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 membership in deciding whether the person really was a member of the group or, rather, was motivated by self-preservation.
In sum, a person cannot be considered to be a member of a group when his or her involvement with it is based on duress. At a minimum, a member is someone who intentionally carries out acts in furtherance of the group’s goals. A person who performs acts consistent with those goals while under duress cannot be said to be a genuine member.
» Read more about: Duress and Inadmissibility to Canada »
Read more ›
We have obtained through an Access to Information and Privacy Act request data showing the Canada Border Services Agency’s removal statistics for people in British Columbia from 2003 – 2012 (2012 is partial). I have reproduced below two pages of the data. We have also obtained a chart showing Removal Orders from British Columbia by Country of Birth by Year, which I have not published. If you wish to see it please contact me and I will send it to you by e-mail.
As the chart below demonstrates, removals from British Columbia has increased under the Conservatives. Interestingly, it peaked in 2008 and 2009, before begin to decline.
There is a lot of interesting information contained in the data below, including tables showing:
- Removal Orders by Type;
- Removal Orders by Refugee Claimant vs. Non Refugee Claimant;
- Removal Orders by Status in Canada;
- Removal Orders by Inadmissibility Ground;
- Removal Orders by Gender; and
- Removal Orders by Age.
Please note that the Tables below are a copy of an official work by the Government of Canada which was obtained through an Access to Information and Privacy Act Request, and to my knowledge is not otherwise publicly available. While I believe that the data is still current, I cannot be assured of this. 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: Data Confirms Removals from British Columbia Up Since Conservatives Took Office »
Read more ›Canada’s Immigration and Refugee Protection Act (the “Act“) provides that an officer who believes that a foreign national or permanent resident in Canada is inadmissible to Canada (for criminality, health, overstay, working without authorization, etc.) may prepare a report alleging the inadmissibility (commonly known as an “A44 Report“). The Act further provides that once an officer prepares an A44 Report, then the Canada Border Services Agency (“CBSA“) (the agency generally responsible for this) may commence removal proceedings, or, when necessary, refer the matter to the Immigration and Refugee Board, an independent administrative tribunal.
The use of the term “may” in the Act has caused much confusion.
In Cha v. Canada (Minister of Citizenship and Immigration), 2006 FCA 126 (“Cha“), the Federal Court of Appeal (the “FCA“) declared that the use of the word “may” did not actually grant CBSA officers broad discretion to exercise or not to exercise the power to write A44 Reports and to commence removal proceedings when it believed that someone was inadmissible to Canada. The FCA stated (citations removed for ease of reading):
In Ruby v. Canada (Solicitor General) at pages 623 to 626, Létourneau J.A. reminded us that the use of the word “may” is often a signal that a margin of discretion is given to an administrative decision maker. It can sometimes be read in context as “must” or “shall”, thereby rebutting the presumptive rule in section 11 of the Interpretation Act, R.S.C., 1985, c. I‑21 that “may” is permissive. It can also be read as no more than a signal from the legislator that an official is being empowered to do something. Even when “may” is read as granting discretion,
» Read more about: A Common Sense Approach to A44 Reports »
Read more ›On March 15, 2013, the Canada Border Services Agency (“CBSA“) conducted a raid on a construction site in Vancouver. Much of the media attention has focused on the fact that a reality television crew apparently followed the CBSA officers onto the premise. Many have also commented on how surprised they were that the CBSA apparently arrested many foreign nationals without warrants, and wondered whether this was legal.
It is.
Section 55(2) of the Immigration and Refugee Protection Act (the “Act“) states that:
An officer may, without a warrant, arrest and detain a foreign national, other than a protected person,
(a) who the officer has reasonable grounds to believe is inadmissible and is a danger to the public or is unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2); or
(b) if the officer is not satisfied of the identity of the foreign national in the course of any procedure under this Act.
A foreign national in Canada may be inadmissible for numerous reasons, including if they have remained in Canada beyond the period authorized by their visa, or if they have worked without authorization. If an officer has reason to believe that the foreign national has done something to make them inadmissible, and believes that they likely won’t appear for examination or removal when directed to do so, the officer may arrest and detain the individual. That individual will then have the right to detention reviews at the Immigration and Refugee Board.
In addition to the CBSA, peace officers (the police) also have the authority to arrest and detain individuals without a warrant if they believe that s.
» Read more about: CBSA Arresting People without a Warrant »
Read more ›On March 1, 2013, the Supreme Court of Canada (the “SCC“) in R v. J.F., clarified the elements of the offence of conspiracy. The decision has immigration implications because people who have been convicted of conspiracy may be inadmissible to Canada.
Section 465 of Canada’s Criminal Code criminalizes the offence of conspiracy. Conspiracy is a form of inchoate liability. In other words, the actual result of the conspiracy need not occur for someone to be convicted under s. 465. For example, a person can be convicted of “conspiracy to commit murder” even if the murder does not occur. Furthermore, members in a conspiracy need not personally commit, or intend to commit, the offence which each has agreed should be committed. Any degree of assistance in the furtherance of the unlawful object can lead to a finding of membership as long as agreement to a common plan can be inferred and the requisite mental state has been established.
Aiding or abetting the formation of an agreement between conspirators amounts to aiding or abetting the principals in the commission of the conspiracy. Party liability is limited, however, to cases where the accused aids or abets the initial formation of the agreement, or aids or abets a new member to join a pre‑existing agreement. The SCC ruled that acts that further the unlawful object of a conspiracy are not an element of the offence of conspiracy. Aiding or abetting the furtherance of the unlawful object does not establish aiding or abetting the principal with any element of the offence of conspiracy. However, the SCC noted that where a person, with knowledge of a conspiracy, does or omits to do something for the purpose of furthering the unlawful object,
» Read more about: Supreme Court Clarifies Elements of Conspiracy »
Read more ›Fresh off of last week’s report on people who were declared in 2011 to be inadmissible to Canada when they arrived at the Vancouver International Airport, the following chart obtained through an Access to Information and Privacy Act request shows the source countries of people who were voluntarily allowed to leave YVR without being declared inadmissible to Canada.
The top 10 countries were:
Citizenship
2011
United States
207
Korea
144
China
109
Hong Kong
49
Taiwan
49
Philippines
37
Japan
34
Mexico
28
Australia
26
Germany
30
Israel
18
British
17
India
14
France
11
Read more ›
The British Columbia Supreme Court (“BCSC“) in R v. Appulonappa has struck down s. 117 of the Immigration and Refugee Protection Act (“IRPA“). Section 117 theoretically prohibited human smuggling. Its exact wording was:
117. (1) No person shall knowingly organize, induce, aid or abet the coming into Canada of one or more persons who are not in possession of a visa, passport or other document required by this Act.
(2) A person who contravenes subsection (1) with respect to fewer than 10 persons is guilty of an offence and liable
(a) on conviction on indictment
(i) for a first offence, to a fine of not more than $500,000 or to a term of imprisonment of not more than 10 years, or to both, or
(ii) for a subsequent offence, to a fine of not more than $1,000,000 or to a term of imprisonment of not more than 14 years, or to both; and
(b) on summary conviction, to a fine of not more than $100,000 or to a term of imprisonment of not more than two years, or to both.
(3) A person who contravenes subsection (1) with respect to a group of 10 persons or more is guilty of an offence and liable on conviction by way of indictment to a fine of not more than $1,000,000 or to life imprisonment, or to both.
(4) No proceedings for an offence under this section may be instituted except by or with the consent of the Attorney General of Canada.
As the BCSC noted, it is legitimate, necessary, and laudable for the Canadian government to attack and criminalize what is commonly referred to as human smuggling.
» Read more about: Due Process When Everything is a Crime: Court Strikes Down Human Smuggling Law »
Read more ›
On the same day that Washington State and Colorado voted to legalize the possession of marijuana, Jason Kenney, Canada’s Minister of Citizenship and Immigration Canada, tweeted the following:
To answer your question, it depends on what you mean by foreigners.
Most people probably think that when you say foreigners you mean people residing in Canada as visitors, students, and workers. If that is the case then yes… I believe that it is reasonable for the Canadian government to seek to remove such people from Canada if they are convicted of drug trafficking here.
However, the Conservative government’s Bill C-43, the Faster Removal of Foreign Criminals Act, currently before Parliament, goes beyond foreign nationals. It provides that permanent residents who are sentenced to six months or more imprisonment (including conditional sentences) must be removed from Canada, regardless of how long they have been immigrants, whether they have family in Canada, or their specific circumstances.
I recently acted for an individual who immigrated to Canada over twenty years ago, but never became a Canadian citizen. His family, including a wife and children, are all Canadian citizens. The Minister of Public Safety and Emergency Preparedness sought to deport him because he was convicted of one incident of trafficking cocaine, and was sentenced to a 15-month conditional sentence. Under our current immigration system, he could appear before the Immigration Appeal Division. The IAD could consider his circumstances (including length of time and family in Canada) and stay his deportation subject to him complying with certain conditions (including not be involved in further criminal activity). If Bill C-43 had been in force at the time that the Canadian government sought to deport him, he would not have been able to go to the Immigration Appeal Division,
» Read more about: Removing “Foreigners” Who Traffic Drugs »
Read more ›
Since my blog post on Friday I’ve received several questions about the Electronic Travel Authorization initiative revealed in the second 2012 Budget Implementation Act.
The most common question was how much it will cost a person to apply to the program.
The Government of Canada has not yet announced how much it will charge applicants to the program. In the United States, the Electronic System for Travel Authorization costs $14.00, and is valid for 2 years. (Only $4.00 goes to the cost of administering the program. The remaining $10.00 goes to tourism promotion.) In Australia, applicants can choose to pay AUD 20.00 for a 12 month authorization, or AUD 105.00 for a long term authorization valid for the duration of an applicant’s passport. These comparisons obviously don’t reveal how much Canada will charge, however, they provide an indication of what the “norm” for these types of programs are.
Another question was why applicants will have to go to the Citizenship and Immigration Canada website to apply for an Electronic Travel Authorization when the airlines through which they booked their flights to Canada already collect this information.
I don’t know the answer to this question, but I would suspect that it because the airlines do not want to hold seats while Citizenship and Immigration Canada determines whether someone is admissible to Canada. The Electronic Travel Authorization can simply be part of the price of an airline ticket because of the complications involving flight refunds if authorization is refused.
The final, and in my opinion the most significant question, was whether the Electronic Travel Authorization programs means that Port of Entry Temporary Resident Permit (“TRP”) applications will become obsolete.
» Read more about: Questions About the Electronic Travel Authorization Initiative »
Read more ›
The Federal Court has affirmed the reasonableness of Citizenship and Immigration Canada’s (“CIC“) decision to declare a Buddhist priest inadmissible to Canada for misrepresentation. The consequence of being declared inadmissible to Canada is a two-year ban on entering Canada.
The priest, who at the time of the decision lived in Toronto, filed an application for permanent residency with CIC in 2009. On his Schedule 1 Background Declaration form, the priest answered as follows:
The priest ticked NO to bullet points 2 and 3 despite having applied for numerous temporary resident visas in the past. While most of these were approved, one of them was rejected.
CIC determined that the priest’s misstatement was material enough to result in the priest being inadmissible to Canada for misrepresentation.
The decision did not address whether a misrepresentation finding would have been reasonable if the priest had never been refused a visa. In other words, if the priest had merely not disclosed that he had previously applied for temporary resident visas which were all approved, would a misrepresentation finding still be reasonable?
It may be that we never learn the answer.
To anyone who recently applied for permanent residency and is thinking “I don’t remember being asked this question and I checked NO to all the boxes in the Schedule 1..” don’t worry… CIC recently changed the Schedule 1 Background Declaration form.
It now only asks if applicants have previously been refused a visa.
» Read more about: Buddhist Priest Inadmissible For Misrepresentation »
Read more ›Social Media
