Would I Li to you?

by Les Morley|June 22, 2010| Deportation,
Perhaps in your case you would be glad if I did Li to you. The Federal Court case of Li v. Canada (Citizenship and Immigration) 2009 FC 992 reminds us that it is an error for the decision-maker in a deportation proceeding to consider the principle of general deterrence. In other words, when the immigration authorities are determining whether or not their discretion should be exercised to allow you to remain in Canada, they should not be trying to make an example of you to send a message to the community, or trying to compensate for what is perceived to be an inadequate criminal penalty.
The Court in Li cited the decision of the the Immigration Appeal Division of the Immigration and Refugee Board in Khosa v. Canada (Citizenship and Immigration) [2004] I.A.D.D. No. 1268 (QL) as follows:

Counsel for the appellant made lengthy submissions contending that it is not the function of the Division to mete out further punishment to this appellant for his offence. Counsel is entirely correct that it would be inappropriate for the panel to take that role upon itself. The criminal justice system has spoken with respect to the appellant’s guilt and handed down a sentence consistent with principles of sentencing in Canada. The role of the Division is distinct and separate from the criminal courts.

Nonetheless, the panel dismissed the appeal. The case worked its way up to the Supreme Court of Canada, and was decided on March 6, 2009 as Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. Although the refusal of the Board to allow Mr. Khosa to remain in Canada was upheld by the Supreme Court, an important and helpful principle was confirmed. Justice Binnie, writing for the majority, stated:

The IAD has a mandate different from that of the criminal courts. Khosa did not testify at his criminal trial, but he did before the IAD. The issue before the IAD was not the potential for rehabilitation for purposes of sentencing, but rather whether the prospects for rehabilitation were such that, alone or in combination with other factors, they warranted special relief from a valid removal order. [emphasis added]

Therefore the starting point for prevailing in the face of deportation proceedings continues to be the Ribic factors, so called because they were first enunciated in the case of Ribic v. Canada (Minister of Employment and Immigration), [1985] I.A.B.D. No. 4 (QL). I will be addressing these factors in more detail in future posts.

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