Category: Uncategorized

A quick post today as there is alot going on due to the corona virus, but Justice Annis just released an interesting decision in Pryce v. Canada where he certified the following question:

In the context of a request for humanitarian and compassionate considerations under subsection 25 (1) of IRPA, must an officer consider evidence of past hardship of unconscionable mistreatment of an applicant and her children, not recurring or arising on removal, and not cited as a factor in the Guidelines, but that may accord with the principles in Chirwa v. Canada (Minister of Citizenship and Immigration) (1970), 4 I.A.C. 338 adopted in Kanthasamy v Canada (Citizenship and Immigration) 2015 SCC 61, even if the issue has not been explicitly raised by the applicant as a relevant factor for consideration? If not, may the applications judge raise the question as a new issue in accordance with the principles of R. v Mian, 2014 SCC 54?

 » Read more about: H&C – Past Mistreatment  »

Last updated on April 1st, 2020

In response to the COVID-19 pandemic, the Canadian government has implemented several measures that impact immigration programs and the ability to enter Canada. Current measures under the Non-US OIC and the Quarantine OIC will be effective until June 30, 2020, while current measures under the US OIC will be effective until April 21, 2020, and current measures under the Interim Order are effective until further notice.

Please note that the Canadian government is expected to amend its policies as needed in the coming weeks and months and as such we ask that you contact us for advice before relying on the information provided in this memo.

1. PERSONS ALLOWED INTO CANADA

Before determining whether you fall into one of the categories below, please note that any persons exhibiting COVID-19 symptoms (e.g. fever and cough, or fever and breathing difficulties) will not be allowed to board an aircraft to fly into Canada, regardless of your status in Canada. This blanket prohibition affects Canadian citizens and permanent residents. You will, however, be allowed to enter Canada through the Canada–US land border, though you will be subject to the 14-day self-isolation requirement outlined in the Quarantine OIC.

Please note that, even if you fall into one of the exemptions below, foreign nationals seeking to enter Canada must still apply for a Temporary Resident Visa (if you are travelling to Canada as a citizen of a visa-requiring country) or an eTA (if you are flying to Canada as a citizen of a visa-exempt country).

1. Canadian Citizens and Permanent Residents

 » Read more about: IRCC and COVID 19  »

Peter, Deanna and Steven discuss where Canada’s political parties stand on immigration.

1:45 – Where do the parties stand with regards to letting provinces decide who immigrates?

13:28 – Immigration levels

23:30 – What are the promises with regards to border security and the Safe Third Country Agreement?

36:00 – Temporary Foreign Workers

42:00 – Application feesFees

46:00 – Settlement services and values tests

48:00 – Where parties can work together on and general trends.

 » Read more about: Borderlines Podcast #33 – Where Canada’s Political Parties Stand on Immigration  »

Last updated on January 2nd, 2020

In December 2018 I wrote an article for The Canadian Immigrant about a Supreme Court of Canada case that had just been heard which could have a significant impact on Canadian immigration law.  The case, Minister of Citizenship and Immigration v. Alexander Vavilov, was about whether a child who was born in Canada to Russian spies is a Canadian citizen.   The Supreme Court of Canada before hearing the case announced that it was considering changing the law on how a legal principle called the “standard of review” works in Canadian administrative law.

On December 19, 2019 the Supreme Court of Canada released its decision.  The Supreme Court created a revised framework for the standard of review in judicial review applications.  Vavilov has significant implications for how Canada’s Federal Court will review the decisions of immigration officials.

Understanding The Standard of Review

As I wrote in December, the standard of review pertains to how courts review administrative tribunal decisions. In the immigration context, administrative tribunals include visa officers, border officials and Immigration and Refugee Board of Canada members.  The Federal Court has the jurisdiction to review all decisions of these tribunals, including visa refusals, stays of removal, deportation orders, etc.

The concept of the standard of review is perhaps best illustrated by using the analogy of a parent asking her child to pick the clothes that she will wear to school that day. A parent who is showing her child a lot of deference will let her child wear whatever she wants to wear to school, as long as what the child picks is reasonable. If the child tries to wear pants over her head, for example, the parent would say that the child’s choice is unreasonable and prohibit the outfit.

 » Read more about: The Supreme Court of Canada Decision in Vavilov  »

In 2020, over 400,000 international students at the post-secondary level in Canada will return to school.   Many will want to stay and work in Canada after graduating.  All will be subject to mandatory conditions of their stay as a student in Canada.  It is important for all international students, and especially those who wish to one day work in or immigrate to Canada, to understand these conditions, as the consequence of failing to comply with one of the them is removal from Canada and a one year bar from returning.

The Law on Study Permit Compliance

Regulation 220.1(1) of Canada’s Immigration and Refugee Protection Regulations provides that the holder of a study permit in Canada must enroll at a post-secondary institution that accepts international students, also known as a designated learning institution, and remain enrolled at the designated learning institution until they complete their studies.  As well, students must actively pursue their course or program of study.

Canadian immigration authorities typically interpret this legislative requirement as being that students must be enrolled full-time or part-time during each academic semester (excluding regularly scheduled breaks), that they must make progress towards completing their program’s courses and that they cannot take authorized leaves longer than 150 days from their program.

The Immigration, Refugees and Citizenship Canada website state that a leave will count as authorized if a school has authorized a leave from study due to medical reasons, pregnancy, a family emergency, death or serious illness of a family member, or any other type of leave that a school authorizes.  A leave will also be authorized if a school has closed permanently, if a school is on strike, if someone has changed schools or if the student or their school has deferred their program start date if the student starts studying during the next semester and gets and updated letter of acceptance.

 » Read more about: Study Permit Compliance  »

On October 21, 2019 Canada will have its 43rd Parliamentary election.  There are six main political parties running.  The first is the Liberal Party of Canada, led by Prime Minister Justin Trudeau.  The Liberals are generally regarded as a centrist party and have governed since October, 2015.  The second is the Conservative Party of Canada, led by Andrew Scheer.  The Conservatives are a centre-right party that previously governed Canada from 2006-2015 under Stephen Harper.  The third is the New Democratic Party, a left-wing or progressive party, led by Jagmeet Singh.  The fourth is the Green Party of Canada, led by Elizabeth May, a party that is typically known for its environmental platform, although it does have a detailed platform on all of the important issues facing Canada.   The fifth is the Bloc Québécois, led by Yves Francois Blanchet. The Bloc is a Quebec nationalist party that only runs candidates in Quebec.  Finally, there is the People’s Party of Canada, a recently formed right-wing party led by Maxime Bernier.

As of writing, polls suggest that Canada is likely heading to a minority government.  This means that none of the political parties above will win enough seats to govern without the support of another party.  Assuming that all of the above parties win seats, it is accordingly important to understand their policy preferences as any of them may have policy influence on the next government.

I note that there is a strong possibility that Jody Wilson-Raybould, an Independent Member of Parliament running in Vancouver – Granville could win her seat, and also possibly influence the next government.  However, as far as I can tell she has not specified any positions on immigration policy, and so I have omitted her from this article.

The Liberal Party of Canada

In the 2015 election the Liberals ran on a bold immigration platform. 

 » Read more about: Where Canada’s Political Parties Stand on Immigration  »

Section 129 of the Criminal Code, RSC 1985, c C-46 states:

Offences relating to public or peace officer:

129 Every one who

(a) resists or wilfully obstructs a public officer or peace officer in the execution of his duty or any person lawfully acting in aid of such an officer,

(b) omits, without reasonable excuse, to assist a public officer or peace officer in the execution of his duty in arresting a person or in preserving the peace, after having reasonable notice that he is required to do so, or

(c) resists or wilfully obstructs any person in the lawful execution of a process against lands or goods or in making a lawful distress or seizure,

is guilty of

(d) an indictable offence and is liable to imprisonment for a term not exceeding two years, or

(e) an offence punishable on summary conviction.

There are several principles pertaining to s. 129 of the Criminal Code that can be helpful to determining equivalency.

Ancillary Powers Doctrine

In the Supreme Court of Canada decision Fleming v. Ontario, 2019 SCC 45, the Supreme Court of Canda held that a police power to arrest someone who is acting lawfully in order to prevent a breach of the peace is not reasonably necessary for the fulfillment of the relevant duties.  » Read more about: Obstruction of Justice and Resisting Arrest  »

Canadian work experience that is volunteer does not typically count towards immigration.

Regulation 73(2) of the Immigration and Refugee Protection Regulations states that for the purposes of this Division, work means an activity for which wages are paid or commission is earned.  The Division includes the Federal Skilled Worker Class, the Canadian Experience Class, the Federal Skilled Trades Class and the Provincial Nominee Class. The reason is that economic classes are designed to determine whether an applicant can become economically established.

 » Read more about: Volunteer Work and Immigrating to Canada  »

Last updated on October 17th, 2019

Res judicata is a legal principle which means “a matter already judged.”

Pursuant to the Supreme Court of Canada’s decision in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, there is a three part test for determining whether res judicata applies, as follows:

• the same question has been decided earlier in the proceedings;
• the prior decision that is said to create the estoppen must have been final; and
• the parties (or their representatives) to the prior decision must be the same as the parties to the proceedings in which the doctrine of issue estoppel is being raised.

In Penner v Niagara (Regional Police Services Board), 2013 SCC 19, the Supreme Court further held that even if the pre-conditions are met there is a residual discretion to not apply the doctrine where it is in the interests of justice to deal with the matter on its merits as well as where there is decisive new evidence that was not previously available.

When stating the test it is important to note that issue estoppel is trigerred when the same issue is being re-litigated regardless of whether or not the same facts are before the decision-maker.  New evidence is relevant to the second step of the analysis.

Finally, where issue estoppel applies it prevents a subsequent decision-maker, at whatever level, from re-considering the issue.  For example, issue estoppel could apply to prevent the Immigration Appeal Division from considering a matter that had previously been determined by the Immigration Division, except of course in situations of direct appeals.

There are two areas in which res judicata typically arises in the immigration context. 

 » Read more about: Res Judicata  »