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 June 14th, 2019
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;
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 »
Read more ›In May 2011, the Government Consulting Services prepared a report for the Canada Border Services Agency titled Identification and Assessment of Options for the Escort Program (Project Number: 520-1412).
This blog post is a summary of that report. As the report is over 30 pages, please contact me if you want me to e-mail you a copy of the entire report.
In brief, in 2010/11 the cost of escorted removals was $7.5-million dollars, with an average cost per escorted removal at $13,933.00. The estimated total time spent by the CBSA to complete escorted removals during this time was 78,160 hours.
As noted in the report,
the decision as to whether a foreign national’s removal will be escorted or not lies with the Inland Enforcement regional managers or supervisors who oversee removals. The assessment focuses on many factors related to determining the level of risk likely to be present during the removal such as: the person’s comportment, anticipated reaction to their return to the country of destination, the length of the trip, and/or the transit point(s), the person’s past criminal behaviour, their physical and psychological condition, and more. In some cases, a medical escort may also be provided by the CBSA.
The cost of removals was broken down as follows:
Costs and Hours
Estimated Annual Total Costs
Flight Costs for CBSA Escort Officers
$3,784,908.00
Flight Costs for Foreign Nationals
$773,782.00
Expenses (Accommodation, Other)
$884,718.00
Cost of Regular Working Hours
$821,311.00
Cost of Overtime
$1,428,804.00
Total Costs
$7,495,935.00
The reason that the Flight Costs for CBSA Escort Officers is so much greater than the Flight Costs for Foreign Nationals is because CBSA officers must also pay for their flight to return to Canada. As well, for long distance flights, the CBSA policy is for officers to return to Canada by flying business class.
» Read more about: The Cost of Escorted Removals and Detentions »
Read more ›In June 2012 I wrote about how the Conservative government had introduced Bill C-43, the Faster Removal of Foreign Criminals Act (“Bill C-43“). Amongst other things, Bill C-43 increases the penalties for misrepresentation, removes appeal rights for permanent residents who are sentenced to a length of imprisonment of six months or more, gives the Minister of Citizenship and Immigration Canada the power to let otherwise inadmissible people to Canada into the country based on his discretion, and prohibits visa officers from considering humanitarian & compassionate factors in certain scenarios.
On June 19, 2013, Bill C-43 received Royal Assent.
Citizenship and Immigration Canada (“CIC“) has now begun rolling out Operational Bulletins to instruct visa officers of its implications.
Operational Bulletin 532 – Coming into Force of Bill C-43 – Inadmissibility on Security Grounds (“OB-532”)
Subsection 34(1)(a) of the Immigration and Refugee Protection Act (“IRPA“) previously provided that a permanent resident or a foreign national is inadmissible to Canada on security grounds for:
engaging in an act of espionage or an act of subversion against a democratic government, institution or process as they are understood in Canada
IRPA 34(1)(a) has been reworded to provide that a permanent resident or a foreign national is inadmissible to Canada on security grounds for:
engaging in an act of espionage that is against Canada or that is contrary to Canada’s interests
As well, a new IRPA 34(1)(b.1) will make a permanent resident or a foreign national inadmissible to Canada on security grounds for:
engaging in an act of subversion against a democratic government, institution or process as they are understood in Canada
The question that arises from this change is what constitutes espionage that is “contrary to Canada’s interest”
» Read more about: Bill C-43 Comes into Force »
Read more ›The following are some excerpts from the July 2010 RIMbits. RIMbits are messages sent from National Headquarters to missions overseas. The July 2010 RIMbits on admissibility consisted of eight questions and answers or bulletins. I have reproduced three of them for free below.
Please note that the questions and answers below should not be viewed as legal advice. Rather, they are simply reproductions of how CIC senior management answered specific questions from visa offices in July 2010.
Canadian citizen Visiting Forces Act applicant
Q. We ask for your opinion on the process for a Canadian dual citizen and his family who wish to enter Canada under the Act on Visiting Forces at the request of the ________ government. The applicant and spouse currently have official _____ passports. The sons, also dual citizens, have an ordinary ____ passports stating “son of government agent.” With what documentation should the applicant and his sons travel? Obtaining proof of Canadian citizenship for the children could take 14-16 months.
Also, the spouse has no status in Canada. The Foreign Worker Guide indicates that dependents of people who are in Canada under the Visiting Forces Act qualify for an open work permit. As the spouse of a Canadian citizen, is the wife still eligible for a work permit or study permit?
A. The Canadian citizens (principal applicant and sons) could arrive in Canada with their Official passports ______ with no permits or visas; however, the Port of Entry will have to investigate again their status as Canadian citizens. Therefore, I suggest that the applicant and his children be issued Facilitation visas so that CBSA POE will have the full story at their fingertips. The visa-exempt spouse, as accompanying dependent under the Visiting Forces Act,
» Read more about: RIMBits Revealed (July 2010) »
Read more ›The following are some excerpts from the May 2010 RIMbits. RIMbits are messages sent from National Headquarters to missions overseas. The May 2010 RIMbits on admissibility consisted of seven questions and answers. I have reproduced three of them for free below.
Please note that the questions and answers below should not be viewed as legal advice. Rather, they are simply reproductions of how CIC senior management answered specific questions from visa offices in May 2010.
Seized Travel Document
Q) We were notified by the authorities that a permanent resident travelling on a Canadian travel document has been charged with: (1) ______ (2) _____ and (3) _____. According to local authorities, the permanent resident has been released on bail with the condition that she surrender her travel document and that “Stop Orders” are placed with the Immigration exit controls at airports. We have been formally requested not to issue a new travel document to this permanent resident “until the matters have been disposed.”
As the charged person is not a Canadian, the Consular Section has referred this case to us. Although she has not done so at this point, it is possible that in the near future, this permanent resident may request from the visa office a Permanent Resident Travel Document or other documents to facilitate her return to Canada. Would you have any advice on what we may and may not consider if the permanent resident applies for a PRTD before the judicial proceedings have come to a conclusion?
(A) The permanent resident’s Canadian travel document has been seized by local authorities in connection with a legal matter. It is not lost or stolen, and she will get it back when the legal process is completed.
» Read more about: RIMbits Revealed (May 2010) »
Read more ›Being a member of certain organizations can result in a person being inadmissible to Canada. In going through internal CIC documents I obtained through an Access to Information and Privacy Act request, I came across a list prepared by the Canadian Embassy in Paris. It lists every court case (to 2006) involving people who were declared inadmissible to Canada for membership in an organization. Although the list is obviously dated, individuals who were members in any of the groups which appear below should contact a representative before submitting applications or making refugee claims.
Country (Organization)
Case Name
Judgment
Type of Organization
Afghanistan (Air Force)
Khan
1F(a) Exclusion
Non-Brutal
Afghanistan (Police)
Mohammad
1F(a) Exclusion
Non-Brutal
Afghanistan (PDPA)
OFUQ
1F(a) Exclusion
Non-Brutal
Afghanistan (Secret Police -Khad)
Raduli
1F(a) Exclusion
Brutal
Afghanistan (Secret Police -Khad)
Zadeh
1F(a) Exclusion
Brutal
Afghanistan (Secret Police -Khad)
Moshen
Insufficent Evidence for 1F(a)
Brutal
Afghanistan (Secret Police -Khad)
Hamidi
35(1)(a) overturned
Brutal
Albania (Secret Police – Shik)
Lalaj
1F(a) Exclusion
Algeria (Police)
Kiared
1F(a) Exclusion
Non-Brutal
Algeria (Police)
Allel
1F(a) Exclusion
Non-Brutal
Algeria (FIS)
Chougui
1F(a) Exclusion
Non-Brutal
Algeria (GIA)
Ikhlef
Security Certificate Upheld
Terrorist
Angola (MPLA)
Goncalves
Insufficent Evidence for 1F(a)
Non-Brutal
Angola (ANP)
Januario
1F(a) Exclusion
Non-Brutal
Angola (FLEC)
Muto
Not involved in crimes against humanity
Non-Brutal
Angola (FLEC/FAC)
Nlandu-Nkosi
Terrorist Organization
Terorrist
Angola (Army)
Joao Antonio
1F(a) Exclusion
Brutal
Angola (MOI)
Justino
1F(a) Exclusion
Non-Brutal
Azerbaijan (Police)
Saftarov
Insufficent Evidence for 1F(a)
Non-Brutal
Bangladesh (PBS)
Khan
Insufficent Evidence for 1F(a)
Non-Brutal
Bangladesh (Awami League)
Chowdhury
Insufficent Evidence for 1F(a)
Non-Brutal
Bangladesh (Awami League)
Chowdhury
1F(a) Exclusion
Non-Brutal
Bolivia (Army, AND)
Ledezma
Insufficent Evidence for 1F(a)
Non-Brutal
Burundi (Government)
Kaburundi
1F(a) Exclusion
Non-Brutal
Burundi (Government)
Ryivuze
1F(a) Exclusion
Non-Brutal
Cambodia (Police Force)
Say
1F(a) Exclusion
Non-Brutal
Chile (Socialist Party; MRPF)
Cardenas
Insufficent Evidence for 1F(a)
Non-Brutal
Chile (Military)
Saavedra
1F(a) Exclusion
Non-Brutal
China (Government)
Han
1F(a) Exclusion
Non-Brutal
China (Family planning)
Yang
1F(a) Exclusion
Non-Brutal
China (Security guard at abortion clinic)
Chen
1F(a) Exclusion
Non-Brutal
China (Family Planning Manager)
Lai
1F(a) Exclusion
Non-Brutal
Columbia (Army)
Torres Herrera
1F(a) Exclusion overturned
Non-Brutal
Columbia (Army)
Bedoya
1F(a) Exclusion overturned
Non-Brutal
Columbia (Army)
Ortiz Ardilla
1F(a) Exclusion overturned
Non-Brutal
Columbia (Army)
Corrales Murcia
1F(a) Exclusion overturned
Non-Brutal
Columbia (Army)
Torres Rubianes
1F(a) Exclusion overturned
Non-Brutal
Columbia (Army)
Bonilla Vasquez
1F(a) Exclusion overturned
Non-Brutal
Columbia (Navy)
Ruiz Blanco
1F(a) Exclusion overturned
Non-Brutal
Columbia (DAS)
Escorcia
1F(a) Exclusion overturned
Non-Brutal
Congo (CSE)
Bukumba
1F(a) Exclusion
Non-Brutal
congo (NSIP/NIPS)
Zoya
1F(a) Exclusion
Non-Brutal
Congo (SARM)
Musansi
Insufficent Evidence for 1F(a)
Non-Brutal
Congo (ANR)
Diasonama
1F(a) Exclusion
Brutal
Congo (MLC)
Molebe
Not Excluded
Brutal
Congo (Garde Civile)
Yogo
Insufficent Evidence for 1F(a)
Non-Brutal
Congo (Foreign Service)
Imama
1F(a) Exclusion
Non-Brutal
Congo (Judiciary)
Mankoto
1F(a) Exclusion overturned
Non-Brutal
Ecudaor (army – » Read more about: List of Organizations where Membership can Cause Admissibility Issues »
Read more ›When the Canada Border Services Agency began dramatically increasing enforcement operations, many wondered where the Department was going to detain individuals. The provinces, especially Ontario, has indicated for many years that they do not want to be in the “detention business.” The internal document below shows that at one point the Department went so far as to approach the Department of National Defence to host some immigration detainees, particularly in the case of mass arrivals and security certificate cases. Ultimately, as the document below also indicates, the Department of National Defence was not interested.
Neither the provinces nor DND appear to be interested in using their facilities to detain “illegal immigrants.” Given this, I am always surprised when a few CBSA officers (certainly not all, or even most) decide to detain people as a matter of course, only to have them be released only a few days later by the Immigration Division.
Please note that the document below was obtained through an Access to Information and Privacy Act Request, and to my knowledge is not otherwise publicly available. The reproduction of this document has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada.
» Read more about: The Cost of Detaining “Illegal Immigrants” »
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