failed to comply with the Temporary Foreign Worker Program. Canada’s Immigration and Refugee Protection Regulations require that the Minister of Employment, Workforce Development and Labour be the individual who actually bans a company from hiring foreign workers under the Temporary Foreign Worker Program. However, because that individual is as a federal Cabinet Minister understandably very busy, she instead based her decision on a six … Read More
What is the Citizenship of the Children of Diplomats Born in Canada?
Canadian citizenship law provides that a person is generally a Canadian citizen if they are born in Canada. Since 1952, however, there has been an exception to those who are born in Canada if neither of the child’s parents are Canadian citizens or permanent residents and if either parent was, at the time of the child’s birth: a diplomatic or consular officer or other representative or employee in Canada of a foreign government; an employee in the service of one of the people listed above; or an officer or employee of a specialized agency of the United Nations or an officer or employee in Canada of any other international organization who benefits from diplomatic privileges and immunities in Canada. (While the precise wording has changed over time, the above restrictions have remained more or less consistent.) Diplomatic Immunity is Critical In Vavilov v. Canada (Citizenship and Immigration Canada), 2017 FCA 132, the Federal Court of Appeal answered the following certified question: Are the words “other representative or employee of a foreign government in Canada” found in paragraph 3(2)(a) of the Citizenship Act limited to foreign nationals who benefit from diplomatic privileges and immunities? The Federal Court of Appeal answered in the affirmative. In doing so, … Read More
Solicitor-Client Privilege
Clients often ask whether I, as their lawyer, will be keeping what they tell me a secret from immigration authorities, the media, their family and/or their friends. I assure them that they have nothing to be concerned about, because lawyers, and the state, are bound by the rules of solicitor-client privilege. Overview of Solicitor-Client Privilege As the Supreme Court of Canada reiterated in Canada (National Revenue) v. Thompson, 2016 SCC 21, solicitor-client privilege is a a principle of fundamental justice in Canada. There are several aspects to solicitor-client privilege. First, the confidentiality of communications between solicitor and client may be raised in any circumstances where such communications are likely to be disclosed without the client’s consent. Second, unless the law provides otherwise, when and to the extent that the legitimate exercise of a right would interfere with another person’s right to have his communications with his lawyer kept confidential, the resulting conflict should be resolved in favour of protecting the confidentiality. Third, when the law gives someone the authority to do something which, in the circumstances of the case, might interfere with that confidentiality, the decision to do so and the choice of means of exercising that authority should be determined with a view to not interfering with … Read More
Meaning of Dependent Child
A “dependent child” is defined in the Immigration and Refugee Protection Regulations, SOR/2002-227 as: dependent child, in respect of a parent, means a child who (a) has one of the following relationships with the parent, namely, (i) is the biological child of the parent, if the child has not been adopted by a person other than the spouse or common-law partner of the parent, or (ii) is the adopted child of the parent; and (b) is in one of the following situations of dependency, namely, (i) is less than 22 years of age and is not a spouse or common-law partner, or (ii) is 22 years of age or older and has depended substantially on the financial support of the parent since before attaining the age of 22 years and is unable to be financially self-supporting due to a physical or mental condition. (enfant à charge) In setting 22 as the limit, the Government of Canada stated that its rationale was: The Government of Canada has established as a priority for the immigration program the goal of family reunification, which is about giving family members the opportunity to live with or near each other, instead of being separated by borders and long … Read More
Borderlines Podcast Episode 16 – The History of the Immigration Consultant Profession in Canada
In this episode we discuss the history of the immigration consultant profession in Vancouver and current issues that the profession faces from a regulatory and governance perspective. Ron McKay is a past Chair of the Immigration Consultants of Canada Regulatory Council’s Board of Directors. He is a former Immigration Officer who spent ten years at the Canadian Embassy in Tokyo, Japan. He is also a past National President of the Canadian Association of Professional Immigration Consultants. Topics 3:30 – We discuss the history of immigration consultants in Canada, including an in depth discussion of the Mangat case, in which the Supreme Court of Canada determined that the federal government could allow non-lawyers to practice immigration law. We also discussed the Canadian Society of Immigration Consultants (“CSIC”), the first regulatory body of immigration consultants in Canada. 24:00 – We get into governance issues at regulatory oversight issues at both CSIC and the ICCRC. 38:30 – We talk about ghost consultants and what the immigration consultancy profession can do about it. 50:00 – We discuss how the immigration consulting profession needs to be regulated yet at the same time be independent of the government. 53:00 – Steven asks how the ICCRC determines how many consultants there should be. … Read More
Weeding Out Crooked Immigration Consultants
The following is an article that I wrote for Policy Options. The first paper that I wrote in law school was about legal ethics. I submitted a seven-page essay arguing that restricting the practice of law to graduates of law school was unethical, given the crisis of access to justice that so many face, and that the free market should instead regulate who can and cannot charge fees to provide legal representation. I got my lowest mark in law school. The study and practice of law moderated many of my views, and my opinion on who should be able to practise law has been adjusted accordingly. It has become clear to me that those who receive fees in exchange for the provision of legal advice must be regulated, and that in an era of easy Internet marketing, paid-for reviews and fake news, the free market is incapable of performing this role. However, I still believe that access to the ability to practise law should be extended beyond those who have completed three years of law school. It may not be surprising then that, unlike many immigration lawyers, I do not consider the existence of immigration consultants to be inherently problematic. … Read More
The Global Skills Strategy – Faster Processing and More Compliance for Certain Work Permits
The following is an article that I wrote for The Canadian Immigrant Magazine.