A Common Sense Approach to A44 Reports

26th Mar 2013 Comments Off on A Common Sense Approach to A44 Reports

Last updated on February 3rd, 2019

Canada’s Immigration and Refugee Protection Act (the “Act“) provides that an officer who believes that a foreign national or permanent resident in Canada is inadmissible to Canada (for criminality, health, overstay, working without authorization, etc.) may prepare a report alleging the inadmissibility (commonly known as an “A44 Report“).   The Act further provides that once an officer prepares an A44 Report, then the Canada Border Services Agency (“CBSA“) (the agency generally responsible for this) may commence removal proceedings, or, when necessary, refer the matter to the Immigration and Refugee Board, an independent administrative tribunal.

The use of the term “may” in the Act has caused much confusion.

In Cha v. Canada (Minister of Citizenship and Immigration), 2006 FCA 126 (“Cha“), the Federal Court of Appeal (the “FCA“) declared that the use of the word “may” did not actually grant CBSA officers broad discretion to exercise or not to exercise the power to write A44 Reports and to commence removal proceedings when it believed that someone was inadmissible to Canada.  The FCA stated (citations removed for ease of reading):

In Ruby v. Canada (Solicitor General) at pages 623 to 626, Létourneau J.A. reminded us that the use of the word “may” is often a signal that a margin of discretion is given to an administrative decision maker. It can sometimes be read in context as “must” or “shall”, thereby rebutting the presumptive rule in section 11 of the Interpretation Act, R.S.C., 1985, c. I‑21 that “may” is permissive. It can also be read as no more than a signal from the legislator that an official is being empowered to do something.

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Supreme Court Clarifies Elements of Conspiracy

4th Mar 2013 Comments Off on Supreme Court Clarifies Elements of Conspiracy

On March 1, 2013, the Supreme Court of Canada (the “SCC“) in R v. J.F., clarified the elements of the offence of conspiracy.  The decision has immigration implications because people who have been convicted of conspiracy may be inadmissible to Canada.

 

Section 465 of Canada’s Criminal Code criminalizes the offence of conspiracy.  Conspiracy is a form of inchoate liability.  In other words, the actual result of the conspiracy need not occur for someone to be convicted under s. 465.  For example, a person can be convicted of “conspiracy to commit murder” even if the murder does not occur.  Furthermore, members in a conspiracy need not personally commit, or intend to commit, the offence which each has agreed should be committed.  Any degree of assistance in the furtherance of the unlawful object can lead to a finding of membership as long as agreement to a common plan can be inferred and the requisite mental state has been established.

Aiding or abetting the formation of an agreement between conspirators amounts to aiding or abetting the principals in the commission of the conspiracy.  Party liability is limited, however, to cases where the accused aids or abets the initial formation of the agreement, or aids or abets a new member to join a pre‑existing agreement.  The SCC ruled that acts that further the unlawful object of a conspiracy are not an element of the offence of conspiracy.  Aiding or abetting the furtherance of the unlawful object does not establish aiding or abetting the principal with any element of the offence of conspiracy.  However, the SCC noted that where a person, with knowledge of a conspiracy, does or omits to do something for the purpose of furthering the unlawful object,

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Top Source Countries for A44 Reports at YVR

2nd Feb 2013 Comments Off on Top Source Countries for A44 Reports at YVR

In 2011, 1,108 people were declared inadmissible to Canada when they arrived at the Vancouver International Airport. The following chart obtained through an Access to Information and Privacy Act request shows these individuals’ source countries.

The top 10 countries were:

Citizenship
2011

United States
247

South Korea
137

Hungary
83

China
72

Taiwan
49

British
40

Australia
35

Iran
30

Hong Kong
26

India
26

Japan
26

Germany
20

Mexico
19  » Read more about: Top Source Countries for A44 Reports at YVR  »

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Supreme Court Clarifies Dangerous Driving Law

9th Jun 2012 Comments Off on Supreme Court Clarifies Dangerous Driving Law

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.

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Should People Who Lose Their Refugee Status Be Deported?

24th Feb 2012 Comments Off on Should People Who Lose Their Refugee Status Be Deported?

Much of the media attention towards Bill C-31 – the Protecting Canada’s Immigration System Act – has been focused on its shortening of the time periods for processing refugee claims and its removal of some appeal rights for refugee claimants that were supposed to be introduced under the Balanced Refugee Reform Act.  This past week, members of the immigration bar raised concerns about another questionable change.  In short, Bill C-31 will make it so that refugees who became permanent residents of Canada will lose their permanent residence status if their refugee status ceases.

Currently, the Immigration and Refugee Board may cease a person’s refugee status.  Amongst other reasons, it may do so if the reasons for which the person sought refugee protection have ceased to exist, or if the person reavails himself to the protection of his country of origin. Until now, the cessation of refugee status did not result in the loss of permanent resident status.  Accordingly, ceasing a refugee’s refugee status was rarely pursued where the refugee had become a permanent resident.

Bill C-31, however, changes this.  It provides that when the IRB ceases a refugee’s refugee status, then the former refugee also loses his/her permanent resident status.  Bill C-31 also provides that such an individual would be inadmissible toCanada.  Through omission it also provides that there will be no appeal to the Immigration Appeal Division, meaning that humanitarian & compassionate grounds (such as hardship and establishment inCanada) cannot be considered in deciding whether to revoke the person’s permanent resident status.

This will apply to refugees who made their claims in Canadaand to those who were resettled to Canadafrom refugee camps from abroad.  It would apply to refugees who recently obtained status, and to refugees who became permanent residents many,

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Inadmissibility Due to Non-Compliance with the Act

14th Aug 2011 Comments Off on Inadmissibility Due to Non-Compliance with the Act

Last updated on April 16th, 2020

Individuals can be inadmissible to Canada for numerous reasons, including criminality, misrepresentation, medical issues, and non-compliance with Canadian immigration legislation.  The latter reason, non-compliance with the Canadian immigration legislation, can seem extremely vague.

Fortunately, the Immigration, Refugees and Citizenship Guidelines contains a list of the different frequently used reasons for declaring someone inadmissible for non-compliance with the Act.

They are:

  • Entering Canada to remain on a permanent basis without first obtaining a permanent resident visa.
  • Entering Canada to remain on a temporary basis without first obtaining a temporary resident visa.
  • Entering Canada to study without first obtaining a study permit.
  • Entering Canada to work without first obtaining a work permit.
  • Not answering questions truthfully or producing required relevant documents.
  • Not submitting to a medical examination.
  • Not holding a medical certificate that is based on the last medical examination.
  • Not holding the required documents to enter Canada.
  • Not establishing that the person will live Canada by the end of the authorized period.
  • Where a person is subject to an enforced removal, returning to Canada without authorization.
  • Working without authorization.
  • Studying without authorization.
  • Not leaving Canada at the end of the authorized period.
  • Not reporting to a port of entry examination without delay.
  • Being a permanent resident and not complying with the residency requirement.

Non-compliance is the most common reason why a removal order is issued. 

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Membership in a Group that Once Committed Terror

5th Nov 2010 Comments Off on Membership in a Group that Once Committed Terror

The Federal Court of Appeal has answered a question regarding inadmissibility under s. 34 of IRPA.

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Federal Court Rules on Galloway Inadmissibility

28th Sep 2010 Comments Off on Federal Court Rules on Galloway Inadmissibility

The Federal Court has released its decision on the legality of the “decision” to prohibit former British MP George Galloway from entering Canada for having committed terrorism or been a member of a terrorist organization.

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