Last updated on March 18th, 2019
The Supreme Court of Canada in 2012 clarified the law regarding what constitutes dangerous driving under the Criminal Code. The decision, R v. Roy, has implications for people who may be inadmissible to Canada for criminality. Indeed, in Jolly v. Canada (Citizenship and Immigration), the Federal Court of Canada affirmed that it will be a reviewable error if visa officers do not assess criminal equivalency for dangerous driving based on the mens rea standard articulated in Roy.
Section 249 of the Criminal Code provides that:
249. (1) Every one commits an offence who operates
(a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place;
In R v. Roy, the Supreme Court noted that (emphasis added):
It is, therefore, critically important to ensure that the fault requirement for dangerous driving has been established. Failing to do so unduly extends the reach of the criminal law and wrongly brands as criminals those who are not morally blameworthy. The distinction between a mere departure, which may support civil liability, and the marked departure required for criminal fault is a matter of degree. The trier of fact must identify how and in what way the departure from the standard goes markedlybeyond mere carelessness.
Accordingly, the actus reus of s.Read more ›
On December 8, 2010, the Federal Court released its decision in Masych v. Canada (Citizenship and Immigration), 2010 FC 1253 (“Masych“) The case involved an individual whose temporary work permit application was denied because she did not produce income tax statements from 2002-2006 after an immigration officer (the “Officer”) requested that she do so. The reason that the Officer wanted copies of her tax statements was not to confirm her employment history for determining whether or not she was qualified for the job that she was applying for, but rather to determine whether or not she was inadmissible for having ever committed tax evasion.
The applicant had never been convicted of a criminal offense. No evidence was ever presented that she had been charged with a criminal offense. Finally, it is important to note that the applicant lived in the United Kingdom from 2002-2006, a country with a legal system similar to Canada’s.
The applicant did not produce the income tax statements as requested, and her application was rejected on the grounds that the Officer was unable to determine whether or not she was inadmissible to Canada for having committed an offense abroad that would constitute an indictable offense in Canada (tax evasion). The Federal Court upheld the Officer’s decision. The Court noted that the Officer had a duty to be satisfied that the applicant was not inadmissible, and that tax evasion could result in an applicant being inadmissible.
A reading of the case suggests that the only argument that the applicant’s counsel made was that the applicant had provided a statement stating that she only worked part time, confirmed by the employer, and that this should have satisfied the visa officer. The Federal Court quickly punted this decision aside noting that such a response did nothing to alleviate the officer’s concern.Read more ›
On June 10, the Conservative government introduced Bill C-37, also known as the Strengthening the Value of Canadian Citizenship Act (“Bill C-37“).
The legislation will result in five changes if passed. These are:
- Regulate Citizenship Consultants
- Increases Penalties for Citizenship Fraud
- Strengthen Rules For Residence Requirement
- Expand Ban on Criminals Becoming Citizens
- Crown Exception to First Generation Limit
- Streamlining the Revocation Process
1) Regulate Citizenship Consultants
Citizenship consultants are not currently regulated or licensed. Bill C-37 will change this. The amendments will introduce a new s. 21.1 of the Citizenship Act, which will state:
21.1 (1) Every person commits an offense who knowingly represents or advises a person for consideration — or offers to do so — in connection with a proceeding or application under this Act.
The offense will be a hybrid offense. If the Crown elects to proceed by way of indictment, the maximum penalty would be a fine of $50,000 and/or two years imprisonment.
There will be exceptions for lawyers, members of a designated body, and other exceptions similar to those for immigration consultants. In fact, the language in Bill C-37 regarding the regulation of citizenship consultants largely mirrors that in Bill C-35, the Cracking Down on Crooked Consultants Act.
2) Increases Penalties for Citizenship Fraud
The Citizenship Act makes it an offense to make a false representation, commit fraud, knowingly conceal or misrepresent information, obtain or use a certificate of naturalization/renunciation of another person, knowingly permit another to use that person’s certificate, or traffic certificates. The penalty for doing so is currently a maximum fine of $1,000 and/or imprisonment to a term of one year.Read more ›