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 you say there are too few, too many or the right amount of visible minorities,” 64% of Conservative Party of Canada supporters said “too many.” This was more than double the next highest political party whose supporters had the same answer, which was the Greens at 31%.
In many ways, what is transpiring in Canada’s centre-right parties mirrors what is happening to centre-right movements across the Western world, where traditional conservatism is being, or risks being, superceded by ethnic nationalism and populism.
This is depressing.
Canadian immigration legislation and policies reflect conservative values.
» Read more about: The Conservative Case for Confidence in Canada’s Immigration System »
Read more ›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 was indeed unavoidable for the actor to act at all”. Where the situation of peril clearly should have been foreseen and avoided, an accused person cannot reasonably claim any immediate peril.
In short, an individual must believe he faces imminent peril and that he has no legal alternative to his illegal action. Further, his belief must be reasonable given his personal and situational circumstances.
In Aly, for example,
» Read more about: The Defense of Necessity and Inadmissibility »
Read more ›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 Worker Program and the International Mobility Program works.
14:55 – Canada and British Columbia have an agreement whereby foreign workers who have been exploited can get a six month open work permit. How is this working out? What about the new British Columbia law to protect vulnerable foreign workers? How likely is that to succeed?
25:30 – Peter summarizes a criminal case that he had recently in which a trucking company was charged criminally for paying foreign workers by the mile instead of by the hour.
Read more ›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.
Kyle Hyndman and Meera Thakrar are both Canadian immigration lawyers whose practices focus on helping companies recruit and retain 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.
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 bonuses?
30:00 – What are Transition Plans in High Wage LMIA applications?
36:00 – How does the Low Wage cap work?
37:00 – How does an employer show they can afford to pay the foreign worker?
39:00 – Can recruitment have a language requirement?
41:00 – What is an Owner Operator Labour Market Impact Assessment?
42:15 – What is the Global Talent Stream?
47:25 – How long do LMIAs take to process?
Read more ›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 the appellate level instead of at the trial division?
18:23 – What is the most important thing to remember in written advocacy? What is “point-first writing?” A helpful piece to read on this can be found here. http://www.ontariocourts.ca/coa/en/ps/speeches/forget.htm
21:10 – What tips does Justice Rothstein have for oral advocacy at the Supreme Court of Canada?
31:30 – What makes a good factum? Does Justice Rothstein believe that the IP bar produces the best factums?
36:20 – What was the Supreme Court of Canada decision in Canada (Citizenship and Immigration) v.
Read more ›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 be interpreted as sexually suggestive (e.g. modelling) is not considered to be an employer offering striptease or erotic dance.
- Escort Services: The provision of services that are sexual in nature or for romantic companionship.
- Erotic Massage: The provision of massage services that are sexual in nature. This does not include massage activities undertaken for therapeutic reasons (e.g. performed by Registered Massage Therapists).
Examples:
- An LMIA application received from an employer that hosts weekly strip dance shows should not be processed.
» Read more about: Work Permits for Employers in the Sex Trade »
Read more ›Regulation 4 of Canada’s Immigration and Refugee Protection Regulations state that a foreign national shall not be considered a spouse, a common-law partner or a conjugal partner of a person if the marriage, common-law partnership or conjugal partnership (a) was entered into primarily for the purpose of acquiring any status or privilege under the Act or (b) is not genuine.
A Hasty Marriage
In Nadasapillai v Canada (Citizenship and Immigration), 2015 FC 72, Justice Diner held that the fact that a marriage was entered into after a short courtship is not determinative of a mala fide marriage. He stated:
The Panel criticized the haste based on Ms. Raman’s troubled past relationship and marriage, and the fact that Ms. Raman was 38 years of age at the time, i.e., getting on in age for a single mother. There are two reasons that this is a weak conclusion.
First, one can easily understand why Ms. Raman was ready for the companionship that she clearly explained she had longed for: older couples can be quick in deciding to get married (although haste is certainly not the exclusive domain of any particular age). Older people are often ready to move more quickly into a lifelong commitment, as they know what they want. As Ms. Raman stated in her testimony, “I am getting older. I am very old now and I don’t know how long I’ll be able to live. … I found him a good person. So I took two or three days… to think about it and then decide it.”
Second, if the basis of finding haste was one steeped in a certain culture, it is unfair. In the context of the Refugee Protection Division,
» Read more about: Assessing the Genuineness and Primary Purpose of a Marriage »
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