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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.

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.

Abandonment Issues

THE GRANT OF REFUGEE STATUS protects its subject from being returned to a country in which persecution might be experienced.  In many cases, the determination of whether or not status should be granted can be a matter of life and death.  As Canada’s Minister of Citizenship and Immigration has implicitly acknowledged in justifying his reform of refugee procedures, it is important that the process of granting refugee status generate accurate results so that genuine refugees will be protected.

Over the years many natives of Sri Lanka have claimed refugee status in Canada, as that country has been engaged in a brutal decades-long civil war that has generally pitted the majority Sinhalese community against the minority Tamil community, and vice versa.  Thousands have been killed in the fighting, and there have been many atrocities and much torture.

Thadchanamoorthy Mayilvahanam is a Sri Lankan of Tamil ethnicity.  He came to Canada and made a refugee claim in 2010, and his case was scheduled to be heard in the fall of 2011.  Unfortunately, the Board was unable to hear Mr. Mayilvahanam’s case on the date it had set for the hearing, and so it was rescheduled.  Ultimately the lawyer for Mr. Mayilvahanam was unavailable on the date set and so, once again, the hearing had to be rescheduled.  On the third date, Mr. Mayilvahanam’s counsel had a scheduling conflict.  He chose to address this problem by sending his client to the hearing to request an adjournment. 

As requested by his lawyer, Mr. Mayilvahanam attended at the premises of the Immigration and Refugee Board and made the request for another adjournment of the hearing.  The Board, however, was unreceptive.  During an exchange about what should be done about the problem, Mr. Mayilvahanam stated and then confirmed that he could not proceed on his own, without his lawyer.  Having warned him that it might do so, the Board then deemed the claim abandoned, as the case had been ongoing for 18 months.  Mr. Mayilvahanam had lost his case before it was even heard.

To Mr. Mayilvahanam this did not seem fair, and so he asked the Federal Court (Trial Division) to have a look at the decision of the Board.  In rendering his decision, Mr. Justice Phelan reviewed the law, indicating that “the test for abandonment is showing that an applicant has no interest in proceeding with his claim” and that “The evidence here is that the Applicant wished to proceed but was left on his own by counsel.”  He continued: “The Member did not take into account all the relevant facts but merely focused on the length of time that the application had been in the IRB system”, and concluded “The IRB’s decision was unfair and unreasonable, narrow in its reasoning and devoid of fairness. The only abandonment was by counsel.”

As a result of the Court’s ruling, Mr. Mayilvahanam got the opportunity to have his case re-instated so that it could be heard properly, presumably with different counsel.  He was fortunate in this, as many, many cases are deemed abandoned every year without review by the Federal Court, often with tragic results.  Don’t let it happen to you!

To read this case, the citation for which is Mayilvahanam v. Canada (Citizenship and Immigration), 2013 FC 136 (2013), click here.

Don’t Let Me Be Misunderstood

YUE LI ZHOA wanted to live in Canada, and so she applied for permanent residency as a Federal Skilled Worker.  She filed evidence that she was qualified to do so under the category of “Financial Manager”.  Her application was refused by Citizenship and Immigration Canada, however, because she failed to include with it an adequate chronological work history, and because experience unrelated to the position of Financial Manager was presented as being related to that position.

Ms. Zhoa admitted that she made a mistake, but felt that dismissal of the application altogether was inappropriate, so she asked the Federal Court to have a look at her case.  Mr. Justice Shore refused her application, in his words: “due to inherently apparent significant credibility concerns and a lack of evidence to support the Applicant’s eligibility for the position of Financial Manager”.  He cited the law to the effect that the onus was on Ms. Zhoa to establish that she met the criteria of the Federal Skilled Worker Class, and stated that the Visa Officer that refused her application had “no duty to question subsequently when an application is ambiguous and appears, on the face of the record itself, to miss adequate supporting documents”.

The Court noted that Ms. Zhoa had a duty, however, and that she failed to discharge it.  The Canadian immigration authorities rely on full and accurate disclosure by applicants like Ms. Zhoa, Justice Shore stated, “to ensure that their respective decisions reflect the health, family, security, social, economic and cultural fabric which Canada has set for itself through objectives as set out in legislative provisions”.  He concluded that Ms. Zhoa failed to maintain “the duty of candour” which is “of paramount essence” to the administration of those provisions, and dismissed her application.

Clearly Ms. Zhoa should have ensured that the materials she filed with her application were complete and accurate.  She should have been absolutely straight with the immigration authorities, and ensured there were no ambiguities in her application and accompanying documentary presentation to them.  Perhaps the 1960s rock group The Animals expressed it best when they sang:  “I’m just a soul whose intentions are good; oh Lord, please don’t let me be misunderstood”.  Unfortunately for her, that is a tune that may be haunting Ms. Zhoa for some time to come.

To read this case, the citation for which is Yue Li Zhao v. Canada (Minister of Citizenship and Immigration) 2012 FC 1421, click here.

Criminality and Refugee Claims

FEW WILL DENY that it is generally best to avoid criminal trouble.  Engaging in criminality risks not only a loss of liberty, but also the possibility that in future doors of opportunity will be closed, possibly for good.  A criminal breach of trust, for instance, may effectively put an end to the pursuit of some careers.  If convicted of domestic violence, one may lose custody of or even access to one’s children.    If one is convicted of impaired driving, there will be a driver’s license suspension, with a possible loss of employment, if the job requires a license.

Most of us can agree that we are responsible for our wilful actions, and that some adverse consequences of criminal behaviour are usually appropriate.  However, we may differ respecting how long the consequences should be borne, and the extent to which they should compromise an offender’s future.  These are more difficult questions.  What if the offender, for instance, was convicted of violent crimes: should he be forever denied protection from persecution because of these convictions?  That is the issue that was raised in the case of Mr.Luis Alberto Hernandez Febles.

Mr. Hernandez Febles left his native Cuba in 1980, and settled in the United States.  There he was twice convicted of the crime of assault with a deadly weapon.  Alcohol abuse was a key factor in his offending.  After 1993, however, he committed no further offences and steadfastly maintained sobriety.  His remorsefulness was acknowledged.  Still, because he had been convicted of the assaults he eventually lost his immigration status in the United States, and was required to leave.  He came to Canada.

Here he applied for refugee status based on the persecution he had experienced in Cuba, which had been accepted as fact in the United States.  He disclosed that he was convicted of crimes in the United States.  He was found to be ineligible to make a refugee claim in Canada because of his crimes.  Here is the question that Canadian justice had to answer: in determining whether or not Mr. Hernandez Febles should be given refugee protection, should it have been considered that 15 offence-free years had passed, whether or not he was currently a danger to the public, or whether he had been rehabilitated?

Mr. Justice Evans of the Federal Court of Appeal found that such considerations were irrelevant.  The tests for ineligibility and exclusion are simply not the same”, he wrote, and “The scheme of [the Immigration and Refugee Protection Act] suggests to me that when Parliament intends to make rehabilitation relevant, it says so expressly.”  The Court specifically rejected the notion that remorsefulness may be considered in determining whether exclusion from refugee protection is justified, even though there is provision for the possibility that this could happen in the handbook of the United Nations High Commission for Refugees.

The consequences of criminal convictions may be devastating in their scope and, it seems, can last a very, very long time.  Indeed, they may last forever.  Sometimes turning over a new leaf is simply not enough.

To read this case, the citation for which is Luis Alberto Hernandez Febles v. Canada (Minister of Citizenship and Immigration) 2012 FCA 324, click here

Same-Sex Spousal Sponsorships

IN CANADA one can sponsor one’s same-sex partner to become a permanent resident.  Of course, in many parts of the world it is not possible to marry a same-sex partner, or even for partners to live together openly, and so marriage or common-law union cannot be the foundation for such a sponsorship.  Instead, the sponsorship often proceeds upon the basis that the parties are conjugal partners.  Before immigration status can be conferred in such a case, however, it must be established that the relationship of the sponsor and the applicant meets the definition of conjugal partnership, and that’s where Alain Morel and Rui Guo come in.

When their case was before the Federal Court of Canada, Mr. Morel was a 59-year-old Canadian man and Mr. Guo a 27-year-old citizen of the People’s Republic of China, and they had been in a relationship for about six years.  However when their same-sex, conjugal-partner sponsorship application was filed,  the two men had known each other for only about two years, and they had only been  physically together during one visit of ten days duration.  Still, they had been in daily communication with each other by phone or other means, their relationship was exclusive, and Mr. Morel had sent Mr. Guo money and made him the beneficiary of his will.   During the next four years the relationship continued and deepened, but it is important to note that the question before the visa officer, then before the Immigration and Refugee Board that heard the appeal of the visa officer’s decision, and then before the Federal Court judge that judicially reviewed the Board’s decision, was whether the relationship met the conjugal-partner standard at the time the sponsorship application was filed.
According to the Supreme Court of Canada, as it expressed itself in the case of M. v. H. [1999] 2 SCR 3, the generally accepted characteristics of a conjugal relationship are:
  • SHARED SHELTER: whether the partners live together in the same home as a couple;
  • SEXUAL AND PERSONAL BEHAVIOUR: whether the partners’ relationship is exclusive, committed, and evidenced by emotional, intellectual, and physical interaction;
  • SERVICES: whether household and other family-type responsibilities are shared, and whether there is evidence of mutual assistance, especially in time of need;
  • SOCIAL ACTIVITIES: whether the partners share time together or participate in leisure activities together, and whether they have relationships or interaction with each other’s respective families;
  • ECONOMIC SUPPORT: whether the partners are financially interdependent or dependent, and whether they have, to some extent, joined their financial affairs or arranged them to reflect their ongoing relationship;
  • CHILDREN: the partners’ attitude and conduct towards children; and
  • SOCIETAL PERCEPTION OF THE COUPLE: whether the partners are treated or perceived by the community as a couple.
The Visa Officer refused the application because: (1) she was not satisfied that a conjugal relationship existed between the two men because their relationship was not marriage-like; and (2) their relationship was entered into primarily for the purpose of acquiring status or privilege under immigration law.  The spousal sponsorship  application therefore failed, the sponsorship was refused, the application fee was lost, and Mr. Guo remained in China.
Upon the appeal of Mr. Morel, the Immigration Appeal Division of the Immigration and Refugee Board reversed that decision, however, because the panel concluded that Mr. Morel and Mr. Guo had the characteristics of conjugal partners, because they were in daily contact, gave spontaneous and direct testimony, filed extensive supporting documentation, and established that their relationship was exclusive and somewhat financially interdependent.  The implication of such a reversal is usually that the sponsorship refusal is set aside, there is a finding registered that the relationship meets the definition of conjugal partnership, and then the application is returned to the visa post overseas for final processing.  At this point, it looked like Mr. Morel and Mr. Guo might be together in Canada a few months hence.
However, the Minister of Citizenship and Immigration was not content with the Board’s decision and asked the Federal Court of Canada to review it.  Mr. Justice Lemieux did so, determining:
  • email and telephone exchanges, a money transfer and a ten-day period of cohabitation were not enough to establish a conjugal relationship;
  • it was wrong to conclude that Mr. Morel and Mr. Guo shared a life together through a computer;
  • it was not the intention of Mr. Morel alone that was important, but rather the intention of both men; and
  • the panel had neglected to consider some of the observations of the Visa Officer.

The court allowed the application for judicial review, set aside the decision of the Immigration and Refugee Board, and sent it back to the Board to be redetermined by a different panel.  The long journey of Mr. Morel and Mr. Guo, who had hoped to be living together in Canada years before, was to continue.

What lesson can we learn from this case?  Hindsight, as they say, is very clear.  In retrospect, Mr. Morel and Mr. Guo might have waited to develop more evidence that their relationship was marriage-like before filing the sponsorship application or, in the alternative, invested more heavily in establishing a physical connection.  This might have happened had Mr. Morel traveled to China more than once before the application was filed, or had Mr. Guo come to Canada as a visitor, or at least tried to do so.  To avoid the sorts of complications they experienced, it is always desirable to carefully assess the prospects for success before filing, to fully document the relationship sought to be established,  to file comprehensive written submissions, and to thoroughly prepare for the visa office interview.  If you do the work up front, you may avoid a lot of additional work and expense later.

To read the full case, the citation for which is Canada (Minister of Citizenship and Immigration) v. Morel 2012 FC 1404, click here.

Schizophrenia and Deportation

CLEARLY, SCHIZOPHRENIA IS A SERIOUS MENTAL ILLNESS.  What has not been so clear is what that fact should mean for those who suffer from it and are facing deportation at an immigration hearing.  The rules respecting immigration boards in Canada require that a special “designated representative” be appointed to represent a person who is “unable, in the opinion of the applicable division [of the Board], to appreciate the nature of the proceedings”.  The idea is that such a designated representative can assist the person concerned by retaining a lawyer for him or her, if necessary, and by instructing the lawyer.

The question before the Federal Court of Appeal in Hillary was whether the mere fact that a tribunal knows someone appearing before it suffers from schizophrenia means the tribunal has to appoint a designated representative to assist that person when that person already has a lawyer.  That may sound like a complicated and rather particular question, but the fact is that the issue comes up quite regularly before the Immigration and Refugee Board, because so many of those with serious mental illnesses drift to the margins of society, fail to take out Canadian citizenship, and become substance abusers and petty criminals, or worse.

Wayne Anthony Hillary was just such a person.  He came to Canada from Jamaica when he was 13 years old and, upon arrival, was conferred permanent resident status.   In the nearly 30 years since then he was diagnosed with schizophrenia, developed a crack cocaine addiction, became HIV positive and accumulated a series of convictions.  There were some procedural twists and turns after that which are, for the purposes of our story, irrelevant.  Suffice it to say Mr. Hillary was ordered deported and had an appeal hearing at which he testified, with the assistance of a lawyer.  While the panel hearing the case knew he was schizophrenic, at risk and needed supervision, no request for a designated representative to assist him at the hearing was made by Mr. Hillary or his lawyer.  In order to protect the fairness of the process was the Board obligated to make inquiries as to whether a designated representative should be appointed to assist him?

According to the Federal Court of Appeal the answer to this question is “no”.  The Federal Court of Appeal concluded that there could be circumstances in which a tribunal was under “a duty to form an opinion about a person’s level of comprehension”, but it could only be required to intervene if, given the “entire context”, not to appoint one would be unreasonable.  Removal order appeals, which are sometimes known as deportation appeals, are “adversarial”, the Court stated, and it concluded that it was not the tribunal that was obliged to raise the issue of a designated representative, but Mr. Hillary’s own counsel.  “This Court”, it said, “is in no position to second guess counsel’s strategy”.

As a consequence, Mr. Hillary was out of luck.  As his counsel before the tribunal did not raise the issue of the need for a designated representative, and the tribunal itself was not obliged to do so, Mr. Hillary had a fair hearing, in the view of the Federal Court of Appeal.  His deportation order remained active and in effect, and he was not entitled to another hearing to challenge his removal.  He was subject to removal to Jamaica; separation from those of his family, mental health supports and friends as were unable to join him there; and a ban from returning to Canada.

I myself have represented many people before the Board in just these circumstances, people who are mentally ill and fighting a battle to remain in Canada.  While my clients have had substantial success, including once again just this month, there is no doubting that these cases can be difficult, and that having experience in one’s corner to deal with the multitude of procedural and substantive issues to which they give rise is an asset.  If you or someone you care about is in this situation, it is important that you get some help.

To read the full case, the citation for which is Hillary v. Canada (Minister of Citizenship and Immigration) 2011 FCA 51, click here.

The Art of the Advocate

AMERICAN KEVIN STORDOCK DISCOVERED, to his chagrin, that the materials he provided in support of his immigration application were insufficient to make the case that he should be allowed to remain with his family in Canada.  There was simply not enough evidence to support his request for the extension of his temporary resident permit, and so it was refused.  As a consequence, he is separated from his spouse and daughter.

The definition of “evidence”, according to, is:

  1. that which tends to prove or disprove something; ground for belief; proof.
  2. something that makes plain or clear; an indication or sign: His flushed look was visible evidence of his fever.
  3. Law. data presented to a court or jury in proof of the facts in issue and which may include the testimony of witnesses, records, documents, or objects.

Evidence is what lawyers work with every day.  We identify it, accumulate it, assist to generate it, analyze it, and connect it to legal principles.

As lawyers, we know that, as Thoreau said, “Some circumstantial evidence is very strong, as when you find a trout in the milk”, but that other circumstantial evidence tends to undermine the point we are making, or to be irrelevant to it altogether.  We know that evidence from some sources is more credible than evidence from other sources, that critical evidence is strengthened when it is corroborated, and that there must be at least enough evidence tendered to satisfy the burden of proof or the case will fail.

The failure of Mr. Stordock’s application is an illustration of these principles.  The story begins when he married a Canadian and fathered a child with her.  As he had a criminal record in the United States, he was inadmissible to Canada, and was only granted permission to enter after applying for a Temporary Resident Permit, which excused his inadmissibility, for the purpose of visiting his family for only one week.  However, once in Canada, Mr. Stordock determined he would not leave, but would apply to extend his Permit.  His application to remain here was refused by the immigration authorities.

Upon a request for the Federal Court to review the refusal, Mr. Stordock alleged that the decision-maker did not consider the evidence he had tendered nor the best interests of his child.  Mr. Justice Hughes disagreed.  He noted that “Temporary Resident Permits are highly discretionary permits”, and that “An Applicant is required to demonstrate “compelling reasons” why such a Permit should be granted”.

Key to the Court’s decision was the “scant information provided by the Applicant”, which it was clear did not meet the “compelling reasons” standard.  As respects the needs of Mr. Storlock’s daughter, Mr. Justice Hughes stated that “Even if the Officer were obliged to consider the best interests of the child, there is nothing in the record that could reasonably enable the Officer to do so.”  In other words, the evidence before the decision-maker was inadequate to make the case.

In my view, nineteenth-century British novelist George Eliot was right when she said “Blessed in the man who, having nothing to say, abstains from giving wordy evidence of the fact”.  Nothing could be clearer than the fact that too many of us, particularly we lawyers, say too much too often.  However bothersome this may be, Mr. Storlock’s case reminds us that it is clear that we must be sure to say enough to satisfy the onus of proof.  Knowing when we have done so is the art of the advocate.

Be Careful Returning to Canada

IF YOU LIKE to cross into the United States for dinner and a few drinks, be careful driving home.

A recent case decided in the Ontario Court of Appeal confirms that Border Service Officers have the authority to gather evidence of the insobriety of drivers making a border crossing.  In the case of R. v. Brode, border crosser Kevin Brode admitted to the Officer examining him upon re-entry to Canada that he had a few drinks.  He was asked to turn off the engine of his car and to hand over the keys.  His movements in leaving the vehicle were assessed and, based on the observations of Border Officers, he was arrested for impaired driving and turned over to the police, who administered breath tests.  According to the Ontario Court of Appeal, the Officers, who are not of course police officers, had the right to do what they did, and Mr. Brode’s conviction was upheld.