Blog – Page 3 – Steven Meurrens

Supreme Court Clarifies Child Luring Laws

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.

To meet this burden, the Crown must show that the accused either (1) believed the other person was underage or (2) was wilfully blind as to whether the other person was underage.

Canada to Track Exits

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.

Immigration, Refugees and Citizenship Canada and the Canada Border Services Agency will soon (and some would say finally) have accurate and objective entry and exit information.

Inability to Provide Documents

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.

Voluntary Disclosures and Administrative Monetary Penalties

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.

Where an employer has committed more than one violation,

The Interim Pathway for Caregivers

On February 25, 2019 Immigration, Refugees and Citizenship Canada (“IRCC“) announced a one-time, short-term public policy for in-Canada caregivers to provide a pathway to permanent residence for caregivers who do not qualify under the 2014 Ministerial Instructions Establishing the Caring for Children Class and the Caring for People with High Medical Needs Class.

This is a 3-month interim pathway, with no cap on volumes.

To be eligible, caregivers have to meet all the following conditions:

At the time of application, they are authorized to work in Canada on a work permit other than a Live-in Caregiver Program work permit;
They intend to reside in a province or territory other than Quebec;
Since November 30, 2014, they have acquired at least 1 year of full-time Canadian work experience in an eligible caregiver occupation. These occupations are National Occupational Classification (“NOC”) 4411 – Home Childcare Providers and NOC 4412 – Home Support Workers and Related Occupations (other than Housekeeper);
They meet the minimum education requirement; and
They meet the minimum language proficiency requirement.

Experience

Only home child care providers are eligible under NOC 4411. Applicants with work experience under NOC 4411 must have provided in-home care to children under the age of 18 in their own home or in the employer’s or child’s home. Foster parents are not eligible to apply under this class.

Among the sub-occupations under NOC 4412, housekeepers and related occupations are not eligible to apply. Only home support workers and workers in related occupations are eligible under NOC 4412. The onus is on applicants to satisfy IRCC that they predominantly provided personal care and support services to seniors, persons with disabilities and convalescent clients,

What Happens at CBSA – The Port of Entry

A main purpose of the Canada Border Services Agency (the “CBSA“) is to determine whether people are inadmissible to Canada and, if they are, next steps.

Section 15(1) of Canada’s Immigration and Refugee Protection Act (the “IRPA“), read in conjunction with r. 28(b) of Canada’s Immigration and Refugee Protection Regulations (the “IRPA”) authorizes Border Services Officers (“BSOs“) to examine people who are entering Canada to determine their admissibility. As well, IRPA s. 18(1) provides that every person seeking to enter Canada must appear for an examination at CBSA to determine whether that person has a right to enter Canada or is or may become authorized to enter and remain in Canada.

This post is a summary of the training manual from the CBSA’s Officer Induction Training Program. A full copy can be found at the bottom of the post.

Examination Timeline

Regulation 37 of the IRPR define when a CBSA examination at a port of entry (a “POE“) ends. It states that an examination ends once one of the following occurs:

A final determination is made that the person has a right to enter Canada, or is authorized to enter Canada, and leaves the port of entry. It is important to note that an examination is not over simply because a passport is stamped. Rather, the decision to admit an individual may be revisited as long as the person has not left the controlled area of the port of entry.
A person in transit departs Canada.
The person is allowed to leave Canada and an officer verifies their departure from Canada. In this situation, a BSO may determine that someone is inadmissible. Rather than formally removing them (and banning them) the BSO may instead allow them to withdraw their application to enter Canada.

IRCC Questions and Answers

Immigration lawyers and consultants are able to e-mail Immigration, Refugees and Citizenship Canada (“IRCC“) to ask general questions about how programs work. In 2018 we submitted an Access to Information Act request for many of the questions that were submitted in the first half of 2018. I have uploaded the results of our request here. You can see a list of most of the questions that are answered below.

A-2018-36953-reducedsize

A Canadian Bachelor degree was obtained in two years as the person has used some credits from a previous bachelor degree obtained in a foreign country. The curriculum grid for this Canadian Bachelor Degree is 11 quarters with a total of 180 credits. This same person has also a 1-year diploma from a private institution in Canada. Under the CRS points for Express Entry, could we consider that this person could claim points for having two or more degrees, diplomas or certificates only considering the Canadian credentials? As there is the information that one of the credentials must be at least 3 years, I was wondering if IRCC would consider the length of study or the length of the program if was not accredited due to credit transferring? What should we inform at the Education field “Complete/full academic years” for the Canadian Bachelor Degree as described above?

My client received the attached WES assessment. Although the actual program he completedw as over one year long, they indicated “completion of college-level certificate (one semester)”. When entering his education information in his express entry profile, should we be selecting that his highest level of education was secondary school or 1 year of post-secondary studies?

In a Family Class application is a record of solemnization or marriage license acceptable instead of a marriage certificate?