Discretion is the freedom to decide what should be done in a given situation. In the criminal justice system, in 2014 the Supreme Court of Canada (the “SCC“) in R v. Anderson recognized that prosecutorial discretion “is a necessary part of a properly functioning criminal justice system.” Examples of prosecutorial discretion include the decision to repudiate a plea agreement, the decision to pursue a dangerous offender application, the decision to prefer a direct indictment, the decision to charge multiple offences, the decision to negotiate a plea, the decision to proceed summarily or by indictment, and the decision to initiate an appeal.
Applying the letter of the law to the practical, real‑life situations faced by police officers in performing their everyday duties requires that certain adjustments be made. Although these adjustments may sometimes appear to deviate from the letter of the law, they are crucial and are part of the very essence of the proper administration of the criminal justice system, or to use the words of s. 139(2), are perfectly consistent with the “course of justice”. The ability — indeed the duty — to use one’s judgment to adapt the process of law enforcement to individual circumstances and to the real‑life demands of justice is in fact the basis of police discretion
As the Supreme Court further wrote, “a system that attempted to eliminate discretion would be unworkably complex and rigid.”
However, in the immigration system, the Government of Canada, with the seeming approval of many Federal Court of Canada judges, has removed much of the discretion from Canada Border Services Agency (“CBSA“) officers in their administration of the Immigration and Refugee Protection Act (“IRPA“).Read more ›
Rule 43(1) of the Immigration Division Rules, SOR/2002-229 states:
Application to change the date or time of a hearing
43 (1) A party may make an application to the Division to change the date or time of a hearing.
(2) In deciding the application, the Division must consider any relevant factors, including
(a) in the case of a date and time that was fixed after the Division consulted or tried to consult the party, the existence of exceptional circumstances for allowing the application;
(b) when the party made the application;
(c) the time the party has had to prepare for the hearing;
(d) the efforts made by the party to be ready to start or continue the hearing;
(e) the nature and complexity of the matter to be heard;
(f) whether the party has counsel;
(g) any previous delays and the reasons for them;
(h) whether the time and date fixed for the hearing was peremptory; and
(i) whether allowing the application would unreasonably delay the proceedings or likely cause an injustice.
Duty to appear at the hearing
(3) Unless a party receives a decision from the Division allowing the application, the party must appear for the hearing at the date and time fixed and be ready to start or continue the hearing.
In Cabrera v Canada (Citizenship and Immigration), 2010 FC 709 the Federal Court found that the Immigration Division needs to consider all relevant factors. Justice Russell wrote:
Be that as it may, it seems to me that the ID was obliged to consider the Applicant’s adjournment request in accordance with section 43 of the Immigration Division Rules.Read more ›
On October 21, 2019 Canada will have its 43rd Parliamentary election. There are six main political parties running. The first is the Liberal Party of Canada, led by Prime Minister Justin Trudeau. The Liberals are generally regarded as a centrist party and have governed since October, 2015. The second is the Conservative Party of Canada, led by Andrew Scheer. The Conservatives are a centre-right party that previously governed Canada from 2006-2015 under Stephen Harper. The third is the New Democratic Party, a left-wing or progressive party, led by Jagmeet Singh. The fourth is the Green Party of Canada, led by Elizabeth May, a party that is typically known for its environmental platform, although it does have a detailed platform on all of the important issues facing Canada. The fifth is the Bloc Québécois, led by Yves Francois Blanchet. The Bloc is a Quebec nationalist party that only runs candidates in Quebec. Finally, there is the People’s Party of Canada, a recently formed right-wing party led by Maxime Bernier.
As of writing, polls suggest that Canada is likely heading to a minority government. This means that none of the political parties above will win enough seats to govern without the support of another party. Assuming that all of the above parties win seats, it is accordingly important to understand their policy preferences as any of them may have policy influence on the next government.
I note that there is a strong possibility that Jody Wilson-Raybould, an Independent Member of Parliament running in Vancouver – Granville could win her seat, and also possibly influence the next government. However, as far as I can tell she has not specified any positions on immigration policy, and so I have omitted her from this article.
The Liberal Party of Canada
In the 2015 election the Liberals ran on a bold immigration platform.Read more ›
Regulation 100(1) of the Immigration and Refugee Protection Regulations, SOR/2002-227 states:
For the purposes of subsection 12(2) of the Act, the self-employed persons class is hereby prescribed as a class of persons who may become permanent residents on the basis of their ability to become economically established in Canada and who are self-employed persons within the meaning of subsection 88(1).
Becomming Economically Established
The IRCC Guidelines state the following about how officers should assess a person’s ability to become economically established in Canada.
- A self-employed applicant must demonstrate the intention and ability to create his/her own employment in Canada through cultural activities, athletics or the purchase and management of a farm.
- A person’s financial assets may be a measure of intent and ability to establish economically in Canada. There is no minimum investment level for a self-employed person. The capital required depends on the nature of the work.
- Applicants must have sufficient funds to create an employment opportunity for themselves and support themselves and their family members. This includes the ability to be self-supporting until the self-employment has been created.
- A demonstrated ability to support themselves and their family through their talents could be a good indicator of their ability to continue to do so in Canada.
- It is intended that the Self-Employed Persons Class enrich Canadian culture and sports. In other words, when applicants meet the test of experience and there is a reasonable expectation they will be self-employed, the test of significant contribution becomes relative. For example, a music teacher destined to a small town can be considered significant at the local level. Likewise, a freelance journalist who contributes to a Canadian publication will meet the test.
- It is the intent of the Regulations that any farmer meeting the experience requirement,
Heading – Genuineness and Caregivers
On June 18, 2019 Immigration, Refugees and Citizenship Canada revamped its caregiver programs. Gone was the requirement that employers first obtain a Labour Market Impact Assessment and that caregivers work in Canada without their families for at least two years before they could apply for permanent residency. Instead, caregivers can now immediately apply for permanent residency if they have a job offer or Canadian work experience in an eligible caregiver occupation and if they meet minimum education and language proficiency requirements and come to Canada with their families right away.
The new caregiver programs have existed for about four months now and it is too early to determine whether they have been a success. An issue that has arisen, however, is the issue of employers and applicants demonstrating that their job offers are genuine.
How the New Caregiver Programs Work
Canada now has two caregiver programs. The first is the Home-Child Care Provider Pilot. The second is the Home Support Worker Pilot. A maximum of 2,750 applications are accepted per year under each stream. In both programs, applicants must demonstrate through standardized language testing that they have Initial Intermediate English or French ability, also known as Canadian Language Benchmark 5, and also that they have at least a one-year post secondary credential.
Applicants must also show that they have two years of full-time Canadian work experience as a Home Child-care Provider or a Home Support Worker, depending on the pilot. Applicants with fewer than two-years experience must show that they have a valid job offer as either a Home Child-care Provider or a Home Support Worker and that they will be able to perform the terms of their job offer in Canada. If they do,Read more ›
Section 129 of the Criminal Code, RSC 1985, c C-46 states:
Offences relating to public or peace officer:
129 Every one who
(a) resists or wilfully obstructs a public officer or peace officer in the execution of his duty or any person lawfully acting in aid of such an officer,
(b) omits, without reasonable excuse, to assist a public officer or peace officer in the execution of his duty in arresting a person or in preserving the peace, after having reasonable notice that he is required to do so, or
(c) resists or wilfully obstructs any person in the lawful execution of a process against lands or goods or in making a lawful distress or seizure,
is guilty of
(d) an indictable offence and is liable to imprisonment for a term not exceeding two years, or
(e) an offence punishable on summary conviction.
There are several principles pertaining to s. 129 of the Criminal Code that can be helpful to determining equivalency.
Ancillary Powers Doctrine
In the Supreme Court of Canada decision Fleming v. Ontario, 2019 SCC 45, the Supreme Court of Canda held that a police power to arrest someone who is acting lawfully in order to prevent a breach of the peace is not reasonably necessary for the fulfillment of the relevant duties. » Read more about: Obstruction of Justice and Resisting Arrest »Read more ›
Article 1E of the 1951 Refugee Convention states:
This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.
The leading case for interpreting Article 1E is Canada (Citizenship and Immigration) v. Zeng, 2010 FCA 118. There, the Federal Court of Appeal stated:
Considering all relevant factors to the date of the hearing, does the claimant have status, substantially similar to that of its nationals, in the third country? If the answer is yes, the claimant is excluded. If the answer is no, the next question is whether the claimant previously had such status and lost it, or had access to such status and failed to acquire it. If the answer is no, the claimant is not excluded under Article 1E. If the answer is yes, the RPD must consider and balance various factors. These include, but are not limited to, the reason for the loss of status (voluntary or involuntary), whether the claimant could return to the third country, the risk the claimant would face in the home country, Canada’s international obligations, and any other relevant facts.
In Desir v. Canada (Citizenship and Immigration), 2019 FC 1164, the Federal Court stated that the burden is on the Minister of Citizenship and Immigration to establish a prima facie case that a claimant holds or held status substantially similar to that of nationals in a third country before being able to invoke Article 1E. The Court also found that a claimant’s choice to allow his or her status in a third country to expire amounts to an impermissible form of asylum shopping.Read more ›
Please note that none of the information on this website should be construed as being legal advice. As well, you should not rely on any of the information contained in this website when determining whether and how to apply to a given program. Canadian immigration law is constantly changing, and the information above may be dated. If you have a question about the contents of this blog, or any question about Canadian immigration law, please contact the Author.
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