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Amending Immigration Rules For Dummies (Repost)

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Alastair Clarke published this post on Slaw.ca as a contributor to that site. This post is from MARCH 2023 – 1 year ago. Since then, of course, Minster Fraser has been replaced by Minister Miller. It is very interesting to see how this post has aged. Enjoy!

Anyone reading the news may an inkling of the firehose of changes, amendments, guidelines, Orders-in-Council, policies, programs, portals, pilot programs and jurisprudence related to Canadian immigration law. Rarely a week goes by that we do not have to alter our practice in some way. At the last national conference, an IRCC Officer actually apologized to lawyers due to the 19 different online portals we have to deal with, each with its own idiosyncrasies. Given this barrage of change, the folks at IRCC have become quite adept over the years at changing the rules in increasingly creative ways. The recent amendments to the Safe Third Country Agreement (STCA) highlighted, yet again, how statutory experts are able to implement these new rules with minimal oversight and no consultation.

During a recent press conference, Minister Fraser reminded us how complex and messy things are at IRCC. He explained that while he was on his way to announce a new program (EMPP), his Officers were in another meeting at the same time, discussing another program. If I understood his explanation, there was initial confusion among his staff which event he was supposed to attend.

As a practitioner, it can be difficult to pull our noses out from our files to look at the big picture. We are focused so much on making sure we are up to date with all the new forms, new caselaw, new portals, etc that it can be difficult to take a step back. Recently, I was invited to present at a conference at TMU, with professors from Europe and North America. It was refreshing to listen to creative ideas from different perspectives. It gave me a chance to review how immigration laws, regulations and rules (in general) have been changed by the past few governments.

Conservative’s Way: Omnibus Bill

During their time in power, the Conservatives managed to make significant changes to IRPA and IRPR. From changing the definition of a “dependent child”, thus eliminating many potential applicants for Permanent Resident status to limited access to humanitarian applications and limiting access to Pre-Removal Risk Assessments, the Conservatives were able to push through many reforms. Among other changes: they killed the Parent/ Grandparent Sponsorship application and replaced it with the Super Visa, thus restricting many family members from reuniting in Canada. How did they achieve many of these changes? The Omnibus Bill. As noted by Carol Linniett at The Narwhal:

[The Omnibus Bill of 2015] has generated outrage from a broad swath of society.

Former prime ministers, national editorial boards, tech experts, legal scholars, civil society organizations, democracy watchdogs and droves of citizens have opposed the bill, saying it goes too far in its fight against terrorism, ultimately undermining the democratic rights of Canadians.

So rather than the customary (if it rarely followed, it is still customary?) procedures of going through committee, passing the house and passing the Senate, the Conservatives employed this method for amending immigration rules.

Liberal’s Way #1: Soft Law

As you may recall, the Liberals made many election promises when they came into power. They successfully re-implemented the Parent/ Grandparent Sponsorship application and they reversed (somewhat) the definition of “dependent child”. (This was a legislative change, no soft law.) Mainly, their changes to immigration rules have come by adding new programs or amending policies that do not require legislative amendments. Let’s go through a few examples.

In 2018, I was involved in the significant policy changes to medical inadmissibility, per A38 of IRPA. It was a huge victory and it has had a significant impact on many families. My cynical side would add that I’m not sure we would have been able to muster a tide of change without our blonde, American child who was at the centre of case. It was truly my pleasure to represent the Warkentin family and we were able to use the sympathetic facts of that case to effect real change. However, the Liberals only changed the policy. A38 of IRPA was not amended.

 

Success: Warning Letter

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Everyone makes mistakes. In some cases, we deal with situations where our client has made a serious mistake or many mistakes. In other cases, our client has made a minor mistake. In these types of situations, depending on the mistake and the consequences, it may go to an IRCC Officer or a CBSA Officer to review. These Officers have broad discretionary powers to take various types of action against the individual. In some cases, the entire family may be punished. In other cases, the individual may simply get a warning.

Today, we will share a case that involved a mistake by our client that occurred many years ago. She used a shady agent to apply for a Study Permit to Canada based on fraudulent financial documents. The shady agent did not tell her that he added these fraudulent documents to her application. She had no idea. She never got a copy of the package. She didn’t ask questions. She trusted the agent. And she got her Study Permit.

Based on the work of the shady agent, our client got the Study Permit and came to Canada. She finished her studies and she got her PGWP. She was successful with her studies and her career. She got married and had children. She was granted PR status. Everything was going smoothly and, even after many years, she had no idea that the actions of that shady agent may come back to bite.

CBSA caught the shady agent and reviewed all his past applications – going back years. They launched an investigation into many applications and contacted our client regarding her past Study Permit. During an interview with a CBSA Officer in July 2023, our client was served with an A44 Report based on allegations of misrepresentation. The Officer explained Section 40(1)(a) (Misrepretation) of IRPA:

Misrepresentation

40 (1) A permanent resident or a foreign national is inadmissible for misrepresentation

    • (a) for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act;

As you can read from the above, Section 40(1)(a) (Misrepretation) of IRPA is extremely broad and it may include any mistakes made by a shady agent. The potential punishment for a person who has violated A40 of IRPA:

(2) The following provisions govern subsection (1):

  • (a) the permanent resident or the foreign national continues to be inadmissible for misrepresentation for a period of five years following, in the case of a determination outside Canada, a final determination of inadmissibility under subsection (1) or, in the case of a determination in Canada, the date the removal order is enforced

This means that our client was at risk of losing her PR status, being removed from Canada, being banned from Canada for 5 years and being separated from her family in Winnipeg. Very serious consequences.

She immediately came to CIL for help. Over a 3 month period, we were in contact with the CBSA Officer. We reviewed her documents. We researched the shady agent. We prepared her defence, with reference to relevant caselaw from Federal Court.

In the end, our client got a “warning letter”. You can see a redacted version of this document. This was the best possible result. Our client’s PR status is no longer at risk. She clearly regrets using a shady agent to do her Study Permit. She now knows that was a big mistake. The Officer accepted her explanation and he accepted that her regret is genuine. The agent has been punished.

I wish I could tell you that these cases are rare. They are not. I cannot even count the number of A44 Reports that we have dealt with over the years. Individuals may get a A44 Report for any of the IRPA sections for inadmissibility. Typically, we look at sections 33 through 43 of IRPA in these types of cases. The most common sections that we deal with are misrepresentation (A40), medical inadmissibility (A38), and criminal inadmissibility (A36). 

In every case, we want to give our client the best chance at a warning letter. If the Officer is not satisfied, then the case is referred to the tribunal for an Admissibility Hearing. They can then give testimony and call witnesses. This can take a lot of work and it can be costly – both in terms of money and stress. In certain cases, the individual may appeal to the IAD for an appeal. Finally, if the IAD is not available for an appeal, we may have to go to Federal Court to fight for our clients. 

CIL has handled all the situations noted above, many times. If you are dealing with this type of situation, give us a call and we will do our best to guide you through the process. 

Thank you JHSM!

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Alastair Clarke was appointed to the Board of Directors to the John Howard Society of Manitoba (JHSM) in 2015. The organization was quite different at that time. JHSM received significant funding from the NDP government that was in power in Manitoba at that time. The Executive Director seemed to be doing a good job with staff and the union. The finances were in good condition.

Over the past 8 years, Alastair has volunteered many (many!) hours to help the JHSM. Volunteering is key to keeping not-for-profit organizations on track. The Board of the JHSM is an exceptional group of professionals that provide oversight of management, focused on the best interests of the organization as a whole. Alastair’s 8 year term on the Board has come to an end. The Board held a nice celebration to thank Alastair and the Board for their service.

Success: Admissibility Hearing @ Immigration Division

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Clients come to CIL for all types of situations. We help clients apply for Passports. We help them apply for Police Clearance Certificates and Work Permit. We handle many applications for temporary status. Typically, those files are, relatively straightforward and the work is predictable. Then, there are complex, messy cases that take turn after turn. This was one of the latter cases.

Our client came to us more than one (1) year ago, after his Post Graduation Work Permit (PGWP) was refused. As you may have read from our Google Reviews, we have been successful with many international students who have had their PGWP refused and we were able to get them back on track to PR status. At the beginning, we thought that was one of those cases. We did the PGWP and Restoration application. Soon thereafter, CBSA got involved and the situation became serious. CBSA made the determination that our client was inadmissible based on A38 – Medical Inadmissibility:

  • 38 (1) A foreign national is inadmissible on health grounds if their health condition

    • (a) is likely to be a danger to public health;

    • (b) is likely to be a danger to public safety; or

    • (c) might reasonably be expected to cause excessive demand on health or social services.

In legal terms, we call the above test the “excessive demand” test. At that time, we got the disclosure package from CBSA and we knew this was going to be a tough case.

At the same time, our client let us know that he got married to a Canadian citizen. They had been living together and they seemed to have a genuine relationship but they were reluctant to get legally married with everything going on. They decided to make their commitment to each other, to try to ensure that our client would not be removed/ deported from Canada.

We then assisted them with an SCLPC Class application and submitted the package to IRCC. As per above, CBSA has already referred our client to the IRB based on A38 – Medical Inadmissibility. So our job was to give the IRCC Officer as much time as possible to make a decision on the SCLPC Class application. We needed to ensure our client was not removed from Canada. SUCCESS! We got a positive decision from the Immigration Division!

We have provided a rough timeline of events below. I want to give credit to Naomi for spending hours (upon hours, upon hours) on this file, making sure the client and his family understood every step.

Date Action

 
1 SEP 2022 Client met Alastair for consultation regarding PGWP refusal

 
8 SEP 2022 Client retained our services for PGWP and Restoration

 
12 OCT 2022 Our office submitted application for PGWP and Restoration

 
2 NOV 2022 Client met Alastair for consultation regarding Admissibility Hearing and Spousal application

 
21 NOV 2022 Client retained our services for Spousal application

 
6 DEC 2022 Client retained our services to post-pone and represent Admissibility hearing scheduled for 19 DEC 2022

 
7 DEC 2022 Our office submitted a request to the ID to post-pone client’s admissibility hearing

 
7 DEC 2022 The ID responded with alternative Hearing dates and we re-scheduled for 8 FEB 2023 @ 11:00 am CST

 
23 JAN 2023 Submitted SCLPC application

 
8 FEB 2023 Admissibility postponed to 25 APR 2023 @ 10:30 AM due to not having enough time for witnesses

 
21 FEB 2023 IRCC provided temporary application number for SCLPC application

 
1 MAR 2023 IRCC sent Medical Examination instructions

 
28 MAR 2023 IRCC sent a letter confirming Sponsor meets the eligibility requirements as a Sponsor

 
5 APR 2023 IRCC sent a letter about reassessing clients eligibility requirements

 
12 APR 2023 Our office submitted a webform to IRCC to put PR application on hold

 
14 APRIL 2023 IRCC sent a letter confirming PGWP and restoration application was transferred to IRCC office in Edmonton

 
25 APR 2023 Admissibility hearing postponed due to member availability

 
13 JUN 2023 ID reached out to our office to re-scheduled Admissibility Hearing for 11 SEP 2023 @ 10:30 CDT

 
29 JUN 2023 IRCC sent a letter confirming client meets eligibility requirements as a Principal Applicant but still needs to pass the medical, security and background checks to become a PR

 
6 JUL 2023 IRCC sent a letter to confirm his PR application is being transferred to the IRCC office in Etobicoke for further assessment

 
8 AUG 2023 IRCC refused clients PGWP and Restoration application

 
9 AUG 2023 Client retained us to submit a Spousal Open Work Permit based on SCLPC application in process

 
10 AUG 2023 Our office submitted Spousal Open Work Permit via the Representative Portal

 
11 SEP 2023 Date of Admissibility Hearing

 

Our office and the ID did not know if client is a member of the Family class and resumption of Admissibility Hearing was scheduled for 2 NOV 2023

 
20 SEP 2023 Our office submitted a webform requesting if client has been determined to be a member of the Family Class

 
3 OCT 2023 Our office sent an email to CBSA requesting if they know if client has been determined to be a member of the Family Class
5 OCT 2023 CBSA provided GCMS notes and let us know that he sent 2 emails to IRCC

 
5 OCT 2023 Our office provided a copy of the SCLPC and OWP application to the ID and CBSA for their consideration by email and portal

 
19 OCT 2023 Our webform that was submitted on 20 SEP 2023 was added to the file

 
19 OCT 2023 Clients received a cold call from IRCC – Interview regarding genuine marriage

 
26 OCT 2023 Received VERY GOOD NEWS! IRCC Officer provided confirmation that client is a member of the Family Class

 

CBC NEWS: Indian died at border re fake documents

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One year ago, an Indian family died at the border, trying to cross from Canada into the USA. This family had come to Canada on a Study Permit, after using an agent in India. Over the past year, law enforcement in Canada, the USA and India have been investigating this tragic event that led to the death of 2 adults and 2 children. They have discovered the Study Permit was obtained by submitting fake documents to the Canadian Visa Office in India.

CBC News has reported many details on these preventable deaths. As reported by CBC News:

The man’s plan to cross into the U.S. illegally was set in motion a year earlier, when someone who frequented his father’s shop in India offered to help send his son to a foreign country, according to the police report, which was filed following a preliminary investigation.

The man’s father told police he agreed to pay that person 6.5 million Indian rupees — over $106,000 Cdn at current exchange rates — in return for getting his son a Canadian study permit and helping him get into the U.S., the report says.

Alastair Clarke was interviewed as part of the investigation and he provided insight on these issues. Clarke Immigration Law has assisted many people navigate the immigration system with similar circumstance.

As noted in the article, if an application for a Study Permit includes fraudulent or fake documents that were included as supporting documents, the Applicant is 100% liable/ responsible, in almost every case. This is a serious problem, and unfortunately, it is quite common in many jurisdictions. The Government of Canada issued a blanket warning in 2019, for example, based on the serious nature of this problem.

At CIL, we have dealt with many cases where the Applicant’s shady agent submitted fake documents, without their knowledge. This can lead to the Applicant, as well as all the Applicant’s family members, being inadmissible to Canada per A40 (misrepresentation). As stated by IRPA:

Misrepresentation

  • 40 (1) A permanent resident or a foreign national is inadmissible for misrepresentation

    • (a) for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act;

    • […]

The key language above is “directly or indirectly”. The “indirectly” part of the section refers to all documents that were submitted by an agent, by a family member, by a lawyer, by any other type of representative or by any volunteer. A40 is extremely broad, by definition and when Parliament drafted the language of this section, they intended A40 to capture any and all types of behaviour that may be fraudulent.

CIL successful represented an Applicant who faced A40 misrepresentation. Our legal arguments were accepted by Federal Court Justice Ahmed, based on the facts of that case:

[14]  The Applicant [CLARKE IMMIGRATION LAW] points out that section 40 of the IRPA does not apply to misrepresentations made honestly by an applicant who reasonably believes they did not withhold material information (Medel v Canada (Minister of Employment and Immigration), [1990] 2 FC 345, Baro v Canada (Citizenship and Immigration), 2007 FC 1299 at para 15, and Goudarzi v Canada (Citizenship and Immigration), 2012 FC 425 at para 33). The Applicant submits that his response to the procedural fairness letter provided evidence that this exception applies to his alleged misrepresentation; he explained that the knowledge of the potential fraud was beyond his control and in his view he reasonably and honestly believed that he was not misrepresenting any material facts. Despite his response to the procedural fairness letter, the Applicant submits the Manager failed to consider whether any alleged misrepresentation was honestly and reasonably made.

The Court accepted that our client was not inadmissible even though his agent submitted fake IELTS results.

This is a very serious issue and there are many applicants who are victims of shady agents/ consultants. Please contact our office if you a facing this type of situation.

Jail for Immigration Lawyer

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On one hand, immigration lawyers must provide zealous representation. On the other hand, everyone must follow the law. Former immigration lawyer Balrah Singh Bhatti did not understand the second part. He has been charged and convicted of 17 criminal offences, including forgery. He has been suspended by the Law Society and, I expect, he will be disbarred.

In his decision, B.C. Provincial Court Judge Mark Jetté described the criminal acts committed by Mr Bhatti:

Counts 1 to 3 and 5 through 10 charge the Criminal Code forgery and uttering offences in ss. 366(1)(b) and 368(1)(b) respectively.  These offences were committed when Mr. Bhatti forged notes from his family physician at the time, asserting either that he or his client was not well and was unable to attend for a scheduled hearing before the IRB.  Mr. Bhatti then submitted these forged notes to the IRB in support of applications to adjourn a number of hearings which had been set down for several of his clients.

Clearly, the acts committed by Mr Bhatti are wrong and illegal. As an Officer of the Court, lawyers have a duty and responsibility to act in the best interests of the legal system as a whole while, at the same time, acting in the best interests of the client.

The Rules of Professional Conduct, set out the Law Society of Manitoba set out:

2.1-1 A lawyer has a duty to carry on the practice of law and discharge all responsibilities to clients, tribunals, the public and other members of the profession honourably and with integrity.

The above is described further:

Public confidence in the administration of justice and in the legal profession may be eroded by a lawyer’s irresponsible conduct. Accordingly, a lawyer’s conduct should reflect favourably on the legal profession, inspire the confidence, respect and trust of clients and of the community, and avoid even the appearance of impropriety.

Indeed, this type of case puts the whole system in question and undermines public confidence in the legal profession.

The Public Interest test

In this case, the judge considered the joint submissions to the Court and opted to follow the SCC precedent regarding the “public interest” test:

In Anthony-Cook, the Supreme Court of Canada considered and rejected a “fitness test” for joint submissions; the court came down in favour of a “public interest” test.  The public interest test requires that trial judges “should not depart from a joint submission unless the proposed sentence would bring the administration into disrepute, or is otherwise not in the public interest.”  A joint submission will bring the administration of justice into disrepute or be contrary to the public interest if, despite the public interest considerations that support imposing it, it is so “markedly out of line with the expectations of reasonable persons aware of the circumstances of the case that they would view it as a break down in the proper functioning of the criminal justice system.”  The court concluded that the public interest test, as distinct from the fitness test, “helps to keep trial judges focused on the unique considerations that apply when assessing the acceptability of a joint submission”, including the importance of promoting certainty in resolution discussions.

Sentencing by the Criminal Court

As reported by CBC News:

In mid-June 2021, Dahak entered guilty pleas and received a conditional sentence of two years less a day with conditions that included house arrest for the first eight months, a curfew for the next eight months and 100 community work hours. He was also fined $14,000.

As a practitioner, this news is deeply troubling. I have never met Mr Bhatti nor any members of his family or his business. From the documents, it appears that he was motivated to try to help his clients; however, he was completely misguided. He committed numerous criminal acts during the course of his practice and it does not appear as though he did so for personal gain. In the end, he will suffer for his crimes. His family will suffer and his former clients will suffer.

Regarding his former clients:

The CBSA said in 2020 that most of the claimants from Bhatti and Dahak’s offences were found not to be refugees and were removed from Canada.

Therefore, it seems that, despite the fraudulent documents, he did not even help those people.

 

Success: Deferral Request

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One of our key services is to stop or delay removals from Canada. Receiving a removal order (departure order/ exclusion order/ deportation order) may be extremely stressful for the individual and their family. Over the past +15 years, we have been helping individuals deal with this situation to help explain the situation to the CBSA Officer and, if necessary, to advocate on behalf of our clients at Federal Court. Recently, we were successful with a Deferral Request and our client’s removal order was canceled.Deferral Request

In this case, our client is well-established in Winnipeg; however, he has multiple criminal convictions and he was ordered to leave Canada. He has the support of his Canadian wife and they have Canadian children. He expressed genuine regret for his past mistakes and he demonstrated clear evidence of rehabilitation. CBSA has been trying to remove him from Canada, pursuant to section 48 of IRPA:

 

Enforcement of Removal Orders

Enforceable removal order

  • 48 (1) A removal order is enforceable if it has come into force and is not stayed.

  • Effect

    (2) If a removal order is enforceable, the foreign national against whom it was made must leave Canada immediately and the order must be enforced as soon as possible.

On behalf of our client, we produced a package of +190 pages of supporting documents, legal submissions and objective evidence to the CBSA Officer. To be frank, this was a difficult case. When we met this individual and reviewed his criminality issues, I advised the client that we had a low chance at a successful result. This legal opinion was based, in part, on changes made by the Conservative government back in 2012 included in the “Faster Removal of Foreign Criminals Act”. Our current Liberal government has not reversed these laws. Throughout the process, however, we were able to put together a very strong package and I am extremely proud of the work done by the team.

As you know from the title of this post, our Deferral Request was granted by CBSA and our client’s removal date has been canceled. To be clear, the Officer did not cancel the removal order itself and the criminality issues have not been expunged. We will continue to work on behalf of this individual to obtain his TRP and Work Permit. The removal order continues to be enforceable and we will likely be dealing with CBSA on behalf of this client again in the future.

For now, our client has been granted permission to stay in Canada with his family for one (1) year and he is not at risk of being removed. We will be working with this family to seek long-term options to keep this family in Canada. Again, the key to getting this decision was significant work done on the part of the team at CIL. In my view, the +190 pages of evidence provided to the Officer clearly showed this individual’s situation warrants exceptional circumstances.

We love helping our clients and working to keep families together.

    CBC The National: Extradition

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    Alastair Clarke was recently interviewed by CBC News regarding the potential criminal charges against Peter Nygard. At this point, Mr. Nygard’s son has concerns that his father may leave Canada to escape justice which would force the Government of Canada to make an extradition request. Extradition is a complex area of law; however, based on his studies in International Law at Queen’s Law (Bader International Study Centre @ Herstmonceux Castle) and his professional experience dealing with the intersection of Criminal Law, Immigration Law & extradition law, Alastair was able to provide insight on the potential legal issues.

    Please note: this case has been unfolding quickly and the information is only current as of today, 18 SEPT 2020. As noted by CBC Reporter Caroline Barghout, based on an exclusive interview with Peter Nygard’s son:

    The son says he’s speaking out now because he’s afraid if he stays quiet, his father’s accusers — including his two brothers — may never get justice.

    “My No. 1 goal is for him not to escape,” he said.

    He says Nygard spends summers in Falcon Lake in southeastern Manitoba, and would normally head to one of his properties in California or the Bahamas by the third week of September. But with his father under a cloud of sex allegations, the son thinks his father will instead set his sights on a jurisdiction that won’t extradite him if charges are ever authorized.

    “He believes that he’s above the law — the law does not apply to him,” said the son, adding he bases that on his father’s past actions.extradition

    This point leads directly to the possibility of an extradition request made by the Canadian government, if criminal charges are laid and the accused flees the country.

    Winnipeg immigration lawyer Alastair Clarke says unfortunately, the more money a person has, the easier it can be to evade the law.

    “It’s entirely possible that in this case … Mr. Nygard may find a country who is sympathetic to his, let’s say, his net worth, to his financial capacity,” said Clarke.

    “And so he could find possibly a safe haven, which would be, in my view, quite unfortunate.”

    He says if a country doesn’t have an extradition treaty with Canada, there may not be anything the government can do to get a person back, even if charges are laid.

    Canada doesn’t track, or keep a record of, people who leave the country, he said. Only entries are monitored.

    “If we had the resources in place, that would, in my view, uphold the Canadian rule of law and make sure that alleged criminals are not simply using their private chartered jets, for example — flying to places where we don’t have extradition treaties and escaping the law,” said Clarke. 

    Indeed, extradition can be very messy as we have seen in both the Meng Wanzhou case and the Carlos Ghosn case. These are both ongoing legal matters that involve Canada, the United States, China, Japan, Lebanon and France. A friend of Alastair Clarke, lawyer Richard Kurland has spoken on the complexity of these cases, as reported by CBC News:

    The fight may be over the technicalities of legal privilege — the right to shield sensitive communications and documentation — but observers of the case say the outcome could prove crucial in Meng’s battle against extradition to the United States.

    “This disclosure of who said what to who is critical,” said Richard Kurland, a Vancouver immigration lawyer who has followed the proceedings closely.

    “The line here is how much information ought to be revealed in order for the defence to know the case they have to meet and mount their defence, counterbalanced against the right of the state to conduct clandestine service. That’s quite a difficult balance in a case like this.”

    For more information, please watch CBC The National on youtube. This story starts at 22:40 of the episode.

    Currently, Peter Nygard is in Manitoba and there are no criminal charges. The above is purely speculation. This is an ongoing matter and, as with the other cases above, we will be following this case closely to see if extradition becomes a necessary recourse.

    Success: Crim Rehab

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    After years of work, including multiple Temporary Resident Permits (TRPs), we successfully applied for Criminal Rehabilitation (Crim Rehab) for our client who had multiple criminal convictions in his past. These applications are never easy and the Officer at the border has significant discretionary decision making power at the POE. We did not want to have to wait for this client to be eligible for “deemed rehabilitation” as he has strong connections to Canada. Alastair is an expert in crimimmigration – the intersection between criminal justice and immigration.

    Justice is at the core of our legal system and criminality may have a strong impact on immigration. This means that individuals who are convicted and have served their sentences may not be inadmissible to Canada and they may be allowed to enter if they are successful with a “rehabilitation” application according to immigration laws and regulations. In this case, we were retained by a foreign national with five (5) criminal convictions from different incidents in his past. These convictions, and a series of other events, led to a separation of family and hardship; however, after a boatload of work and strong supporting documentation,Crim Rehab we were successful with our Criminal Rehabilitation application (Crim rehab), submitted at the Canadian Port of Entry. We were able to review the application with a Superintendent prior to our client traveling to the border for a non-binding preliminary assessment. Our client got a positive decision from the Officer after only 4 hours.

    In many cases, past criminal convictions are the result of bad decisions made in youth that were affected by alcohol and/or peer pressure. The Supreme Court of Canada has considered similar situations and they have provided instructions to Officers on how to make these decisions. This case was one of those cases. Our client was completely upfront about exactly what happened and how it affected his life. He demonstrated significant changes in his behaviour and he showed genuine remorse.

    Our client was thoroughly prepared by our office. As with all our cases, be prepared, be prepared, be prepared! We spent hours on this application, gave him a mock interview and prepared a strong package of evidence. At the border, he passed multiple interviews and the Officers went through our package very carefully.

    In the end, our client’s application was granted and he no longer needs to worry about inadmissibility to Canada. He is now with his family members in Canada, subject to the Quarantine Act and he is taking COVID-19 seriously. It has been a pleasure to work with this family and it has been very emotional. For our office, it is very important that we build a perfect application and make sure 100% of the potential issues are covered. I will say that the Officer even said to our client that our application was the best Criminal Rehabilitation application he had reviewed. Thank you Officer! Good decision!

     

    WFP: Audit of Deportation Orders

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    The widely reported report by the Canadian Auditor General describes the significant backlog and delays in the removal process for individuals who have enforceable removal orders, including deportation orders. These removals are carried out by CBSA Officers and we have many clients who are affected by these orders. We are in contact, almost daily, with CBSA Officers on behalf of our clients to ensure our clients fully cooperate with law enforcement and Canadian regulations. At the same time, we advise our clients on their legal rights.Deportation

    The report focuses on failed refugee claimants who have deportation orders. Let me make a brief comment on this group. It is important to note that even when the refugee claimant’s risk may not rise to the level of risk per sections 96 or 97 of IRPA, they may still face significant risk or hardship and/or persecution. The fact is that the legal bar to refugee status is a high legal test and claimants must go through a rigorous adjudicative process, including examination and cross-examination of testimony. Another key fact is there is a shortage of competent legal counsel and claimants may be poorly prepared for their hearing.

    Winnipeg Free Press reporter Eva Wasney published an article on the Auditor General’s report that discussed the challenges faced by CBSA:

    Winnipeg immigration lawyer Alastair Clarke said some of the criticisms in the report are valid, but the audit is a an “oversimplification” of the removal process because it doesn’t include specific case examples.

    “My concern is that the public reads this report, they don’t understand the details, the individuals who are behind these numbers, and this type of report causes undue or exaggerated anxiety in the public,” Clarke said. “The individuals who are under enforceable removal orders in the serious criminality category are generally only a small fraction of individuals in that entire pool.”

    Of the more than 34,000 cases in the agency’s wanted inventory, 2,800 were criminal.

    Indeed, to a certain extent, this report provides a limited perspective on the current state of removals and it fails to provide a nuanced approach to a complex procedure. I have spoken many times on this topic. Canadian laws require CBSA Officers to adhere to procedural fairness and, in our experience, CBSA Officers in Manitoba are vigilant in following Canadian laws and regulations.

    In addition, I strongly agree with my friend and advocate Dr. Lori Wilkinson who has been doing significant research at the University of Manitoba’s Immigration Research West group:

    While Wilkinson said she is glad to see the immigration removal audit, she is worried that the report could have a negative impact on people who are in Canada legally.

    “There could be backlashes against immigrants,” she said. “Lots of people make the leap that if the deportation system isn’t working, then the immigration system must not be working.”

    This is absolutely correct. In my view, IRCC Officers and CBSA Officers are working hard to ensure integrity in the system and they take deportation orders seriously.

    On the flip side, let us be reminded of deportations that have been rushed and have led to disastrous results. One example that comes to mind is the case of Lucia Vega Jimenez from 2014. She was a failed refugee claimant from Mexico with an enforceable removal order as described in the Auditor General’s report. While she was on the verge of being deported, she took her own life in Vancouver. Advocates point to the serious risks to her life. On its face, I believe anyone can understand that if she was so afraid to go back to Mexico she would take her own life to prevent deportation, she had genuine fear.

    In my view, it is important to consider the people behind these numbers. Every case is different, and I can tell you from many years of experience, immigration is messy. As correctly noted by the report, CBSA Officers focus their resources on serious criminals and ensuring the safety of the Canadian public. This is exactly how the system is designed to work.