Borderlines Podcast #34 – Canada and the Compact for Migration, with François Crépeau
François Crépeau is a Professor at the McGill Faculty of Law and the Director of the Centre for Human Rights and Legal Pluralism. He was the United Nations Special Rapporteur on the Human Rights of Migrants from 2011 to 2017.
Peter Edelmann and François discuss migration issues generally, the Compact for Migration, and its implication for Canadian immigration and refugee law.
This episode was recorded before Peter Edelmann was appointed to the British Columbia Supreme Court.
4:15 – What does a UN special rapporteur on migration do?
8:00 – What impacts could climate change have on the future of global migration patterns?
10:37 – How does Canadian refugee law address the issue of climate refugees?
21:00 – What led up to the Compact on Global Migration and what preceded it? How has migration historically been monitored / governed on a global scale?
28:00 – What is the international definition of a refugee?
31:3– What percentage of migrants would qualify as refugees?
33:30 – What is the Global Compact on Migration?
Borderlines Podcast #32 – Keep Out the Poor – How Canada and the US Address Immigrants on Welfare, with Andrew Hayes
Andrew Hayes is a US immigration lawyer who practices in Vancouver.
In this episode we discuss how the immigration systems of Canada and the United States each deal with the issue of immigrants and social assistance.
How similar is the “public charge” rule in the United States and “financial inadmissibility” in Canada? What is a sponsorship bar? Can permanent residents be deported for imposing a fiscal burden on the state?
00:30 – How does US immigration law and policy development work?
1:45 – What is the public charge rule?
2:30 – What is an affidavit of support?
4:00 – Does the United States have a points based economic immigration system?
5:40 – What are the concerns about Donald Trump’s changes from a substantial impact?
8:00 – What is the Low Income Requirement in Canada? Is there a similar requirement in the United States?
11:00 – There are often situations where the sponsor of a family member may be poor, but the breadwinner of the family is the prospective immigrant. How does Canadian and American immigration law account for this?
13:00 – Are affidavits of support usually enforced? What about sponsorship undertakings?
23:00 – How does financial inadmissibility work in Canada?
25:30 – What is the consequence of being determined to be financially inadmissible?
27:00 – Can a permanent resident of Canada be financially inadmissible to Canada? What about to the United States?
38:20 – Can someone be medically inadmissible to the United States?
43:30 – How are the courts likely to react to Trump’s changes to the public charge rule?
57:20 – Can refugees be financially inadmissible?
Read more ›Borderlines Podcast #31 – How Much Does Immigrating Matter on Which Officer or Judge You Get? with Sean Rehaag
Sean Rehaag is an Associate Professor at Osgoode Hall Law School. His academic research focuses on empirical studies of immigration and refugee law decision-making processes.
Sean, Deanna, Peter and Steven discuss his quantitative research which has used large data-sets to study extra-legal factors that influence outcomes in Canadian refugee adjudication. Does immigrating to Canada, getting refugee status or winning a judicial review simply depend on the luck of who decides your application?
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Read more ›Borderlines Podcast #30 – Excluding Family Members from Immigrating vs. Compassion, with Jamie Chai Yun Liew
Jamie Chai Yun Liew is a law professor at University of Ottawa and an immigration lawyer. She acted for the Canadian Council for Refugees as intervener before the Supreme Court of Canada in Kanthasamy v. Canada (Citizenship and Immigration).
Jamie, Peter, Deanna and Steven discusses humanitarian & compassionate considerations in Canadian immigration law, including the Supreme Court of Canada decisions in Baker and Kanthasamy. We also discussed Regulation 117(9)(d), which excludes unexamined family members from future sponsorship, and the recently announced pilot to mitigate the impact of this exclusion.
2:45 – What is Regulation 117(9)(d)?
6:30 – What is a Family Member?
7:00 – What does it mean to be “examined” for immigration purposes?
7:30 – What are the consequences of someone’s ability to immigrate to Canada if they have an inadmissible family member?
14:00 – How does IRPR r. 117(9)(d) work to exclude immigration?
15:45 – Why would someone not declare a family member when they immigrate?
26:00 – What options are available to bring a family member excluded by Regulation 117(9)(d) to Canada?
33:00 – What is the difference between a humanitarian & compassionate application vs. a family sponsorship?
36:00 – What was the Supreme Court of Canada decision in Baker?
39:00 – What was the Supreme Court of Canada decision in Kanthasamy?
50:00 – What were the Minister’s recent announcements regarding Regulation 117(9)(d)?
Read more ›Borderlines Podcast #26 – Representing Edward Snowden and an Overview of Hong Kong Refugee Law, with Robert Tibbo
Robert Tibbo is a Canadian lawyer based in Hong Kong, where he has an active human rights and refugee law practice. He has served as counsel in many notable cases, including Edward Snowden, a former contractor for the United States government who copied and leaked classified information from the National Security Agency in 2013.
Peter and Robert discuss what it is like to practice refugee law in Hong Kong and about Robert’s representation of Edward Snowden, which at one point included arranging for Mr. Snowden to stay with other asylum claimants in Hong Kong to avoid being detected by the authorities.
2:00 – What was Robert’s career path that led him to become a human rights lawyer in Hong Kong?
7:12 – What are the primary source countries of people who are coming into Hong Kong to make refugee claims?
9:00 – What is the asylum claim process like in Hong Kong?
17:20 – What does everyday life look like for an asylum claimant in Hong Kong?
26:30 – How did Mr. Tibbo come to represent Edward Snowden?
34:00 – What was Mr. Tibbo’s legal strategy for Edward Snowden?
38:00 – What was the legal context in which Mr. Tibbo helped Edward Snowden evade detection?
42:00 – Did Mr. Tibbo have any ethical concerns when Edward Snowden was “housed” with a few of his other asylum claimant clients?
50:30 –What is the current status of the seven asylum claimants who housed Edward Snowden?
55:20 – What was the final legal status for Edward Snowden in terms of his status in Hong Kong?
Read more ›
Borderlines Podcast #25 – Protecting Foreign Workers and Employer Compliance Inspections, with Meera Thakrar
The Government of Canada, as well as several provincial governments, have introduced several measures to protect temporary foreign workers and maintain the integrity of Canada’s foreign worker programs.
Meera Thakrar is a Canadian immigration lawyer whose practices focus on helping companies recruit and retain foreign workers.
Meera joins Peter Edelmann, Deanna Okun-Nachoff and Steven Meurrens to discuss various measures that different levels of government have introduced to protect foreign workers, challenges do governments face in this task and how employer compliance inspections work.
2:15 – Deanna discusses vulnerabilities that caregivers face. These include nonpayment of wages, excessive hours and more. What aggravates the situation is that because caregivers typically seek permanent residency and reporting abuse could potentially jeapordize this.
4:30 – What are some of the motivations of caregiver employers who exploit their foreign workers? What are some possible solutions to reduce the vulnerability of caregivers?
10:20 – Do what extent does the caregiver program deflate Canadian wages? To what extent does the fact that foreign workers provide cheap labour, making goods and services affordable, create a disincentive to stricter enforcement of foreign worker rights.
12:20 – An overview of how the government’s enforcement of compliance in the Temporary Foreign Worker Program and the International Mobility Program works.
14:55 – Canada and British Columbia have an agreement whereby foreign workers who have been exploited can get a six month open work permit. How is this working out? What about the new British Columbia law to protect vulnerable foreign workers? How likely is that to succeed?
25:30 – Peter summarizes a criminal case that he had recently in which a trucking company was charged criminally for paying foreign workers by the mile instead of by the hour.
Read more ›Borderlines Podcast #24 – The Temporary Foreign Worker Program, with Kyle Hyndman and Meera Thakrar
The Temporary Foreign Worker Program, also known as the Labour Market Impact Assessment, is the main program through which Canadian companies hire temporary foreign workers.
Kyle Hyndman and Meera Thakrar are both Canadian immigration lawyers whose practices focus on helping companies recruit and retain foreign workers.
We discuss numerous aspects of obtaining Labour Market Impact Assessments, including prevailing wage, recruitment, transition plans, processing times, job match, the Global Talent Stream and the Owner – Operator LMIA.
3:00 – What are the first questions or things that Kyle and Meera tell Canadian employers that want to apply for Labour Market Impact Assessments?
3:57 – What is the difference between the Temporary Foreign Worker Program and the International Mobility Program?
8:00 – Why are companies generally reluctant to obtain Labour Market Impact Assessments?
8:20 – What are the recruitment requirements for a Labour Market Impact Assessment?
12:50 – What is Job Match?
19:00 – What do companies have to show and demonstrate through the recruitment process?
23:20 – What is the wage requirement for a LMIA? What is the prevailing wage?
25:00 – Do employers hire foreign workers to undercut Canadian wages?
26:30 – Can employers of foreign workers offer raises or bonuses?
30:00 – What are Transition Plans in High Wage LMIA applications?
36:00 – How does the Low Wage cap work?
37:00 – How does an employer show they can afford to pay the foreign worker?
39:00 – Can recruitment have a language requirement?
41:00 – What is an Owner Operator Labour Market Impact Assessment?
42:15 – What is the Global Talent Stream?
47:25 – How long do LMIAs take to process?
Read more ›Borderlines Podcast #23 – Appellate Advocacy Tips, with Former Supreme Court of Canada Justice Marshall Rothstein
Marshall Rothstein served as a Justice on the Supreme Court of Canada from 2006 – 2015. He previously was a Judge on the Federal Court of Canada and the Federal Court of Appeal.
Garth Barriere is a criminal defence attorney in Vancouver. He was counsel in Khosa v. Canada (Citizenship and Immigration, a major Supreme Court of Canada immigration decision in which Justice Rothstein wrote a concurring opinion.
In this episode Justice Rothstein provides tips for written and oral advocacy. While the focus is on appellate litigation, anyone interesting in strengthening their advocacy skills will benefit from what he has to say. We also discuss the Supreme Court of Canada’s decision in Khosa v. Canada (Citizenship and Immigration), and its impact on administrative law in Canada. It is a frank conversation.
9:00 – What it was like for Justice Rothstein when he was appointed to the Federal Court of Canada and to adjudicate cases on which he had no previous experience?
12:30 – How was it different being on the Federal Court vs. the Federal Court of Appeal vs. the Supreme Court of Canada?
14:20 – What strategies or approaches would Justice Rothstein suggest for counsel appearing at the appellate level instead of at the trial division?
18:23 – What is the most important thing to remember in written advocacy? What is “point-first writing?” A helpful piece to read on this can be found here. http://www.ontariocourts.ca/coa/en/ps/speeches/forget.htm
21:10 – What tips does Justice Rothstein have for oral advocacy at the Supreme Court of Canada?
31:30 – What makes a good factum? Does Justice Rothstein believe that the IP bar produces the best factums?
36:20 – What was the Supreme Court of Canada decision in Canada (Citizenship and Immigration) v.
Read more ›Law Cans Episode 6 – Office of the Children v. Baldev (International Child Abduction) with Ari Wormeli
Office of the Children’s Lawyer v. Balev is a 2018 Supreme Court of Canada decision in which the Supreme Court had to determine what the test should be for determining where to return a child under the Convention on the Civil Aspects of International Child Abduction (the Hague Convention).
Ari Wormeli is a lawyer at YLAW Group, a prominent Vancouver family law firm.
We discuss the Supreme Court decision, and Ari discusses what it is like being a family law lawyer, what he thinks is the number one indicator of whether a marriage will end in divorce and whether he has ever felt threatened by an opposing party.
1:00 – The facts of the case. A couple is married in Ontario. They move to Germany in 2001 where their two children are born. They struggle with school in Germany so the father gave his time‑limited consent for the children to move to Canada with the mother for the 2013‑14 school year. The children attended school in Ontario where they resided with the mother and their grandparents. Because he suspected that the mother would not return the children to Germany at the end of the school year, the father purported to revoke his consent, resumed custody proceedings in Germany, and brought an action under the Convention on the Civil Aspects of International Child Abduction (“Hague Convention”) for an order that the children be returned to Germany.
2:53 – What is the Hague Act?
4:11 – How often do interjurisdictional
5:10 – The Hague Convention says that children have to be returned to the country where they are habitually resident, without defining residency. How do you determine what a child’s residence is?
Read more ›Law Cans Episode 5 – West Fraser Mills Ltd. v. British Columbia (Standard of Review) with Robert Danay
West Fraser Mills Ltd. v. British Columbia (Workers’ Compensation Appeal Tribunal)is a 2018 Supreme Court of Canada decision in which the Supreme Court had to determine whether it should overturn the WCAT’s decision to expand the duty of employers to ensure that their operations are planned and conducted in accordance with safe work practices to owners. The case provides a useful context to explore the topic of “standard of review,” which is extremely divisive in Canadian jurisprudence.
Robert Danay is a lawyer with Canada’s Department of Justice who has a passion for this topic, and has researched every Supreme Court of Canada decision on the issue going back twenty years. He can be found on Twitter at @RobertDanay.
3:10 – An overview of the facts.
6:00 – What got Robert Denay into administrative law and an interest in the “standard of review.”
10:00 – What is an administrative tribunal?
11:30 – What is judicial review?
12:10 – What is standard of review?
16:50 – In the reasonableness standard, who determines what is reasonable?
18:10 – What is the trend in standard of review jurisprudence in terms of the amount of deference that should be shown to administrative tribunals?
22:30 – The Supreme Court has announced that it is looking to revisit the standard of review. What is the background of this, and what are some likely outcomes?
24:30 – What was the result of Westcoast ?
43:00 – What is Justice Rowe’s concern regarding whether administrative tribunals have an expertise in statutory interpretation? Should all administrative tribunals get the same deference?
46:00 – Why has standard of review been so challenging for the courts to develop a doctrine on?
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