One of the challenges in immigration law is determining the appropriate balance between the understandable necessity of ensuring that visa applicants are upfront and honest and humanitarian & compassionate considerations (“H&C considerations”).
In the removals context, s. 67(1)(c) of Canada’s Immigration and Refugee Protection Act specifically provides that removal orders issued as a result of misrepresentation may be excused in light of sufficient H&C considerations. As the Federal Court of Canada noted in Li v Canada (Public Safety and Emergency Preparedness), 2016 FC 451, even though Parliament intended there to be consequences for misrepresentation, it also recognized that there may be circumstances where a removal order issued due to misrepresentation may be cured by H&C relief
The balancing act can be especially complex when children are involved. In Baker v. Canada (Minister of Citizenship and Immigration), the Supreme Court of Canada stated that H&C considerations require that immigration officers consider the best interests of a child when there are children involved.
As I have previously discussed on this blog, this principle has created a bit of a myth that the bests interests of a child will be determinative in any application. This is simply not the case. For example, in Canadian Foundation for Children, Youth, and the Law , the Supreme Court declared that:
It follows that the legal principle of the “best interests of the child” may be subordinated to other concerns in appropriate contexts. For example, a person convicted of a crime may be sentenced to prison even where it may not be in his or her child’s best interests. Society does not always deem it essential that the “best interests of the child” trump all other concerns in the administration of justice.
» Read more about: The Best Interests of the Child and Misrepresentation »
Read more ›The subject unreasonable delays often arise in the immigration context. In one case that I was previously involved with, an individual was in Canada for 11-years before the Canada Border Services Agency expressed concerns that he might be inadmissible to Canada for previous involvement in a group accused of terrorism. In another case, an individual who had been in and out of Canada numerous times was suddenly denied entry to Canada because of a criminal conviction that occurred eight years ago. In both cases, the client asked whether the delay amounted to an abuse of process, and if so, what the remedy was.
As the Federal Court of Appeal noted in Mahjoub v. Canada (Citizenship and Immigration), 2017 FCA 157, the Federal Court of Canada has the jurisdiction to issue a permanent stay of proceedings, and less drastic measures, as a result of an abuse of process. It is less clear whether the Immigration and Refugee Board can issue stays of proceeding for delays. In Canada (Public Safety and Emergency Preparedness) v. Najafi, 2019 FC 594, Associate Chief Justice Gagné held that it does, but certified the following question:
Do the Immigration Division and the Immigration Appeal Division of the Immigration and Refugee Board have the jurisdiction to grant a permanent stay of proceedings based on an abuse of process on the basis of a delay which is alleged to have occurred following the signing of the s. 44(1) report and/or s. 44(2) referral?
Blencoe v. British Columbia
The leading Supreme Court of Canada decision on this issue is Blencoe v. British Columbia, 2000 SCC 44 .
In Blencoe, three women filed complaints of sexual harassment to the British Columbia Human Rights Council.
» Read more about: When an Administrative Delay is an Abuse of Process »
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Are you an American citizen who was recently denied entry to Canada while attempting to cross the border? Were you told that you were “inadmissible for criminality” and that you were “not allowed to enter Canada for 2, 3, 4, or even up to ten years?”
Many Americans are often stunned to discover that they are inadmissible to Canada for offenses that are just misdemeanors in the United States. Examples that our office has recently dealt with include:
- Negligent driving in Washington State (easily the most common reason that an individual is denied entry);
- Fishing off limits in Alaska;
- Trespassing in Nevada;
- Reckless driving in Wisconsin;
- Possession of cocaine in Oregon;
- and the list goes on and on.
You Have Options
If you have been denied entry into Canada because of a criminal record, or if you are wary of even attempting to cross because you believe that you will be denied entry, then it is important to know that you always have options.
Our offices regularly assists individuals who have been told that they are inadmissible to Canada.
Amongst the services that we can help you with include:
- Determining whether you were actually “convicted”. Many people mistakenly think that if they were sentenced for an offense, then they must have also convicted. This, however, is not always the case. It is important to note that Canadian border officials often do not have your full criminal record. They know you were charged with an offense. They may even know that you were convicted.
» Read more about: Denied Entry into Canada for DUI »
Read more ›Section 122 of the Immigration and Refugee Protection Act states:
122. (1) No person shall, in order to contravene this Act,
(a) possess a passport, visa or other document, of Canadian or foreign origin, that purports to establish or that could be used to establish a person’s identity;
(b) use such a document, including for the purpose of entering or remaining in Canada; or
(c) import, export or deal in such a document.
The consequence of being found guilty of s. 122(1)(a) is liability to conviction on indictment of up to a term of imprisonment of a maximum of 5 years. The average sentence winds up ranging from 4 months – 2 years imprisonment. It is rare for a conditional sentence to be imposed.
The consequence of being found guilty of ss. 112(1)(b)-(c) is conviction on indictment to a term of imprisonment of up to 14 years.
An additional, and important, consequence, is that if you are convicted of an offense under s. 122 of IRPA, then you will be inadmissible to Canada for at least five years.
» Read more about: Using a Fake Passport to Enter Canada »
Read more ›If you have a s. 34(2) Application for Ministerial Relief being processed then you need to read this. The Federal Court of Appeal (the “Court”) has just released a ruling that has turned this area of the law upside down, and that will likely result in your application being rejected. You need to contact your immigration consultant or lawyer to discuss the implications of this case.
Read more ›I have previously written that criminal convictions for foreign offenses can result in individuals being inadmissible to Canada. I was recently asked what the implication of charges or pending charges that have not yet been adjudicated.
Read more ›An individual who has been convicted of offense outside of Canada needs to determine what the equivalent offense would be in Canada.
Read more ›People issued removal orders often want to know how long they can stay in Canada before they have to leave, and if there is a chance to defer removal.
Read more ›People applying for a Canadian permanent resident visa are regarded to undergo medical examinations. Many people with certain conditions are understandably apprehensive about how these examinations will impact their ability to immigrate. In this post, I hope to provide an overview about the issue of “excessive demand on health or social services,” which is probably the medical evaluation component that causes the most misconceptions.
Read more ›Section 35 of the Immigration and Refugee Protection Act (the “IRPA“) provides that:
Human or international rights violations
35 (1) A permanent resident or a foreign national is inadmissible on grounds of violating human or international rights for
(a) committing an act outside Canada that constitutes an offence referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act;
(b) being a prescribed senior official in the service of a government that, in the opinion of the Minister, engages or has engaged in terrorism, systematic or gross human rights violations, or genocide, a war crime or a crime against humanity within the meaning of subsections 6(3) to (5) of the Crimes Against Humanity and War Crimes Act; or
(c) being a person, other than a permanent resident, whose entry into or stay in Canada is restricted pursuant to a decision, resolution or measure of an international organization of states or association of states, of which Canada is a member, that imposes sanctions on a country against which Canada has imposed or has agreed to impose sanctions in concert with that organization or association.
Sections 4 to 7 of the CAHWCA
Hence, pursuant to s. 35(1)(a) of the IRPA, a permanent resident or a foreign national is inadmissible to Canada on grounds of violating human or international rights for committing an act outside Canada that constitutes an offence referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act (the “CAHWCA”).
Section 4 of the CAHWCA includes genocide, a crime against humanity and war crimes.
Crimes against humanity means murder, extermination, enslavement, deportation, imprisonment, torture, sexual violence, persecution or any other inhumane act or omission that is committed against any civilian population or any identifiable group and that,
» Read more about: Inadmissible for Crimes Against Humanity »
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