Last updated on May 7th, 2019
A difficult situation that some prospective immigrants who are already inside Canada face is that they have a criminal record that they have not previously disclosed to Canadian immigration officials.
What is often especially unfortunate in such situations is that the criminal conviction can be really old, but the instances where someone failed to disclose their conviction to Canadian immigration officials more recent.
Having successfully represented several individuals in such situations obtain permanent residency, there are several legal principles that I think anyone in such a situation needs to understand.
1. An individual who has a foreign criminal record can apply to Canadian immigration officials for a determination that they are rehabilitated if it has been more than five years since the sentence was completed.
Rehabilitation assessments are forward-looking. The test is whether a person is likely to commit criminal conduct. Officers must consider both positive an neutral factors relevant to the application.
2. An individual not disclosing a criminal record to Canadian immigration authorities can be treated as a negative factor in a rehabilitation assessment.
The Federal Court has in several cases (such as Tejada v. Canada) held that an individual’s past dealings with Canadian immigration authorities is a relevant factor in determining whether an individual is likely to commit a criminal offence in Canada in the future, with the logic being that a person who is willing to break immigration legislation might also be willing to break criminal laws. In a pair of 2018 decisions that neatly summarize the law, Justice Diner held that misrepresenting one’s criminal history can tip the balance towards recidivism over rehabilitation (Yu v.Read more ›
It is not uncommon for people who have previously overstayed in Canada to wish to return. Many people worry that it will not be possible to do so. However, regardless of whether one previously overstayed but left Canada before Canadian immigration authorities discovered the overstay, or even if one was ordered to leave Canada, it is certainly possible and common that a Canadian visa office abroad will approve a visa to allow that person to return to Canada, despite the previous non-compliance.
The following is a reference letter that an applicant used in the case AlOmari v. Canada (Citizenship and Immigration). It is as a good example of the level of detail that should go into such a letter, and can serve as a useful reference for others.
In November 2015, I made the mistake of not renewing my study permit because I was not able to complete my flight training during the unstable weather conditions of the fall and winter seasons. This bad decision and judgment call is what led me to overstaying.
I could not leave until July 11, 2016 because I was required to remain with my wife and sisters who were actively studying. As outlined in the translated Saudi government scholarship rules, female students are required to travel and live with a male relative, such as a father, husband or brother. Leaving my wife and sisters would have led to them losing their scholarships, and ability to study.
I should have sought the assistance of a lawyer to discuss how I could extend my stay in Vancouver, even though I could not complete my flight training during the fall and winter seasons. My current lawyer informed me that I could have extended my stay in Canada as a visitor until I was ready to get back to my studies.Read more ›
The Government of Canada today announced that its long awaited changes to Canadian citizenship requirements will take effect on October 11, 2017.
Here are some key changes that you should know about.
1. The amount of time that a permanent resident must spend in Canada before being eligible to apply for Canadian citizenship is decreasing.
Currently, permanent residents have to have been physically present in Canada for four out of six years before applying for Canadian citizenship. As of October 11, 2017 applicants will instead need to be physically present in Canada for three out of five years before applying for citizenship.
As well, permanent residents will no longer be required to be physically present in Canada for 183 days in four out of the six years preceding their application.
2. Physical presence will continue to be the test for meeting the citizenship residency requirement.
Prior to 2014, it was possible for permanent residents who were not physically present in Canada but who had substantial ties to Canada to meet the citizenship residency requirement.
In 2014, Canada’s citizenship law was changed so that only the days that a permanent resident was physically present in Canada counted towards the residency requirement. This will continue to be the requirement after October 11, 2017.
3. Part of the time that a permanent resident spent in Canada as a visitor, worker or student can now count towards the citizenship residency requirement.
Currently, time spent in Canada prior to becoming a permanent resident does not count towards the physical presence requirement for citizenship.
As of October 17, 2017, applicants may count each day they were physically present in Canada as a temporary resident (such as a worker,Read more ›
Last updated on February 6th, 2019
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 should know about CETA.
1. CETA Contractual Service Providers will not need a LMIA to work in Canada for a 12-month period every 24 months.
Contractual service providers are people employed by a European Union enterprise that does not have an establishment in Canada and that has signed a contract to supply a service to a consumer in Canada that requires the presence on a temporary basis of the European company’s employee in Canada.Read more ›
On September 20, 2017 Immigration, Refugees and Citizenship Canada affirmed that upfront medical examinations are no longer available for Family Class applicants.
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 hope that if anyone at IRCC is reading they reconsider their decision to not let Family Class applicants do upfront medicals, or at least clarifies that applicants who are applying under the SCPCC are exempt from the upfront medical restriction.Read more ›
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 page memo that her Department provided her. This memo contained none of Ayr Motors Express Inc.’s representations, and instead simply contained the Department’s summary conclusions.
Justice Le Blanc found that this was unacceptable, and it will be interesting to see how the Department responds.Read more ›
The following is an article that I recent wrote for The Canadian Immigrant:
It is generally understood that visitors to Canada cannot work without work permits. The consequences for doing so can include removal from Canada, being unable to apply for work permits for six months, year-long prohibitions on returning to Canada and even possible criminal sanctions for employers.
Canadian immigration legislation defines “work” broadly. It includes any activities for which wages are paid or commission is earned, and any activity that competes directly with the activities of Canadian citizens or permanent residents in the Canadian labour market. Because of this, volunteer work, unpaid internships and practicums may also require work permits.
However, while the definition of what constitutes work is broad, there are many activities that people would generally consider work that do not require work permits.
In our increasingly globalized and digitized world, perhaps the most important work permit exemption is for remote work. Canada’s immigration department allows visitors to Canada to perform long-distance (by telephone or internet) work if their employer is outside Canada and they are remunerated from outside Canada. As such, many people who work remotely for companies abroad are able to reside in Canada for extended periods and continue working for their foreign employers. Typical examples include IT consultants, website developers, accountants, and so on.
Self-employment in a purely remote business can also be permitted. For example, an individual who runs a subscription-based website may be able to do so while residing in Canada as a long-term visitor. However, the legality of this may become questionable if the individual begins selling products directly to Canadians.
The fine line between work that requires a work permit and work that doesn’t is also apparent when it comes to volunteer work.Read more ›
The Canada Border Services Agency has confirmed to the Law Society of British Columbia that border officials have been instructed not to examine documents where the officer suspects that they may be subject to solicitor-client privilege.Read more ›
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. When I started practising immigration law, a local immigration consultant was an important mentor to me, and some of the most passionate people I know who are advocating for greater justice and fairness in Canada’s immigration system are consultants.
Unfortunately, it is not possible to practise immigration law for long before encountering people who have been the victims of immigration consultants who provided extremely bad representation, ranging from sheer incompetence to fraud. In many other cases, the prospective immigrants were not victims of fraudulent consultants but willing participants in their schemes.Read more ›
The Canadian Bill of Rights, S.C. 1960, c. 44 (the “Bill of Rights“) is a Canadian federal statute that was enacted in August 1960. It is quasi-constitutional in nature. As it is an Act of Parliament it applies only to federal law. It also predates the Charter of Rights and Freedoms, which has largely superseded the Bill of Rights in importance.
However, not all of the provisions of the Bill of Rights were reproduced in the Charter of Rights and Freedoms.
Section 2(e) of the Bill of Rights provides:
2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to […]
(e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations.
In Canadian National Railway Company, the Federal Court established that four basic conditions must be met in order for paragraph 2(e) of the Bill of Rights to be engaged:
- The applicant must be a “person” within the meaning of paragraph 2(e);
- The arbitration process must constitute a “hearing […] for the determination of [the applicant’s] rights and obligations”;
- The arbitration process must be found to violate “the principles of fundamental justice”;
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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