Thursday, December 31, 2009
Wednesday, December 23, 2009
FEDERAL COURT RULES ON MINISTERIAL INSTRUCTIONS
This is a very interesting new judgement, just released by the Federal Court. This is the first case where the Ministerial Instructions for processing Skilled Worker applications, released on November 28, 2008, have been interpreted. In this case, the court held that, while the refusal letter was somewhat confusing to the applicant, the refusal was valid in law, because it reflected the intention of the Ministerial Instructions to process only those applicants who had the required Canadian study time accumulated, and not to open the category to those whohad been students in the past.
Jin v. Canada (Minister of Citizenship and Immigration)
Between
Xiping Jin, Applicant, andThe Minister of Citizenship and Immigration, Respondent
[2009] F.C.J. No. 1552
2009 FC 1234Docket IMM-2658-09 Federal CourtToronto, OntarioMainville J.Heard: November 17, 2009.Judgment: December 3, 2009.
(25 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
1 MAINVILLE J.:-- This application for judicial review submitted by Ms. Xiping Jin (the "Applicant"), concerns the interpretation of ministerial instructions issued in 2008 pursuant to section 87.3 of the Immigration and Refugee Protection Act (the "Act") introduced into the Act by section 118 of the Budget Implementation Act, 2008. These ministerial instructions were published in the Canada Gazette Part 1 on November 29, 2008 (the "Instructions").
2 Specifically, the Applicant seeks to have this Court interpret the words "[a]pplications submitted [...] by foreign nationals residing legally in Canada for at least one year as [...] International Students" set out in the Instructions as including foreign nationals who, at any time in the past, resided legally in Canada for at least one year as International Students. This interpretation would allow an International Student who resided in Canada for at least one year at any time in the past to benefit from priority processing for Federal Skilled Workers permanent residence applications.
Background
3 The Applicant was studying at Knox College in Toronto from September 2004 to August 2006. She then took a leave from her studies and resided in China until her return to Canada to study in May of 2008. She has pursued her studies in Canada continuously since May 2008 to the time of the hearing on this judicial review. At all relevant times she has held a valid student visa. Her current student visa expires August 30, 2012.
4 In September of 2008, the Applicant applied for permanent residence in Canada under the Federal Skilled Worker class deeming herself eligible to this class as an International Student who has resided in Canada for at least one year. She processed this application through the Canadian Consulate General in Buffalo, New York state.
5 On April 17, 2009 the Immigration Section of the Buffalo Visa Office notified the Applicant that her application for permanent residence under the Federal Skilled Workers class could not be processed.
6 One of the grounds under which the Applicant initially challenged this decision was that the Instructions had not been published in the Canada Gazette at the time her application was submitted. However, at the hearing on this judicial review application held on November 17, 2009, the Applicant informed the Court that she was nevertheless seeking to have her application processed under the Instructions. Consequently, she informed the Court that she was not pursuing any argument related to the fact that these Instructions were published in the Canada Gazette after she had made her application.
7 The Applicant pursued the following arguments:
a. the ministerial instructions should be interpreted to apply to her case since, at the time of her application, she did accumulate one year of legal residence in Canada as an International Student, if her time in Canada prior to her leave of studies is taken into account, and
b. the original decision which had been made in her case dated April 17, 2009 was based on the fact her work experience did not correspond to any of the occupations identified in the Instructions. Since her application was rather based on her status as a resident International Student, the April 17, 2009 decision was wrong in that it did not provide reasons why she had been refused as an International Student. The Applicant argued that it was only in these judicial review proceedings that the Respondent finally provided the reasons for not processing her application as an International Student.
Legislative context
8 Subsections 87.3 (2) and (3) of the Act provide for the following:
(2) The processing of applications and requests is to be conducted in a manner that, in the opinion of the Minister, will best support the attainment of the immigration goals established by the Government of Canada.
(3) For the purposes of subsection (2), the Minister may give instructions with respect to the processing of applications and requests, including instructions
(a) establishing categories of applications or requests to which the instructions apply;
(b) establishing an order, by category or otherwise, for the processing of applications or requests;
(c) setting the number of applications or requests, by category or otherwise, to be processed in any year; and
(d) providing for the disposition of applications and requests, including those made subsequent to the first application or request.
(2) Le traitement des demandes se fait de la manière qui, selon le ministre, est la plus susceptible d'aider l'atteinte des objectifs fixés pour l'immigration par le gouvernement fédéral.
(3) Pour l'application du paragraphe (2), le ministre peut donner des instructions sur le traitement des demandes, notamment en précisant l'un ou l'autre des points suivants :
a) les catégories de demandes à l'égard desquelles s'appliquent les instructions;
b) l'ordre de traitement des demandes, notamment par catégorie;
c) le nombre de demandes à traiter par an, notamment par catégorie;
d) la disposition des demandes dont celles faites de nouveau.
9 These provisions were introduced in the Act through section 118
of the Budget Implementation Act, 2008. Section 120 of the Budget Implementation Act, 2008 sets out that the provisions of section 87.3 of the Act apply only to applications and requests made after February 27, 2008.
10 The concerned Instructions were subsequently issued pursuant to section 87.3 of the Act and published in the Canada Gazette Part 1 on November 29, 2008. The pertinent extracts of these Instructions are as follows:
Federal Skilled Worker applications submitted on or after February 27, 2008, meeting the following criteria shall be placed into processing immediately upon receipt:
* Applications submitted with an offer of Arranged Employment and applications submitted by foreign nationals residing legally in Canada for at least one year as Temporary Foreign Workers or International Students;
* Applications from skilled workers with evidence of experience (footnote: At least one year of continuous full-time or equivalent paid work experience in the last ten years) under one or more of the following National Occupation Classification (NOC) categories: [list of categories is set out]
[...]
Applicants to the Federal Skilled Worker Program whose applications were received on or after February 27, 2008, and which do not meet the assessment criteria described above shall be informed, in as short a time as possible, that their applications will not proceed for processing and shall be returned their processing fees, unless the Minister has otherwise instructed that applications be retained.
Les demandes présentées par des travailleurs qualifiés (fédéral) à partir du 27 février 2008 et qui répondent aux critères suivants doivent être traitées en priorité dès leur réception :
* Demandes présentées avec une offre d'emploi réservé et demandes présentées par des étrangers vivant légalement au Canada depuis au moins une année à titre de travailleurs étrangers temporaires ou d'étudiants étrangers;
* Demandes présentées par des travailleurs qualifiés (fédéral) accompagnées d'une preuve d'expérience (note de bas de page :Au moins une année d'expérience professionnelle continue à temps plein ou l'équivalent rémunéré, au cours des dix dernières années) dans l'une ou plusieurs des catégories suivantes de la Classification nationale des professions (CNP) : [liste de catégories est prévue]
[...]
Les demandeurs au titre de la catégorie des travailleurs qualifiés (fédéral) qui ont présenté leur demande à partir du 27 février 2008 et qui ne remplissent pas les critères d'évaluation énumérés ci-dessus doivent être avisés, le plus rapidement possible, que leur demande ne sera pas traitée et qu'ils seront remboursés, à moins d'instructions contraires du ministre indiquant de conserver la demande.
Analysis
11 The terms of the Instructions are clear on the residency requirements. The words "applications submitted by foreign nationals residing legally in Canada for at least one year as Temporary Foreign Workers or International Students" suffer no ambiguity. The choice of verb tense makes it abundantly clear that the Temporary Foreign Worker or the International Student must have been residing legally in Canada for at least one year immediately prior to his or her application. The French wording is also unambiguous and conveys the same meaning: "demandes présentées par des étrangers vivant légalement au Canada depuis au moins une année à titre de travailleurs étrangers temporaires ou d'étudiants étrangers".
12 Where the Ministerial instructions wish to convey that a past period of time can be considered, they state so clearly, such as in the footnote concerning applications from skilled workers with evidence of experience which clearly provides for recognition of past experience in the following terms: "[a]t least one year of continuous full-time or equivalent paid work experience in the last ten years".
13 This disposes of the Applicant's first argument. The Applicant however raises a second and stronger argument.
14 The April 17, 2009 decision conveyed to the Applicant appears to be a standard form letter that reads in part as follows:
You have not indicated in your application that you have an Arranged Employment Offer or that you are legally residing in Canada for at least one year as a Temporary Foreign Worker or an International Student. Your application has therefore been assessed on the basis of whether you have work experience in the list of occupations eligible for processing. These occupations are identified by codes and described in the National Occupational Classification (NOC). You may access the list of eligible occupations at [Internet address indicated]. The occupation(s) you indicated that you have work experience in do(es) not correspond to any of the occupations specified in the instructions. As your occupation(s) is not included on the list of eligible occupations, we are unable to process your application at this time.
15 From reading this response, it is easily understandable why the Applicant was confused. She had applied on the basis of her status as a resident International Student and the response she received back referred for the most part to occupational requirements she never applied under. The unfortunate use of form letters in responding to applications where multiple facts situations are involved can easily lead to ambiguity and misunderstanding. This whole litigation could have been easily avoided had a proper and cogent response been provided to the Applicant setting out in unambiguous terms the basis for which her application could not be processed as an International Student. This was not done.
16 The form letter states that the Applicant did not indicate in her application that she was legally residing in Canada for at least one year as an International Student. The true reason for not processing the application is thus stated, but in such a convoluted and ambiguous manner as to render the decision almost impossible to understand without further inquiry. This is not a proper way to proceed and is neither correct nor reasonable.
17 In judicial review, the Court must concern itself with the existence of justification, transparency and intelligibility within the decision-making process. Here the decision was legally correct, but the communication of the reasons for which it was made was deficient.
18 Nevertheless, this application for judicial review fails on the question of remedy.
19 Indeed, the solution to the Applicant's issues is to simply submit another application which, in light of her continued studies in Canada for well over a year since May of 2008, should now be processed pursuant to the Instructions. This Court has discretion to withhold relief when a procedural error is purely technical and occasions no substantial wrong or miscarriage of justice: Minister of Citizenship and Immigration v. Khosa, [2009] 1 S.C.R. 339 at para. 43. Returning the matter back to the decision maker on the basis of the original application for permanent residence would not provide the Applicant the results she seeks. It is therefore preferable for the Applicant to submit another application for permanent residence under the Skilled Workers Class as she has been invited to do by the Respondent's counsel.
20 However asking the Applicant to reapply does not resolve the unfortunate delay in processing a new application. Indeed, had the Applicant been properly informed of the reason for which her application could not be processed, she could have submitted a new application which answered the Instructions as early as May 2009. The Respondent's counsel has indicated that should the Applicant reapply for permanent residence under the Skilled Workers Class, her new application could be given priority processing (at page 60 of transcript of hearing). In light of this judgment and the reasons contained therein, this Court fully expects the Respondent to live up to this undertaking.
Certified question
21 The Applicant requested that the following question be certified for appeal to the Federal Court of Appeal as a serious question of general importance:
How should a visa officer correctly calculate the period of at least one year during which a foreign student has been legally residing in Canada before his or her application for permanent residence in Canada as a skilled worker?
22 The Applicant explained that the purpose of this question was, inter alia, to determine if summer recess from studies or doctoral studies abroad should be included in the calculation.
23 The Respondent objected to such a question on the basis that it does not rest on the Applicant' case and is therefore inappropriate.
24 I agree with the Respondent that the question raised is inappropriate and does not merit certification pursuant to paragraph 74(d) of the Act. In Varela v. Canada (Minister of Citizenship and Immigration), 2009 FCA 145, [2009] F.C.J. No. 549 at para. 23, the Federal Court of Appeal noted that this paragraph is not to be invoked lightly. The interpretation of this ministerial instruction on the narrow facts of this case is not of general importance. Moreover there exists an easily available alternative recourse for the Applicant through a new application. Consequently no question shall be certified.
Disposition
25 The application for judicial review is dismissed.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that the application for judicial review is dismissed.
MAINVILLE J.
Jin v. Canada (Minister of Citizenship and Immigration)
Between
Xiping Jin, Applicant, andThe Minister of Citizenship and Immigration, Respondent
[2009] F.C.J. No. 1552
2009 FC 1234Docket IMM-2658-09 Federal CourtToronto, OntarioMainville J.Heard: November 17, 2009.Judgment: December 3, 2009.
(25 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
1 MAINVILLE J.:-- This application for judicial review submitted by Ms. Xiping Jin (the "Applicant"), concerns the interpretation of ministerial instructions issued in 2008 pursuant to section 87.3 of the Immigration and Refugee Protection Act (the "Act") introduced into the Act by section 118 of the Budget Implementation Act, 2008. These ministerial instructions were published in the Canada Gazette Part 1 on November 29, 2008 (the "Instructions").
2 Specifically, the Applicant seeks to have this Court interpret the words "[a]pplications submitted [...] by foreign nationals residing legally in Canada for at least one year as [...] International Students" set out in the Instructions as including foreign nationals who, at any time in the past, resided legally in Canada for at least one year as International Students. This interpretation would allow an International Student who resided in Canada for at least one year at any time in the past to benefit from priority processing for Federal Skilled Workers permanent residence applications.
Background
3 The Applicant was studying at Knox College in Toronto from September 2004 to August 2006. She then took a leave from her studies and resided in China until her return to Canada to study in May of 2008. She has pursued her studies in Canada continuously since May 2008 to the time of the hearing on this judicial review. At all relevant times she has held a valid student visa. Her current student visa expires August 30, 2012.
4 In September of 2008, the Applicant applied for permanent residence in Canada under the Federal Skilled Worker class deeming herself eligible to this class as an International Student who has resided in Canada for at least one year. She processed this application through the Canadian Consulate General in Buffalo, New York state.
5 On April 17, 2009 the Immigration Section of the Buffalo Visa Office notified the Applicant that her application for permanent residence under the Federal Skilled Workers class could not be processed.
6 One of the grounds under which the Applicant initially challenged this decision was that the Instructions had not been published in the Canada Gazette at the time her application was submitted. However, at the hearing on this judicial review application held on November 17, 2009, the Applicant informed the Court that she was nevertheless seeking to have her application processed under the Instructions. Consequently, she informed the Court that she was not pursuing any argument related to the fact that these Instructions were published in the Canada Gazette after she had made her application.
7 The Applicant pursued the following arguments:
a. the ministerial instructions should be interpreted to apply to her case since, at the time of her application, she did accumulate one year of legal residence in Canada as an International Student, if her time in Canada prior to her leave of studies is taken into account, and
b. the original decision which had been made in her case dated April 17, 2009 was based on the fact her work experience did not correspond to any of the occupations identified in the Instructions. Since her application was rather based on her status as a resident International Student, the April 17, 2009 decision was wrong in that it did not provide reasons why she had been refused as an International Student. The Applicant argued that it was only in these judicial review proceedings that the Respondent finally provided the reasons for not processing her application as an International Student.
Legislative context
8 Subsections 87.3 (2) and (3) of the Act provide for the following:
(2) The processing of applications and requests is to be conducted in a manner that, in the opinion of the Minister, will best support the attainment of the immigration goals established by the Government of Canada.
(3) For the purposes of subsection (2), the Minister may give instructions with respect to the processing of applications and requests, including instructions
(a) establishing categories of applications or requests to which the instructions apply;
(b) establishing an order, by category or otherwise, for the processing of applications or requests;
(c) setting the number of applications or requests, by category or otherwise, to be processed in any year; and
(d) providing for the disposition of applications and requests, including those made subsequent to the first application or request.
(2) Le traitement des demandes se fait de la manière qui, selon le ministre, est la plus susceptible d'aider l'atteinte des objectifs fixés pour l'immigration par le gouvernement fédéral.
(3) Pour l'application du paragraphe (2), le ministre peut donner des instructions sur le traitement des demandes, notamment en précisant l'un ou l'autre des points suivants :
a) les catégories de demandes à l'égard desquelles s'appliquent les instructions;
b) l'ordre de traitement des demandes, notamment par catégorie;
c) le nombre de demandes à traiter par an, notamment par catégorie;
d) la disposition des demandes dont celles faites de nouveau.
9 These provisions were introduced in the Act through section 118
of the Budget Implementation Act, 2008. Section 120 of the Budget Implementation Act, 2008 sets out that the provisions of section 87.3 of the Act apply only to applications and requests made after February 27, 2008.
10 The concerned Instructions were subsequently issued pursuant to section 87.3 of the Act and published in the Canada Gazette Part 1 on November 29, 2008. The pertinent extracts of these Instructions are as follows:
Federal Skilled Worker applications submitted on or after February 27, 2008, meeting the following criteria shall be placed into processing immediately upon receipt:
* Applications submitted with an offer of Arranged Employment and applications submitted by foreign nationals residing legally in Canada for at least one year as Temporary Foreign Workers or International Students;
* Applications from skilled workers with evidence of experience (footnote: At least one year of continuous full-time or equivalent paid work experience in the last ten years) under one or more of the following National Occupation Classification (NOC) categories: [list of categories is set out]
[...]
Applicants to the Federal Skilled Worker Program whose applications were received on or after February 27, 2008, and which do not meet the assessment criteria described above shall be informed, in as short a time as possible, that their applications will not proceed for processing and shall be returned their processing fees, unless the Minister has otherwise instructed that applications be retained.
Les demandes présentées par des travailleurs qualifiés (fédéral) à partir du 27 février 2008 et qui répondent aux critères suivants doivent être traitées en priorité dès leur réception :
* Demandes présentées avec une offre d'emploi réservé et demandes présentées par des étrangers vivant légalement au Canada depuis au moins une année à titre de travailleurs étrangers temporaires ou d'étudiants étrangers;
* Demandes présentées par des travailleurs qualifiés (fédéral) accompagnées d'une preuve d'expérience (note de bas de page :Au moins une année d'expérience professionnelle continue à temps plein ou l'équivalent rémunéré, au cours des dix dernières années) dans l'une ou plusieurs des catégories suivantes de la Classification nationale des professions (CNP) : [liste de catégories est prévue]
[...]
Les demandeurs au titre de la catégorie des travailleurs qualifiés (fédéral) qui ont présenté leur demande à partir du 27 février 2008 et qui ne remplissent pas les critères d'évaluation énumérés ci-dessus doivent être avisés, le plus rapidement possible, que leur demande ne sera pas traitée et qu'ils seront remboursés, à moins d'instructions contraires du ministre indiquant de conserver la demande.
Analysis
11 The terms of the Instructions are clear on the residency requirements. The words "applications submitted by foreign nationals residing legally in Canada for at least one year as Temporary Foreign Workers or International Students" suffer no ambiguity. The choice of verb tense makes it abundantly clear that the Temporary Foreign Worker or the International Student must have been residing legally in Canada for at least one year immediately prior to his or her application. The French wording is also unambiguous and conveys the same meaning: "demandes présentées par des étrangers vivant légalement au Canada depuis au moins une année à titre de travailleurs étrangers temporaires ou d'étudiants étrangers".
12 Where the Ministerial instructions wish to convey that a past period of time can be considered, they state so clearly, such as in the footnote concerning applications from skilled workers with evidence of experience which clearly provides for recognition of past experience in the following terms: "[a]t least one year of continuous full-time or equivalent paid work experience in the last ten years".
13 This disposes of the Applicant's first argument. The Applicant however raises a second and stronger argument.
14 The April 17, 2009 decision conveyed to the Applicant appears to be a standard form letter that reads in part as follows:
You have not indicated in your application that you have an Arranged Employment Offer or that you are legally residing in Canada for at least one year as a Temporary Foreign Worker or an International Student. Your application has therefore been assessed on the basis of whether you have work experience in the list of occupations eligible for processing. These occupations are identified by codes and described in the National Occupational Classification (NOC). You may access the list of eligible occupations at [Internet address indicated]. The occupation(s) you indicated that you have work experience in do(es) not correspond to any of the occupations specified in the instructions. As your occupation(s) is not included on the list of eligible occupations, we are unable to process your application at this time.
15 From reading this response, it is easily understandable why the Applicant was confused. She had applied on the basis of her status as a resident International Student and the response she received back referred for the most part to occupational requirements she never applied under. The unfortunate use of form letters in responding to applications where multiple facts situations are involved can easily lead to ambiguity and misunderstanding. This whole litigation could have been easily avoided had a proper and cogent response been provided to the Applicant setting out in unambiguous terms the basis for which her application could not be processed as an International Student. This was not done.
16 The form letter states that the Applicant did not indicate in her application that she was legally residing in Canada for at least one year as an International Student. The true reason for not processing the application is thus stated, but in such a convoluted and ambiguous manner as to render the decision almost impossible to understand without further inquiry. This is not a proper way to proceed and is neither correct nor reasonable.
17 In judicial review, the Court must concern itself with the existence of justification, transparency and intelligibility within the decision-making process. Here the decision was legally correct, but the communication of the reasons for which it was made was deficient.
18 Nevertheless, this application for judicial review fails on the question of remedy.
19 Indeed, the solution to the Applicant's issues is to simply submit another application which, in light of her continued studies in Canada for well over a year since May of 2008, should now be processed pursuant to the Instructions. This Court has discretion to withhold relief when a procedural error is purely technical and occasions no substantial wrong or miscarriage of justice: Minister of Citizenship and Immigration v. Khosa, [2009] 1 S.C.R. 339 at para. 43. Returning the matter back to the decision maker on the basis of the original application for permanent residence would not provide the Applicant the results she seeks. It is therefore preferable for the Applicant to submit another application for permanent residence under the Skilled Workers Class as she has been invited to do by the Respondent's counsel.
20 However asking the Applicant to reapply does not resolve the unfortunate delay in processing a new application. Indeed, had the Applicant been properly informed of the reason for which her application could not be processed, she could have submitted a new application which answered the Instructions as early as May 2009. The Respondent's counsel has indicated that should the Applicant reapply for permanent residence under the Skilled Workers Class, her new application could be given priority processing (at page 60 of transcript of hearing). In light of this judgment and the reasons contained therein, this Court fully expects the Respondent to live up to this undertaking.
Certified question
21 The Applicant requested that the following question be certified for appeal to the Federal Court of Appeal as a serious question of general importance:
How should a visa officer correctly calculate the period of at least one year during which a foreign student has been legally residing in Canada before his or her application for permanent residence in Canada as a skilled worker?
22 The Applicant explained that the purpose of this question was, inter alia, to determine if summer recess from studies or doctoral studies abroad should be included in the calculation.
23 The Respondent objected to such a question on the basis that it does not rest on the Applicant' case and is therefore inappropriate.
24 I agree with the Respondent that the question raised is inappropriate and does not merit certification pursuant to paragraph 74(d) of the Act. In Varela v. Canada (Minister of Citizenship and Immigration), 2009 FCA 145, [2009] F.C.J. No. 549 at para. 23, the Federal Court of Appeal noted that this paragraph is not to be invoked lightly. The interpretation of this ministerial instruction on the narrow facts of this case is not of general importance. Moreover there exists an easily available alternative recourse for the Applicant through a new application. Consequently no question shall be certified.
Disposition
25 The application for judicial review is dismissed.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that the application for judicial review is dismissed.
MAINVILLE J.
Tuesday, December 22, 2009
Saturday, December 19, 2009
Friday, December 18, 2009
REFUGEE DETERMINATION INCONSISTENT
For many years now, Canadians have known that the refugee determination system is a joke. It is inconsistent, tainted by political allegiances, and has strangely the highest acceptance rate in the world. Some countries have as high as 80% acceptance rate, and people are allowed to move though the system (and in many cases, play it like a fiddle) for years. IRB Members are appointed based on political allegiance, activism and multiculturalism policies, and not based strictly on merit, and they are often strongly influenced by what other Members have decided on cases emanating from specific countries. A Member who mostly rejects cases from a country that otters routinely accept may become the subject of scrutiny, while the same may occur to a Member who routinely accepts cases from countries others reject. It is time to abolish the IRB and replace it with ja court of alw, composed of udges who are lawyers, appointed strictly on merit and without regard to their ethnic background, who will have tenure and will make binding decisions which will be full, fair and final. The current system penalizes those who are legitimate refugees and rewards bogus claimants who make outlandish claims to buy time in Canada. The current system inspires disregard for the rule of law and makes a mockery out of decisions which should be serious, reasoned, and based on common sense. Hearings should be open to the public in the same way that criminal and civil trials are similarly open.
CBC News - Politics - Fluctuations in refugee rulings trouble critics
CBC News - Politics - Fluctuations in refugee rulings trouble critics
Wednesday, December 16, 2009
REPORT WARNS OF POTENTIAL FLOOD OF MIGRANTS
A new report detailed in the article below warns of a potential flood of migrants to Canada as other countries tighten restrictions. This is quite obvious, as Canada fails to link immigration to the labour market in a consistent fashion. Canada needs people who are young, entrepreneurial, have capital and know-how for innovation and technological advance, and will revitalize our lagging entrepreneurial sector, not those whose only concern is how much they can extract from our naive policies, that does nothing for our future. It is time for a realignment of priorities in our immigration policy and to reward those who have potential for success, not to prop up failure out of a sense of guilt. Thousands of potential immigrants are discouraged and chose other countries because Canada fails to recognize that capital and knowledge are the cornerstones of our future, and even after migrating to Canada, eventually leave for the US or go back to their countries such as India or China, where opportunities are now abundant. We are left with those who become a burden to taxpayers because they can't find a job, do not have the skills for our economic needs, do not have the necessary English or French language skills (a huge career-killer according to all studies) . and eventually end up unhappy, on welfare, or underemployed.
As countries shut out migrants, Canada warned it will become the new safe harbour - The Globe and Mail
As countries shut out migrants, Canada warned it will become the new safe harbour - The Globe and Mail
Tuesday, December 15, 2009
TORONTO NEEDS TO CHANGE ...FAST
More evidence that Toronto is being left behind in the global race for talent: a new study reveals that expats, those Torontonians who have left, think of Toronto as a mediocre city without much influence in the world. This is quite troublesome, because the Canadian government advertises its policies to "attract the best and the brightest" ( not really, but anyway) but instead we have created a mediocre metropolis without energy or the spirit of entrepreneurship and innovation. This needs to change immediately, and it should start with our immigration policy, getting away from the naivete that permeates it and adopting a business-like approach to get serious, committed business people who will bring capital and innovation to the city, rather than treating immigration as a social welfare program that only imposes costs on taxpayers.
Toronto the good - but not good enough - The Globe and Mail
Toronto the good - but not good enough - The Globe and Mail
QUEBEC IMMIGRATION PROGRAM FAILING GRADE
This article appeared in FORBES magazine, based on a study by Oxford Analytica confirms what we have known for some time: despite Quebec's attraction of immigrants using very favourable ( and highly questionable) terms granted by the federal government to the province which insists in manging its own immigration program, Quebec has been unable to retain them, in effect transforming Quebec into a huge destination of convenience and portal to the rest of Canada. Quebec's policies discourage qualified immigrants and penalize success with its higher tax rates, resulting in an immigration flow that, while mostly French-speaking, is hardly what the province needs for economic growth.
Bienvenue A Quebec? - Forbes.com
Bienvenue A Quebec? - Forbes.com
Monday, December 14, 2009
BORDER SEARCHES A CONSTANT REMINDER OF THE LIMITS OF PRIVACY
Interesting article appeared today, highlighting the issue of searches of personal effects at the border. For those interested, you can see several articles I have published on the issue of laptop searches in my website www.karas.ca in the "Publications" section.
http://www.theglobeandmail.com/news/national/canadians-dont-forfeit-right-to-privacy-at-border-obama-official-says/article1399119/
http://www.theglobeandmail.com/news/national/canadians-dont-forfeit-right-to-privacy-at-border-obama-official-says/article1399119/
Thursday, December 10, 2009
CANADA NOT GOOD ENOUGH?
This is quite interesting: we often read about people who come to Canada and pleased not to be deported to their countries of origin. However, in the case below, the reverse is happening, a Canadian citizen has gone eon a hunger strike to avoid being sent back to Canada from Australia!!!! Go figure...
The Canadian Press: Canadian hunger striker wins reprieve from Australian deportation
Canadian hunger striker wins reprieve from Australian deportation
(CP) – 1 day ago
MELBOURNE, Australia — A Canadian citizen, who had staged a hunger strike to protest his planned deportation from Australia, has won a reprieve.
Ziad Chebib left the Maribyrnong Immigration Detention Centre in Melbourne on Wednesday, the same day he was scheduled to be deported to Canada. His supporters said Chebib was released on a temporary visa with no work rights.
They said he learned that his deportation had been cancelled when he was visited by immigration officials Tuesday night.
The 49-year-old Lebanese-Canadian went on a hunger strike last week after exhausting all appeals to live in Australia.
Many of his relatives have settled in Australia, including some of his children.
Chebib failed to meet the requirements of the visa he was granted to live in the country in 2000 and has been fighting to stave off deportation for several years.
The Australian media quoted Chebib as saying that he will continue his hunger strike until his wife and elder son join him in Melbourne.
Chebib has said he tried to appeal to Canadian diplomats earlier this year, but was rebuffed. He said the diplomats told him they had no say in an Australian immigration matter.
Chebib emigrated to Canada from Lebanon in 1976, becoming a citizen and starting up a limousine business in Calgary.
In 2000, he and his family moved to Australia because two of his siblings already lived there.
Chebib was allowed in the country on a business visa but he was unable to make the income he needed to justify the visa. Both his wife and one of his sons developed health problems and his finances became overstretched, he said.
Copyright © 2009 The Canadian Press. All rights reserved.
The Canadian Press: Canadian hunger striker wins reprieve from Australian deportation
Canadian hunger striker wins reprieve from Australian deportation
(CP) – 1 day ago
MELBOURNE, Australia — A Canadian citizen, who had staged a hunger strike to protest his planned deportation from Australia, has won a reprieve.
Ziad Chebib left the Maribyrnong Immigration Detention Centre in Melbourne on Wednesday, the same day he was scheduled to be deported to Canada. His supporters said Chebib was released on a temporary visa with no work rights.
They said he learned that his deportation had been cancelled when he was visited by immigration officials Tuesday night.
The 49-year-old Lebanese-Canadian went on a hunger strike last week after exhausting all appeals to live in Australia.
Many of his relatives have settled in Australia, including some of his children.
Chebib failed to meet the requirements of the visa he was granted to live in the country in 2000 and has been fighting to stave off deportation for several years.
The Australian media quoted Chebib as saying that he will continue his hunger strike until his wife and elder son join him in Melbourne.
Chebib has said he tried to appeal to Canadian diplomats earlier this year, but was rebuffed. He said the diplomats told him they had no say in an Australian immigration matter.
Chebib emigrated to Canada from Lebanon in 1976, becoming a citizen and starting up a limousine business in Calgary.
In 2000, he and his family moved to Australia because two of his siblings already lived there.
Chebib was allowed in the country on a business visa but he was unable to make the income he needed to justify the visa. Both his wife and one of his sons developed health problems and his finances became overstretched, he said.
Copyright © 2009 The Canadian Press. All rights reserved.
Wednesday, December 9, 2009
TheSpec.com - Local - Immigration by the numbers
Interesting statistics for the City of Hamilton, Ontario.
TheSpec.com - Local - Immigration by the numbers
TheSpec.com - Local - Immigration by the numbers
Saturday, December 5, 2009
CBC News - Politics - Backlog of refugee claims has grown under Conservatives
The real problem is in the intake that has grown steadily over the years, and in the exceedingly long process that claimants take advantage of to remain in Canada indefinitely. CBSA figures are quite telling: over 44,000 deportation and exclusion orders are issued every year, yet only around 6,000 actual deportations take place. So where are the rest? Some leave voluntarily, some become successful refugee claimants, and most just remain in Canada, change domicile, and try to stay below the radar. They system is not designed to deal with such large numbers ( around 25,000 new refugee claims each year), and those who "counsel" bogus refugee claimants know that the system can be gamed easily by stalling, filing applications doomed to failure, while at the same time trying to "settle" by marrying a Canadian, having a child, etc., to set in motion a chain of possible reviews that take years to complete.
CBC News - Politics - Backlog of refugee claims has grown under Conservatives
CBC News - Politics - Backlog of refugee claims has grown under Conservatives
Friday, December 4, 2009
CASE SHOWS INCREDIBLE BOARD FAILURES
This is an incredible case. The person concerned was convicted multiple times of very serious offences, has mental health problems, and yet the Immigration Division of the Immigration and refugee Board released him several times. One is left to wonder why this individual has managed to avoid deportation for so many years despite multiple serious convictions. This case calls into question the ability of CBSA and the government to proactively enforce immigration legislation. The many years that the person appears to have been in the system is also troubling form the point of view of cost to the taxpayers: since the person seems to be indigent, it stands to reason that the government and legal aid have picked up the cost of his many trials and hearings. This case should sound alarm amongst reasonable people who want a fair, full and final immigration process for everyone concerned. Since the judge has certified a question as of "general importance", the Federal Court of Appeal will eventually have to rule on them.
Canada (Minister of Public Safety and Emergency Preparedness)v. Samuels
BetweenThe Minister of Public Safety and Emergency Preparedness,Applicant, andMiguel Alfonso Samuels, Respondent
[2009] F.C.J. No. 1437
2009 FC 1152Docket IMM-3538-09
Federal CourtToronto, OntarioTremblay-Lamer J.Heard: October 22, 2009.Judgment: November 10, 2009.
(46 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
1 TREMBLAY-LAMER J.:-- This is an application by the Minister of Public Safety and Emergency Preparedness (the "Minister") pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"), for judicial review of an order of Louis Dubé, member of the Immigration Division (the "Tribunal") dated June 29, 2009 to release Miguel Alfonso Samuels (the "Respondent") from detention (the "Release Order").
BACKGROUND FACTS
2 The Respondent was born in Panama, but then lived for 39 years in Jamaica. He is a citizen of both countries. He came to Canada in 1991 and became a permanent resident.
3 In 1991 or 1992, the Respondent first showed symptoms of mental illness. By September 1992, he was diagnosed as having schizophrenia.
4 Since in 1993, the Respondent's criminal convictions have been so many that no-one seems able to count them anymore. Five times he was convicted for sexual assault; six or seven times for assault; six times for theft under $5000; twice for fraudulently obtaining transportation; twice for mischief under $5000; twice for failing to comply with probation orders; and once each for common nuisance and for possession of property obtained by crime. In total, the Respondent has 27 or 30 criminal convictions, as well as over ten provincial convictions.
5 The Respondent has been arrested frequently, both following his criminal and other offences and pursuant to the Mental Health Act, R.S.O. 1990, c. M.7. Cutting short an almost interminable story, I will only summarize his detention history since his last criminal conviction on March 14, 2005.
6 The respondent's court detention pursuant to that conviction ended on April 23, 2005, and he was immediately placed in immigration hold.
7 He was only released from immigration hold on October 12, 2006, under the Toronto Bail Program, for which he would be supervised by Steven Sharp.
8 The Toronto Bail Program withdrew its supervision of the Respondent in January 2007. Mr. Sharp explained that contrary to his release conditions, the Respondent repeatedly left his residence unescorted. On January 8, 2007, he was returned to his residence by a police officer. Moreover, he refused to take his medication, sometimes feigning that he had done so. In short, "Mr. Samuels [had] stopped cooperating and [was] not amenable to the services provided." Because of this, Mr. Sharp was of the opinion that public safety would be a concern if the Respondent remained in the community.
9 He was then re-arrested and returned to immigration hold, remaining in detention ever since.
10 It must further be noted that the Respondent has never had a fixed domicile in Canada; when not in detention, he lived at shelters or with family. However, he has been banned from at least two shelters, and his family, though supportive for a long time, became intolerant of his behaviour and refusals to co-operate with them in 2007.
11 In April 2007, he was interviewed by Dr. Pierce, a forensic psychiatrist at the Centre for Addiction and Mental Health, who determined that he was suffering from schizophrenia or a similar illness. While schizophrenia can often be successfully treated if the patient takes appropriate medication, the symptoms are made worse by drug use, which appeared to be the Respondent's case. Dr. Pierce also indicated that the results of a screening test suggested that the Respondent was likely to commit further sexual offences if given the opportunity.
12 On June 2, 2009, a risk-assessment officer reached a positive decision on the Appellant's Pre-Removal Risk Assessment (PRRA). The Minister is now seeking a danger opinion against the Respondent, which would lead to the Respondent's removal from Canada.
13 Following the success of his PRRA application, the Respondent sought to be released from detention.
14 In a fairly brief oral decision, the Tribunal ordered the Respondent's release on June 29, 2009. The Tribunal noted that the Respondent became, by virtue of his PRRA, a protected person. While a danger opinion was being sought, it was likely to take a considerable time - and might yet turn out to be negative, so that it "wouldn't be fair" to keep the Respondent in detention. The Tribunal noted that the respondent had "a pretty impressive criminal file," but concluded that "if there's no removal in sight, [the Tribunal is] not responsible to protect Canadian society anymore." The Minister applied for judicial review of that decision.
ISSUES
15 This application raises two issues: first, whether the Tribunal had jurisdiction to maintain the Respondent in detention notwithstanding the positive outcome of his PRRA; and if so, second, whether the Tribunal failed to perform its statutory duty to consider prescribed factors in coming to its decision.
ANALYSIS
1) Did the Tribunal have jurisdiction to maintain the Respondent in detention?
Respondent's Submissions
16 The Respondent argues that the Tribunal could not but release him, because it had no jurisdiction to keep in detention since he became, as a result of a successful PRRA application, a protected person.
17 The Respondent is relying on s. 58 of the IRPA, which provides that :
Release -- Immigration Division
58.
(1) The Immigration Division shall order the release of a permanent resident or a foreign
national unless it is satisfied, taking into account prescribed factors, that
(a) they are a danger to the public;
(b) they are unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2);
(c) the Minister is taking necessary steps to inquire into a reasonable suspicion that they are inadmissible on grounds of security or for violating human or international rights; or
(d) the Minister is of the opinion that the identity of the foreign national has not been, but may be, established and they have not reasonably cooperated with the Minister by providing relevant information for the purpose of establishing their identity or the Minister is making reasonable efforts to establish their identity.
Detention -- Immigration Division
(2) The Immigration Division may order the detention of a permanent resident or a foreign national if it is satisfied that the permanent resident or the foreign national is the subject of an examination or an admissibility hearing or is subject to a removal order and that the permanent resident or the foreign national is a danger to the public or is unlikely to appear for examination, an admissibility hearing or removal from Canada.
...
* * *
Mise en liberté par la Section de l'immigration
58.
(1) La section prononce la mise en liberté du résident permanent ou de l'étranger, sauf sur preuve, compte tenu des critères réglementaires, de tel des faits suivants :
a) le résident permanent ou l'étranger constitue un danger pour la sécurité publique;
b) le résident permanent ou l'étranger se soustraira vraisemblablement au contrôle, à l'enquête ou au renvoi, ou à la procédure pouvant mener à la prise par le ministre d'une mesure de renvoi en vertu du paragraphe 44(2);
c) le ministre prend les mesures voulues pour enquêter sur les motifs raisonnables de soupçonner que le résident permanent ou l'étranger est interdit de territoire pour raison de sécurité ou pour atteinte aux droits humains ou internationaux;
d) dans le cas où le ministre estime que l'identité de l'étranger n'a pas été prouvée mais peut l'être, soit l'étranger n'a pas raisonnablement coopéré en fournissant au ministre des renseignements utiles à cette fin, soit ce dernier fait des efforts valables pour établir l'identité de l'étranger.
Mise en détention par la Section de l'immigration
(2)
La section peut ordonner la mise en détention du résident permanent ou de l'étranger sur preuve qu'il fait l'objet d'un contrôle, d'une enquête ou d'une mesure de renvoi et soit qu'il constitue un danger pour la sécurité publique, soit qu'il se soustraira vraisemblablement au contrôle, à l'enquête ou au renvoi.
...
18 The Respondent submits that pursuant to paragraphs 232(d) and 232(e) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the "Regulations"), the effect of his positive PRRA is to stay the removal order issued against him. The Regulations provide that:
232.
A removal order is stayed when a person is notified ... that they may make an application [for a PRRA], and the stay is effective until the earliest of the following events occurs
...
(d) if a decision to allow the application for protection is made under paragraph 114(1)(a) of the Act and the person has not made an application within the period provided under subsection 175(1) to remain in Canada as a permanent resident, the expiry of that period;
(e) if a decision to allow the application for protection is made under paragraph 114(1)(a) of the Act, the decision with respect to the person's application to remain in Canada as a permanent resident is made...
* * *
232.
Il est sursis à la mesure de renvoi dès le moment où le ministère avise l'intéressé [...] qu'il peut faire une demande [pour un examen de risques avant-renvoi]. Le sursis s'applique jusqu'au premier en date des événements suivants :
...
d) s'agissant d'une personne à qui l'asile a été conféré aux termes du paragraphe 114(1) de la Loi et qui n'a pas fait sa demande de séjour au Canada à titre de résident permanent dans le délai prévu au paragraphe 175(1), l'expiration du délai;
e) s'agissant d'une personne à qui l'asile a été conféré aux termes du paragraphe 114(1) de la Loi, la décision quant à sa demande de séjour au Canada à titre de résident permanent...
19 Since subsection 48(1) of the IRPA provides that "[a] removal order is enforceable if it has come into force and is not stayed," a stayed removal is unenforceable. The Respondent argues that since the removal order issued against him is unenforceable, he is not "subject to a removal order" for the purposes of subsection 58(2) of the IRPA, and therefore the Tribunal could not continue his detention and had release him.
Minister's Submissions
20 The Minister argues that the Tribunal did have jurisdiction to keep the Respondent in detention.
21 The Minister submits the provisions of s. 58 of the IRPA and the relevant regulations contain all the criteria applicable to detention and release by the Tribunal. According to the Minister, "[a]s long as the section 58 statutory and regulatory criteria are properly considered, detention or release may be ordered, that latter with any appropriate conditions."
22 In the Minister's view, par. 58(1)(a) of the IRPA authorized the Tribunal to order the Respondent's detention if it found - as the Minister submits it ought to have - that the Respondent is a danger to the public. As the criteria set out in the several paragraphs of subs. 58(1), are not cumulative, it matters not whether the Respondent is the subject of a removal order.
23 Be that as it may, the Respondent is still subject to the removal order issued on April 15, 2004, the positive decision on his PRRA application notwithstanding. The Minister submits that the effect of that decision is "simply protection under subs. 115(1) of the IRPA against refoulement to a country where he would be at risk." While the positive PRRA decision was a factor that the Tribunal had to consider, it was not the only one. It neither granted the Respondent permanent residence nor voided the removal order. The Minister relies on s. 51 of the IRPA, pursuant to which "[a] removal order that has not been enforced becomes void if the foreign national becomes a permanent resident," which the Respondent is not.
24 Therefore, the removal order against the Respondent still exists, though its execution is stayed, pursuant to the Regulations, until a review of the Respondent's application for permanent residence. Such review will not be concluded before a decision on the danger opinion regarding the Respondent, which the Minister is seeking.
25 The Minister submits that finding that the Tribunal lacked jurisdiction to detain the Respondent would mean that "where a permanent resident or a protect person becomes subject to a removal order that cannot yet be executed the [Immigration Division] has no legal authority to detain or release the person with conditions." Such an interpretation of the IRPA would fly in the face of Parliament's objectives, notably the safety of Canadians, and such a result would be absurd.
Analysis
26 As stated above, the parties agree that a positive PRRA is a stay of a removal order issued against a refugee claimant. They differ as to whether a person a removal order against whom is stayed is still "subject to a removal order" for the purposes of subsection 58(2) of the IRPA. The Minister argues that he or she is, since the stay does not void the removal order - only a grant of permanent residence does. The Respondent submits that under a purposive interpretation of subsection 58(2) consistent with the respect of the Canadian Charter of Rights and Freedoms, and of its guarantee of liberty a removal order that is unenforceable is irrelevant.
27 I agree with the Minister. A removal order that is stayed is not void. Although it cannot be executed pending a ruling on a protected person's application for permanent residence or the passing of the deadline to file such an application, it still exists and is valid and, in my opinion, the person against whom it was issued is still "subject to it."
28 The Respondent is, in effect, asking the Court to read the exclusion of stayed removal orders into subsection 58(2), which would then provide (in the part relevant to this case) that "[t]he Immigration Division may order the detention of a permanent resident or a foreign national if it is satisfied that the permanent resident or the foreign national ... is subject to an enforceable removal order and that the permanent resident or the foreign national is a danger to the public..."
29 I am not persuaded by the Respondent's submission that this reading in is necessary to ensure that the provision complies with the Charter. Pursuant to subsection 57(2) of the IRPA, the Respondent has a right to have his detention reviewed every 30 days. The purpose of these reviews is to take into account any new events in the Respondent's case. The Immigration Division must, pursuant to section 248 of the Regulations, consider the anticipated length of his future detention and the existence of alternatives to detention. In my view, these elements confirm that the statutory scheme created by Division 6 of the IRPA and the Regulations already reflects concerns associated with the Charter.
30 I add that the Charter's guarantee of the right to liberty is not absolute; the Charter only prohibits deprivations of liberty inconsistent with principles of fundamental justice. The Respondent makes no submissions on whether detention for a limited (though admittedly potentially significant) period, of a person who is a danger to the public is in fact inconsistent with such principles. In the absence of any debate on this point, I do not think it this Court's role to re-write the statute in the way suggested by the Respondent.
31 I find that the Tribunal had jurisdiction to order the continued detention of the Respondent, if it was satisfied that he was a danger to the public.
2) Did the Tribunal fail to perform its statutory duties?
32 The Minister argues that the Tribunal failed to perform its statutory duty to assess factors which the IRPA and the Regulations mandate it to take into account in ordering the detention or release of a person.
33 The Respondent does not directly reply to this argument, but submits that "the decision, reasons and release order must be looked at in their entirety." Given that the Respondent is a protected person and that a danger opinion will not be issued before long, the Tribunal's decision to release the Respondent on conditions is reasonable.
34 Section 244 of the Regulations provides that factors set out in the following sections "shall be taken into consideration when assessing whether a person ... (b) is a danger to the public" [my emphasis] pursuant to subs. 58(1) of the IRPA.
35 The relevant provisions of the Regulations are sections 246 and 248, which provide that:
246.
For the purposes of paragraph 244(b), the factors are the following:
...
(d) conviction in Canada under an Act of Parliament for
(i)
a sexual offence, or
(ii)
an offence involving violence or weapons;
...
248.
If it is determined that there are grounds for detention, the following factors shall be considered before a decision is made on detention or release:
(a) the reason for detention;
(b) the length of time in detention;
(c) whether there are any elements that can assist in determining the length of time that detention is likely to continue and, if so, that length of time;
(d) any unexplained delays or unexplained lack of diligence caused by the Department or the person concerned; and
(e) the existence of alternatives to detention.
* * *
246.
Pour l'application de l'alinéa 244b), les critères sont les suivants :
...
d) la déclaration de culpabilité au Canada, en vertu d'une loi fédérale, quant à l'une des infractions suivantes :
(i) infraction d'ordre sexuel,
(ii)
infraction commise avec violence ou des armes;
...
248.
S'il est constaté qu'il existe des motifs de détention, les critères ci-après doivent être pris en compte avant qu'une décision ne soit prise quant à la détention ou la mise en liberté :
a)
le motif de la détention;
b)
la durée de la détention;
c) l'existence d'éléments permettant l'évaluation de la durée probable de la détention et, dans l'affirmative, cette période de temps;
d) les retards inexpliqués ou le manque inexpliqué de diligence de la part du ministère ou de l'intéressé;
e) l'existence de solutions de rechange à la détention.
36 As the Minister points out, the Tribunal seems to have been oblivious to these factors or at any rate to most of them, the length of time of past and future detention being an obvious exception.
37 While the Tribunal recognized that the Respondent has "a pretty impressive criminal file," it did not note, and seems not to have considered the implications of, the fact that this criminal file included multiple convictions for sexual offences and other offences involving violence.
38 The Tribunal failed to exercise its statutory duty, which is an error of law, and its decision must be quashed.
39 In view of this conclusion, it is unnecessary for me to consider the other issues raised by the Minister.
40 The Tribunal's order releasing Mr. Samuels is quashed, and his release application will be heard by a differently constituted panel of the Immigration Division.
SERIOUS QUESTION OF GENERAL IMPORTANCE
41 The Minister asked the Court to certify that this case involves a serious question of general importance, in conformity with par. 74(d) of the IRPA, if it found that the Tribunal lacked jurisdiction to continue the Respondent's detention or to impose conditions on his release.
42 The Minister proposes that the question be worded as follows:
Where a foreign national who is detained or released on conditions is under a removal order that cannot be executed pending an immigration process and receives a positive PRRA, does the Immigration Division have the statutory authority under the IRPA to detain the foreign national or to release the foreign national on conditions, or otherwise to continue the release of the foreign national on conditions?
43 The Minister submits that this question meets the well-known criteria set out by the Fedral Court of Appeal in Canada (Minister of Citizenship and Immigration) v. Liyanagamage (1994), 176 N.R. 4, [1994] F.C.J. No. 1637 (QL), in that it transcends the interests of the parties to this case and would be dispositive of the appeal.
44 The Respondent also submits that this case raises an important question, but suggests that it be reworded as:
Does the Immigration Division retain jurisdiction to detain a foreign national once the foreign national has been found to be a refugee or a protected person?
45 I agree that this is a serious issue of general importance. The terms "subject to a removal order" in s. 58 of the IRPA are ambiguous, because it is not clear whether the removal order must be enforceable or not. On the one hand, the statute does not expressly provide that it must; on the other, a removal order may be unenforceable, and the foreign national may remain in detention, for lengthy periods of time merely because he has been found by an administrative officer, on a balance of probabilities, to constitute a danger. This ambiguity must be resolved not only for the benefit of the parties, but also for that of any other foreign national who becomes a protected person while detained or released on conditions by the Immigration Division.
46 Therefore I certify that the following question is serious and of general importance, so that an appeal from this decision may be made pursuant to paragraph 74(d) of the IRPA:
Does the Immigration Division retain jurisdiction to detain a foreign national once the foreign national has been found to be a refugee or a protected person?
JUDGMENT
THIS COURT ORDERS that:
The application for judicial review is granted, the decision of the Tribunal is quashed, and the matter is referred for re-determination for a differently constituted panel of the Immigration Division.
The following question is certified as serious and of general importance, so that an appeal may be made from this decision pursuant to paragraph 74(d) of the Immigration and Refugee Protection Act:
Does the Immigration Division retain jurisdiction to detain a foreign national once the foreign national has been found to be a refugee or a protected person?
TREMBLAY-LAMER J.
Canada (Minister of Public Safety and Emergency Preparedness)v. Samuels
BetweenThe Minister of Public Safety and Emergency Preparedness,Applicant, andMiguel Alfonso Samuels, Respondent
[2009] F.C.J. No. 1437
2009 FC 1152Docket IMM-3538-09
Federal CourtToronto, OntarioTremblay-Lamer J.Heard: October 22, 2009.Judgment: November 10, 2009.
(46 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
1 TREMBLAY-LAMER J.:-- This is an application by the Minister of Public Safety and Emergency Preparedness (the "Minister") pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"), for judicial review of an order of Louis Dubé, member of the Immigration Division (the "Tribunal") dated June 29, 2009 to release Miguel Alfonso Samuels (the "Respondent") from detention (the "Release Order").
BACKGROUND FACTS
2 The Respondent was born in Panama, but then lived for 39 years in Jamaica. He is a citizen of both countries. He came to Canada in 1991 and became a permanent resident.
3 In 1991 or 1992, the Respondent first showed symptoms of mental illness. By September 1992, he was diagnosed as having schizophrenia.
4 Since in 1993, the Respondent's criminal convictions have been so many that no-one seems able to count them anymore. Five times he was convicted for sexual assault; six or seven times for assault; six times for theft under $5000; twice for fraudulently obtaining transportation; twice for mischief under $5000; twice for failing to comply with probation orders; and once each for common nuisance and for possession of property obtained by crime. In total, the Respondent has 27 or 30 criminal convictions, as well as over ten provincial convictions.
5 The Respondent has been arrested frequently, both following his criminal and other offences and pursuant to the Mental Health Act, R.S.O. 1990, c. M.7. Cutting short an almost interminable story, I will only summarize his detention history since his last criminal conviction on March 14, 2005.
6 The respondent's court detention pursuant to that conviction ended on April 23, 2005, and he was immediately placed in immigration hold.
7 He was only released from immigration hold on October 12, 2006, under the Toronto Bail Program, for which he would be supervised by Steven Sharp.
8 The Toronto Bail Program withdrew its supervision of the Respondent in January 2007. Mr. Sharp explained that contrary to his release conditions, the Respondent repeatedly left his residence unescorted. On January 8, 2007, he was returned to his residence by a police officer. Moreover, he refused to take his medication, sometimes feigning that he had done so. In short, "Mr. Samuels [had] stopped cooperating and [was] not amenable to the services provided." Because of this, Mr. Sharp was of the opinion that public safety would be a concern if the Respondent remained in the community.
9 He was then re-arrested and returned to immigration hold, remaining in detention ever since.
10 It must further be noted that the Respondent has never had a fixed domicile in Canada; when not in detention, he lived at shelters or with family. However, he has been banned from at least two shelters, and his family, though supportive for a long time, became intolerant of his behaviour and refusals to co-operate with them in 2007.
11 In April 2007, he was interviewed by Dr. Pierce, a forensic psychiatrist at the Centre for Addiction and Mental Health, who determined that he was suffering from schizophrenia or a similar illness. While schizophrenia can often be successfully treated if the patient takes appropriate medication, the symptoms are made worse by drug use, which appeared to be the Respondent's case. Dr. Pierce also indicated that the results of a screening test suggested that the Respondent was likely to commit further sexual offences if given the opportunity.
12 On June 2, 2009, a risk-assessment officer reached a positive decision on the Appellant's Pre-Removal Risk Assessment (PRRA). The Minister is now seeking a danger opinion against the Respondent, which would lead to the Respondent's removal from Canada.
13 Following the success of his PRRA application, the Respondent sought to be released from detention.
14 In a fairly brief oral decision, the Tribunal ordered the Respondent's release on June 29, 2009. The Tribunal noted that the Respondent became, by virtue of his PRRA, a protected person. While a danger opinion was being sought, it was likely to take a considerable time - and might yet turn out to be negative, so that it "wouldn't be fair" to keep the Respondent in detention. The Tribunal noted that the respondent had "a pretty impressive criminal file," but concluded that "if there's no removal in sight, [the Tribunal is] not responsible to protect Canadian society anymore." The Minister applied for judicial review of that decision.
ISSUES
15 This application raises two issues: first, whether the Tribunal had jurisdiction to maintain the Respondent in detention notwithstanding the positive outcome of his PRRA; and if so, second, whether the Tribunal failed to perform its statutory duty to consider prescribed factors in coming to its decision.
ANALYSIS
1) Did the Tribunal have jurisdiction to maintain the Respondent in detention?
Respondent's Submissions
16 The Respondent argues that the Tribunal could not but release him, because it had no jurisdiction to keep in detention since he became, as a result of a successful PRRA application, a protected person.
17 The Respondent is relying on s. 58 of the IRPA, which provides that :
Release -- Immigration Division
58.
(1) The Immigration Division shall order the release of a permanent resident or a foreign
national unless it is satisfied, taking into account prescribed factors, that
(a) they are a danger to the public;
(b) they are unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2);
(c) the Minister is taking necessary steps to inquire into a reasonable suspicion that they are inadmissible on grounds of security or for violating human or international rights; or
(d) the Minister is of the opinion that the identity of the foreign national has not been, but may be, established and they have not reasonably cooperated with the Minister by providing relevant information for the purpose of establishing their identity or the Minister is making reasonable efforts to establish their identity.
Detention -- Immigration Division
(2) The Immigration Division may order the detention of a permanent resident or a foreign national if it is satisfied that the permanent resident or the foreign national is the subject of an examination or an admissibility hearing or is subject to a removal order and that the permanent resident or the foreign national is a danger to the public or is unlikely to appear for examination, an admissibility hearing or removal from Canada.
...
* * *
Mise en liberté par la Section de l'immigration
58.
(1) La section prononce la mise en liberté du résident permanent ou de l'étranger, sauf sur preuve, compte tenu des critères réglementaires, de tel des faits suivants :
a) le résident permanent ou l'étranger constitue un danger pour la sécurité publique;
b) le résident permanent ou l'étranger se soustraira vraisemblablement au contrôle, à l'enquête ou au renvoi, ou à la procédure pouvant mener à la prise par le ministre d'une mesure de renvoi en vertu du paragraphe 44(2);
c) le ministre prend les mesures voulues pour enquêter sur les motifs raisonnables de soupçonner que le résident permanent ou l'étranger est interdit de territoire pour raison de sécurité ou pour atteinte aux droits humains ou internationaux;
d) dans le cas où le ministre estime que l'identité de l'étranger n'a pas été prouvée mais peut l'être, soit l'étranger n'a pas raisonnablement coopéré en fournissant au ministre des renseignements utiles à cette fin, soit ce dernier fait des efforts valables pour établir l'identité de l'étranger.
Mise en détention par la Section de l'immigration
(2)
La section peut ordonner la mise en détention du résident permanent ou de l'étranger sur preuve qu'il fait l'objet d'un contrôle, d'une enquête ou d'une mesure de renvoi et soit qu'il constitue un danger pour la sécurité publique, soit qu'il se soustraira vraisemblablement au contrôle, à l'enquête ou au renvoi.
...
18 The Respondent submits that pursuant to paragraphs 232(d) and 232(e) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the "Regulations"), the effect of his positive PRRA is to stay the removal order issued against him. The Regulations provide that:
232.
A removal order is stayed when a person is notified ... that they may make an application [for a PRRA], and the stay is effective until the earliest of the following events occurs
...
(d) if a decision to allow the application for protection is made under paragraph 114(1)(a) of the Act and the person has not made an application within the period provided under subsection 175(1) to remain in Canada as a permanent resident, the expiry of that period;
(e) if a decision to allow the application for protection is made under paragraph 114(1)(a) of the Act, the decision with respect to the person's application to remain in Canada as a permanent resident is made...
* * *
232.
Il est sursis à la mesure de renvoi dès le moment où le ministère avise l'intéressé [...] qu'il peut faire une demande [pour un examen de risques avant-renvoi]. Le sursis s'applique jusqu'au premier en date des événements suivants :
...
d) s'agissant d'une personne à qui l'asile a été conféré aux termes du paragraphe 114(1) de la Loi et qui n'a pas fait sa demande de séjour au Canada à titre de résident permanent dans le délai prévu au paragraphe 175(1), l'expiration du délai;
e) s'agissant d'une personne à qui l'asile a été conféré aux termes du paragraphe 114(1) de la Loi, la décision quant à sa demande de séjour au Canada à titre de résident permanent...
19 Since subsection 48(1) of the IRPA provides that "[a] removal order is enforceable if it has come into force and is not stayed," a stayed removal is unenforceable. The Respondent argues that since the removal order issued against him is unenforceable, he is not "subject to a removal order" for the purposes of subsection 58(2) of the IRPA, and therefore the Tribunal could not continue his detention and had release him.
Minister's Submissions
20 The Minister argues that the Tribunal did have jurisdiction to keep the Respondent in detention.
21 The Minister submits the provisions of s. 58 of the IRPA and the relevant regulations contain all the criteria applicable to detention and release by the Tribunal. According to the Minister, "[a]s long as the section 58 statutory and regulatory criteria are properly considered, detention or release may be ordered, that latter with any appropriate conditions."
22 In the Minister's view, par. 58(1)(a) of the IRPA authorized the Tribunal to order the Respondent's detention if it found - as the Minister submits it ought to have - that the Respondent is a danger to the public. As the criteria set out in the several paragraphs of subs. 58(1), are not cumulative, it matters not whether the Respondent is the subject of a removal order.
23 Be that as it may, the Respondent is still subject to the removal order issued on April 15, 2004, the positive decision on his PRRA application notwithstanding. The Minister submits that the effect of that decision is "simply protection under subs. 115(1) of the IRPA against refoulement to a country where he would be at risk." While the positive PRRA decision was a factor that the Tribunal had to consider, it was not the only one. It neither granted the Respondent permanent residence nor voided the removal order. The Minister relies on s. 51 of the IRPA, pursuant to which "[a] removal order that has not been enforced becomes void if the foreign national becomes a permanent resident," which the Respondent is not.
24 Therefore, the removal order against the Respondent still exists, though its execution is stayed, pursuant to the Regulations, until a review of the Respondent's application for permanent residence. Such review will not be concluded before a decision on the danger opinion regarding the Respondent, which the Minister is seeking.
25 The Minister submits that finding that the Tribunal lacked jurisdiction to detain the Respondent would mean that "where a permanent resident or a protect person becomes subject to a removal order that cannot yet be executed the [Immigration Division] has no legal authority to detain or release the person with conditions." Such an interpretation of the IRPA would fly in the face of Parliament's objectives, notably the safety of Canadians, and such a result would be absurd.
Analysis
26 As stated above, the parties agree that a positive PRRA is a stay of a removal order issued against a refugee claimant. They differ as to whether a person a removal order against whom is stayed is still "subject to a removal order" for the purposes of subsection 58(2) of the IRPA. The Minister argues that he or she is, since the stay does not void the removal order - only a grant of permanent residence does. The Respondent submits that under a purposive interpretation of subsection 58(2) consistent with the respect of the Canadian Charter of Rights and Freedoms, and of its guarantee of liberty a removal order that is unenforceable is irrelevant.
27 I agree with the Minister. A removal order that is stayed is not void. Although it cannot be executed pending a ruling on a protected person's application for permanent residence or the passing of the deadline to file such an application, it still exists and is valid and, in my opinion, the person against whom it was issued is still "subject to it."
28 The Respondent is, in effect, asking the Court to read the exclusion of stayed removal orders into subsection 58(2), which would then provide (in the part relevant to this case) that "[t]he Immigration Division may order the detention of a permanent resident or a foreign national if it is satisfied that the permanent resident or the foreign national ... is subject to an enforceable removal order and that the permanent resident or the foreign national is a danger to the public..."
29 I am not persuaded by the Respondent's submission that this reading in is necessary to ensure that the provision complies with the Charter. Pursuant to subsection 57(2) of the IRPA, the Respondent has a right to have his detention reviewed every 30 days. The purpose of these reviews is to take into account any new events in the Respondent's case. The Immigration Division must, pursuant to section 248 of the Regulations, consider the anticipated length of his future detention and the existence of alternatives to detention. In my view, these elements confirm that the statutory scheme created by Division 6 of the IRPA and the Regulations already reflects concerns associated with the Charter.
30 I add that the Charter's guarantee of the right to liberty is not absolute; the Charter only prohibits deprivations of liberty inconsistent with principles of fundamental justice. The Respondent makes no submissions on whether detention for a limited (though admittedly potentially significant) period, of a person who is a danger to the public is in fact inconsistent with such principles. In the absence of any debate on this point, I do not think it this Court's role to re-write the statute in the way suggested by the Respondent.
31 I find that the Tribunal had jurisdiction to order the continued detention of the Respondent, if it was satisfied that he was a danger to the public.
2) Did the Tribunal fail to perform its statutory duties?
32 The Minister argues that the Tribunal failed to perform its statutory duty to assess factors which the IRPA and the Regulations mandate it to take into account in ordering the detention or release of a person.
33 The Respondent does not directly reply to this argument, but submits that "the decision, reasons and release order must be looked at in their entirety." Given that the Respondent is a protected person and that a danger opinion will not be issued before long, the Tribunal's decision to release the Respondent on conditions is reasonable.
34 Section 244 of the Regulations provides that factors set out in the following sections "shall be taken into consideration when assessing whether a person ... (b) is a danger to the public" [my emphasis] pursuant to subs. 58(1) of the IRPA.
35 The relevant provisions of the Regulations are sections 246 and 248, which provide that:
246.
For the purposes of paragraph 244(b), the factors are the following:
...
(d) conviction in Canada under an Act of Parliament for
(i)
a sexual offence, or
(ii)
an offence involving violence or weapons;
...
248.
If it is determined that there are grounds for detention, the following factors shall be considered before a decision is made on detention or release:
(a) the reason for detention;
(b) the length of time in detention;
(c) whether there are any elements that can assist in determining the length of time that detention is likely to continue and, if so, that length of time;
(d) any unexplained delays or unexplained lack of diligence caused by the Department or the person concerned; and
(e) the existence of alternatives to detention.
* * *
246.
Pour l'application de l'alinéa 244b), les critères sont les suivants :
...
d) la déclaration de culpabilité au Canada, en vertu d'une loi fédérale, quant à l'une des infractions suivantes :
(i) infraction d'ordre sexuel,
(ii)
infraction commise avec violence ou des armes;
...
248.
S'il est constaté qu'il existe des motifs de détention, les critères ci-après doivent être pris en compte avant qu'une décision ne soit prise quant à la détention ou la mise en liberté :
a)
le motif de la détention;
b)
la durée de la détention;
c) l'existence d'éléments permettant l'évaluation de la durée probable de la détention et, dans l'affirmative, cette période de temps;
d) les retards inexpliqués ou le manque inexpliqué de diligence de la part du ministère ou de l'intéressé;
e) l'existence de solutions de rechange à la détention.
36 As the Minister points out, the Tribunal seems to have been oblivious to these factors or at any rate to most of them, the length of time of past and future detention being an obvious exception.
37 While the Tribunal recognized that the Respondent has "a pretty impressive criminal file," it did not note, and seems not to have considered the implications of, the fact that this criminal file included multiple convictions for sexual offences and other offences involving violence.
38 The Tribunal failed to exercise its statutory duty, which is an error of law, and its decision must be quashed.
39 In view of this conclusion, it is unnecessary for me to consider the other issues raised by the Minister.
40 The Tribunal's order releasing Mr. Samuels is quashed, and his release application will be heard by a differently constituted panel of the Immigration Division.
SERIOUS QUESTION OF GENERAL IMPORTANCE
41 The Minister asked the Court to certify that this case involves a serious question of general importance, in conformity with par. 74(d) of the IRPA, if it found that the Tribunal lacked jurisdiction to continue the Respondent's detention or to impose conditions on his release.
42 The Minister proposes that the question be worded as follows:
Where a foreign national who is detained or released on conditions is under a removal order that cannot be executed pending an immigration process and receives a positive PRRA, does the Immigration Division have the statutory authority under the IRPA to detain the foreign national or to release the foreign national on conditions, or otherwise to continue the release of the foreign national on conditions?
43 The Minister submits that this question meets the well-known criteria set out by the Fedral Court of Appeal in Canada (Minister of Citizenship and Immigration) v. Liyanagamage (1994), 176 N.R. 4, [1994] F.C.J. No. 1637 (QL), in that it transcends the interests of the parties to this case and would be dispositive of the appeal.
44 The Respondent also submits that this case raises an important question, but suggests that it be reworded as:
Does the Immigration Division retain jurisdiction to detain a foreign national once the foreign national has been found to be a refugee or a protected person?
45 I agree that this is a serious issue of general importance. The terms "subject to a removal order" in s. 58 of the IRPA are ambiguous, because it is not clear whether the removal order must be enforceable or not. On the one hand, the statute does not expressly provide that it must; on the other, a removal order may be unenforceable, and the foreign national may remain in detention, for lengthy periods of time merely because he has been found by an administrative officer, on a balance of probabilities, to constitute a danger. This ambiguity must be resolved not only for the benefit of the parties, but also for that of any other foreign national who becomes a protected person while detained or released on conditions by the Immigration Division.
46 Therefore I certify that the following question is serious and of general importance, so that an appeal from this decision may be made pursuant to paragraph 74(d) of the IRPA:
Does the Immigration Division retain jurisdiction to detain a foreign national once the foreign national has been found to be a refugee or a protected person?
JUDGMENT
THIS COURT ORDERS that:
The application for judicial review is granted, the decision of the Tribunal is quashed, and the matter is referred for re-determination for a differently constituted panel of the Immigration Division.
The following question is certified as serious and of general importance, so that an appeal may be made from this decision pursuant to paragraph 74(d) of the Immigration and Refugee Protection Act:
Does the Immigration Division retain jurisdiction to detain a foreign national once the foreign national has been found to be a refugee or a protected person?
TREMBLAY-LAMER J.
Thursday, December 3, 2009
IMMIGRATION ISSUES IN THE CRIMINAL SENTENCING PROCESS
Here is a recent case highlighting the consideration of immigration issues in the criminal sentencing process, particularly the ability of a person convicted of a serious offence to have access to appeal a removal order to the Immigration Appeal Division (IAD). Judges in criminal courts appear to be increasingly persuaded by defendants to impose lighter sentences so they can avail themselves of the immigration appeal process, even though a Canadian citizen would not have access to such argument. This defeats the intent of the Immigration and Refugee Protection Act, which was aimed at deporting serious criminals from Canada. Can an argument be made that such considerations are a breach of the Charter protection of equality before the law? Shuld judges in criminal proceedings treat defendants more leniently based on their immigration status? It would be interesting if the Supreme Court of Canada could tackle this issue at some point.
R. v. Gurm
BetweenHer Majesty the Queen, andGurcharan Gurm, Defendant
[2009] O.J. No. 5007
Court File No. CRIMJ(F)2501/08 Ontario Superior Court of JusticeB.J. Wein J.Heard: November 8, 2009.Judgment: November 12, 2009.
(12 paras.)
REASONS FOR SENTENCE
B.J. WEIN J.:--
Overview
1 Following a trial by jury Mr. Gurm was convicted of importing opium into Canada. The Crown recommends a sentence of between two and three years in the penitentiary while the defence submits that a reformatory sentence of between 18 months and two years less a day plus probation, is adequate to meet the principles of sentencing. Given the jurisprudence in this jurisdiction, and the particular circumstances of the case, including the fact that Mr. Gurm is a landed immigrant in this country, I am satisfied that the principles of sentencing will adequately be met with a sentence of two years less a day plus two years probation on terms.
The Facts:
2 Mr. Gurm flew into Pearson International Airport in Toronto from India via the Soviet Union. He was found to be carrying, in his carry-on bag and in one of his two larger suitcases, several packets of opium packaged in hockey puck shapes and wrapped for concealment. He was also carrying a small paper pipe made from a rolled up rupee note, which tested positive for opium. The packets were secreted in hidden pockets in the lining of a jacket and pants. One packet and the pipe were wrapped in a towel in his carry-on baggage. The commercial value of the opium, if sold in Canada at one gram street level amounts, is between $10,000 and $17,000.
3 Mr. Gurm acknowledged that while in the Punjab, where he had been visiting friends and overseeing the construction of a new home for his extended family, he frequently got together with friends who smoked opium. He denied that he himself was a user. He indicated that the night before he flew home, he got very drunk partying with his friends, such that he was still hung over when it was time to pack his bags. His friends were in his room smoking opium and preparing to say goodbye. He allowed his friends to pack his bags. They also carried the bags out to the car. He denied knowledge that there were drugs in his luggage, and denied even indirect knowledge through wilful blindness, but the jury clearly found to the contrary.
Legal Parameters:
4 Case law indicates that for substantial quantities of an opiate drug, the penalty for importation, depending on quantity and other circumstances, can range from low to mid penitentiary terms, even in the case of first offenders. See, for example, R. v. Rashidi-Alavije, [2006] O.J. No. 4015 (S.C.), affirmed [2007] O.J. No. 4005 (C.A.). However, where a person is a landed immigrant, if they receive a penitentiary sentence, they will be denied the right of appeal if ordered deported from Canada, pursuant to the provisions of s. 64 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. It has been affirmed that it is appropriate for the Court to consider the risk of deportation as a factor in deciding the sentence to be imposed and in tailoring the sentence to best fit the crime and the offender: R. v. Hamilton (2004), 72 O.R. (3d) 1 (C.A.), R. v. Suwalee Iamkhong, 2009 ONCA 478.
Reasons:
5 In this case, where Mr. Gurm is currently the sole supporter of his mother and grandmother, who reside in Canada, and who will both have to live with other relatives while he is incarcerated, a sentence of reformatory length would entitle the appellant to seek to remain in Canada. This is a strong consideration favouring the imposition of a reformatory sentence as submitted by the defence.
6 The amount imported in this case, while substantial, does not indicate that Mr. Gurm was a high level courier operating as a part of a significant drug trafficking ring. It is consistent with distribution amongst a smaller community. Similar considerations were reviewed in a recent decision of this court in R. v. Benipal, unreported, June 5, 2009, where a reformatory sentence was imposed.
7 The accused does not admit that he had knowledge, even in the sense that he was wilfully blind to the need to inquire about what his friends were putting in his luggage, but he did, in the exercise of his right of allocution, admit that he should have been more careful. The absence of a plea or admission is not an aggravating factor, but is simply the absence of a mitigating factor that is present in some cases where leniency is sought. In this case, as the defence pointed out, it must be acknowledged that the trial was run "efficiently", in the sense that all essential elements except knowledge were admitted, thereby shortening the trial and allowing the jury to focus on the sole issue in dispute.
8 As well, having observed Mr. Gurm throughout the trial and receiving the benefit of the pre-sentence report, which indicates that he has otherwise been a hard working and responsible young person, I am satisfied that the principles of sentencing, including the requirement that the sentence be sufficiently emphatic to denounce unlawful conduct, will not be impaired with the imposition of a reformatory sentence.
9 However, the seriousness of the offence does require that a maximum reformatory sentence be imposed. No real pre-trial custody has been served: Mr. Gurm was released after overnight detention. A lesser reformatory sentence would not adequately reflect the seriousness of this type of offence, or the potential for harm to society.
10 In the result, the sentence will be one of two years less a day in the reformatory, plus two years probation. The terms of probation will include, in addition to the mandatory conditions under s. 732.1(2) of the Criminal Code, conditions that Mr. Gurm remain in Ontario for the first year of probation and that he seek assessment and counselling recommended for any substance abuse problems. The latter is appropriate since one of the underlying admitted factors was an excessive consumption of alcohol, and the possibility of drug abuse is a factor that should be explored.
Ancillary Orders:
11 A mandatory weapons prohibition is ordered for a period of 10 years, pursuant to s. 109 of the Criminal Code. The appropriate provisions are to be read to Mr. Gurm.
12 For oral reasons given, an order under s. 487.051(2) of the Code authorizing the taking of a DNA sample is appropriate in this particular case, and accordingly such a sample will be ordered to be taken.
B.J. WEIN J.
R. v. Gurm
BetweenHer Majesty the Queen, andGurcharan Gurm, Defendant
[2009] O.J. No. 5007
Court File No. CRIMJ(F)2501/08 Ontario Superior Court of JusticeB.J. Wein J.Heard: November 8, 2009.Judgment: November 12, 2009.
(12 paras.)
REASONS FOR SENTENCE
B.J. WEIN J.:--
Overview
1 Following a trial by jury Mr. Gurm was convicted of importing opium into Canada. The Crown recommends a sentence of between two and three years in the penitentiary while the defence submits that a reformatory sentence of between 18 months and two years less a day plus probation, is adequate to meet the principles of sentencing. Given the jurisprudence in this jurisdiction, and the particular circumstances of the case, including the fact that Mr. Gurm is a landed immigrant in this country, I am satisfied that the principles of sentencing will adequately be met with a sentence of two years less a day plus two years probation on terms.
The Facts:
2 Mr. Gurm flew into Pearson International Airport in Toronto from India via the Soviet Union. He was found to be carrying, in his carry-on bag and in one of his two larger suitcases, several packets of opium packaged in hockey puck shapes and wrapped for concealment. He was also carrying a small paper pipe made from a rolled up rupee note, which tested positive for opium. The packets were secreted in hidden pockets in the lining of a jacket and pants. One packet and the pipe were wrapped in a towel in his carry-on baggage. The commercial value of the opium, if sold in Canada at one gram street level amounts, is between $10,000 and $17,000.
3 Mr. Gurm acknowledged that while in the Punjab, where he had been visiting friends and overseeing the construction of a new home for his extended family, he frequently got together with friends who smoked opium. He denied that he himself was a user. He indicated that the night before he flew home, he got very drunk partying with his friends, such that he was still hung over when it was time to pack his bags. His friends were in his room smoking opium and preparing to say goodbye. He allowed his friends to pack his bags. They also carried the bags out to the car. He denied knowledge that there were drugs in his luggage, and denied even indirect knowledge through wilful blindness, but the jury clearly found to the contrary.
Legal Parameters:
4 Case law indicates that for substantial quantities of an opiate drug, the penalty for importation, depending on quantity and other circumstances, can range from low to mid penitentiary terms, even in the case of first offenders. See, for example, R. v. Rashidi-Alavije, [2006] O.J. No. 4015 (S.C.), affirmed [2007] O.J. No. 4005 (C.A.). However, where a person is a landed immigrant, if they receive a penitentiary sentence, they will be denied the right of appeal if ordered deported from Canada, pursuant to the provisions of s. 64 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. It has been affirmed that it is appropriate for the Court to consider the risk of deportation as a factor in deciding the sentence to be imposed and in tailoring the sentence to best fit the crime and the offender: R. v. Hamilton (2004), 72 O.R. (3d) 1 (C.A.), R. v. Suwalee Iamkhong, 2009 ONCA 478.
Reasons:
5 In this case, where Mr. Gurm is currently the sole supporter of his mother and grandmother, who reside in Canada, and who will both have to live with other relatives while he is incarcerated, a sentence of reformatory length would entitle the appellant to seek to remain in Canada. This is a strong consideration favouring the imposition of a reformatory sentence as submitted by the defence.
6 The amount imported in this case, while substantial, does not indicate that Mr. Gurm was a high level courier operating as a part of a significant drug trafficking ring. It is consistent with distribution amongst a smaller community. Similar considerations were reviewed in a recent decision of this court in R. v. Benipal, unreported, June 5, 2009, where a reformatory sentence was imposed.
7 The accused does not admit that he had knowledge, even in the sense that he was wilfully blind to the need to inquire about what his friends were putting in his luggage, but he did, in the exercise of his right of allocution, admit that he should have been more careful. The absence of a plea or admission is not an aggravating factor, but is simply the absence of a mitigating factor that is present in some cases where leniency is sought. In this case, as the defence pointed out, it must be acknowledged that the trial was run "efficiently", in the sense that all essential elements except knowledge were admitted, thereby shortening the trial and allowing the jury to focus on the sole issue in dispute.
8 As well, having observed Mr. Gurm throughout the trial and receiving the benefit of the pre-sentence report, which indicates that he has otherwise been a hard working and responsible young person, I am satisfied that the principles of sentencing, including the requirement that the sentence be sufficiently emphatic to denounce unlawful conduct, will not be impaired with the imposition of a reformatory sentence.
9 However, the seriousness of the offence does require that a maximum reformatory sentence be imposed. No real pre-trial custody has been served: Mr. Gurm was released after overnight detention. A lesser reformatory sentence would not adequately reflect the seriousness of this type of offence, or the potential for harm to society.
10 In the result, the sentence will be one of two years less a day in the reformatory, plus two years probation. The terms of probation will include, in addition to the mandatory conditions under s. 732.1(2) of the Criminal Code, conditions that Mr. Gurm remain in Ontario for the first year of probation and that he seek assessment and counselling recommended for any substance abuse problems. The latter is appropriate since one of the underlying admitted factors was an excessive consumption of alcohol, and the possibility of drug abuse is a factor that should be explored.
Ancillary Orders:
11 A mandatory weapons prohibition is ordered for a period of 10 years, pursuant to s. 109 of the Criminal Code. The appropriate provisions are to be read to Mr. Gurm.
12 For oral reasons given, an order under s. 487.051(2) of the Code authorizing the taking of a DNA sample is appropriate in this particular case, and accordingly such a sample will be ordered to be taken.
B.J. WEIN J.
Wednesday, December 2, 2009
SERGIO R. KARAS QUOTED ON IMMIGRATION FRONT PAGE STORY
Canadian HR Reporter
11/30/2009
Immigration system not meeting labour market needs: Auditor general
More immigrants coming to Canada through provincial nominee programs
By Shannon Klie
There is a clear lack of a strategy on the government’s part to ensure permanent and temporary workers coming to Canada meet the needs of the labour market, as well as a lack of regulation that leaves temporary foreign workers vulnerable to exploitation, found a report from Canada’s auditor general.
The temporary foreign worker program, in particular, is not delivered efficiently and effectively, found the report. There is no systematic review by either Citizenship and Immigration Canada (CIC) or Human Resources and Skills Development Canada (HRSDC) to ensure job offers are genuine or that employers are complying with the terms and conditions under which the work permits were issued, according to the November 2009 report.
“The problems we noted could leave temporary foreign workers in a vulnerable position and pose significant risks to the integrity of the immigration program as a whole,” said auditor general Sheila Fraser.
In October, before the report was released but after the audit was concluded, Citizenship and Immigration Minister Jason Kenney announced changes to the temporary foreign worker program.
The proposed improvements would include a more rigorous assessment of the genuineness of an employer’s job offer, with an examination of an employer’s past compliance with federal and provincial labour laws.
The changes would also prevent employers that have failed to deliver on promises regarding compensation, working conditions or the actual job from hiring workers through the program for two years. They would also be named on CIC’s blacklist.
Most of the changes are aimed especially at protecting low-skilled workers in the program, said Bill MacGregor, leader of the immigration national practice group at the law firm Gowlings in Waterloo, Ont.
“I think it’s part of a trend generally to tighten things up and try to protect foreign workers and try to have more of an enforcement process,” said MacGregor. “I think that’s a good thing. Whether it goes far enough, I suppose, can be debated.”
Decisions made by CIC, which don’t seem to be supported by a strategy to meet the needs of the Canadian labour market, have caused a significant shift in the types of foreign workers becoming permanent residents, found the report on foreign workers (which is part of a larger report covering other Canadian issues).
While the annual targets for immigrants under the economic class have changed little in the past five years, targets for programs under the class have changed dramatically.
Targets for the provincial nominee programs (PNPs) increased 471 per cent from 3,500 in 2004 to 20,000 in 2009. On the other hand, targets for the federal skilled worker program dropped 31 per cent from 98,200 to 68,200.
The PNP might soon become the largest source of economic immigrants, which could affect how well Canada’s immigration system meets labour market demands, stated the report.
Under the PNP, certain provinces and territories can nominate candidates for immigration based on their own selection criteria to meet regional labour market needs without approval from the federal government. These candidates are not subject to the points system of the federal skilled worker program.
Because the criteria vary so widely among the different PNPs, the federal, provincial and territorial governments need to formally evaluate the programs to see if they are in fact bringing in immigrants who match labour market demands and if immigrants who enter one province actually stay there, stated the report.
“It is critical that the government’s programs to facilitate the entry of permanent and temporary workers be designed and delivered in a way to ensure that the right people are available at the right time to meet the needs of the Canadian labour market. The choices that are made now will affect the kind of society Canada has in the future,” stated the report.
Toronto-based citizenship and immigration lawyer Sergio Karas agreed with the auditor general’s findings.
“The immigration and refugee system is totally broken,” said Karas, who is the chair of the Ontario Bar Association’s citizenship and immigration section. “We need some major reforms.”
At the top of his list is the way in which the system selects skilled immigrants. Instead of relying on a points system and an outdated, political list of priority occupations, the government should work with businesses to find out exactly what kind of immigrants they need, he said.
“I would like to see an employer-driven immigration program,” said Karas. “If we would only bring in the type of immigrants that the labour market demands then they would all have jobs.”
In 2008, the government changed the Immigrant and Refugee Protection Act to give the minister of citizenship and immigration the power to set eligibility criteria in an effort to reduce the backlog of applications under the federal skilled worker program, which had nearly doubled since 2000.
In October 2008, the ministry set new eligibility criteria requiring applicants for the federal skilled worker program to have one year of experience in one of 38 occupations (down from a list of 351), to have lived in Canada for one year as a temporary foreign worker or international student, or have a job offer.
Under the new criteria, the government forecast a reduction in new applications and that processing times for new applications would take six to 12 months. But the auditor general found no evidence of policy, program or operational analysis to support that forecast.
At the end of February 2009, the backlog was 635,233. By June 30, 2009, the total backlog and new applications was 594,122, a 6.5-per-cent reduction, which was mostly due to ineligible applications made by people unaware of the new eligibility criteria, stated the report.
The auditor general called for strong structures and processes to support the identification of priority occupations to ensure there is a link between labour market needs and the selection of immigrants. While the government held consultations to select the 38 priority occupations, there is no mechanism in place to ensure the list will remain up-to-date, found the report.
The government is wasting a lot of resources by bringing in immigrants who will never work or be stuck in low-paying jobs because they don’t have the skills needed for the jobs available, said Karas. Instead, the government should focus its resources on those individuals who will have the most economic impact.
“You can’t have people coming to Canada and wandering the streets not able to find a job,” he said.
There should be a graduated immigration system that starts with work permits, so only people with a job in hand could begin the immigration process, said Karas.
As such, the temporary foreign worker program is absolutely necessary to the system. But there needs to be an acknowledgement not all participants in the program would be appropriate for permanent residency, he said.
The program is often used in industries to meet short peaks in demand. But after the peak, demand drops off and not as many workers are needed so they would no longer have a job, said Karas.
“There are people who need to go home after their services have been performed,” he said.
11/30/2009
Immigration system not meeting labour market needs: Auditor general
More immigrants coming to Canada through provincial nominee programs
By Shannon Klie
There is a clear lack of a strategy on the government’s part to ensure permanent and temporary workers coming to Canada meet the needs of the labour market, as well as a lack of regulation that leaves temporary foreign workers vulnerable to exploitation, found a report from Canada’s auditor general.
The temporary foreign worker program, in particular, is not delivered efficiently and effectively, found the report. There is no systematic review by either Citizenship and Immigration Canada (CIC) or Human Resources and Skills Development Canada (HRSDC) to ensure job offers are genuine or that employers are complying with the terms and conditions under which the work permits were issued, according to the November 2009 report.
“The problems we noted could leave temporary foreign workers in a vulnerable position and pose significant risks to the integrity of the immigration program as a whole,” said auditor general Sheila Fraser.
In October, before the report was released but after the audit was concluded, Citizenship and Immigration Minister Jason Kenney announced changes to the temporary foreign worker program.
The proposed improvements would include a more rigorous assessment of the genuineness of an employer’s job offer, with an examination of an employer’s past compliance with federal and provincial labour laws.
The changes would also prevent employers that have failed to deliver on promises regarding compensation, working conditions or the actual job from hiring workers through the program for two years. They would also be named on CIC’s blacklist.
Most of the changes are aimed especially at protecting low-skilled workers in the program, said Bill MacGregor, leader of the immigration national practice group at the law firm Gowlings in Waterloo, Ont.
“I think it’s part of a trend generally to tighten things up and try to protect foreign workers and try to have more of an enforcement process,” said MacGregor. “I think that’s a good thing. Whether it goes far enough, I suppose, can be debated.”
Decisions made by CIC, which don’t seem to be supported by a strategy to meet the needs of the Canadian labour market, have caused a significant shift in the types of foreign workers becoming permanent residents, found the report on foreign workers (which is part of a larger report covering other Canadian issues).
While the annual targets for immigrants under the economic class have changed little in the past five years, targets for programs under the class have changed dramatically.
Targets for the provincial nominee programs (PNPs) increased 471 per cent from 3,500 in 2004 to 20,000 in 2009. On the other hand, targets for the federal skilled worker program dropped 31 per cent from 98,200 to 68,200.
The PNP might soon become the largest source of economic immigrants, which could affect how well Canada’s immigration system meets labour market demands, stated the report.
Under the PNP, certain provinces and territories can nominate candidates for immigration based on their own selection criteria to meet regional labour market needs without approval from the federal government. These candidates are not subject to the points system of the federal skilled worker program.
Because the criteria vary so widely among the different PNPs, the federal, provincial and territorial governments need to formally evaluate the programs to see if they are in fact bringing in immigrants who match labour market demands and if immigrants who enter one province actually stay there, stated the report.
“It is critical that the government’s programs to facilitate the entry of permanent and temporary workers be designed and delivered in a way to ensure that the right people are available at the right time to meet the needs of the Canadian labour market. The choices that are made now will affect the kind of society Canada has in the future,” stated the report.
Toronto-based citizenship and immigration lawyer Sergio Karas agreed with the auditor general’s findings.
“The immigration and refugee system is totally broken,” said Karas, who is the chair of the Ontario Bar Association’s citizenship and immigration section. “We need some major reforms.”
At the top of his list is the way in which the system selects skilled immigrants. Instead of relying on a points system and an outdated, political list of priority occupations, the government should work with businesses to find out exactly what kind of immigrants they need, he said.
“I would like to see an employer-driven immigration program,” said Karas. “If we would only bring in the type of immigrants that the labour market demands then they would all have jobs.”
In 2008, the government changed the Immigrant and Refugee Protection Act to give the minister of citizenship and immigration the power to set eligibility criteria in an effort to reduce the backlog of applications under the federal skilled worker program, which had nearly doubled since 2000.
In October 2008, the ministry set new eligibility criteria requiring applicants for the federal skilled worker program to have one year of experience in one of 38 occupations (down from a list of 351), to have lived in Canada for one year as a temporary foreign worker or international student, or have a job offer.
Under the new criteria, the government forecast a reduction in new applications and that processing times for new applications would take six to 12 months. But the auditor general found no evidence of policy, program or operational analysis to support that forecast.
At the end of February 2009, the backlog was 635,233. By June 30, 2009, the total backlog and new applications was 594,122, a 6.5-per-cent reduction, which was mostly due to ineligible applications made by people unaware of the new eligibility criteria, stated the report.
The auditor general called for strong structures and processes to support the identification of priority occupations to ensure there is a link between labour market needs and the selection of immigrants. While the government held consultations to select the 38 priority occupations, there is no mechanism in place to ensure the list will remain up-to-date, found the report.
The government is wasting a lot of resources by bringing in immigrants who will never work or be stuck in low-paying jobs because they don’t have the skills needed for the jobs available, said Karas. Instead, the government should focus its resources on those individuals who will have the most economic impact.
“You can’t have people coming to Canada and wandering the streets not able to find a job,” he said.
There should be a graduated immigration system that starts with work permits, so only people with a job in hand could begin the immigration process, said Karas.
As such, the temporary foreign worker program is absolutely necessary to the system. But there needs to be an acknowledgement not all participants in the program would be appropriate for permanent residency, he said.
The program is often used in industries to meet short peaks in demand. But after the peak, demand drops off and not as many workers are needed so they would no longer have a job, said Karas.
“There are people who need to go home after their services have been performed,” he said.
MARRIAGE FRAUD ON THE RISE
This is unsurprising. Since the government has made it so easy and so quick to obtain unconditional residency for spouses, and very few applicants are interviewed, it is little wonder that the program has become the focus of interest by unscrupulous individuals. The solution is to grant conditional residency for a probationary period of time, much like the US does, and to ensure that the marriage is genuine before the residency becomes final. this will also prevent those who are increasingly taking advantage of Canadians by ":marrying and leaving" them as soon as they obtain residency.
Rise in fake marriages causes concern in Immigration dept. - thestar.com
Rise in fake marriages causes concern in Immigration dept. - thestar.com
Tuesday, December 1, 2009
Saturday, November 28, 2009
VISALAW INTERNATIONAL CONFERENCE IN AMSTERDAM A SUCCESS
The Visalaw International conference in Amsterdam was a great success, with many immigration lawyers and clients in attendance. In the photo, VLI lawyers and clients enjoy a cruise through the Amsterdam canals. More events are planned for the future.
Friday, November 27, 2009
TAMIL TIGER SUPPORTER EXPELLED AFTER CONTROVERSIAL SPEECH
I find it interesting that the federal government has declared the Tamil Tigers to be a terrorist organization years ago, yet their supporters are allowed to openly support that organization, fly its flag, and generally glorify it in the media. it seems contradictory. Obviously, politics do play a role in this, as no party wants to be seen as offending Tamil sensitivities, particularly in Toronto riding's where they have a sizable constituency. Only in Canada....
Champion of Tamil Tigers booted out of Canada - The Globe and Mail
Champion of Tamil Tigers booted out of Canada - The Globe and Mail
Thursday, November 26, 2009
RCMP bust alleged counterfeiting ring - The Globe and Mail
This is shocking. Daycare facilities used as forgery dens? Let's move to Mars.Noting seems sacred here...what is next?
RCMP bust alleged counterfeiting ring - The Globe and Mail
RCMP bust alleged counterfeiting ring - The Globe and Mail
Nanny wins landmark suit after Star investigation - thestar.com
This is story quite interesting. Perhaps the time has come for the government to ban the activities of intermediary agents and recruiters in the caregiver system. In fact, the entire set up of the program is questionable, as it is a constant focus of abuse by both employers and caregivers who misrepresent their true relationship. I have seen many cases in my office of caregivers who found themselves in similar circumstances, and others who willingly participated in misrepresenting their true intentions in coming to Canada, while yet another group never had any intention to comply with the terms of the program and knew in advance that they would not be living in the employer's premises. the program needs a complete makeover with a strong enforcement element, but the politicians prefer to duck the issue because it risks offending Filipino constituents.
Nanny wins landmark suit after Star investigation - thestar.com
Nanny wins landmark suit after Star investigation - thestar.com
Wednesday, November 25, 2009
CBC News - Nova Scotia - Christmas tree grower turns to Mexico for workers
Interesting that this is happening in a province with chronically high unemployment....
CBC News - Nova Scotia - Christmas tree grower turns to Mexico for workers
CBC News - Nova Scotia - Christmas tree grower turns to Mexico for workers
Monday, November 23, 2009
Immigrants overqualified, earn less - The Globe and Mail
This is quite interesting but not unexpected. People who migrate should not expect to "start at the top" but rather adapt and make slow and steady gains as they integrate. What the study does not show is what specific groups are not doing well. Hopefully, this will not be an excuse for another nonsensical "affirmative action" program that will disadvantage qualified candidates.
Immigrants overqualified, earn less - The Globe and Mail
Immigrants overqualified, earn less - The Globe and Mail
Saturday, November 21, 2009
Lesbian US War Deserter Wins Stay of Deportation - NYTimes.com
I am reading the article below and wondering.... how many more grounds of "creative" refugee claims Can the Canadian legal system continue to create? I think that soon there will be consideration of discrimination by blondes against redheads, people who wear blue against those who like the color green, and those who drive American brands against those who own Japanese cars....Do you think we need some reform and common sense or not? The Canadian refugee determination system continues to be the weak link in our immigration policy.
Lesbian US War Deserter Wins Stay of Deportation - NYTimes.com
Lesbian US War Deserter Wins Stay of Deportation - NYTimes.com
Thursday, November 12, 2009
Sponsors not automatically responsible for family debts: court - The Globe and Mail
This court ruling is important to those who have singed undertakings of assistance of relatives they have sponsored.
Sponsors not automatically responsible for family debts: court - The Globe and Mail
Sponsors not automatically responsible for family debts: court - The Globe and Mail
Tuesday, November 10, 2009
Hapless immigrant or terrorist threat? - The Globe and Mail
I think that this behaviour does not appar to be the normal course of action for somone moving from the US to Canada.....
Hapless immigrant or terrorist threat? - The Globe and Mail
Hapless immigrant or terrorist threat? - The Globe and Mail
Sunday, November 8, 2009
Rwandan man living in Windsor charged with war crimes
Another case of alleged Rwandan war criminals living in Canada. How many are there? Does the government know?
Rwandan man living in Windsor charged with war crimes
Rwandan man living in Windsor charged with war crimes
Wednesday, November 4, 2009
SUMMARY OF AUDITOR GENERAL REPORT
Here are the main points outlined in the Auditor General's report in the area of immigration:
Main Points
What we examined
In Canada, the federal government and the provinces and territories share jurisdiction over immigration. Citizenship and Immigration Canada (CIC) is generally responsible for the selection of immigrants and other foreign nationals and for ensuring that they are admissible—that is, that they do not present any risk to the health and safety of Canadians. The Department has also signed agreements with most provinces and territories allowing them to play an active role in selecting immigrants to meet the specific needs of their labour markets.
In 2008, Canada admitted about 250,000 people as permanent residents, including about 150,000 individuals and their immediate family members selected on the basis of attributes that would enable them to succeed in a dynamic labour market, such as education, professional experience, and official language ability. In addition, Canada allowed almost 370,000 temporary foreign workers in 2008 to fill a short-term need for labour.
We examined how CIC plans for and manages programs designed to facilitate the entry of permanent and temporary workers into Canada and the recognition of foreign credentials in Canada. In addition, we looked at the role of Human Resources and Skills Development Canada (HRSDC) in supporting the planning and delivery of these programs, including the issuance of labour market opinions by its Service Canada offices. The audit covered the period from June 2002, when the Immigration and Refugee Protection Act came into effect, to 30 June 2009.
Our audit did not cover how CIC assesses whether applicants are admissible to Canada or how the provinces and territories nominate candidates for selection. Nor did we examine the Canada Border Services Agency’s processing of work permit applications at points of entry into Canada.
Why it’s important
Immigration has played an important role in the economic, social, and cultural development of Canada throughout our history. Its role is just as important today, given our aging population and labour force. Canada has an ongoing need for permanent workers with various skills and must compete with other countries to attract them. In addition, Canada has a need for various types of temporary workers to address short-term needs of the labour market, which vary from year to year and from region to region of the country.
It is critical that the government’s programs to facilitate the entry of permanent and temporary workers be designed and delivered in a way to ensure that the right people are available at the right time to meet the needs of the Canadian labour market. The choices that are made now will affect the kind of society Canada has in the future.
What we found
Although CIC followed a sound decision-making process in 2008 to design the Canadian Experience Class (a category of skilled foreign workers and students with Canadian work experience), the Department has made other key decisions without properly assessing their costs and benefits, risks, and potential impacts on other programs and delivery mechanisms. Program changes in recent years have resulted in a significant shift in the types of workers being admitted permanently to Canada under the immigration program’s economic component. We saw little evidence that this shift is part of any well-defined strategy to best meet the needs of the Canadian labour market.
The inventory of applications in the Federal Skilled Worker category has almost doubled since our 2000 audit and, in December 2008, represented more than 620,000 people waiting an average of 63 months for a decision on whether they would be admitted. Measures taken by CIC in 2008 to limit the number of new applications—for example, processing only those that meet new, more narrowly defined criteria—were not based on sufficient analysis of their potential effects. While it is too early to assess their full impact, trends in the number of applications received since the beginning of 2009 indicate that they might not have the desired effect, and CIC could be unable to process new applications within the 6 to 12 months it has forecast. Furthermore, CIC does not know and has not defined how much time it should take to clear the inventory of applications on hand when the measures were introduced.
CIC and HRSDC have not clearly defined their respective roles and responsibilities in assessing the genuineness of job offers and how that assessment is to be carried out. As a result, work permits could be issued to temporary foreign workers for employers or jobs that do not exist. In addition, there is no systematic follow-up by either department to verify that in their previous and current employment of temporary foreign workers, employers have complied with the terms and conditions (such as wages and accommodations) under which the work permits were issued. This creates risks to program integrity and could leave many foreign workers in a vulnerable position, particularly those who are physically or linguistically isolated from the general community or are unaware of their rights. Furthermore, weaknesses in the practices for issuing labour market opinions raise questions about the quality and consistency of decisions being made by HRSDC officers.
CIC has successfully introduced a number of initiatives and tools to address some of the inefficiencies we reported in 2000 in its processing of applications in missions overseas. However, efficiency gains will be seriously limited until an information technology system that has been under development for almost 10 years is implemented in missions abroad and CIC makes effective use of available technologies. In the meantime, employees in missions abroad are still buried in paperwork and spending a great deal of their time on clerical tasks. In addition, while the Department has developed a quality assurance framework that is available to all missions, immigration program managers are not required to use it or to report on quality assurance. Therefore, CIC still has little assurance that overall, decisions by visa officers are fair and consistent.
The entities have responded. The entities agree with all of the recommendations. Their responses follow each recommendation throughout the chapter.
Main Points
What we examined
In Canada, the federal government and the provinces and territories share jurisdiction over immigration. Citizenship and Immigration Canada (CIC) is generally responsible for the selection of immigrants and other foreign nationals and for ensuring that they are admissible—that is, that they do not present any risk to the health and safety of Canadians. The Department has also signed agreements with most provinces and territories allowing them to play an active role in selecting immigrants to meet the specific needs of their labour markets.
In 2008, Canada admitted about 250,000 people as permanent residents, including about 150,000 individuals and their immediate family members selected on the basis of attributes that would enable them to succeed in a dynamic labour market, such as education, professional experience, and official language ability. In addition, Canada allowed almost 370,000 temporary foreign workers in 2008 to fill a short-term need for labour.
We examined how CIC plans for and manages programs designed to facilitate the entry of permanent and temporary workers into Canada and the recognition of foreign credentials in Canada. In addition, we looked at the role of Human Resources and Skills Development Canada (HRSDC) in supporting the planning and delivery of these programs, including the issuance of labour market opinions by its Service Canada offices. The audit covered the period from June 2002, when the Immigration and Refugee Protection Act came into effect, to 30 June 2009.
Our audit did not cover how CIC assesses whether applicants are admissible to Canada or how the provinces and territories nominate candidates for selection. Nor did we examine the Canada Border Services Agency’s processing of work permit applications at points of entry into Canada.
Why it’s important
Immigration has played an important role in the economic, social, and cultural development of Canada throughout our history. Its role is just as important today, given our aging population and labour force. Canada has an ongoing need for permanent workers with various skills and must compete with other countries to attract them. In addition, Canada has a need for various types of temporary workers to address short-term needs of the labour market, which vary from year to year and from region to region of the country.
It is critical that the government’s programs to facilitate the entry of permanent and temporary workers be designed and delivered in a way to ensure that the right people are available at the right time to meet the needs of the Canadian labour market. The choices that are made now will affect the kind of society Canada has in the future.
What we found
Although CIC followed a sound decision-making process in 2008 to design the Canadian Experience Class (a category of skilled foreign workers and students with Canadian work experience), the Department has made other key decisions without properly assessing their costs and benefits, risks, and potential impacts on other programs and delivery mechanisms. Program changes in recent years have resulted in a significant shift in the types of workers being admitted permanently to Canada under the immigration program’s economic component. We saw little evidence that this shift is part of any well-defined strategy to best meet the needs of the Canadian labour market.
The inventory of applications in the Federal Skilled Worker category has almost doubled since our 2000 audit and, in December 2008, represented more than 620,000 people waiting an average of 63 months for a decision on whether they would be admitted. Measures taken by CIC in 2008 to limit the number of new applications—for example, processing only those that meet new, more narrowly defined criteria—were not based on sufficient analysis of their potential effects. While it is too early to assess their full impact, trends in the number of applications received since the beginning of 2009 indicate that they might not have the desired effect, and CIC could be unable to process new applications within the 6 to 12 months it has forecast. Furthermore, CIC does not know and has not defined how much time it should take to clear the inventory of applications on hand when the measures were introduced.
CIC and HRSDC have not clearly defined their respective roles and responsibilities in assessing the genuineness of job offers and how that assessment is to be carried out. As a result, work permits could be issued to temporary foreign workers for employers or jobs that do not exist. In addition, there is no systematic follow-up by either department to verify that in their previous and current employment of temporary foreign workers, employers have complied with the terms and conditions (such as wages and accommodations) under which the work permits were issued. This creates risks to program integrity and could leave many foreign workers in a vulnerable position, particularly those who are physically or linguistically isolated from the general community or are unaware of their rights. Furthermore, weaknesses in the practices for issuing labour market opinions raise questions about the quality and consistency of decisions being made by HRSDC officers.
CIC has successfully introduced a number of initiatives and tools to address some of the inefficiencies we reported in 2000 in its processing of applications in missions overseas. However, efficiency gains will be seriously limited until an information technology system that has been under development for almost 10 years is implemented in missions abroad and CIC makes effective use of available technologies. In the meantime, employees in missions abroad are still buried in paperwork and spending a great deal of their time on clerical tasks. In addition, while the Department has developed a quality assurance framework that is available to all missions, immigration program managers are not required to use it or to report on quality assurance. Therefore, CIC still has little assurance that overall, decisions by visa officers are fair and consistent.
The entities have responded. The entities agree with all of the recommendations. Their responses follow each recommendation throughout the chapter.
AUDITOR GENERAL WARNS OF IMMIGRATION DEPARTMENT LOSING CONTROL
This is one of many stories circulating in the press today about the dire warnings issued by Canada's Auditor General. This is not the first time that Ms. Fraser issues a scathing report against Citizenship and Immigration, and she is repeating her warnings this time around. What I find interesting in the reaction by Olivia Chow, the NDP immigration critic, is how little she knows about immigration and its dynamics, aside from the standard bleeding heart cry for even higher numbers of unskilled workers to flood the system, or even abolishing git. Does she not realize that people who come without jobs, or worse, with fraudulent job offers, become an economic burden to everyone and make the processing of legitimate applicants even slower? . The Auditor General warns that the program is being used by fraudsters and that there should be MORE ,not less, controls and enforcement, and a better and more thoughtful approach, she does not advocate for making it even easier to game the system. I think Ms. Chow needs a crash course on immigration and economics 101.
Tory immigration changes have little effect: Auditor General
To view the Auditor General's report on Foreign Worker Selection, go to:
http://www.oag-bvg.gc.ca/internet/English/parl_oag_200911_02_e_33203.html
Tory immigration changes have little effect: Auditor General
To view the Auditor General's report on Foreign Worker Selection, go to:
http://www.oag-bvg.gc.ca/internet/English/parl_oag_200911_02_e_33203.html
Tuesday, November 3, 2009
Sunday, November 1, 2009
Saturday, October 31, 2009
"SERIAL MARRIAGE" BRIDE?
Another story about alleged marriage fraud. How many more do we have to read before the authorities crack down on how easy it is to migrate based on marriage? As a lawyer, I represent countless couples who are either married or in common law relationships, and even in same-sex relationships. We go to great pains to show that the relationships are legitimate, stable and comply with all legal requirements. However, there is undoubtedly a cottage industry that has sprung up in some ethnic groups, particularly those who honor a tradition of arranged marriages, to encourage people to look for those who have obtained status in Canada, because it is by far the easiest and fastest way to immigrate. Sometimes, the victims are unsuspecting, other times, they participate willingly for money, knowing that the authorities do not have the resources necessary to prosecute violators, and that their communities constantly pressure the government for r"fast" immigration. In some instances that I have seen, the sponsor has been pressured by his or her family, and then the relationship breaks down immediately, because the parties have no interest to marry, but the person overseas wants to obtain residency.
In my opinion, there should be a criteria set up, to apply to sponsored individuals from certain countries, that should require them to be interviewed before residency status can be granted. It is unsurprising that the number of cases coming to light has increased since Canada has made it even easier and faster to grant residency based on marriage in certain countries with poor records of immigration fraud. Fraudsters are not oblivious to such advantages.
In addition, as noted many times before, Canada should adopt the US practice of granting "conditional" residency for a probationary period to spouses, to avoid their sponsors being duped, a problem that seems to be on the increase. The case described in the article below seems to be fairly typical of how those who want immigration on the back of unsuspecting people operate. I believe that the level of abuse has now reached such major proportions that government action is a must. In the end, those who have legitimate relationships will be advantaged as the fraudulent ones will be weeded out and save resources and time.
South Asian Observer - Top Story Marriage frauds in the name of immigration to Canada
In my opinion, there should be a criteria set up, to apply to sponsored individuals from certain countries, that should require them to be interviewed before residency status can be granted. It is unsurprising that the number of cases coming to light has increased since Canada has made it even easier and faster to grant residency based on marriage in certain countries with poor records of immigration fraud. Fraudsters are not oblivious to such advantages.
In addition, as noted many times before, Canada should adopt the US practice of granting "conditional" residency for a probationary period to spouses, to avoid their sponsors being duped, a problem that seems to be on the increase. The case described in the article below seems to be fairly typical of how those who want immigration on the back of unsuspecting people operate. I believe that the level of abuse has now reached such major proportions that government action is a must. In the end, those who have legitimate relationships will be advantaged as the fraudulent ones will be weeded out and save resources and time.
South Asian Observer - Top Story Marriage frauds in the name of immigration to Canada
Friday, October 30, 2009
Thursday, October 29, 2009
Clampdown on colleges giving bogus degrees - thestar.com
This is quite interesting. Many foreign workers, particularly those from the Philippines who are in Canada in the Live in Caregiver Program, usually take courses to try to improve their skills while in Canada, sometimes to find better jobs, and sometimes to improve their chances of gaining residency status. Howe fer, several recent reports call into question the value of the diplomas conferred by many private career colleges. Potential students must always remember the caveat of "buyer beware and seek admission only to reputable, well-known colleges with a good track record of education and qualified instructors.
Clampdown on colleges giving bogus degrees - thestar.com
Clampdown on colleges giving bogus degrees - thestar.com
Sunday, October 25, 2009
IMMIGRATION MARRIAGE FRAUD IN THE SPOTLIGHT
This is a very interesting W5 documentary which highlights a very common problem. As long as interest groups pressure the authorities for "quick" sponsorships, the problem will continue. What is needed is a change in the legislation to give sponsored spouses temporary entry only, with a probationary period of several years before permanent residency is granted upon the relationship subsisting, much like it is done in the US. If there is a marriage breakdown, there is absolutely no reason for the sponsored spouse to remain in Canada. In addition, those found to have entered into marriages of convenience for money should be subject to penalties and prosecution. Such "deals" are fraudulent and constitute a contravention of the Immigration and refugee Protection Act. What is lacking is the will and the means to prosecute fraudsters.
CTV News Broken Vows: Marrying for immigration, not love
CTV News Broken Vows: Marrying for immigration, not love
Saturday, October 24, 2009
SERGIO R. KARAS SPEAKS AT IBA CONFERENCE IN MADRID
I moderated two panels at the International Bar Association (IBA) annual conference in Madrid, one on "Medical issues and immigration", and the otter on "Entrepreneur and Investor immigration". The panels were excellent and the sessions very well attended.
MORE ON "BOAT REFUGEE CLAIMANTS"
A monumental waste of time and money continues.....
Immigration board continuing to review cases of Sri Lankan migrants
Immigration board continuing to review cases of Sri Lankan migrants
Friday, October 23, 2009
INTERESTING CASE
Draw your own conclusions. The person concerned was convicted of importing a huge amount ( 90 Kg, around 200 lb) of cocaine.
Canada (Minister of Citizenship and Immigration) v. Fox
BetweenThe Minister of Citizenship and Immigration, Applicant, andTimothy Roshaun Fox, Respondent
[2009] F.C.J. No. 1227
2009 FC 987Docket IMM-1930-09 Federal Court
Vancouver, British Columbia
de Montigny J.
Heard: September 23, 2009.Judgment: October 1, 2009.
(49 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
1 de MONTIGNY J.:-- The Minister of Citizenship and Immigration ("the Minister") seeks to set aside the March 26, 2009 decision of Immigration Division member Tessler ("the Tribunal") granting Timothy Roshaun Fox ("the respondent") a 13 month adjournment of his admissibility hearing concerning inadmissibility under section 36(1)(a) of the Immigration and Refugee Protection Act ("IRPA"). The Tribunal apparently granted the adjournment to avoid the application of section 128(5) of the Corrections and Conditional Release Act ("CCRA"), according to which the respondent would lose the benefit of the day parole he received and would be re-incarcerated if a removal order was made against him.
2 For the reasons that follow, I am of the view that the Tribunal's decision is fundamentally flawed and should be set aside because it took into account irrelevant considerations in granting the adjournment. Therefore the Tribunal exceeded its jurisdiction, or, at the very least, exercised its jurisdiction unreasonably.
I. FACTS
3 The respondent is an American citizen who became a permanent resident of Canada in 2002. He is married to a Canadian citizen, has a Canadian son and has lived in Vancouver since 2001. He served in the U.S. Navy for nine years and then held various jobs in the financial sector in Canada.
4 On September 4, 2007, the respondent was convicted of importing 90 kilos of cocaine and was sentenced to 7 years and 10 months of imprisonment, after taking into account the 26 months of pre-sentence jail time served while awaiting trial. It was a non-violent first offence.
5 On July 10, 2008, an Enforcement Officer with the Canada Border Services Agency ("the CBSA") prepared a report in accordance with section 44(1) of the IRPA that, in his opinion, the respondent is inadmissible pursuant to section 36(1)(a) of the IRPA and transmitted the report to a Minister's delegate.
6 On October 17, 2008, the National Parole Board ("the NPB") directed that the respondent be released on day parole on December 23, 2008 pursuant to sections 125 to 126.1 of the CCRA (accelerated parole review for first time non-violent offender). The NPB found that there was no information indicating violent history or behaviour on the part of the respondent although a loaded handgun was seized on him at the time of his arrest. The weapon charges were stayed, and it was held that there were no reasonable grounds to believe that, if released, the respondent would commit a violent offence.
7 On November 7, 2008, the Minister's delegate referred the matter to the Immigration Division for an admissibility hearing, pursuant to section 44(2) of the IRPA. The Minister did not provide reasons for his decision.
8 On November 13, 2008, an Enforcement Officer with the CBSA attended at Matsqui Institution and issued an arrest warrant for the respondent and a Direction to the Warden, in accordance with sections 55(1) and 59 of the IRPA, instructing that the respondent be delivered to a CBSA officer at the end of his period of detention in order for the admissibility hearing to be held.
9 In November 2008, the respondent applied to Legal Aid for the admissibility hearing, but the legal services society sent him two letters of refusal dated November 17 and December 5, 2008.
10 On December 15, 2008, the admissibility hearing began but was postponed to February 3, 2009 in order to allow the respondent to obtain counsel.
11 On December 23, 2008, the respondent was released from Matsqui Institution for day parole and was delivered to the custody of a CBSA officer. The same day, a 48-hour detention review was conducted before the Immigration Division. During the review, the respondent was represented by legal counsel. The next day, Immigration Division member King ordered the respondent be released from immigration detention to begin his day parole. The member found that the respondent was not a danger to the public and was not unlikely to appear for an admissibility hearing. In fact, it was held that his good behaviour in prison and his family situation, support, and goals would clearly dissuade him from committing new offences or from fleeing.
12 The respondent continuously abided by his day parole conditions and spent most of his leisure time with his family. He used his recovered liberty to help his wife take care of his son, to accompany his son in sporting activities, to himself engage in physical activities, and to find a suitable church for his family.
13 On February 3, 2009, the respondent asked and obtained another postponement of the admissibility hearing to March 17, 2009 in order to obtain legal counsel.
14 On March 17, 2009, the respondent appeared with his wife before Immigration Division member Tessler. Mrs. Fox, who is not a lawyer, acted as his assistant. Mrs. Fox asked for a further adjournment of the admissibility hearing until April 14, 2010 (the respondent's full parole eligibility date) to avoid having her husband re-incarcerated until this date. Mrs. Fox explained the hardship of a removal order and of re-incarceration on the respondent and his family. Member Tessler listened to the submissions and then reminded Mrs. Fox that an admissibility hearing is distinct from a humanitarian and compassionate (H&C) procedure. Nevertheless, he greatly emphasized the humanitarian aspect of the file and decided to reserve his decision to March 26, 2009. Finally, on March 26, 2009, member Tessler, in an oral decision, granted the adjournment of the admissibility hearing until April 1, 2010.
15 On March 26, 2009, the Tribunal granted the 13-month adjournment request, postponing the admissibility hearing to April 1, 2010.
II. THE IMPUGNED DECISION
16 The impact of an inadmissibility hearing was very much on the Immigration Division member's mind. Indeed, he started off his discussion by pointing out that Mr. Fox would be immediately re-incarcerated if he was to be found inadmissible, even if he could not be removed from Canada until he could be released in April 2010. Here is what the Member stated by way of introduction to his discussion of Mr. Fox's request for an adjournment:
All parties understand and acknowledge that if the admissibility hearing proceeds today and Mr. Fox is found inadmissible and ordered deported from Canada he would lose the privilege of accelerated day parole and be returned to prison where he would remain until his statutory release date on the 14th of April 2010 and this is by operation of subsection 128(5) of the Corrections and Conditional Release Act.
All parties also understand and acknowledge that if the admissibility hearing proceeds today and Mr. Fox is found admissible - inadmissible the Minister would not be in the position to remove him from Canada until at least the 14th of April 2010 by operation of section 59(b) of the Immigration and Refugee Protection Act.
Therefore, the solitary, practical effect of proceeding with the admissibility hearing at this time which is likely to result in a Deportation Order is that Mr. Fox will immediately be required to go back to prison where he will remain until April 2010.
17 The Member then quoted relevant parts of the decision of this Court in Capra v. Canada (Attorney General), 2008 FC 1212, which was brought to his attention by counsel for the applicant. In that decision, the Court confirmed the constitutionality of section 128 of the CCRA. Mr. Justice Russell came to that conclusion on the grounds that this section serves legitimate legislative intentions such as preventing foreign offenders on day parole from accessing Canadian society more easily than non-criminal foreign nationals under removal orders, as well as preventing offenders subject to removal from serving sentences that are significantly shorter than the sentences of Canadians because of more favourable systems abroad.
18 The Tribunal, however, distinguished the Capra decision from the case at bar on three grounds: first, Mr. Capra was serving a sentence for additional convictions after a removal order had been made and an IAD appeal had been dismissed; second, the respondent here is still a permanent resident and is not yet subject to a removal order; and third, the respondent has already been at liberty for three months.
19 The Tribunal also reviewed the legislation governing immigration procedures and stressed that the general emphasis in the IRPA is on balancing informality and efficiency with natural justice and fairness. The Tribunal noted that subsection 162(2) of the IRPA provides that each division shall deal with all proceedings before it as informally and quickly as the circumstances and considerations of fairness and natural justice permit. Rule 43 of the Immigration Division Rules was also considered, which deals similarly with natural justice concerns such as the right to counsel, the degree of notice and the opportunity to prepare in the context of adjournment hearings; among the various factors to be taken into consideration, the Tribunal observed that subparagraph 43(2)(i) includes the more amorphous considerations of unreasonable delay and injustice, which reflects once more the IRPA's emphasis on fairness.
20 The Tribunal then went on to characterize the adjournment request as a balancing act between the public interest and the liberty interest of the respondent. It acknowledged that, in general, this balance weighs in favour of a prompt resolution, but was of the view that there was no pressing need to proceed in this case. There was no prejudice to the Minister as a removal cannot be enforced immediately, and the only effect of proceeding would be to send Mr. Fox back to prison. "Doing so", Tessler wrote, "seems only to serve administrative convenience as if process trumps people in every case".
21 The Tribunal also rejected the argument presented by the Minister that an immediate decision would make it possible to offer a Pre Removal Risk Assessment to the respondent since the the risk to be returned to the United States is unlikely to be assessed as a bar to his removal. Furthermore, the Tribunal opined that there was a significant savings to the Canadian taxpayer in keeping the respondent out of prison when he was determined by two different decision-makers not to be a danger to society or a flight risk.
22 In light of the respondent's significant interest in staying at liberty and unified with his family, and of the absence of prejudice to the applicant in delaying the proceeding, the Tribunal therefore concluded that it was not unreasonable to delay the proceeding.
III. ISSUES
23 In light of the oral and written submissions made by counsel on behalf of both parties, it appears that three questions have to be resolved to determine this application for judicial review:
a.
The decision challenged being interlocutory in nature, are there special circumstances justifying a judicial review of that decision?
b.
If the decision of the Tribunal is properly the subject of judicial review, what is the appropriate standard of review?
c.
Did the decision of the Tribunal satisfy that standard of review?
IV. ANALYSIS
A. The relevant legislative framework
24 This case involves section 50(b) of the IRPA and sections 128(3) to (7) of the CCRA, the legislative scheme relating to permanent residents and foreign nationals convicted of offences in Canada and sentenced to a term of imprisonment in Canada who become the subject of removal orders. For ease of reference, these sections are reproduced here:
Section 50 (b) of the IRPA:
50. A removal order is stayed
[...]
(b) in the case of a foreign national sentenced to a term of imprisonment in Canada, until the sentence is completed;
* * *
50. Il y a sursis de la mesure de renvoi dans les cas suivants :
[...]
b) tant que n'est pas purgée la peine d'emprisonnement infligée au Canada à l'étranger;
Sections 128 (3) to (7) of the CCRA:
128. (3) Despite subsection (1), for the purposes of paragraph 50(b) of the Immigration and Refugee Protection Act and section 40 of the Extradition Act, the sentence of an offender who has been released on parole, statutory release or an unescorted temporary absence is deemed to be completed unless the parole or statutory release has been suspended, terminated or revoked or the unescorted temporary absence is suspended or cancelled or the offender has returned to Canada before the expiration of the sentence according to law.
(4)
Despite this Act or the Prisons and Reformatories Act, an offender against whom a removal order has been made under the Immigration and Refugee Protection Act is ineligible for day parole or an unescorted temporary absence until the offender is eligible for full parole.
(5)
If, before the full parole eligibility date, a removal order is made under the Immigration and Refugee Protection Act against an offender who has received day parole or an unescorted temporary absence, on the day that the removal order is made, the day parole or unescorted temporary absence becomes inoperative and the offender shall be reincarcerated.
(6)
An offender referred to in subsection (4) is eligible for day parole or an unescorted temporary absence if the removal order is stayed under paragraph 50(a), 66(b) or 114(1)(b) of the Immigration and Refugee Protection Act.
(7)
Where the removal order of an offender referred to in subsection (5) is stayed under paragraph 50(a), 66(b) or 114(1)(b) of the Immigration and Refugee Protection Act on a day prior to the full parole eligibility of the offender, the unescorted temporary absence or day parole of that offender is resumed as of the day of the stay.
* * *
128. (3) Pour l'application de l'alinéa 50b) de la Loi sur l'immigration et la protection des réfugiés et de l'article 40 de la Loi sur l'extradition, la peine d'emprisonnement du délinquant qui bénéficie d'une libération conditionnelle d'office ou d'une permission de sortir sans escorte est, par dérogation au paragraphe (1), réputée être purgée sauf s'il y a eu révocation, suspension ou cessation de la libération ou de la permission de sortir sans escorte ou si le délinquant est revenu au Canada avant son expiration légale.
(4)
Malgré la présente loi ou la Loi sur les prisons et les maisons de correction, l'admissibilité à la libération conditionnelle totale de quiconque est visé par une mesure de renvoi au titre de la Loi sur l'immigration et la protection des réfugiés est préalable à l'admissibilité à la semi-liberté ou à l'absence temporaire sans escorte.
(5)
La libération conditionnelle du délinquant en semi-liberté ou en absence temporaire sans escorte devient ineffective s'il est visé, avant l'admissibilité à la libération conditionnelle totale, par une mesure de renvoi au titre de la Loi sur l'immigration et la protection des réfugiés; il doit alors être réincarcéré.
(6)
Toutefois, le paragraphe (4) ne s'applique pas si l'intéressé est visé par un sursis au titre des alinéas 50a) ou 66b) ou du paragraphe 114(1) de la Loi sur l'immigration et la protection des réfugiés.
(7)
La semi-liberté ou la permission de sortir sans escorte redevient effective à la date du sursis de la mesure de renvoi visant le délinquant pris, avant son admissibilité à la libération conditionnelle totale, au titre des alinéas 50a) ou 66b) ou du paragraphe 114(1) de la Loi sur l'immigration et la protection des réfugiés.
25 As already mentioned, these provisions were recently held to be constitutionally valid in Capra, supra. In that case, the Court explained that unlike the Canadian citizen who is subject to imprisonment and supervision in the community pursuant to the Warrant of Committal for Conviction until the Warrant Expiry Date, this scheme provides that a sentence of a non-Canadian subject to a removal order is deemed completed for the purposes of a removal from Canada when the offender is released from the penitentiary on day parole, full parole or statutory release.
26 In order to ensure that the offender serves the denunciatory portion of the sentence incarcerated prior to removal, the offender subject to a removal order is not eligible for day parole until the offender's full parole eligibility date. If the offender is released on day parole prior to a removal order being issued, then when a removal order is issued, the offender is returned to incarceration and is not eligible to be released until the offender reaches the offender's full parole eligibility date.
27 In that case, the Court found that it was perfectly legitimate for Parliament to postpone eligibility for day parole and unescorted release for foreign offenders to achieve specific policy objectives such as ensuring that such persons do not serve sentences shorter than the sentences served by Canadians for the same crime (which would occur if they were removed at an earlier time), and that the offender should not be placed in a better position than a non-offending foreigner subject to removal by giving the offender access to Canadian society and Canadian territory through day parole and unescorted temporary absence. Subsection 128(4) of the CCRA was therefore determined compliant with sections 7, 9 and 15 of the Canadian Charter of Rights and Freedoms.
28 It is true that in Capra, the focus was on s. 128(4) as opposed to s. 128(5) of the CCRA, as the deportation order had been made before the applicant had become eligible for an Unescorted Temporary Absence, and not after, as is the case here. But this distinction is not material to the constitutionality of the whole scheme put in place by Parliament, as s. 128(5) of the CCRA is really the corollary to s. 128(4) and is the expression of the same logic that underpins s. 128(4). In both cases, the variation in the way an offender subject to a removal order served the sentence of imprisonment imposed is triggered by the existence of the removal order, and the differential treatment embodied in sections 128(3) to (7) of the CCRA is a necessary consequence of a valid deportation order.
29 This case also involves sections 162(2) and 173(b) of the IRPA and Rule 43 of the Immigration Division Rules (SOR/2002-229), relating to how an admissibility hearing before the Immigration Division shall proceed as well as to the factors to be taken into consideration when dealing with an application for an adjournment. These provisions read as follows:
Provisions of the IRPA:
162. (2) Each Division shall deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit.
173. The Immigration Division, in any proceeding before it,
[...]
(b) must give notice of the proceeding to the Minister and to the person who is the subject of the proceeding and hear the matter without delay;
* * *
162. (2) Chacune des sections fonctionne, dans la mesure où les circonstances et les considérations d'équité et de justice naturelle le permettent, sans formalisme et avec célérité.
173. Dans toute affaire dont elle est saisie, la Section de l'immigration :
[...]
b) convoque la personne en cause et le ministre à une audience et la tient dans les meilleurs délais;
Rule 43 of the Immigration Division Rules:
43. (1) A party may make an application to the Division to change the date or time of a hearing.
(2)
In deciding the application, the Division must consider any relevant factors, including
(a) in the case of a date and time that was fixed after the Division consulted or tried to consult the party, the existence of exceptional circumstances for allowing the application;
(b) when the party made the application;
(c) the time the party has had to prepare for the hearing;
(d) the efforts made by the party to be ready to start or continue the hearing;
(e) the nature and complexity of the matter to be heard;
(f) whether the party has counsel;
(g) any previous delays and the reasons for them;
(h) whether the time and date fixed for the hearing was peremptory; and
(i) whether allowing the application would unreasonably delay the proceedings or likely cause an injustice.
* * *
43. (1) Toute partie peut demander à la Section de changer la date ou l'heure d'une audience.
(2)
Pour statuer sur la demande, la Section prend en considération tout élément pertinent. Elle examine notamment :
a) dans le cas où elle a fixé la date et l'heure de la procédure après avoir consulté ou tenté de consulter la partie, toute circonstance exceptionnelle qui justifie le changement;
b) le moment auquel la demande a été faite;
c) le temps dont la partie a disposé pour se préparer;
d) les efforts qu'elle a faits pour être prête à commencer ou à poursuivre l'audience;
e) la nature et la complexité de l'affaire;
f)
si la partie est représentée;
g) tout report antérieur et sa justification;
h) si la date et l'heure qui avaient été fixées étaient péremptoires;
i) si le fait d'accueillir la demande ralentirait l'affaire de manière déraisonnable ou causerait vraisemblablement une injustice.
B. The interlocutory nature of the decision
30 It is well established that an adjournment decision cannot be reviewed in the absence of special circumstances. The Federal Court of Appeal and this Court have frequently reiterated that scarce judicial resources should not be spent on applications to judicially review preliminary or interlocutory decisions, especially where an adequate remedy would be available later so as to cure any potential defect of the interlocutory decision. As the Court of Appeal stated in Szczecka v. Canada (Minister of Employment and Immigration) (1993), 116 D.L.R. (4th) 333, at para. 4:
This is why unless there are special circumstances where there should not be any appeal or immediate judicial review of an interlocutory judgment. Similarly, there will not be any basis for judicial review, specially immediate review, when at the end of the proceedings some other appropriate remedy exists. These rules have been applied in several Court decisions specifically in order to avoid breaking up cases and the resulting delays and expenses, which interfere with the sound administration of justice and ultimately bring it into disrepute.
See also: Ali v. Canada (Minister of Citizenship and Immigration), 2004 FC 1174, at para. 34.
31 The applicant referred the Court to a number of decisions where this Court and the Court of Appeal have accepted to rule on interlocutory adjournment decisions, therefore implicitly accepting that adjournment decisions do sometimes satisfy the "special circumstances" test: see Hassanzadeh v. Canada (Minister of Citizenship and Immigration), 2005 FC 902; Canada (Attorney General) v. Subhaschandran, 2005 FCA 27; Canada (Minister of Employment and Immigration) v. Lundgren, [1993] 1 F.C. 187; Canada (Minister of Employment and Immigration) v. Han, [1984] 1 F.C. 976. On the other hand, counsel for the applicant made no submission on this issue.
32 In the case at bar, I am satisfied that the nature of the error is, in and of itself, sufficient to justify the review by this Court of the interlocutory decision. It is a well established principle that special circumstances are deemed automatically to exist when the alleged error is one of jurisdiction: Pfeiffer v. Canada (Superintendent of Bankruptcy), [1996] 3 F.C. 584 (T.D.). For reasons that I will elaborate upon shortly, I have come to the conclusion that the tribunal acted beyond its jurisdiction or refused to exercise its jurisdiction in granting the 13-month adjournment sought by the respondent. Had the decision been made within the confines of the discretion conferred to the tribunal by the legislation, the jurisdiction of this Court to review would have been more problematic. But this is not the case here.
33 I also agree with the applicant that the Minister will have no adequate alternative remedy if the adjournment is allowed to stand. The respondent will have reached his full parole eligibility date by the resumption of the admissibility hearing, and the effects of this adjournment decision will have become moot. It is true that the adjournment of the hearing does not affect an eventual removal order, since such an order, even if issued, cannot be operative before the date on which the hearing should resume. But what the Minister is seeking is not so much the execution of the removal order as compliance with the law, which sets out that a foreign offender who is subject to a removal shall serve the denunciatory portion of his sentence before being eligible for day parole or unescorted temporary absence. In other words, the re-incarceration of the applicant is as much a potential consequence of the admissibility hearing as the removal order itself; from that angle, it can surely be said that the adjournment of the admissibility hearing to the date of the applicant's full parole eligibility leaves no adequate alternative remedy to the Minister, and cannot be remedied by the final decision once that hearing resumes.
34 For the above reasons, I am therefore of the view that it is appropriate to entertain the Minister's application for judicial review in the special circumstances of this case.
C. The appropriate standard of review
35 Had the Tribunal acted within its jurisdiction in granting the adjournment, there is no doubt that the applicable standard of review would have been reasonableness. In Prassad v. Canada (Minister of Employment and Immigration), [1989] 1 S.C.R. 560, the Supreme Court made it clear that administrative tribunals must be able to control their own procedures; accordingly, adjournment of their proceedings was found to be very much in their discretion (subject, of course, to the rules of fairness).
36 In the present case, however, the issue is not so much whether the Tribunal properly considered the factors found in s. 43(2) of the Immigration Division Rules in granting the adjournment, but whether the Tribunal had the jurisdiction or acted beyond its jurisdiction in granting the adjournment by taking into account irrelevant considerations. This is clearly a question of jurisdiction reviewable on the standard of correctness.
37 Even if the issue could plausibly be cast as one going to the proper interpretation of paragraph 128(5) of the CCRA, it would still call for the application of the correctness standard. It is clearly not a question relating to the Tribunal's home statute and it falls outside its area of specialized expertise.
38 As a result, this Court owes no deference to the Tribunal's decision, and must proceed according to its own analysis of the question that is debated between the parties. As the Supreme Court stated in Dunsmuir v. New-Brunswick, 2008 SCC 9, at para. 50:
When applying the correctness standard, a reviewing court will not show deference to the decision maker's reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer. From the outset, the court must ask whether the tribunal's decision was correct.
Was the decision to adjourn for 13 months correct?
39 Once a section 44 Report is referred to the Immigration Division for an admissibility hearing, pursuant to sections 162(2) and 173(3)(b) of the IRPA, the admissibility hearing must be heard as quickly as the circumstances and the considerations of procedural fairness and natural justice permit and without delay. The Tribunal's function at the admissibility hearing is exclusively to find facts. If the member finds the person described in section 36(1)(a) of the IRPA, then pursuant to section 45(d) of the IRPA and section 229(1)(c) of the Immigration and Refugee Protection Regulations, the Tribunal must issue a Deportation Order against the person.
40 The Tribunal found as much in the case at bar and acknowledged that once the admissibility hearing commenced to determine if the respondent is inadmissible pursuant to paragraph 36(1)(a) of the IRPA for serious criminality, the matter would be straightforward as the documents before the Tribunal provided by the respondent established that he was serving a sentence of seven years and ten months for a conviction in Canada for importing cocaine.
41 Yet the Tribunal made it very clear that its decision to grant the adjournment was essentially driven by its desire to allow the respondent to remain with his family and to benefit from his day parole until he became removable. This is made abundantly clear from the following two paragraphs of the decision:
In the majority of immigration matters where the Minister is seeking a removal order I agree that a swift resolution of the matter is the reasonable course but here there is no pressing need to process. Where there is no prejudice to the Minister as a removal cannot be enforced at this time, when the only effect of proceeding will be to send Mr. Fox back to prison, there seems to be a certain unnecessary punitive quality to requiring that the matter proceed. Doing so seems only to serve administrative convenience as if process trumps people in every case.
In this case the adjournment request becomes a matter of balancing the public interest with the liberty interest of the person. If the Minister is insisting that the objectives of the Act be served, I note that while at liberty Mr. Fox is able to remain united with his wife and son which not only serves the best interests of the child but maintains family unification.
42 These are obviously valid humanitarian and compassionate considerations. But the Tribunal does not have any discretion to consider these factors at the admissibility hearing. It is rather at the stage of making an admissibility report under s. 44(1) or in the making of a referral to the Immigration Division under s. 44(2) of the IRPA that these considerations should be taken into account. This point was reiterated most recently by Mr. Justice Barnes in the following terms:
The caselaw indicates that to the extent that any discretion exists to consider mitigating, aggravating or humanitarian factors in the process of determining the inadmissibility of a permanent resident, it does so at the point of the preparation of an admissibility report under ss. 44(1) or in the making of a referral to the Immigration Division under ss. 44(2) of the IRPA: see Hernandez v. Canada (Minister of Citizenship and Immigration), 2005 FC 429, 271 F.T.R. 257. (...) once the matter comes before the Immigration Division, the question for determination is only whether the person is inadmissible on the ground of serious criminality. The Immigration Division's admissibility hearing is not the place to embark upon a humanitarian review or to consider the fairness or proportionality of the consequences that flow from a resulting deportation order. Those are consequences that flow inevitably by operation of law and they impart no mitigatory discretion upon the Immigration Division.
Wajaras v. Canada (Minister of Citizenship and Immigration), 2009 FC 200, at para. 11
43 Now, the applicant is right to point out that s. 43(2)(i) of the Immigration Division Rules allows the Tribunal to consider whether allowing the application for an adjournment would "likely cause an injustice". The applicant states that on that basis, the Tribunal was justified to consider the exceptional circumstances that were brought to its attention, including the fact that the respondent was already at liberty, had been found not to be a danger to the public and not unlikely to appear for immigration proceedings, and that he was married to a Canadian citizen and had a nine-year-old child with attention deficit hyperactive disorder.
44 This subsection, however, cannot be read in a vacuum and must be interpreted in context. All the subparagraphs of paragraph 43(2) of the Immigration Division Rules, as well as paragraph 162(2) of the IRPA relate to the procedural requirements to ensure that the hearing itself is conducted fairly. The "injustice" to which subparagraph 43(2)(i) relates cannot extend to the effect of the consequences of the final substantive decision made at the conclusion of a hearing (i.e. the issuance of a removal order).
45 Indeed, the facts of this case are not substantially different from the situation considered by the Court of Appeal in Han, supra. In that case, the respondent had been admitted to Canada as a permanent resident conditional upon his marrying within 90 days. The marriage did not take place, and a report that he had contravened the terms and conditions of his landing was made to the Minister. When the inquiry resumed after several adjournments on June 7, 1983, the respondent sought an adjournment so his application for citizenship could be processed; according to the Immigration Act, 1976 then in force, he met the requirements of the Citizenship Act and was entitled as of right to a grant of citizenship, since he had remained a permanent resident notwithstanding his failure to fulfil the condition. At the time, section 35(1) of the Immigration Regulations, 1978 SOR/78-172 provided that the Adjudicator "...may adjourn the inquiry at any time for the purpose of ensuring a full and proper inquiry". The adjournment was refused, but the Trial Judge quashed the refusal on the ground that the decision to grant or deny an adjournment was always a matter of discretion and that discretion is to be exercised fairly or in accordance with the principles of natural justice. He concluded that the refusal of the adjournment was unfair because it would quite likely result in the making of a deportation order which would prejudice the respondent's right to become a Canadian citizen.
46 The Court of Appeal reversed that decision on the ground that the Trial Judge had misinterpreted section 35(1) of the Immigration Regulations. All three judges, in separate reasons, came to the conclusion that the Adjudicator did not have the jurisdiction to grant the adjournment for the purpose of allowing his citizenship application to be processed, and that the Trial Judge had erred in assuming that he had that jurisdiction. They also agreed that the decision to grant or deny an adjournment is not always a matter of unconstrained discretion. The Court found that the purpose for which the adjournment was sought in that case had nothing to do with a better conduct of the inquiry, but to ensure that the inquiry could never be held. This was clearly not within the jurisdiction of the Adjudicator. As for the notion of fairness on which the reasoning of the Trial Judge hinged, the Court had this to say:
It does not appear to me that the legal notion of fairness on which the reasoning hinges is taken in its proper sense. This notion of fairness as developed and applied by supervisory bodies in reviewing purely administrative decisions pertains to procedural requirements, as does the broader notion of natural justice in which it is embedded; it refers to the manner in which the tribunal has reached its conclusion, not to the substance of the conclusion itself. The tribunal has, of course, a strict duty to act in good faith, within the purview of the law from which it draws its authority and for relevant motives, its discretion, as it is usually said, must be exercised "judicially", but the suitability and the fairness of the decision are matters left to its sole appreciation. It is apparent from the reasons of the learned Trial Judge that the "taint of unfairness" he was seeing was directed to the decision itself because of its possible prejudicial effects to the respondent; it had nothing to do with the manner in which the decision had been reached. (Han, supra, at p. 987)
47 The same reasoning must govern the case at bar. As previously stated, the question for determination at the admissibility hearing is whether the respondent is inadmissible for serious criminality. The consequences that flow from a finding of inadmissibility are not relevant to such a determination. They have been set out by Parliament which has seen fit to postpone eligibility for day parole and unescorted release for foreign offenders until they have purged the denunciatory portion of their sentence. One may disagree with that policy, but it is not for the Tribunal (nor, indeed, for this Court) to do away with the will of Parliament by circumventing it with an adjournment order which, for all intent and purposes, would render s. 128(5) nugatory and of no effect. In doing so, I am therefore of the view that the Tribunal acted without jurisdiction or beyond its jurisdiction.
48 In his written submissions, the respondent also hinted at a possible abuse of power to the extent that the applicant was improperly insisting to see the respondent re-incarcerated even though he was not a danger to the public or a flight risk. His counsel did not press the issue at the hearing, and properly so. This question has already been addressed by the Court in Wajaras, supra, and found to be of no merit. It is certainly not contrary to the interests of justice that the Minister insists, even repeatedly, that an Act of Parliament be complied with.
49 For all of the above reasons, this application for judicial review will therefore be dismissed. At the hearing, counsel for the respondent asked for permission to propose a certified question after having had the opportunity to be appraised of my reasons. I granted him that permission, and I will therefore allow him seven days from the release of these reasons to draft any question which he believes should be certified. In the event that he elects to do so, the applicant will be given a further seven days to reply.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that this application for judicial review is dismissed. There shall be a separate order as to whether one or more questions will be certified.
de MONTIGNY J.
Canada (Minister of Citizenship and Immigration) v. Fox
BetweenThe Minister of Citizenship and Immigration, Applicant, andTimothy Roshaun Fox, Respondent
[2009] F.C.J. No. 1227
2009 FC 987Docket IMM-1930-09 Federal Court
Vancouver, British Columbia
de Montigny J.
Heard: September 23, 2009.Judgment: October 1, 2009.
(49 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
1 de MONTIGNY J.:-- The Minister of Citizenship and Immigration ("the Minister") seeks to set aside the March 26, 2009 decision of Immigration Division member Tessler ("the Tribunal") granting Timothy Roshaun Fox ("the respondent") a 13 month adjournment of his admissibility hearing concerning inadmissibility under section 36(1)(a) of the Immigration and Refugee Protection Act ("IRPA"). The Tribunal apparently granted the adjournment to avoid the application of section 128(5) of the Corrections and Conditional Release Act ("CCRA"), according to which the respondent would lose the benefit of the day parole he received and would be re-incarcerated if a removal order was made against him.
2 For the reasons that follow, I am of the view that the Tribunal's decision is fundamentally flawed and should be set aside because it took into account irrelevant considerations in granting the adjournment. Therefore the Tribunal exceeded its jurisdiction, or, at the very least, exercised its jurisdiction unreasonably.
I. FACTS
3 The respondent is an American citizen who became a permanent resident of Canada in 2002. He is married to a Canadian citizen, has a Canadian son and has lived in Vancouver since 2001. He served in the U.S. Navy for nine years and then held various jobs in the financial sector in Canada.
4 On September 4, 2007, the respondent was convicted of importing 90 kilos of cocaine and was sentenced to 7 years and 10 months of imprisonment, after taking into account the 26 months of pre-sentence jail time served while awaiting trial. It was a non-violent first offence.
5 On July 10, 2008, an Enforcement Officer with the Canada Border Services Agency ("the CBSA") prepared a report in accordance with section 44(1) of the IRPA that, in his opinion, the respondent is inadmissible pursuant to section 36(1)(a) of the IRPA and transmitted the report to a Minister's delegate.
6 On October 17, 2008, the National Parole Board ("the NPB") directed that the respondent be released on day parole on December 23, 2008 pursuant to sections 125 to 126.1 of the CCRA (accelerated parole review for first time non-violent offender). The NPB found that there was no information indicating violent history or behaviour on the part of the respondent although a loaded handgun was seized on him at the time of his arrest. The weapon charges were stayed, and it was held that there were no reasonable grounds to believe that, if released, the respondent would commit a violent offence.
7 On November 7, 2008, the Minister's delegate referred the matter to the Immigration Division for an admissibility hearing, pursuant to section 44(2) of the IRPA. The Minister did not provide reasons for his decision.
8 On November 13, 2008, an Enforcement Officer with the CBSA attended at Matsqui Institution and issued an arrest warrant for the respondent and a Direction to the Warden, in accordance with sections 55(1) and 59 of the IRPA, instructing that the respondent be delivered to a CBSA officer at the end of his period of detention in order for the admissibility hearing to be held.
9 In November 2008, the respondent applied to Legal Aid for the admissibility hearing, but the legal services society sent him two letters of refusal dated November 17 and December 5, 2008.
10 On December 15, 2008, the admissibility hearing began but was postponed to February 3, 2009 in order to allow the respondent to obtain counsel.
11 On December 23, 2008, the respondent was released from Matsqui Institution for day parole and was delivered to the custody of a CBSA officer. The same day, a 48-hour detention review was conducted before the Immigration Division. During the review, the respondent was represented by legal counsel. The next day, Immigration Division member King ordered the respondent be released from immigration detention to begin his day parole. The member found that the respondent was not a danger to the public and was not unlikely to appear for an admissibility hearing. In fact, it was held that his good behaviour in prison and his family situation, support, and goals would clearly dissuade him from committing new offences or from fleeing.
12 The respondent continuously abided by his day parole conditions and spent most of his leisure time with his family. He used his recovered liberty to help his wife take care of his son, to accompany his son in sporting activities, to himself engage in physical activities, and to find a suitable church for his family.
13 On February 3, 2009, the respondent asked and obtained another postponement of the admissibility hearing to March 17, 2009 in order to obtain legal counsel.
14 On March 17, 2009, the respondent appeared with his wife before Immigration Division member Tessler. Mrs. Fox, who is not a lawyer, acted as his assistant. Mrs. Fox asked for a further adjournment of the admissibility hearing until April 14, 2010 (the respondent's full parole eligibility date) to avoid having her husband re-incarcerated until this date. Mrs. Fox explained the hardship of a removal order and of re-incarceration on the respondent and his family. Member Tessler listened to the submissions and then reminded Mrs. Fox that an admissibility hearing is distinct from a humanitarian and compassionate (H&C) procedure. Nevertheless, he greatly emphasized the humanitarian aspect of the file and decided to reserve his decision to March 26, 2009. Finally, on March 26, 2009, member Tessler, in an oral decision, granted the adjournment of the admissibility hearing until April 1, 2010.
15 On March 26, 2009, the Tribunal granted the 13-month adjournment request, postponing the admissibility hearing to April 1, 2010.
II. THE IMPUGNED DECISION
16 The impact of an inadmissibility hearing was very much on the Immigration Division member's mind. Indeed, he started off his discussion by pointing out that Mr. Fox would be immediately re-incarcerated if he was to be found inadmissible, even if he could not be removed from Canada until he could be released in April 2010. Here is what the Member stated by way of introduction to his discussion of Mr. Fox's request for an adjournment:
All parties understand and acknowledge that if the admissibility hearing proceeds today and Mr. Fox is found inadmissible and ordered deported from Canada he would lose the privilege of accelerated day parole and be returned to prison where he would remain until his statutory release date on the 14th of April 2010 and this is by operation of subsection 128(5) of the Corrections and Conditional Release Act.
All parties also understand and acknowledge that if the admissibility hearing proceeds today and Mr. Fox is found admissible - inadmissible the Minister would not be in the position to remove him from Canada until at least the 14th of April 2010 by operation of section 59(b) of the Immigration and Refugee Protection Act.
Therefore, the solitary, practical effect of proceeding with the admissibility hearing at this time which is likely to result in a Deportation Order is that Mr. Fox will immediately be required to go back to prison where he will remain until April 2010.
17 The Member then quoted relevant parts of the decision of this Court in Capra v. Canada (Attorney General), 2008 FC 1212, which was brought to his attention by counsel for the applicant. In that decision, the Court confirmed the constitutionality of section 128 of the CCRA. Mr. Justice Russell came to that conclusion on the grounds that this section serves legitimate legislative intentions such as preventing foreign offenders on day parole from accessing Canadian society more easily than non-criminal foreign nationals under removal orders, as well as preventing offenders subject to removal from serving sentences that are significantly shorter than the sentences of Canadians because of more favourable systems abroad.
18 The Tribunal, however, distinguished the Capra decision from the case at bar on three grounds: first, Mr. Capra was serving a sentence for additional convictions after a removal order had been made and an IAD appeal had been dismissed; second, the respondent here is still a permanent resident and is not yet subject to a removal order; and third, the respondent has already been at liberty for three months.
19 The Tribunal also reviewed the legislation governing immigration procedures and stressed that the general emphasis in the IRPA is on balancing informality and efficiency with natural justice and fairness. The Tribunal noted that subsection 162(2) of the IRPA provides that each division shall deal with all proceedings before it as informally and quickly as the circumstances and considerations of fairness and natural justice permit. Rule 43 of the Immigration Division Rules was also considered, which deals similarly with natural justice concerns such as the right to counsel, the degree of notice and the opportunity to prepare in the context of adjournment hearings; among the various factors to be taken into consideration, the Tribunal observed that subparagraph 43(2)(i) includes the more amorphous considerations of unreasonable delay and injustice, which reflects once more the IRPA's emphasis on fairness.
20 The Tribunal then went on to characterize the adjournment request as a balancing act between the public interest and the liberty interest of the respondent. It acknowledged that, in general, this balance weighs in favour of a prompt resolution, but was of the view that there was no pressing need to proceed in this case. There was no prejudice to the Minister as a removal cannot be enforced immediately, and the only effect of proceeding would be to send Mr. Fox back to prison. "Doing so", Tessler wrote, "seems only to serve administrative convenience as if process trumps people in every case".
21 The Tribunal also rejected the argument presented by the Minister that an immediate decision would make it possible to offer a Pre Removal Risk Assessment to the respondent since the the risk to be returned to the United States is unlikely to be assessed as a bar to his removal. Furthermore, the Tribunal opined that there was a significant savings to the Canadian taxpayer in keeping the respondent out of prison when he was determined by two different decision-makers not to be a danger to society or a flight risk.
22 In light of the respondent's significant interest in staying at liberty and unified with his family, and of the absence of prejudice to the applicant in delaying the proceeding, the Tribunal therefore concluded that it was not unreasonable to delay the proceeding.
III. ISSUES
23 In light of the oral and written submissions made by counsel on behalf of both parties, it appears that three questions have to be resolved to determine this application for judicial review:
a.
The decision challenged being interlocutory in nature, are there special circumstances justifying a judicial review of that decision?
b.
If the decision of the Tribunal is properly the subject of judicial review, what is the appropriate standard of review?
c.
Did the decision of the Tribunal satisfy that standard of review?
IV. ANALYSIS
A. The relevant legislative framework
24 This case involves section 50(b) of the IRPA and sections 128(3) to (7) of the CCRA, the legislative scheme relating to permanent residents and foreign nationals convicted of offences in Canada and sentenced to a term of imprisonment in Canada who become the subject of removal orders. For ease of reference, these sections are reproduced here:
Section 50 (b) of the IRPA:
50. A removal order is stayed
[...]
(b) in the case of a foreign national sentenced to a term of imprisonment in Canada, until the sentence is completed;
* * *
50. Il y a sursis de la mesure de renvoi dans les cas suivants :
[...]
b) tant que n'est pas purgée la peine d'emprisonnement infligée au Canada à l'étranger;
Sections 128 (3) to (7) of the CCRA:
128. (3) Despite subsection (1), for the purposes of paragraph 50(b) of the Immigration and Refugee Protection Act and section 40 of the Extradition Act, the sentence of an offender who has been released on parole, statutory release or an unescorted temporary absence is deemed to be completed unless the parole or statutory release has been suspended, terminated or revoked or the unescorted temporary absence is suspended or cancelled or the offender has returned to Canada before the expiration of the sentence according to law.
(4)
Despite this Act or the Prisons and Reformatories Act, an offender against whom a removal order has been made under the Immigration and Refugee Protection Act is ineligible for day parole or an unescorted temporary absence until the offender is eligible for full parole.
(5)
If, before the full parole eligibility date, a removal order is made under the Immigration and Refugee Protection Act against an offender who has received day parole or an unescorted temporary absence, on the day that the removal order is made, the day parole or unescorted temporary absence becomes inoperative and the offender shall be reincarcerated.
(6)
An offender referred to in subsection (4) is eligible for day parole or an unescorted temporary absence if the removal order is stayed under paragraph 50(a), 66(b) or 114(1)(b) of the Immigration and Refugee Protection Act.
(7)
Where the removal order of an offender referred to in subsection (5) is stayed under paragraph 50(a), 66(b) or 114(1)(b) of the Immigration and Refugee Protection Act on a day prior to the full parole eligibility of the offender, the unescorted temporary absence or day parole of that offender is resumed as of the day of the stay.
* * *
128. (3) Pour l'application de l'alinéa 50b) de la Loi sur l'immigration et la protection des réfugiés et de l'article 40 de la Loi sur l'extradition, la peine d'emprisonnement du délinquant qui bénéficie d'une libération conditionnelle d'office ou d'une permission de sortir sans escorte est, par dérogation au paragraphe (1), réputée être purgée sauf s'il y a eu révocation, suspension ou cessation de la libération ou de la permission de sortir sans escorte ou si le délinquant est revenu au Canada avant son expiration légale.
(4)
Malgré la présente loi ou la Loi sur les prisons et les maisons de correction, l'admissibilité à la libération conditionnelle totale de quiconque est visé par une mesure de renvoi au titre de la Loi sur l'immigration et la protection des réfugiés est préalable à l'admissibilité à la semi-liberté ou à l'absence temporaire sans escorte.
(5)
La libération conditionnelle du délinquant en semi-liberté ou en absence temporaire sans escorte devient ineffective s'il est visé, avant l'admissibilité à la libération conditionnelle totale, par une mesure de renvoi au titre de la Loi sur l'immigration et la protection des réfugiés; il doit alors être réincarcéré.
(6)
Toutefois, le paragraphe (4) ne s'applique pas si l'intéressé est visé par un sursis au titre des alinéas 50a) ou 66b) ou du paragraphe 114(1) de la Loi sur l'immigration et la protection des réfugiés.
(7)
La semi-liberté ou la permission de sortir sans escorte redevient effective à la date du sursis de la mesure de renvoi visant le délinquant pris, avant son admissibilité à la libération conditionnelle totale, au titre des alinéas 50a) ou 66b) ou du paragraphe 114(1) de la Loi sur l'immigration et la protection des réfugiés.
25 As already mentioned, these provisions were recently held to be constitutionally valid in Capra, supra. In that case, the Court explained that unlike the Canadian citizen who is subject to imprisonment and supervision in the community pursuant to the Warrant of Committal for Conviction until the Warrant Expiry Date, this scheme provides that a sentence of a non-Canadian subject to a removal order is deemed completed for the purposes of a removal from Canada when the offender is released from the penitentiary on day parole, full parole or statutory release.
26 In order to ensure that the offender serves the denunciatory portion of the sentence incarcerated prior to removal, the offender subject to a removal order is not eligible for day parole until the offender's full parole eligibility date. If the offender is released on day parole prior to a removal order being issued, then when a removal order is issued, the offender is returned to incarceration and is not eligible to be released until the offender reaches the offender's full parole eligibility date.
27 In that case, the Court found that it was perfectly legitimate for Parliament to postpone eligibility for day parole and unescorted release for foreign offenders to achieve specific policy objectives such as ensuring that such persons do not serve sentences shorter than the sentences served by Canadians for the same crime (which would occur if they were removed at an earlier time), and that the offender should not be placed in a better position than a non-offending foreigner subject to removal by giving the offender access to Canadian society and Canadian territory through day parole and unescorted temporary absence. Subsection 128(4) of the CCRA was therefore determined compliant with sections 7, 9 and 15 of the Canadian Charter of Rights and Freedoms.
28 It is true that in Capra, the focus was on s. 128(4) as opposed to s. 128(5) of the CCRA, as the deportation order had been made before the applicant had become eligible for an Unescorted Temporary Absence, and not after, as is the case here. But this distinction is not material to the constitutionality of the whole scheme put in place by Parliament, as s. 128(5) of the CCRA is really the corollary to s. 128(4) and is the expression of the same logic that underpins s. 128(4). In both cases, the variation in the way an offender subject to a removal order served the sentence of imprisonment imposed is triggered by the existence of the removal order, and the differential treatment embodied in sections 128(3) to (7) of the CCRA is a necessary consequence of a valid deportation order.
29 This case also involves sections 162(2) and 173(b) of the IRPA and Rule 43 of the Immigration Division Rules (SOR/2002-229), relating to how an admissibility hearing before the Immigration Division shall proceed as well as to the factors to be taken into consideration when dealing with an application for an adjournment. These provisions read as follows:
Provisions of the IRPA:
162. (2) Each Division shall deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit.
173. The Immigration Division, in any proceeding before it,
[...]
(b) must give notice of the proceeding to the Minister and to the person who is the subject of the proceeding and hear the matter without delay;
* * *
162. (2) Chacune des sections fonctionne, dans la mesure où les circonstances et les considérations d'équité et de justice naturelle le permettent, sans formalisme et avec célérité.
173. Dans toute affaire dont elle est saisie, la Section de l'immigration :
[...]
b) convoque la personne en cause et le ministre à une audience et la tient dans les meilleurs délais;
Rule 43 of the Immigration Division Rules:
43. (1) A party may make an application to the Division to change the date or time of a hearing.
(2)
In deciding the application, the Division must consider any relevant factors, including
(a) in the case of a date and time that was fixed after the Division consulted or tried to consult the party, the existence of exceptional circumstances for allowing the application;
(b) when the party made the application;
(c) the time the party has had to prepare for the hearing;
(d) the efforts made by the party to be ready to start or continue the hearing;
(e) the nature and complexity of the matter to be heard;
(f) whether the party has counsel;
(g) any previous delays and the reasons for them;
(h) whether the time and date fixed for the hearing was peremptory; and
(i) whether allowing the application would unreasonably delay the proceedings or likely cause an injustice.
* * *
43. (1) Toute partie peut demander à la Section de changer la date ou l'heure d'une audience.
(2)
Pour statuer sur la demande, la Section prend en considération tout élément pertinent. Elle examine notamment :
a) dans le cas où elle a fixé la date et l'heure de la procédure après avoir consulté ou tenté de consulter la partie, toute circonstance exceptionnelle qui justifie le changement;
b) le moment auquel la demande a été faite;
c) le temps dont la partie a disposé pour se préparer;
d) les efforts qu'elle a faits pour être prête à commencer ou à poursuivre l'audience;
e) la nature et la complexité de l'affaire;
f)
si la partie est représentée;
g) tout report antérieur et sa justification;
h) si la date et l'heure qui avaient été fixées étaient péremptoires;
i) si le fait d'accueillir la demande ralentirait l'affaire de manière déraisonnable ou causerait vraisemblablement une injustice.
B. The interlocutory nature of the decision
30 It is well established that an adjournment decision cannot be reviewed in the absence of special circumstances. The Federal Court of Appeal and this Court have frequently reiterated that scarce judicial resources should not be spent on applications to judicially review preliminary or interlocutory decisions, especially where an adequate remedy would be available later so as to cure any potential defect of the interlocutory decision. As the Court of Appeal stated in Szczecka v. Canada (Minister of Employment and Immigration) (1993), 116 D.L.R. (4th) 333, at para. 4:
This is why unless there are special circumstances where there should not be any appeal or immediate judicial review of an interlocutory judgment. Similarly, there will not be any basis for judicial review, specially immediate review, when at the end of the proceedings some other appropriate remedy exists. These rules have been applied in several Court decisions specifically in order to avoid breaking up cases and the resulting delays and expenses, which interfere with the sound administration of justice and ultimately bring it into disrepute.
See also: Ali v. Canada (Minister of Citizenship and Immigration), 2004 FC 1174, at para. 34.
31 The applicant referred the Court to a number of decisions where this Court and the Court of Appeal have accepted to rule on interlocutory adjournment decisions, therefore implicitly accepting that adjournment decisions do sometimes satisfy the "special circumstances" test: see Hassanzadeh v. Canada (Minister of Citizenship and Immigration), 2005 FC 902; Canada (Attorney General) v. Subhaschandran, 2005 FCA 27; Canada (Minister of Employment and Immigration) v. Lundgren, [1993] 1 F.C. 187; Canada (Minister of Employment and Immigration) v. Han, [1984] 1 F.C. 976. On the other hand, counsel for the applicant made no submission on this issue.
32 In the case at bar, I am satisfied that the nature of the error is, in and of itself, sufficient to justify the review by this Court of the interlocutory decision. It is a well established principle that special circumstances are deemed automatically to exist when the alleged error is one of jurisdiction: Pfeiffer v. Canada (Superintendent of Bankruptcy), [1996] 3 F.C. 584 (T.D.). For reasons that I will elaborate upon shortly, I have come to the conclusion that the tribunal acted beyond its jurisdiction or refused to exercise its jurisdiction in granting the 13-month adjournment sought by the respondent. Had the decision been made within the confines of the discretion conferred to the tribunal by the legislation, the jurisdiction of this Court to review would have been more problematic. But this is not the case here.
33 I also agree with the applicant that the Minister will have no adequate alternative remedy if the adjournment is allowed to stand. The respondent will have reached his full parole eligibility date by the resumption of the admissibility hearing, and the effects of this adjournment decision will have become moot. It is true that the adjournment of the hearing does not affect an eventual removal order, since such an order, even if issued, cannot be operative before the date on which the hearing should resume. But what the Minister is seeking is not so much the execution of the removal order as compliance with the law, which sets out that a foreign offender who is subject to a removal shall serve the denunciatory portion of his sentence before being eligible for day parole or unescorted temporary absence. In other words, the re-incarceration of the applicant is as much a potential consequence of the admissibility hearing as the removal order itself; from that angle, it can surely be said that the adjournment of the admissibility hearing to the date of the applicant's full parole eligibility leaves no adequate alternative remedy to the Minister, and cannot be remedied by the final decision once that hearing resumes.
34 For the above reasons, I am therefore of the view that it is appropriate to entertain the Minister's application for judicial review in the special circumstances of this case.
C. The appropriate standard of review
35 Had the Tribunal acted within its jurisdiction in granting the adjournment, there is no doubt that the applicable standard of review would have been reasonableness. In Prassad v. Canada (Minister of Employment and Immigration), [1989] 1 S.C.R. 560, the Supreme Court made it clear that administrative tribunals must be able to control their own procedures; accordingly, adjournment of their proceedings was found to be very much in their discretion (subject, of course, to the rules of fairness).
36 In the present case, however, the issue is not so much whether the Tribunal properly considered the factors found in s. 43(2) of the Immigration Division Rules in granting the adjournment, but whether the Tribunal had the jurisdiction or acted beyond its jurisdiction in granting the adjournment by taking into account irrelevant considerations. This is clearly a question of jurisdiction reviewable on the standard of correctness.
37 Even if the issue could plausibly be cast as one going to the proper interpretation of paragraph 128(5) of the CCRA, it would still call for the application of the correctness standard. It is clearly not a question relating to the Tribunal's home statute and it falls outside its area of specialized expertise.
38 As a result, this Court owes no deference to the Tribunal's decision, and must proceed according to its own analysis of the question that is debated between the parties. As the Supreme Court stated in Dunsmuir v. New-Brunswick, 2008 SCC 9, at para. 50:
When applying the correctness standard, a reviewing court will not show deference to the decision maker's reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer. From the outset, the court must ask whether the tribunal's decision was correct.
Was the decision to adjourn for 13 months correct?
39 Once a section 44 Report is referred to the Immigration Division for an admissibility hearing, pursuant to sections 162(2) and 173(3)(b) of the IRPA, the admissibility hearing must be heard as quickly as the circumstances and the considerations of procedural fairness and natural justice permit and without delay. The Tribunal's function at the admissibility hearing is exclusively to find facts. If the member finds the person described in section 36(1)(a) of the IRPA, then pursuant to section 45(d) of the IRPA and section 229(1)(c) of the Immigration and Refugee Protection Regulations, the Tribunal must issue a Deportation Order against the person.
40 The Tribunal found as much in the case at bar and acknowledged that once the admissibility hearing commenced to determine if the respondent is inadmissible pursuant to paragraph 36(1)(a) of the IRPA for serious criminality, the matter would be straightforward as the documents before the Tribunal provided by the respondent established that he was serving a sentence of seven years and ten months for a conviction in Canada for importing cocaine.
41 Yet the Tribunal made it very clear that its decision to grant the adjournment was essentially driven by its desire to allow the respondent to remain with his family and to benefit from his day parole until he became removable. This is made abundantly clear from the following two paragraphs of the decision:
In the majority of immigration matters where the Minister is seeking a removal order I agree that a swift resolution of the matter is the reasonable course but here there is no pressing need to process. Where there is no prejudice to the Minister as a removal cannot be enforced at this time, when the only effect of proceeding will be to send Mr. Fox back to prison, there seems to be a certain unnecessary punitive quality to requiring that the matter proceed. Doing so seems only to serve administrative convenience as if process trumps people in every case.
In this case the adjournment request becomes a matter of balancing the public interest with the liberty interest of the person. If the Minister is insisting that the objectives of the Act be served, I note that while at liberty Mr. Fox is able to remain united with his wife and son which not only serves the best interests of the child but maintains family unification.
42 These are obviously valid humanitarian and compassionate considerations. But the Tribunal does not have any discretion to consider these factors at the admissibility hearing. It is rather at the stage of making an admissibility report under s. 44(1) or in the making of a referral to the Immigration Division under s. 44(2) of the IRPA that these considerations should be taken into account. This point was reiterated most recently by Mr. Justice Barnes in the following terms:
The caselaw indicates that to the extent that any discretion exists to consider mitigating, aggravating or humanitarian factors in the process of determining the inadmissibility of a permanent resident, it does so at the point of the preparation of an admissibility report under ss. 44(1) or in the making of a referral to the Immigration Division under ss. 44(2) of the IRPA: see Hernandez v. Canada (Minister of Citizenship and Immigration), 2005 FC 429, 271 F.T.R. 257. (...) once the matter comes before the Immigration Division, the question for determination is only whether the person is inadmissible on the ground of serious criminality. The Immigration Division's admissibility hearing is not the place to embark upon a humanitarian review or to consider the fairness or proportionality of the consequences that flow from a resulting deportation order. Those are consequences that flow inevitably by operation of law and they impart no mitigatory discretion upon the Immigration Division.
Wajaras v. Canada (Minister of Citizenship and Immigration), 2009 FC 200, at para. 11
43 Now, the applicant is right to point out that s. 43(2)(i) of the Immigration Division Rules allows the Tribunal to consider whether allowing the application for an adjournment would "likely cause an injustice". The applicant states that on that basis, the Tribunal was justified to consider the exceptional circumstances that were brought to its attention, including the fact that the respondent was already at liberty, had been found not to be a danger to the public and not unlikely to appear for immigration proceedings, and that he was married to a Canadian citizen and had a nine-year-old child with attention deficit hyperactive disorder.
44 This subsection, however, cannot be read in a vacuum and must be interpreted in context. All the subparagraphs of paragraph 43(2) of the Immigration Division Rules, as well as paragraph 162(2) of the IRPA relate to the procedural requirements to ensure that the hearing itself is conducted fairly. The "injustice" to which subparagraph 43(2)(i) relates cannot extend to the effect of the consequences of the final substantive decision made at the conclusion of a hearing (i.e. the issuance of a removal order).
45 Indeed, the facts of this case are not substantially different from the situation considered by the Court of Appeal in Han, supra. In that case, the respondent had been admitted to Canada as a permanent resident conditional upon his marrying within 90 days. The marriage did not take place, and a report that he had contravened the terms and conditions of his landing was made to the Minister. When the inquiry resumed after several adjournments on June 7, 1983, the respondent sought an adjournment so his application for citizenship could be processed; according to the Immigration Act, 1976 then in force, he met the requirements of the Citizenship Act and was entitled as of right to a grant of citizenship, since he had remained a permanent resident notwithstanding his failure to fulfil the condition. At the time, section 35(1) of the Immigration Regulations, 1978 SOR/78-172 provided that the Adjudicator "...may adjourn the inquiry at any time for the purpose of ensuring a full and proper inquiry". The adjournment was refused, but the Trial Judge quashed the refusal on the ground that the decision to grant or deny an adjournment was always a matter of discretion and that discretion is to be exercised fairly or in accordance with the principles of natural justice. He concluded that the refusal of the adjournment was unfair because it would quite likely result in the making of a deportation order which would prejudice the respondent's right to become a Canadian citizen.
46 The Court of Appeal reversed that decision on the ground that the Trial Judge had misinterpreted section 35(1) of the Immigration Regulations. All three judges, in separate reasons, came to the conclusion that the Adjudicator did not have the jurisdiction to grant the adjournment for the purpose of allowing his citizenship application to be processed, and that the Trial Judge had erred in assuming that he had that jurisdiction. They also agreed that the decision to grant or deny an adjournment is not always a matter of unconstrained discretion. The Court found that the purpose for which the adjournment was sought in that case had nothing to do with a better conduct of the inquiry, but to ensure that the inquiry could never be held. This was clearly not within the jurisdiction of the Adjudicator. As for the notion of fairness on which the reasoning of the Trial Judge hinged, the Court had this to say:
It does not appear to me that the legal notion of fairness on which the reasoning hinges is taken in its proper sense. This notion of fairness as developed and applied by supervisory bodies in reviewing purely administrative decisions pertains to procedural requirements, as does the broader notion of natural justice in which it is embedded; it refers to the manner in which the tribunal has reached its conclusion, not to the substance of the conclusion itself. The tribunal has, of course, a strict duty to act in good faith, within the purview of the law from which it draws its authority and for relevant motives, its discretion, as it is usually said, must be exercised "judicially", but the suitability and the fairness of the decision are matters left to its sole appreciation. It is apparent from the reasons of the learned Trial Judge that the "taint of unfairness" he was seeing was directed to the decision itself because of its possible prejudicial effects to the respondent; it had nothing to do with the manner in which the decision had been reached. (Han, supra, at p. 987)
47 The same reasoning must govern the case at bar. As previously stated, the question for determination at the admissibility hearing is whether the respondent is inadmissible for serious criminality. The consequences that flow from a finding of inadmissibility are not relevant to such a determination. They have been set out by Parliament which has seen fit to postpone eligibility for day parole and unescorted release for foreign offenders until they have purged the denunciatory portion of their sentence. One may disagree with that policy, but it is not for the Tribunal (nor, indeed, for this Court) to do away with the will of Parliament by circumventing it with an adjournment order which, for all intent and purposes, would render s. 128(5) nugatory and of no effect. In doing so, I am therefore of the view that the Tribunal acted without jurisdiction or beyond its jurisdiction.
48 In his written submissions, the respondent also hinted at a possible abuse of power to the extent that the applicant was improperly insisting to see the respondent re-incarcerated even though he was not a danger to the public or a flight risk. His counsel did not press the issue at the hearing, and properly so. This question has already been addressed by the Court in Wajaras, supra, and found to be of no merit. It is certainly not contrary to the interests of justice that the Minister insists, even repeatedly, that an Act of Parliament be complied with.
49 For all of the above reasons, this application for judicial review will therefore be dismissed. At the hearing, counsel for the respondent asked for permission to propose a certified question after having had the opportunity to be appraised of my reasons. I granted him that permission, and I will therefore allow him seven days from the release of these reasons to draft any question which he believes should be certified. In the event that he elects to do so, the applicant will be given a further seven days to reply.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that this application for judicial review is dismissed. There shall be a separate order as to whether one or more questions will be certified.
de MONTIGNY J.
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