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 As noted in IRCC’s 2021 United States Criminality Assessment Guide (the “IRCC NY Guide“), in reviewing a rehabilitation application that includes an expungement or other permanent relief mechanism, it is recommended that a thorough review be conducted to determine whether the relief issued by the individual state equates to the conditions of a record suspension in Canada. Canada (Minister of Citizenship and Immigration) v. Saini, [2001] F.C.J. No. 1577 is the leading case in relation to the recognition of foreign pardons. There, the Federal Court of Canada created a three pronged test to establish whether Canadian law will recognize a foreign pardon or expungement. The test is: The foreign legal system as a whole must be similar to the Canadian one; The content, aim and effect of the foreign law in question must be similar to the Canadian law; and No other valid reason exists that would compel Canadian authorities not to recognize the effects of the foreign law. According to the IRCC NY Guide, IRCC has determined that the United States possesses legal traditions … Read More
The CBSA Databases – ICES, FOSS, CPIC, and NCIC
In 2013 the Federal Court released its decision in Martin-Ivie v. Canada (Attorney General), 2013 FC 772 (“Martin-Ivie“), a case which involved a Canada Border Services Agency (“CBSA“) officer who sued CBSA over what she regarded as safety issues. The case revealed much about the operations of the CBSA at land ports of entry. I have combined information from Martin-Ivie with what is found in the People Processing Manual and the Customs Enforcement Manual to help provide further understanding of what CBSA officers are looking at on their computers at primary inspection (“Primary“). The Databases There are four databases which CBSA officers have access to at Ports of Entry. Integrated Customs Enforcement System (“ICES”) ICES is a national Canadian database of lookout information and enforcement activities that, amongst other things, contains information about Canadians who have come into contact with CBSA, or individuals who might seek to enter the country and might pose a risk. In addition to traveller records, ICES contains information on customs seizures for a period of five years. As well, ICES contains a record of every vehicle (and theoretically individual person) entry into Canada. (Practitioners generally request copies of ICES when representing individuals in permanent resident card renewal … Read More
Borderlines Podcast #51 – Inadmissibility to Canada for Committing a Criminal Offence, with Sania Chaudhry
A discussion of when someone can be inadmissible to Canada for having committed a crime which doesn’t lead to a conviction. Cases referenced are Garcia v. Canada (Citizenship and Immigration), 2021 FC 141 and Dlieow v. Canada (Citizenship and Immigration), 2020 FC 59 Sania (Ahmed) Chaudhry was counsel in Garcia. She is currently Legal Counsel (Professional Conduct Proceedings) at Real Estate Council of Alberta. 2:00 Introduction and an overview of Garcia v. Canada. 15:00 The purpose of Canada’s inadmissibility provisions. 17:10 What is the standard of proof for determining that someone committed a crime where there is no conviciton? 19:45 A review of Enforcement Manual 2 30:30 Determining equivalency and issues with inadmissibility findings where there is no conviction. 39:30 Dlieow v. Canada (Citizenship and Immigration) 46:00 Living in a society where the State makes everything a crime.
Duress and Inadmissibility to Canada
The Supreme Court of Canada has “clarified” the elements of the duress defence. The defence is important because it can affect admissibility. For example, in Guerra Diaz v. Canada (Citizenship and Immigration), 2013 FC 88, the Federal Court of Court determined that the Immigration and Refugee Board improperly applied the test of whether duress applied, and ordered a new hearing by a different member. Duress and Inadmissibility It is basically trite law that where there is duress, then a person does not have the mens rea do either commit a crime or be a member in a group that renders the individual inadmissible to Canada. In Jalloh v. Canada (Minister of Public Safety and Emergency Preparedness), 2012 FC 317, the Federal Court stated that: In my view, it is preferable to consider the evidence of membership along with the evidence of coercion in determining whether there are reasonable grounds to believe the person genuinely was a member of the group. One way of looking at this issue is to regard evidence of duress as defeating the mens rea of membership (Thiyagarajah v Canada (Minister of Citizenship and Immigration), 2011 FC 339). Accordingly, evidence relating to duress must be considered along with the evidence relating to … Read More
Deferring Removal
People who either face removal or who have received a removal order should contact a lawyer immediately to determine what their options are. The purpose of this post is to provide an overview of the legislative scheme for deferring removal orders. It provides a general framework, and cannot substitute the advice that a lawyer can give when he applies these facts to your situation.
When an Applicant’s and a Visa Officer’s Account Differs
It is not uncommon for applicants to have a differing account of what transpired during a visa interview or a port of entry matter from what an immigration officer says occurred. As such, it is very important that applicants take detailed notes of every interaction that they have with government officials. The Federal Court recently dealt with the issue of inconsistencies in Gedara v. Canada (Citizenship and Immigration), 2016 FC 209. The Federal Court stated (emphasis added, and citations removed for ease of reading): The affidavits filed by the Applicant and by the Interviewing Officer present opposing accounts of the tone of the interview and whether concerns were specifically communicated. I find the Applicant’s affidavit more persuasive and assign it more weight for the following reasons. I agree with the reasoning in Rukmangathan, above, at paras 30, 31, citing Parveen v Canada (Minister of Citizenship and Immigration), that “…[v]isa officers deal with many applications, one can expect that they will not have as precise a memory of the event as does the applicant” The interview took place on March 11, 2015, yet the Officer’s affidavit was sworn in December 4, 2015 – approximately nine months later. The extended passage of time and the number of … Read More
A34 – Inadmissibility for Security Reasons
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 … Read More
Inadmissibility Due to Non-Compliance with the Act
Individuals can be inadmissible to Canada for numerous reasons, including criminality, misrepresentation, medical issues, and non-compliance with Canadian immigration legislation. The latter reason, non-compliance with the Canadian immigration legislation, can seem extremely vague. Fortunately, the Immigration, Refugees and Citizenship Guidelines contains a list of the different frequently used reasons for declaring someone inadmissible for non-compliance with the Act. They are: Entering Canada to remain on a permanent basis without first obtaining a permanent resident visa. Entering Canada to remain on a temporary basis without first obtaining a temporary resident visa. Entering Canada to study without first obtaining a study permit. Entering Canada to work without first obtaining a work permit. Not answering questions truthfully or producing required relevant documents. Not submitting to a medical examination. Not holding a medical certificate that is based on the last medical examination. Not holding the required documents to enter Canada. Not establishing that the person will live Canada by the end of the authorized period. Where a person is subject to an enforced removal, returning to Canada without authorization. Working without authorization. Studying without authorization. Not leaving Canada at the end of the authorized period. Not reporting to a port of entry examination without … Read More
Section 7 of the Charter and Canadian Immigration Law
Section 7 of the Canadian Charter of Rights and Freedoms (the “Charter“) provides that: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. There have been several Supreme Court of Canada (the “Supreme Court“) and Federal Court of Appeal decisions involving s. 7 of the Charter and Canadian immigration law.
Chipping Away At Discretion
Discretion is the freedom to decide what should be done in a given situation. In the criminal justice system, in 2014 the Supreme Court of Canada (the “SCC“) in R v. Anderson recognized that prosecutorial discretion “is a necessary part of a properly functioning criminal justice system.” Examples of prosecutorial discretion include the decision to repudiate a plea agreement, the decision to pursue a dangerous offender application, the decision to prefer a direct indictment, the decision to charge multiple offences, the decision to negotiate a plea, the decision to proceed summarily or by indictment, and the decision to initiate an appeal. Similarly, in R. v. Beaudry, the Supreme Court recognized the importance of police discretion, noting that: Applying the letter of the law to the practical, real‑life situations faced by police officers in performing their everyday duties requires that certain adjustments be made. Although these adjustments may sometimes appear to deviate from the letter of the law, they are crucial and are part of the very essence of the proper administration of the criminal justice system, or to use the words of s. 139(2), are perfectly consistent with the “course of justice”. The ability — indeed the duty — to use one’s judgment to … Read More