Last updated on June 1st, 2021
Section 37 of the Immigration and Refugee Protection Act (the “IRPA“) provides that a permanent resident or foreign national is inadmissible to Canada for organized criminality. It states:
37. (1) A permanent resident or a foreign national is inadmissible on grounds of organized criminality for
(a) being a member of an organization that is believed on reasonable grounds to be or to have been engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence punishable under an Act of Parliament by way of indictment, or in furtherance of the commission of an offence outside Canada that, if committed in Canada, would constitute such an offence, or engaging in activity that is part of such a pattern; or
(b) engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or laundering of money or other proceeds of crime.
Application
(2) Paragraph (1)(a) does not lead to a determination of inadmissibility by reason only of the fact that the permanent resident or foreign national entered Canada with the assistance of a person who is involved in organized criminal activity.
In Canada (Minister of Citizenship and Immigration) v Thanaratnam, 2005 FCA 122, Canada’s Federal Court of Appeal has confirmed that paragraph 37(1)(a) sets out two “discrete, but overlapping grounds” for inadmissibility. The first is “membership” in an organization believed on reasonable grounds to be or to have been engaged in organized criminal activity (i.e., a criminal organization).
» Read more about: A37 – Inadmissibility for Organized Crime »
Read more ›Last updated on February 9th, 2021
Section 34 of the Immigration and Refugee Protection Act provides that a permanent resident or foreign national is inadmissible to Canada for security reasons. It states:
Security
34. (1) A permanent resident or a foreign national is inadmissible on security grounds for
(a) engaging in an act of espionage that is against Canada or that is contrary to Canada’s interests;
(b) engaging in or instigating the subversion by force of any government;
(b.1) engaging in an act of subversion against a democratic government, institution or process as they are understood in Canada;
(c) engaging in terrorism;
(d) being a danger to the security of Canada;
(e) engaging in acts of violence that would or might endanger the lives or safety of persons in Canada; or
(f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b), (b.1) or (c).
(2) [Repealed, 2013, c. 16, s. 13]
Immigration, Refugees and Citizenship Canada has produced a useful internal document summarizing the jurisprudence (up to about 2010) on the interpretation of this section, and I have reproduced it below. More recent jurisprudence can be found throughout my blog, but the CIC document is a very useful summary.
Please note that what I have reproduced below should not be viewed as legal advice. I obtained a copy of this internal Citizenship and Immigration Canada training guide through an Access to Information Act request (the “ATI”). The reproduction of question and answer has not occurred with the affiliation of the Government of Canada,
» Read more about: A34 – Inadmissibility for Security Reasons »
Read more ›One of the more frustrating aspects for prospective immigrants is Citizenship and Immigration Canada’s (“CIC”) general requirement that they have their non-accompanying dependants (spouses and children) undergo medical and criminal examination. The task can be taunting for those who do not have full custody of their non-accompanying children. However, CIC’s requirement is understandable in light of Canadian immigration legislation..
» Read more about: Non-Accompanying Dependants and Medical Exams »
Read more ›Extradition and deportation are two different things. Extradition is the official process whereby one country transfers a suspected or convicted criminal to another country, generally for prosecution. Deportation, on the other hand, is the removal of an individual from a country generally done for the purpose of achieving an immigration objective. In Roncarelli v. Duplessis, [1959] S.C.R. 121, the Supreme Court of Canada (the “SCC”) recognized that it was an abuse of process for a government department to exercise a statutory power for a reason that is unrelated to the purpose for which that power was granted. In the immigration context, it is accordingly an abuse of process for immigration authorities to initiate removal proceedings against an individual to extradite someone.
In United States v. Rogan, 2014 BCSC 116 (“Rogan”), Justice Fish summarized the principles of what is known as “disguised extradition” as follows: (Citations and paragraph numbers removed)
Deportation and extradition have fundamentally different underlying objectives. Deportation is a discretionary decision made by Canadian immigration authorities aimed at protecting the public good. Extradition, which is initiated by foreign authorities, is aimed at delivering a person sought for prosecution to that foreign authority.
A person subject to extradition proceedings has a panoply of constitutionally-enshrined protections not available to a person subject to an IRPA admissibility hearing. For example, a person ordered extradited is immune from prosecution in the requesting state for offences that have not been identified in the surrender order. By contrast, there are no restrictions on what a deported person can be prosecuted for once removed from Canada.
The essence of a “disguised extradition” claim is that removal proceedings were not instituted to pursue a valid immigration objective, but to procure, on behalf of a foreign state,
» Read more about: Disguised Extradition »
Read more ›Last updated on February 21st, 2021
On August 1, 2015, Canada will adopt an Electronic Travel Authorization (“eTA“) program that is similar to the Electronic System for Travel Authorization (“ESTA“) that the United States currently has, and the Electronic Travel Authority that Australia has. In order to minimize impacts on the travelling public and Canadian travel and tourism industries, eTA-required travellers will be exempted from this new entry requirement until March 15, 2016.
The eTA will impact nearly all travellers to Canada who do not have to apply for Temporary Resident Visas (“TRV“) to visit Canada. According to the Gazette, TRV-exempt foreign nationals, excluding U.S. citizens, represent approximately 74% of foreign nationals who arrive by air in Canada. Citizenship and Immigration Canada (“CIC“) does not currently screen these individuals for admissibility until they arrive at a Canadian port of entry (“POE“). Rather, TRV-exempt nationals are examined by the Canada Border Services Agency (“CBSA“) only upon arrival at a POE . As noted in the The Canadian Immigrant excerpt above, the eTA will change this.
However, on June 21, 2014, the Government of Canada (“GoC“) in the Canada Gazette (the “Gazette“) published proposed amendments to the Immigration and Refugee Protection Regulations (“IRPR“) pertaining to the eTA. On April 22, 2015, the final version of the IRPR amendments were published.
The proposed amendments to IRPR:
- create the regulatory requirement for the eTA;
- establish the eTA application procedures;
- specify when an eTA expires and when it can be cancelled;
- set the fee that is payable for the processing of an eTA application; and
- create exemptions from the requirement to obtain an eTA.
» Read more about: ETA Regulations Announced »
Read more ›On May 14, 2014, the Supreme Court of Canada (“SCC”) issued its decision in Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37 (“Harkat“). While the SCC upheld the constitutionality of Canada’s security certificate regime, it provided detailed guidance to the Federal Court on applying the process.
Mohamed Harkat and the Security Certificate Regime
Mohamed Harkat (“Mr. Harkat”) entered Canada in 1995, and obtained refugee status shortly thereafter. In 2002, the Government of Canada detained him under a security certificate (described in more detail below). It declared that Mr. Harkat was a threat to Canada for allegedly being an al-Qaeda sleeper agent, and sought to have him declared inadmissible to Canada. During the past decade, Mr. Harkat has either been detained or living under strict conditions.
At the SCC, Mr. Harkat argued that the Immigration and Refugee Protection Act, SC 2001, c27, did not provide him a fair opportunity to defend himself against the Government of Canada’s allegations. His arguments were similar to those that Adil Charkaoui successfully made when the SCC struck down Canada’s previous security certificate regime as being unconstitutional.
The Security Certificate Regime
Canada’s security certificate regime compared to its criminal justice system offers the Government of Canada numerous procedural advantages. As the SCC noted in Harkat:
From a practical perspective, the IRPA scheme is in some respects more advantageous for the state than criminal proceedings. It has a lower standard of proof and is more protective of confidential national security information than the criminal law: ibid. As will be discussed further below, any information that would be injurious to national security or to the safety of any person is not disclosed to the named person.
» Read more about: Security Certificates and the Harkat Decision »
Read more ›Last updated on March 27th, 2021
A question that often gets asked is whether a United States pardon or expungement results in a person no longer being inadmissible to Canada.
Expungements
The following is an e-mail exchange between an immigration representative and Immigration, Refugees and Citizenship Canada regarding the immigration consequences of foreign expungements for individuals who otherwise may be inadmissible to Canada.
Please note that what I have reproduced below should not be viewed as legal advice. The adaptation of the question and answer has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada.
Question – May 7, 2013
Greetings,
My name is __________ and I am a Canadian Immigration Lawyer based in ______.
When Burke Thornton was the Program Manager in Buffalo he had confirmed with headquarters that the state of California expungment (under s. 1203.4) is equivalent to a full expungement in Canada. Could you kindly confirm that California’s expungement procedure (1203.4) which allows you to state to any private individual/institution that you were never convicted of an offence for which you received an expungement is equivalent to a Canadian pardon?
Thank you very much.
Answer – May 27, 2013
Good day and thank you for your question.
CIC assesses inadmissibility on a case by case basis.
In cases of a foreign expungement, a criminal equivalency is usually done to establish whether the foreign country’s legal system is based on similar foundations and values as Canada’s and to look at the circumstances under which the expungement was granted and if it can be accepted as mitigating circumstances in Canada.
» Read more about: Expungements, Pardons and Inadmissibility »
Read more ›Last updated on July 3rd, 2020
In 2013, the Supreme Court of Canada in Ezokola v. Canada (Citizenship and Immigration) created a new test for determining complicity in Article 1F(a) exclusion cases.
Article 1F(a) of the 1951 Refugee Convention provides that:
The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
Pursuant to the Supreme Court of Canada decision in Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40, a crime against humanity is committed when each of the following four elements is satisfied:
- An enumerated proscribed act was committed (this involves showing that the accused committed the criminal act and had the requisite guilty state of mind for the underlying act);
- The act was committed as part of a widespread or systematic attack;
- The attack was directed against any civilian population or any identifiable group of persons; and
- The person who committed the proscribed act knew of the attack and knew or took the risk that his or her act comprised a part of that attack.
The issue that Ezokola addressed is how broad Article 1F(a) is. It if it interpreted too narrowly, then Canada risks creating safe havens for perpetrators of international crimes. If it is read too broadly, then the humanitarian aims of the 1951 Refugee Convention would be imperilled.
» Read more about: Ezokola and the Test For Complicity »
Read more ›The Canada Border Services Agency (“CBSA“) in 2011 produced the Integrated Intelligence / Enforcement Priorities Report (the “Report“). The Report is interesting because it presents succinct descriptions of what CBSA considers to be areas of importance in the enforcement context related to immigration, and why it considers these issues important.
Practitioners may find these summaries useful in explaining to clients why we ask some of the questions that we do.
I have reproduced sections of the report below:
Residence Fraud
What Is It
Canada’s immigration and citizenship legislation both contain residency obligations which must be met in order to be granted citizenship or maintain PR status in Canada. Section 28(1) of the IRPA requires that a PR be physically present in Canada for 730 days in a 5 year period. Failure to meet the residency obligation can result in the loss of PR status and removal from Canada. Furthermore, in order to be eligible for citizenship, section 5 the Citizenship Act requires that a PR accumulate at least 3 years of residence in Canada within the 4 years immediately preceding their application.In many instances, individuals who do not meet the residency requirements under the IRPA use fraudulent documentation or other means to falsely establish their presence in Canada in order to maintain their PR status. This problem is compounded if the fraud is not detected and the person becomes eligible for citizenship based on erroneous information.
Residence Fraud is believed to involve a mix of individuals acting of their own accord and organized attempts to circumvent the provisions of the IRPA and Citizenship Act in order to gain status although the magnitude of the problem remains unknown. The incentive to commit fraud can be great, in part because maintaining PR status permits an individual to become eligible for citizenship and for various other Federal/ Provincial/Territorial (FPT) benefits.
» Read more about: Why the CBSA Enforces What it Does »
Read more ›
Under the Immigration and Refugee Protection Act, all foreign nationals applying for permanent residency, and certain foreign nationals applying for temporary residency, are requested to undergo an immigration medical examination (“IME“) to determine if they are inadmissible on health grounds.
A person will be inadmissible to Canada on health grounds if they are a danger to public health, a danger to public safety, or if they are likely to pose an excessive demand on the health and social services (“Excessive Demand“). The current policies on HIV testing exist because Citizenship and Immigration Canada (“CIC“) determined that people with HIV may pose a danger to public health. As well, based on CIC health data, migrants have at least 10 times the risk of being infected with HIV compared to the Canadian population. Finally, several high profile cases involving permanent residents who were criminally convicted for not informing their sponsor partners about their HIV positive status led to negative publicity for CIC. Indeed, the first Canadian convicted of first degree murder for having transmitted HIV to two persons who subsequently died from HIV was a former refugee.
Notwithstanding the above, since CIC began introducing mandatory HIV testing in 2002, the key reason has been Excessive Demand.
As part of the HIV testing protocol, pre-test counselling is provided to all foreign nationals tested for HIV, while post-test counselling is offered to those found HIV positive. In 2003, CIC implemented an “automatic partner notification” process for sponsored spouses examined overseas. The reason for this was simple. Because s. 38(2) of the Act provided that Excessive Demand could not render someone inadmissible in the Sponsored Family Class, CIC felt obliged to alert sponsors to the principal applicants’ condition. Automatic Partner Notification provides applicants in the Family and Dependant Refugee Classes who test positive for HIV 60 days to voluntarily disclose their HIV-positive status to their partner or to withdraw their application.
» Read more about: HIV and Immigrating to Canada »
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