Category: Uncategorized

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  »

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  »

According to the CBSA, between January 1, 2015 and June 30, 2016 Bangladesh became the top source country for individuals found inadmissible to Canada under IRPA s. 34.  The issue involves membership in the Bangladesh Nationalist Party (the “BNP“) or its main political ally, the Jamaat-e-Islami (“Jamaat“).  While not designated by Public Safety Canada as terrorist entities, some members of the BNP and Jamaat, through, have, according to CBSA, shown that they qualify as being a member of an organisation that there are reasonable grounds to believe engages, has engaged in or will engage in acts or instigate the subversion by force of a government or terrorism.

The BNP 

According to Wikipedia, the BNP is one of the contemporary political parties of Bangladesh. It was founded on 1 September 1978 by former Bangladesh President Ziaur Rahman after the Presidential election of 1978, with a view to uniting the people with nationalist ideology of the country.  The party holds the ideology of Bangladeshi nationalism as its core concept and adopted a 19-point program which declared that “The sovereignty and independence of Bangladesh, golden fruits of the historic liberation struggle, is our sacred trust and inviolable right”. The founding manifesto of the BNP claims that the people of Bangladesh want to “…see that all-out faith and confidence in the almighty Allah, democracy, nationalism and socialism of social and economic justice are reflected in all spheres of national life”. BNP and its student wing was the driving force in the 1990 uprising against the autocratic Ershad rule that culminated in the fall of the regime and the restoration of democracy in Bangladesh.

In 2012, supporters of the BNP and Jamaat took to the streets to portest the ruling Awami League’s decision to annul the care-taker government system,

 » Read more about: The Bangladesh Nationalist Party  »

Over the course of the past several years I have noticed a steady increase in the number of what I call digital nomads seeking to immigrate to Canada.  These individuals, often avid readers of Tim Ferris’s The Four Hour Work Week, typically work from home.  They are hyper efficient, and through delegation and automation can accomplish in twenty hours what most people take forty hours to do.  They work on contract, often with multiple employers, or are self-employed.  While they have skills that would make them very marketable in the Canadian labour force, most do not want to give up the freedom that they have built just to obtain permanent residency.

The question that they all have is simple. Can they immigrate to Canada without having to become an employee?

Economic Immigration Programs Specifically for Entrepreneurs

Most Canadian economic immigration programs discourage self-employment.  For example, in the Canadian Experience Class, self-employment in Canada does not count towards the one-year work experience requirement.  In Express Entry, meanwhile, self-employment does not earn any points for Canadian work experience.  Most skills-based provincial nomination programs also prohibit independent contractor work, and even set caps on what percentage of a Canadian business a prospective immigrant can own in order to qualify as a skilled immigrant.

There are, however, a few exceptions to this.  The Self-Employed Class, for example, allows individuals who in the past five years have two one-year periods of self-employment in cultural or athletic activities to apply for permanent residence in Canada if they intend to be self-employed in Canada.  Examples of cultural and athletics include music teachers, actors, athletes, painters, film makers, freelance journalists, choreographers, coaches and trainers.  In recent years YouTube celebrities have started applying under the program, and absent changes in the future it is likely the Self-Employed Class will expand to include professional Instagrammers,

 » Read more about: Digital Nomads and Immigration  »

Administrative deferrals of removal (“ADR“) are temporary measures when the Government of Canada determines that immediate action is needed to temporarily defer removals of foreign nationals to countries experiencing humanitarian crisis.  Once the situation in a country stabilizes the ADR is lifted and removals resume.

Those who are inadmissible to Canada on grounds of criminality, international or human rights violations, organized crime, or security can still be removed despite the ADR.

An ADR is currently in place for certain regions in Somalia (Middle Shabelle, Afgoye, and Mogadishu), the Gaza Strip, Syria, Mali, the Central African Republic, South Sudan, Libya, Yemen, Burundi, Venezuela and Haiti.

H&C Applications

Pursuant to the Federal Court of Canada decision in Bawazir v. Canada (Citizenship and Immigration), 2019 FC 623, the existence of an ADR should not negate the hardship analysis that officers conduct in humanitarian & compassionate applications.  As Justice Norris noted:

One can certainly understand why Mr. Bawazir would like to secure his status in Canada by obtaining permanent residence here. In my view, a reasonable and fair-minded person would judge the requirement that he leave Canada and go to a war zone where a dire humanitarian crisis prevails so that he could apply for permanent residence as a misfortune potentially deserving of amelioration. The existence of the ADR demonstrates that Canada views the conditions in Yemen as a result of the civil war to “pose a generalized risk to the entire civilian population.” The conditions are so dire there that, with a few exceptions, Canada will not remove nationals to that country. Applying the usual requirements of the law in such circumstances clearly engages the equitable underlying purpose of section 25(1) of the IRPA (cf. Lauture v Canada (Citizenship and Immigration),

 » Read more about: Administrative Deferrals of Removal  »

Molly Joeck and Erica Olmstead are lawyers with Edelmann & Co. They, along with Peter Edelmann, acted for the Canadian Council for Refugees as interveners before the Supreme Court of Canada in Canada (Public Safety and Emergency Preparedness) v. Chhina.

In Chhina the issue before the Supreme Court was whether immigrant detainees have access to habeas corpus. We discuss Chhina, how immigration detention works in Canada, habeas corpus and issues going forward.

2:20 – Why would someone be detained in Canada for immigration reasons?

3:50 – In the federal detention review system who decides if an immigrant should be detained? What is the Immigration Division?

4:30 – How often would an immigrant who is detained have their detention reviewed?

5:30 – What are some issues arising with long term detention?

12:20 – Is there a difference in the issues that arise in long term detention in Ontario as opposed to British Columbia?

18:00 – Is an immigrant refusing to assist with removal by not getting a passport grounds for detention?

24:30 – What is habeas corpus?

27:30 – Why would someone in immigration detention want access to habeas corpus?

30:30 – Why is habeas corpus an alternative to federal court judicial review?

36:00 – The majority in Chhina appears to have commented negatively on certain aspects of the federal detention review process without striking it down. Why did they not just strike it down?

41:00 – How long do habeas corpus applications take?

46:00 – How many times can someone file habeas corpus applications?

51:00 – How has the Immigration Division reacted to the spate of habeas applications?

57:00 – How do detention review cases make it to the Federal Court of Appeal?

 » Read more about: Borderlines Podcast #29 – Immigration Detention and Habeas Corpus, with Molly Joeck and Erica Olmstead  »