Morley Law Office

Canadian Immigration Lawyer Kingston


In-Canada Spousal Work Permit Policy

SINCE 2004, IF A SPOUSE or common-law partner was sponsored for permanent residency from inside Canada, he or she could apply for an open work permit by filing an application to change the conditions of the visit before the expiry of status.  Such an application was put into the same envelope as the sponsorship application.  The resulting work permit would only be issued once the application for permanent residence was “approved in principle”, which at one point happened about six months after filing, but which more recently was more likely to occur after twelve months or longer.

It is and has been a good thing that there is an option for foreign nationals who are married to a Canadian and who are living in Canada allowing them to apply for permanent residency from within the country.  It is also a good thing that they can get a work permit while they are here.  However, a year is a long time for most foreign nationals to wait for the authority to work, and the delay creates hardship for couples who are in the meantime without the employment income of the foreign national.

It seems likely it was because of the lengthening processing time that Canada Immigration unexpectedly announced on December 22, 2014 that spouses and common-law partners who met specified criteria could be issued work permits earlier in the process – before the approval in principle.  According to the announcement, which is available here, to be eligible the applicant foreign national spouse must:

  1. Have filed an in-Canada spousal sponsorship and permanent residency application;
  2. File the appropriate application form for the work permit;
  3. In some cases, meet medical requirements; and
  4. Pay the fee.

If these things are done the foreign national will get an open work permit, that is, one that allows the foreign national to be employed at any job in Canada for which an employer will hire him or her.  The promise is that the work permit will be issued within four months of receipt of the application.

This is a welcome development that tips the balance in the direction of applying for permanent residency from within Canada, as opposed to outside of Canada.  However, for those who were not in Canada at the time the announcement was made there remains a nagging issue: what does a foreign national spouse say to border officials about their intentions when they arrive at the Canadian border, or when they land at a Canadian airport?

Upon entry one must answer the examining officer’s questions about the reasons for the entry honestly.  To say that one is coming to Canada only to visit is not an honest and complete answer if one is coming into the country to live with one’s spouse and to apply for permanent residency and a work permit.  These parts of the plan should be declared if one wishes to avoid being challenged for having misrepresented one’s circumstances.

The problem is that once the complete plan is declared there is a serious risk the foreign national will not be admitted to Canada, as his or her entry might be seen as an attempt to enter Canada to live permanently without a visa that provides the authority to do that.  In the experience of people I have spoken with, arriving at the border or airport with all of one’s possessions in tow, ready to make a life in Canada with one’s Canadian spouse is generally not positively received by Canada Border Service Agency Officers.  Even without a lot of extra luggage, border officers are often suspicious of the intentions of those entering Canada to be with a fiancee or even a girlfriend.

The law does provide that one may have “dual intent” upon entry, that is, an intention to live in Canada permanently if ultimately authorized to do so AND also the intent to leave at the end of the visit if not authorized to live here permanently.  However it is an open question as to in which circumstances the officers will recognize the dual intent and permit this entry and which they will not.

Without some clarity on this issue, it is difficult for couples to plan for their life together.  Does a foreign national pack up his or her things and bring them to the border or airport, declare to the examining officer that he intends to enter Canada to live with or perhaps even marry his spouse, and then apply for permanent residency?  Will the officer admit him or her in these circumstances?

After more than 25 years of practicing as an immigration lawyer, I have heard many stories about problems people have encountered upon entry to Canada, and I am sceptical.  I would be interested to hear about your experiences!

House Arrest & Deportation

THANH TAM TRAN left Vietnam in 1989 and became a permanent resident of Canada.  Twenty-four years later he was convicted in British Columbia of producing marihuana and given a 12-month conditional sentence.  Such a sentence is imposed as a term of imprisonment, but one which, because of the relatively innocuous nature of the particular offender, may be served in the community on strict terms and conditions.  In popular parlance a person on conditional sentence is said to be under “house arrest” because they usually must remain in their house either around the clock or during certain specified hours.

Conditional sentences were introduced in 1995 in response to what was perceived to be the too-frequent imposition of jail sentences.They are only available where the sentence to be imposed is under two years, the crime committed does not have a minimum sentence and the sentencing judge is satisfied that community safety will not be threatened by the house arrest of the offender.  They are useful because the offender may be able to continue to work or otherwise provide for himself or his family while under sentence, or may attend school or medical appointments.  They also save the government a good deal of money by reducing the jail population.  Compliance is monitored, and if the offender breaches the sentence, there is a hearing, and he may be committed to jail for the balance of the term.

When the immigration authorities employed Mr. Tran’s conviction as a basis for referring him for deportation, he applied to the Federal Court to stop the process from going further.  He argued that, according to the terms of the law, his conditional sentence was not serious enough to warrant the termination of his permanent resident status and removal from Canada.  The central question for determination by the Court in his case was whether or not Mr. Tran’s sentence met the threshold for his deportation.

Under Canada’s immigration statute a permanent resident may be ordered deported if he has been convicted of a crime which drew a sentence of six months in jail or more, or for which a maximum sentence of ten years in jail or more might be imposed.  Was Mr. Tran’s 12-month conditional sentence such a sentence?

Justice O’Reilly of the Court found that it was not.  He concluded that, while a conditional sentence may in some circumstances be characterized as a term of imprisonment, the context of the characterization is critical.  Conditional sentences, he noted, were conceived for those offenders who do not require actual incarceration, and not for those who have been engaged in “serious criminality”, as contemplated under Canadian immigration law.  The threshold in the immigration statute relates to actual time in prison, not time spent under house arrest, the Court observed.

Also addressed in the decision was the issue of the maximum possible sentence for the offence which the Court found should be assessed as of the date of conviction, not the date of its referral to the immigration decision-maker.  Further, the Court found the Immigration Officer’s referral to be unreasonable because it relied on arrests and charges as evidence of Mr. Tran’s ongoing criminal behaviour, although they were unproven allegations.

However the key aspect of this case going forward is the finding regarding conditional sentences.  If, as Justice O’Rielly found, they may not be described as terms of imprisonment, then those permanent residents sentenced to house arrest for periods of up to two years less a day may not be deportable.  Further, those already ordered deported for offences for which conditional sentences were imposed or who have been sponsored by a spouse but found inadmissible in similar circumstances may have a remedy to challenge that deportation that could include the right of appeal to the Immigration and Refugee Board (Immigration Appeal Division).

It should be noted that the Federal Court did certify two questions for the appeal of its decision respecting Mr. Tran, one on the conditional sentence issue and the other on retroactivity.   In the circumstances these issues cannot be said to be resolved and caution should still be exercised in making submissions respecting the sentencing of permanent residents.

You can review Mr. Tran’s case online here.

New Ways to Practice Law are Coming

HERE IN ONTARIO the practice of law is restricted within relatively narrow and traditional parametres.  To provide legal services one must be a lawyer or paralegal licensed by the Law Society of Upper Canada, our regulatory body.  Those who are licensed may only provide legal services, or services that support or supplement legal services, in their practice.

The business structures currently available to licensed legal professionals here include sole proprietorship, partnership, limited liability partnership, professional corporations or multidisciplinary practices.  The last of these must be controlled by licensed legal professional and may only offer services that support or supplement legal services.  Fee sharing between licensed legal practitioners and those who are not licensed is only allowed in multi-disciplinary practices and inter-jurisdictional firms.

A change may be coming, however.  It is driven in large part by the changing needs and expectations of the persons who hire us, who are increasingly demanding better, smarter, faster and cheaper service, and clearly expressing their interest in being more involved with and connected to their lawyer than previously.  Perversely, at the same time, as is evident in courtrooms throughout the province, more and more Ontarians are finding it impossible to access legal services, generally because they cannot afford them.  Our clients want more from us, but they cannot afford the services which we are giving them now, at least in the manner in which we are currently delivering those services.

With increasing complaints about what is perceived to be the high cost of litigation and about the number of self-represented litigants, institutional stakeholders in the courts and in the legal services sector are considering a range of options to provide better access to justice, including the development of alternative business structures.  Our Law Society is no exception.  It set up a working group to explore ABS in the fall of 2012.  British Columbia published its report on the subject three years ago, and Nova Scotia, Manitoba, Alberta and Saskatchewan are also exploring these new service-delivery concepts.

On the table in the consideration of ABS options are new services, new service delivery mechanisms, alternative fee arrangements, the participation of non-lawyers in the ownership and management of law firms, and new legal disciplines, amongst other ideas.  Given the potential for a radical transformation in the delivery of legal services if these concepts and implemented, their implications for legal regulation and education will need to be addressed.  In addition, all of us who practice law will need to come to grips with practicing law in a very different way.

Alternative business structures are not merely theoretical constructs or flights of fancy ; increasingly, they are a reality.

Since 2000 New South Wales, Australia has permitted regular incorporation of law practices without restricting who may own shares of the legal corporation or what type of business may be carried on.  The state’s Legal Profession Act provides that legal service professionals may register as a company with the Australian Securities and Investments Commission, the body that ensures compliance with the country’s corporation statute. There are now law firms in Australia listed on the country’s stock exchange.

In the United Kingdom the Legal Services Act 2007 has expanded the objectives of legal services regulation, which were formerly restricted to serving the public interest and improving access to justice.  Now they include the protection and promotion of consumer interests and competition.  As a consequence, new forms of legal business are taking shape.  For instance, in Britain there is now a law firm with a background in fertility law that offers not only legal services, but related services such as donor conception and adoption.

In the United States the District of Columbia permits limited non-lawyer ownership and management of law firms.  In some places, the provision of services by non-lawyers has expanded.  Washington State, for instance, has authorized some paralegals to assist civil litigants with tasks formerly done by lawyers and their staff members.  Also, new ways of delivering legal services have been developed by companies live LegalZoomRocket Lawyer and Axiom.

In a presentation I hosted recently, former and current Law Society officials spoke about the future for ABS in Ontario.  We were advised that the Law Society has not decided whether or not alternative business structures such as those described above will be permitted in Ontario, but that it is still seeking input respecting their implications.  We were told that these new business structures may be seen as an opportunity for us to provide new services and broaden our client base, and it was posited that if we are proactive we will not only be able to survive but to thrive in an ABS environment.  For that to happen, we were advised, we will have to be more flexible and embrace the opportunities that come with ABS.  One message came through clearly: ignoring these trends will be done at our peril.

You can learn more about alternative business structures from the Law Society of Upper Canada’s discussion paper Alternative Business Structures and the Legal Profession in Ontario and the Canadian Bar Association’s report on the subject: Futures: Transforming the Delivery of Legal Services in Canada.

What’s Sauce for the Goose is not Sauce for the Gosling

WHEN THE IMMIGRATION AND REFUGEE BOARD considered the refugee claim of Jkwon Jaheim Corneille and his mother Jeannette Corneille, Jkwon was only eight years old.  During the hearing his mother maintained that she and Jkwon were persecuted in their native St. Lucia because Jeannette is a lesbian, and thus that she and he should be allowed to remain in Canada where they would be protected from such persecution.  The claim of both mother and son were heard together.

Homosexuality is illegal for males in Saint Lucia.  The island nation is the only UN member in the Americas to formally oppose the UN declaration on sexual orientation and gender identity, and it maintains on the books some antiquated and discriminatory laws respecting same sex relationships.  Still homosexuality is not illegal for females in St. Lucia.

Jkwon’s mother acted as his designated representative at the hearing, as he was a minor who was deemed to be unable to appreciate the nature of the proceedings, but both she and Jkwon testified.  In his testimony Jkwon spoke about the violent victimization of his mother, the gibes and derision he had experienced at school, and the nightmares he had as a result of their treatment.  The Board was also presented with an independent letter describing Jkwon having been beaten at school.

The Board disbelieved Jeannette’s testimony.  Jkwon’s was discounted because of his age.  The value of the letter was determined to be minimal because reference had not been made to it in the written outline of Jeannette’s claim filed when refugee status was first requested.  In the circumstances, the claim was rejected.

In reviewing the Board’s decision, however, Federal Court Justice O’Reilly found that the Board had failed to consider Jkwon’s testimony independently of that of his mother.  While what she had said had been rejected as untrue, the Court stated that that did not mean that Jkwon’s testimony was untrue.  The Court described St. Lucia as an “overtly homophobic country”.  It concluded that despite doubts about his mother’s credibility, Jkwon’s testimony might have supported a conclusion that he could be persecuted if it had been assessed properly, independent of his mother’s.

In the end the refusal of Jkwon’s claim was set aside and another panel of the Board was ordered to reconsider his claim.  The decision reminds us that, where multiple refugee claims are heard together, each claim must be assessed independently.  It also reminds us that, as difficult as it may be for them at the time, it is valuable for minors to testify as to their own experiences at their refugee hearings, and to file as much corroborating documentation as possible.

You can find the decision in the Corneille case here.

You Spin the Wheel

ACCORDING TO  POLICE OFFICERS, motorist Matthew Duncan resisted arrest.  Was a crime actually committed?  Mr. Duncan said “no”, and made his case forcefully, first, to the officers; and then to the Ontario Court of Justice, before which he represented himself.  In the entertaining judgment of Justice Fergus ODonnell in R v. Duncan the issue of guilt or innocence is resolved, after a long journey through what the court referred to as a “hodgepodge of irrelevancies”.

Mr. Duncan’s problems began when, during the early morning hours, he turned his car into the parking lot of his apartment building without first signaling his intention to do so.  Unfortunately for him police officers witnessed the alleged transgression, and requested that Mr. Duncan identify himself.  Thereafter the stories of the officers and Mr. Duncan diverge, with the former maintaining that no identification was provided, that warnings were given, that an arrest was attempted, and that resistance was presented; and with the latter denying the allegations.

The proceedings at court were described by Justice ODonnell in Alice-in-Wonderland terms.  Given that Mr. Duncan raised a host of jurisdictional issues, all of which were found to be meaningless, what could have been a quick trial was not completed at the end of the first day.  The judgment makes clear that this was a waste of everyone’s time, and Justice ODonnell notes with amused frustration what he characterized as the case’s “slight detour through territory that might have confused Lewis Carroll”.

Mercifully, despite Mr. Duncan’s presentation, the Court determined that the charge should be dismissed, not because of the jurisdictional issues that Mr. Duncan had exhaustively presented, but because there was no legal basis for the underlying arrest.  The court found that there was no need to have signalled a turn because of the absence of traffic in the vicinity at the time of the incident and therefore, as there was no basis for the arrest, Mr. Duncan was entitled to resist it.

It seems that, in his verbal perambulations, Mr. Duncan “momentarily hit upon the concept that would ulimately lead to his acquittal”.  In describing the proceedings, the Court referred to the old adage about a room full of monkeys typing on a room full of typewriters from which is eventually produced the great Canadian novel.  Justice ODonnell was careful, however, to explain that Mr. Duncan, who was described as a “rather pleasant young man” was not actually being likened to a monkey.

An experienced criminal lawyer might have negotiated the same or a better resolution to this matter early on, without the need of a trial.  Had one been retained, a lot of time and energy invested in the proceedings could have devoted to more useful pursuits, not only by Mr. Duncan, but also by the Court, court staff and the prosecutor.  In the end, while this case turned out well for Mr. Duncan, it should be noted that he had the prospect of the court proceedings hanging over his head for a protracted period both pending the trial and its resumption on a second day, and that he would appear to have missed at least two days of work to attend it.  Still, most self-represented litigants do not fare so well as he did.

Last spring a report on the subject of the “doing it yourself” was released by Dr. Julie Macfarlane, a lawyer and professor at the University of Windsor’s law school.  It concluded that there were a “range of negative consequences experienced” by the self-represented litigant:

These include depletion of personal funds and savings for other purposes, instability or loss of employment caused by the amount of time required to manage their legal case themselves, social and emotional isolation from friends and family as the case becomes increasingly complex and overwhelming, and a myriad of health issues both physical and emotionally.  The scale and frequency of these individually experienced consequences represent a social problem on a scale that requires recognition and attention.  The costs are as yet unknown.

To these consequences of not retaining counsel might be added another: the absence of legal analysis and context in the presentation of the case can cause the justice of the self-represented litigant’s position to be obscured or missed altogether.  In other words, their case may not be heard.

Self-representation is growing in the courts and before administrative tribunals, to the exasperation of judges and opposing counsel who must try to be fair even though they may be unable to understand the direction, the relevancy or even the nature of the argument being advanced.  Retaining counsel to make one’s argument is rarely inexpensive, but it has the virtue of allowing litigants to effectively participate in the proceeding.  Often a settlement-oriented approach, informed by a knowledge of the relevant law, can not only allow one’s story to be properly heard, but save time and money as well.

Still, despite its problems, self-representation has been actively promoted by Citizenship and Immigration Canada in documentary proceedings, such as those involving skilled worker or sponsorship applications.  Sometimes, as was the case for Mr. Duncan, things may work out in the end.  In other cases they do not, serious injustices are done, and the damages to families and futures becomes permanent.  When you represent yourself, you spin the wheel, and you take your chances.

Visiting Canada

Not as Easy as You May Think

FOUR HUNDRED YEARS AGO Sir Francis Bacon, the Great English philosopher and essayist, wrote that “Friendship increases in visiting friends, but in visiting them seldom”.  While it is true that an occasional visit can go a long way to sustaining a friendship, these days it seems sometimes that, if the Canadian immigration authorities had their way, friends would never visit at all.

Over the years I have had many clients attend at my office complaining that their friends and family have been denied a visa to come to Canada to visit them.  Invariably the Canadian host is hurt at not being able to reciprocate for the hospitality received overseas, and angered that their own government could be so callous and unfeeling.

Recently I heard another one of these stories, this one from a client living abroad who wanted to bring his girlfriend with him to Canada to attend a wedding of friends, to see the country and to experience Canadian culture.  He and his girlfriend together filed the application for a visitor’s visa for the girlfriend.  I received permission to reproduce the tale here.  What follows is a précis of the account provided to me, with names, dates and places changed for privacy reasons:

We amassed all of the documents for the application and were given an appointment at the Canadian Embassy in Pretoria on September 14th. We had purchased return airline tickets (one of the suggested enclosures for the application) as well as a car rental, to and from Pearson Airport, for January 7th to February 8th.

My formal letter of invitation gave my word that my girlfriend would be staying with me at my house in Ontario (I enclosed a 2013 tax bill proving that I HAVE a house), and gave my word that we would be returning to Africa at the end of our stay.

Ten of my long-term friends, including distinguished university professors, lawyers, social workers and cultural workers took time out of their busy schedules to write letters of support, testifying to my honesty and integrity.  They also stated that I have known my girlfriend and her family for over two years and that in June of last year I moved to South Africa, with my dog, to be with her on a more permanent basis.

We travelled to the capital two days ahead of time to be certain we could find the Embassy and arrive in good time for the 8:00 AM appointment. Pretoria is a 12-hour journey, over three sets of mountains, from where we live.  We arrived in good time and only had to wait for two hours outside the visa office.

There were many delays because it turns out that the Visa Office only accepts certified cheques for the visa fee if they are certified by the bank used by the Embassy.  A number of people had to go and get new certification.  Our cheque was also for the wrong amount – ten rand too much – so of course we also had to go and change the amount and get it re-certified by the ONLY acceptable bank, apparently.

Many people also had to get the bar code from the application printed.  It says on the application that you can fill it out by hand if you don’t have a computer, but when it comes to the crunch, you actually HAVE to have the bar code, which can only be generated electronically.  Even the very patient South Africans were a trifle weary and impatient with this ordeal and this misinformation.

Our “interview” was with an unnamed woman who sat behind glass whilst we stood.  It lasted less than five minutes whilst she paged through the application.  She then gave us a slip of paper and told us to come back in a week.  I told her it was a costly 12-hour drive from where we live.  She replied that those were the rules.  I asked her if we came back in a week, would we get a visa.  She said “You will get the answer.”

After much discussion, we decided it was too far and too fatiguing to travel all the way back home, only to return in a week.  Instead, we imposed on the hospitality of friends who lived only four hours from the capital.

When we arrived for our second interview, I was told that my presence in line with my girlfriend would “cause problems” for the other South Africans in line.   I explained that, for the purposes of the application, I was her representative, and that we had submitted the correct forms for this.  No matter, they said, I’d have to wait somewhere else.  I left.

My girlfriend returned to the car some time later to say that our application had been rejected.  The second interview consisted merely of some of her documents being returned with a form letter, rejecting the application.  The form letter from the visa officer (unnamed) said “you have not satisfied me that you would leave Canada at the end of your stay as a temporary resident. In reaching this decision, I considered several factors, including: your current employment situation; and your personal assets and financial status”.

The officer also ticked the box which stated: “I am not satisfied that you have sufficient funds, including income or assets, to carry out your stated purpose in going to Canada or to maintain yourself while in Canada and to affect your departure.”

Clearly these reasons were disingenuous at best, since we submitted official dated and stamped documents proving that my girlfriend has, in fact, two jobs (her family owns and operates a successful and expanding business, my girlfriend manages the business, directs a related operation and also works as a contractor for another company) as well as the equivalent of about CAN$25,000.00 in her current account.

Apparently the return plane tickets, car rental, invitation from me, letters from ten of my friends and her financial records were not enough to satisfy the officer, or else he thought we were all lying to Canadian Officials.  Interestingly, the bank statement was NOT returned with the other documents.  I have written to the Embassy noting its absence and asking for a response.  I also asked for guidelines on how much money would satisfy the visa officer as sufficient to stay at my home for a month.  I have yet to receive a response.

As I have written above, this is just one of many similar stories I have heard, each one a tragic event for the persons concerned.  I have heard them from Canadians seeking to bring in family and friends from a variety of different visa posts but, as visas are not required to travel to Canada from all countries, generally the stories involve visa posts located in or serving refugee-producing or economically-disadvantaged countries.

Why is it so difficult for Canadian government officials to be convinced to issue a visitor’s visa?  Clearly Canadians want to visit with non-Canadians, and our transportation, commercial and tourist sector stands to benefit if visitors are allow to come here.  No doubt in this case the couple marrying in Canada would have been delighted to have guests travel so far to celebrate their nuptials with them.

I believe the answer lies in the Canadian immigration authorities’ deep suspicion that some visitors may not be visitors at all, but may be seeking to come to Canada for unauthorized purposes, such as to work, to take advantage of our health or welfare system, or perhaps to remain here permanently.

While this approach to the issuance of visitor’s visas is an understandable method of protecting Canada’s financial interests and the integrity and viability of its social programs, it is extremely frustrating on the personal level, as my client aptly illustrated above.  Further, it is contrary to a stated purpose of Canadian immigration law, which provides that it is an objective of the Act: “to facilitate the entry of visitors, students and temporary workers for purposes such as trade, commerce, tourism, international understanding and cultural, educational and scientific activities”.

My client and his girlfriend would no doubt have questions about the extent to which their visit to Canada was “facilitated”!

Increasingly the Federal Court is overturning visa office decisions that deny visitor’s visas perversely or without due attention to the materials filed.  However, applying to court is an expensive remedy, and is not always effective, as even if the court agrees that the application was improperly refused, it is generally returned to the visa office to be reconsidered.  From colleagues I have heard tell of reconsidered applications being refused a second time, despite the intervention of the Federal Court.

What can be done in the circumstances?  Anyone who says that they can guarantee that a visitor visa will be issued to you is blowing smoke: there are no guarantees.  However, if time and energy is invested in framing, completing and substantiating the application properly the first time you will stand a much better chance of success.  Remember, each refused application adds a black mark to the record to be considered by the immigration authorities the next time you submit one!

For better or for worse

The Case of Jean Rosalie Morales Laomoc

HERE’S A RIDDLE FOR YOU: when is a marriage not a marriage?  An answer that you may not anticipate is, “when it is assessed by Canada Immigration”.

The reason for this may be found in the law, and in the restrictive and guarded approach to its implementation taken by Immigration Officers whose job it is to remember that, even though a Canadian permanent resident or citizen may sponsor his or her spouse, there are exceptions to that rule.

The fact is that, even though a marriage may be binding legally, morally and in church, Canada Immigration may not be satisfied that it is legitimate for its purposes.  Immigration Officers are required to apply the law, and the Immigration and Refugee Protection Regulations require that a marriage that is to be the subject of a sponsorship must be “genuine” and must not have been “entered into primarily for the purpose of acquiring and status” here.

Many spousal sponsorships have foundered on the rocks of those regulatory provisions.  Jean Rosalie Morales Laomoc, for instance, discovered to her chagrin that love, romance, marriage, five years of cohabitation and a sponsorship application package were not enough for the immigration authorities, even though she tossed in a sheaf of supporting documents for good measure.  Her application for sponsorship was refused.

Recently, upon appeal to the Federal Court, the Immigration Officer’s decision was reversed.  In his decision Mr. Justice Campbell states:

In my opinion, given the volume and apparent relevance of the documentary evidence to the issues under consideration, the Officer was required to carefully consider the evidence and to make findings with respect to its relevance and weight.  I find that the Officer’s apparent failure to perform this requirement renders the decision unreasonable.

So, in the end, in this case at least, the application for sponsorship and landing was sent back to a new immigration officer for reconsideration and hopefully, but not necessarily, for the issuance of a permanent resident visa.

Left unsaid by the Court, however, are all the legal costs and the one-year delay (so far) that the couple has experienced in returning to the starting point of filing the application in the first place.  These might have been avoided if comprehensive legal submissions were filed at the outset, or if Jean and her spouse were better prepared for the immigration interview.

This case reminds us that an ounce of professional legal advice surely is worth a pound of doing it yourself.  Getting the job done right in the first place spares no end of grief.  If you would like to read the case, you can find it here.

Can Rehabilitation Applications be Granted at a Port of Entry?

YOU MAY BE CRIMINALLY INADMISSIBLE to Canada if you were convicted of a crime outside the country.  Sometimes you may be inadmissible even if you were not convicted, if the immigration authorities believe you committed a criminal act outside Canada that also would have been criminal if committed in Canada.

If one is criminally inadmissible to Canada, Canadian immigration law prohibits your admission.  Those who are outside of the country may not enter.  Those who are inside Canada may be removed.  Relief from this inadmissibility may be obtained temporarily by applying for and obtaining a Temporary Resident Permit.  If you wish to be able to live in Canada, relief from inadmissibilty for committing a crime in Canada may be secured by obtaining a pardon.  To permanently overcome inadmissibility for committing a crime outside Canada, you must establish rehabilitation.  To be successful, before applying, you must ensure that you are eligible, and this usually involves the passage of a substantial amount of time.

As stated, the objective of the rehabilitation process is to address and overcome inadmissibility for out-of-Canada offences.  It does not address offences committed in Canada.  If you apply for rehabilitation to overcome inadmissibility for a crime committed outside Canada, and the application is granted, you may be admitted to Canada immediately without the necessity of ever having to establish rehabilitation again, unless you re-offend.

The usual forum for a rehabilitation application is a visa post, usually a Canadian embassy overseas, and the process of considering the application takes months – sometimes many months – to complete.  The advantage of having rehabilitation applications determined at a Port of Entry – an immigration office at at an airport, border crossing or other point of entry to Canada – is that the process may be concluded very quickly, possibly in an hour or so. 

You may file your rehabilitation application at a Port of Entry if:

  • your inadmissibility relates to “criminality”, as opposed to “serious criminality”, as defined in immigration legislation; and
  • you are a national of a country from which no visa is required to enter Canada.

The Port of Entry can also deal with requests to assess whether or not rehabilitation may be deemed under immigration rules.

Whether the rehabilitation is or is not deemed, applications made at a Port of Entry should be clear and straightforward, and should be well-documented.  Officers at Ports of Entry are generally very busy, and are not keen to accept applications for rehabilitation.  In appropriate cases, however, they may be convinced to consider and grant such applications, a fact that we re-confirmed when I filed an application at a nearby Port of Entry recently.

Go Straight Home!

IT’S HARD IN PRISON, but it’s harder if you are not a Canadian citizen.  Jamaican citizen John McLeod, who is incarcerated in a Canadian prison, and who is the subject of a deportation order, has learned that lesson well.

In Canada the inter-relation of provisions of the immigration and correctional law results in the removal from the country of deportable inmates as soon as they get parole.  As they are turned over for deportation as soon as they get out of jail, non-Canadians are denied the possibility of enhancing their rehabilitation through day parole and supervision in the community, something available to their Canadian counterparts.  Is this unequal treatment consistent with our Charter of Rights and Freedoms?

Mr. McLeod felt that it was not.  He asked for parole but was denied it, so he challenged the laws that prevented him from having the benefit of day parole and a gradual release back into the community.  Although the fine contours of his argument were not clearly stated in the court’s judgment, Mr. McLeod seemed to be suggesting that he wanted to have the benefit of day parole and that, if had had that benefit, he might have been in a better position to get full parole later because, by obtaining and then successfully completing day parole, he could have proved he was ready for full parole.

It is certainly the case that a Canadian in Mr. McLeod’s situation would have had a better shot at parole than Mr. McLeod did.  A Canadian could have argued that although he might not yet be ready for full release into the community (full parole), he could at least meet the lower standard necessary to establish he could function at a halfway house under much closer supervision (day parole).  Mr. McLeod did not have that option as, if he had been granted day parole, he would have been immediately deported.  In other words, Mr. McLeod could not achieve his objective of securing release, because he did not have access to all of the tools that Canadians have to realize such an objective.

It should be noted that, as a practical matter, with the law as it is currently constituted, it is highly unlikely that the Parole Board of Canada, knowing that a grant of day parole would trigger Mr. McLeod’s removal from Canada, would grant him day parole.  From the perspective of the members of the Board, it would be illogical to carefully consider his plan, presented at a parole hearing, to be released to a Canadian day parole facility that he would never see, because he would be deported before he got there.  Knowing that an applicant for parole will be deported, the Board is generally only interested in considering a plan for parole for the purposes of deportation where the person before them is subject to a deportation order.  The Board Members only want to know what a person in Mr. McLeod’s situation will do when he gets back to Jamaica, as removal there is the only possible outcome of a grant of parole.

So how did the Federal Court address the issues raised by Mr. McLeod?  First, Mr. Justice Rennie said that he did not believe that there was a factual basis for addressing them at all, because the Parole Board had concluded that Mr. McLeod was not ready for any kind of parole, and therefore he was not denied parole because of the deportation order against him.

As respects the legislation, the Court noted “Parliament has the right to prescribe the conditions under which foreign nationals who are convicted in Canada will be removed from Canada” and continued:

As the applicant has no right to remain in Canada, he has no right to access Canadian society under terms and conditions that are available to Canadian citizens; hence no Charter issue arises from the decision by Parliament to link the removal to the completion of sentence, namely the first date of some form of parole eligibility.

Likewise, Mr. McLeod was not arbitrarily detained, because the loss of a day parole option for him was rationally connected to sentencing objectives within the context of having no right to remain in Canada.  While persons in Mr. McLeod’s position are treated differently than Canadian citizens, the Court noted that “not all distinctions are discriminatory” and Mr. McLeod was not denied day parole because of circumstances beyond his control, but because of the interplay between his choices not to become a citizen and to commit a crime.

As a result, it is now clear non-Canadians can be denied parole options available to Canadians, and there will be no violation of the equality, fundamental justice or arbitrary detention provisions of the Charter.  Once a non-Canadian penitentiary inmate is ordered deported, he will be removed to his country as soon as he gets full parole, which is his only release option.

Still, there was at least one question left unaddressed by the Court that might form the basis for future consideration.  Given that the promotion of international justice is an objective of immigration legislation, can it be said that that objective is achieved by deporting to another country offenders who have not had the opportunity to rehabilitate themselves through day parole and gradual release into the community?

The McLeod decision may be found here.

A Closed Mind?

YVES LEBON, a Canadian man who is incarcerated in the United States, wanted to come home.  Vic Toews, the Minister of Public Safety and Emergency Preparedness, thought that was a bad idea.  Does a recent decision of the Federal Court of Appeal end the long battle between the two men?  What does their saga tell us about the value of Canadian citizenship for Mr. LeBon, who has been seeking for years to return to his home and native land and, by extension, about the value of citizenship for us all?

On August 22, 2007 Mr. Yves LeBon, a Canadian citizen, was stopped for a traffic violation by an Illinois state trooper.  His vehicle was searched and the officer found 119 individual 1KG packages of cocaine inside.  Thereafter Mr. LeBon pleaded guilty to possession with intent to distribute cocaine and improper entry by an alien.  On July 18, 2008 he was sentenced to ten years in jail followed by five years of supervised release.

The Canadian Charter of Rights and Freedoms provides in section six that “Every citizen of Canada has the right to enter, remain in and leave Canada”.  However, if one is in jail south of the border, of course, one cannot freely cross back into Canada except by arrangement pursuant to the terms of international treaties and domestic law.

The International Transfer of Offenders Act (the IOTA) allows Canadians to be returned to Canada to serve their sentence here where for them to do so would meet the objectives of the Act.  These objectives include:

  • contributing to the administration of justice;
  • the rehabilitation of offenders; and
  • the reintegration of offenders into the community.

Also to be considered in determining whether or not there should be a transfer, among other factors, is “whether the offender’s return to Canada would constitute a threat to the security of Canada”.

SHORTLY AFTER BEING SENTENCED, Mr. LeBon petitioned the Minister of Public Safety to be allowed to return to Canada pursuant to the terms of the ITOA.  It is important to note that any offender returned to Canada is not released into the community.  Rather, the transferee is delivered to a penitentiary where he must continue to serve the sentence imposed abroad, subject to the right to apply for parole when he meets the criteria, just as any other federal inmate must.  In making his application to return to Canada Mr. LeBon was not asking to be let free: just to continue his incarceration in Canada, closer to his family.

There were many positive factors supporting Mr. LeBon’s petition, including his admission of guilt, evidence of his rehabilitation, and the existence of strong ties to his family and a very supportive network in Canada.  Still, on August 16, 2010, despite the positive recommendation of the Correctional Service of Canada, the Minister refused to allow the transfer of Mr. LeBon back to Canada.  He reasoned that, as a lot of drugs were involved in Mr. LeBon’s crime, and as the Minister felt Mr. LeBon could have been more co-operative with the American authorities, Mr. LeBon must have been involved in a criminal organization and therefore, the Minister seemed to suggest, might continue his involvement with that organization in Canada and commit another crime here.

The Minister’s decision was taken to the Federal Court for review and there, on August 26, 2011 Mr. Justice Shore found in the Minister’s favour, concluding that the ITOA does not create or recognize a “right” of Canadian offenders to return to Canada.  The Minister prevailed, but his triumph turned out to be only a first-match victory.  The Federal Court (Trial Division)’s decision was overturned by the Federal Court of Appeal, which concluded in April 2012 that the Minister’s decision was unreasonable, as it was not “justified, transparent and intelligible”, primarily because the Minister did not give reasons why he rejected the Correctional Service of Canada’s advice in balancing the factors he was to consider.  The matter was sent back to the Minister to review within 60 days in accordance with the Court’s reasons.  Advantage LeBon.


AS THE FEDERAL COURT OF APPEAL had determined he should, the Minister reconsidered whether or not Mr. LeBon could be allowed to return to Canada.  He looked again at the pros and cons of the case and balanced them, as he was required to do.  On June 22, 2012, after doing so, the Minister refused the transfer again.  Again this decision was taken to the Federal Court for review.  This time Mr. Justice Martineau quashed the Minister’s re-determination decision, indicating that the Minister had showed a “closed mind” to the Court’s previous ruling and that the Minister “only paid lip service to the reasons and directions” of the Federal Court of Appeal, essentially rendering the same decision on the same basis as he had before.

In his decision, Justice Martineau was direct.  He indicated that, again, as was the case the first time around, it was not possible to understand on what rational basis the Minister disagreed with the expert opinions of the Correctional Service of Canada.  The court stated:

A reasonably informed person would have the clear impression that the Minister, in denying the applicant’s transfer request, simply wanted to punish him because he was caught transporting a large quantity of drugs and did not provide the names of his accomplices. This illustrates an intransigency which is symptomatic of a closed mind and leads to the conclusion that a reasonable apprehension of bias existed on the part of the Minister.

The Court continued: “I agree with the applicant that the considerations raised by the Minister are spurious, illogical, speculative and not evidence-based” and concluded that “The inferences made by the Minister are not supported by the evidence on record”, and “I also agree with the applicant that the Minister’s reasoning regarding what he believes to be the applicant’s lack of frankness in the transfer application is a more longwinded version of the Minister’s first decision and falls woefully short of being reasonable”.  Game and set for Mr. LeBon.

The Court quashed the decision of the Minister, but it went further, providing that, because “The Minister has shown a bias and has ignored the clear evidence on record supporting a transfer” the Court should issue a mandatory order requiring the Minister to accept the transfer within 45 days.

The Minister did not concede defeat.  He appealed again to the Federal Court of Appeal, requesting a stay of the obligation to accept the transfer, which request was granted.  He challenged the Federal Court’s jurisdiction to have made a mandatory order, rather than returning the matter to him to consider the transfer request a third time.

He was not successful.  The Federal Court of Appeal upheld the lower court, with the exceptions only that now the Minister was required to comply with its judgment “forthwith”, “to do everything in his power to affect the transfer of the applicant to a correctional facility in Canada”, and to pay costs fixed in the amount of just under $9,000.00.  Game, set and match for Mr. LeBon.

It is difficult to know whether the Minister will move on, as there is still an appeal to the Supreme Court of Canada available.  Assuming that, as on the last occasion, the Minister does not file an appeal to that forum, perhaps Mr. LeBon will return to Canada soon. His is a Pyrrhic victory however, as the battle to return to Canada has continued over five years at what must certainly have been great emotional and financial cost.  On the other side, although he was successful in preventing Mr. LeBon’s return to Canada for five years, the Minister is not unbruised.  It cannot have been pleasant to have been described as “closed minded” in open court, in the published decision and in the press, nor to know that, in the end, Mr. LeBon prevailed.

One hopes that in future, when a decision is made as to whether a Canadian is to be transferred home, the facts will be carefully reviewed and objectively considered, and the decision will be clear and well-reasoned.   That would be a victory not only for fairness, but also for the rule of law as no man, not even a Minister of the Crown, is above the law.

The LeBon decisions may be found here: