Friday, May 30, 2008


Here is a recent case release Dy the Ontario Court of Appeal. A foreigner who was deported from Canada after being convicted of several offences under a false name, was inexplicably allowed to return from Jamaica, granted residency, and even citizenship, after authorities failed to realize that he was inadmissible to Canada due to his prior deportation and criminality. The prosecutors also failed to prove the case against him after cargoes were laid for returning without authorization.....what a comedy of errors! The end result: we end up as a society with a foreign criminal who is being rewarded by lying in his application for residency and even granted citizenship! And who said that crime does not pay?

Her Majesty the Queen v. Williams
[Indexed as: R. v. Williams]

89 O.R. (3d) 241

Court of Appeal for Ontario,

Rosenberg, Lang and Rouleau JJ.A.

March 11, 2008

Immigration -- Offences --- Appellant convicted under s. 55(1) of Immigration Act of returning to Canada without written consent of Minister after being deported -- Appeal from conviction allowed -- Lack of ministerial consent constituting element of offence -- Burden on Crown to prove that appellant did not have Minister's consent to return to Canada -- Trial judge erring in placing evidentiary burden on appellant to adduce some evidence of lack of written consent -- Crown failing to adduce sufficient evidence to make out that element of offence -- Appellant's false statements on his Immigrant Visa and Record of Landing that he had never been convicted of offence or required to leave Canada not constituting sufficient basis for conviction -- Immigration Act, R.S.C. 1985, c. I-2, s. 55(1).

The appellant was charged with returning to Canada without the written consent of the Minister after being deported, contrary to s. 55(1) of the Immigration Act. He admitted that he was convicted of criminal offences after being admitted to Canada under a false name, that he was deported under that name, and that he returned to Canada as a permanent resident under his real name. He testified that before returning, he told a woman at the Canadian High Commission in Jamaica that he had been deported, and that she gave him a piece of paper allowing him to come back. He no longer had that document. On the appellant's Immigrant Visa and Record of Landing, the word "no" was typed beside the question "Have you ever been convicted of a crime or an offence, refused admission to Canada, required to leave Canada?" The trial judge rejected the appellant's evidence that he had received permission to return to Canada. While acknowledging that the burden is always on the Crown to prove allegations beyond a reasonable doubt, the trial judge stated, "There comes a time, however, when the burden of adducing evidence compels the production of an excuse, proviso or other reasonable description when it is alleged that a certain individual did a thing without the requisite permission." The appellant was convicted. He appealed.

Held, the appeal should be allowed.

Lack of written consent of the Minister is an element of the offence under s. 55(1) of the Act. Accordingly, the Crown has the burden of proving beyond a reasonable doubt that the accused did not have the Minister's consent. There is neither a persuasive burden nor an evidentiary burden on the accused. The common law principle that in certain circumstances an accused has the burden of providing, or at least the evidentiary burden of leading some evidence, that he has a status in law that would permit him to do an otherwise permitted act, had no application in this case. Nor did s. 794(2) of the Criminal Code, R.S.C. 1985, c. C-46, which puts the burden of proof for an "exception, exemption, proviso, excuse or qualification" on the accused. Section 794(2) applies in narrow circumstances, usually regulatory offences, where a status in law has been conferred upon the accused who otherwise would be culpable. The written consent of the Minister does not fit comfortably within the concept of "a status in law [that] has been conferred upon the accused who otherwise would be culpable". Written consent does not confer any status on a former deportee. Nor would it be accurate to characterize the s. 55(1) offence as a regulatory offence. The section creates a criminal offence. The trial judge erred in placing an evidentiary burden on the appellant to [page242] adduce some evidence of lack of written consent. The Crown did not prove lack of Ministerial consent beyond a reasonable doubt. At the conclusion of the Crown's case, the only possible circumstantial evidence of lack of written consent was the falsehood contained in the appellant's Immigrant Visa and Record of Landing. That falsehood was not a sufficient basis for a conviction.

Cases referred to

R. v. Fisher (1994), 17 O.R. (3d) 295, [1994] O.J. No. 358, 111 D.L.R. (4th) 415, 69 O.A.C. 286, 88 C.C.C. (3d) 103, 28 C.R. (4th) 63, 20 C.R.R. (2d) 275, 22 W.C.B. (2d) 552 (C.A.); R. v. H. (P.), [2000] O.J. No. 306, 129 O.A.C. 299, 143 C.C.C. (3d) 223, 71 C.R.R. (2d) 189, 49 M.V.R. (3d) 265, 45 W.C.B. (2d) 251 (C.A.); R. v. Lee's Poultry Ltd., [1985] O.J. No. 4, 7 O.A.C. 100, 17 C.C.C. (3d) 539, 43 C.R. (3d) 289, 12 C.R.R. 125, 13 W.C.B. 296 (C.A.); R. v. Zeplin, [1998] N.J. No. 204, 165 Nfld. & P.E.I.R. 306, 55 C.R.R. (2d) 314, 39 W.C.B. (2d) 254 (C.A.), consd

R. v. Edwards, [1975] Q.B. 27, [1974] 2 All E.R. 1085, [1974] 3 W.L.R. 285, 59 Cr. App. Rep. 213 (C.A.); R. v. Singh, [1981] M.J. No. 381, 63 C.C.C. (2d) 156, [1981] 6 W.W.R. 445, 12 Man. R. (2d) 319 (Co. Ct.), not folld

Other cases referred to

R. v. Davison, DeRosie and MacArthur (1974), 6 O.R. (2d) 103, [1974] O.J. No. 2146, 20 C.C.C. (2d) 424 (C.A.); R. v. Greenwood (1991), 5 O.R. (3d) 71, [1991] O.J. No. 1616, 51 O.A.C. 133, 67 C.C.C. (3d) 435, 8 C.R. (4th) 235, 14 W.C.B. (2d) 135 (C.A.); R. v. Hunt, [1987] A.C. 352, [1987] 1 All E.R. 1, [1986] 3 W.L.R. 1115, 84 Cr. App. Rep. 163, [1987] Crim. L.R. 263 (H.L.); R. v. Suraleigh, [2005] O.J. No. 807, 2005 ONCJ 62, 44 Imm. L.R. (3d) 160, 64 W.C.B. (2d) 141 (C.J.); R. v. Witter (1996), 27 O.R. (3d) 579, [1996] O.J. No. 358, 89 O.A.C. 1, 105 C.C.C. (3d) 44, 46 C.R. (4th) 214, 30 W.C.B. (2d) 13 (C.A.)

Statutes referred to

Canada Evidence Act, R.S.C. 1985, c. C-5

Canadian Charter of Rights and Freedoms, s. 11(d)

Citizenship Act, R.S.C. 1985, c. C-29

Criminal Code, R.S.C. 1985, c. C-46, ss. 121 [as am.], 335 [as am.], 601 [as am.], 683 [as am.], 794(2) [previously 730(2)]

Immigration Act, R.S.C. 1985, c. I-2, ss. 55(1) [rep.], 57(1)

Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 52(1), 125

Provincial Offences Act, R.S.O. 1980, c. 400, s. 48(3)

Authorities referred to

Hill, S.C. et al., McWilliams Canadian Criminal Evidence, 4th ed., looseleaf (Aurora, Ont.: Canada Law Book, 2007)

APPEAL from the conviction and sentence for illegal entry into Canada imposed by Takach J. of the Ontario Court of Justice, dated March 6, 2007.


The judgment of the court was delivered by

[1] ROSENBERG J.A.: -- This appeal concerns the allocation of the burden of proof on a prosecution under s. 55(1) of the [page243] Immigration Act, R.S.C. 1985, c. I-2. That provision made it an offence for a person who had been deported to return to Canada "without the written consent of the Minister", unless an appeal from the deportation order has been allowed. The appellant submits that the burden was on the Crown to prove that he did not have the written consent of the Minister and since it failed to do so, he should have been acquitted. In the alternative, the appellant appeals against the sentence of seven months imprisonment.

[2] That provision is now repealed and replaced by s. 52(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, which is similar but not identical to s. 55(1).1 This appeal is somewhat complicated by the fact that the information charged the appellant with the offence under s. 52(1), even though the parties agree that if any offence was committed it was under the Immigration Act when the appellant admittedly returned to Canada in 1996. However, the appellant concedes that he was not prejudiced by the error and that if this court is of the view that he was properly convicted the information should be amended in accordance with ss. 683(1)(g) and 601(3) (a) of the Criminal Code, R.S.C. 1985, c. C-46.

[3] In my view, the burden was on the Crown to prove that the appellant did not have the Minister's consent to return to Canada. I am also satisfied that the Crown failed to adduce sufficient evidence to make out that element of the offence and, accordingly, the conviction was unreasonable.

[4] Accordingly, I would allow the appeal, set aside the conviction and enter an acquittal. In light of that disposition, I need not deal with the question whether this would be an appropriate case to amend the information as requested by the Crown.

The Facts

[5] The appellant was tried on two offences. In addition to the illegal entry charge that is the subject of this appeal, the appellant was charged with an offence contrary to the Citizenship Act, R.S.C. 1985, c. C-29.

[6] The evidence led by the prosecution was as follows. Someone using the name of "John Haughton" received landed status in Canada in 1986. Using that name, the appellant was convicted of [page244] several criminal offences and was deported on July 6, 1995, as a result of "criminality".

[7] On April 21, 1996, the appellant received landed status in Canada using his true name, Andrew Maurice Williams. He became a Canadian citizen on September 22, 2004. The appellant established through cross-examination of the only Crown witness, a member of the R.C.M.P. immigration and passport section, that records relating to the appellant in the Canadian High Commission in Jamaica had been destroyed.

[8] The Crown filed a number of documents pursuant to the Canada Evidence Act, R.S.C. 1985, c. C-5. Among the documents listed in the notice of intention to introduce records under the Act is listed "Certificate -- No Consent to Return". However, Crown counsel did not attempt to file that document. He did, however, file one document that is of interest to the ground of appeal raised in this case: a copy of a "Immigrant Visa and Record of Landing". It appears that most of this document was prepared in Kingston, Jamaica. The word "no" is typed beside the question: "Have you ever been convicted of a crime or an offence, refused admission to Canada, required to leave Canada?"

[9] At the conclusion of the Crown's case, the trial judge dismissed an application for a directed verdict on the illegal entry charge but allowed the application in respect of the Citizenship Act charge.

[10] The appellant testified that he first came to Canada in 1992 using John Haughton's papers. He admitted that the criminal record under Haughton's name contains convictions for offences for which he had been convicted in 1994. He also admitted that he was deported under the name of Haughton on July 6, 1995. Using his real name, he returned to Canada on April 21, 1996, having been sponsored by his wife.

[11] The appellant testified that before returning in 1996, he dealt with a woman at the Canadian High Commission in Jamaica. He told the woman that he had already been to Canada illegally and was deported, and filled out some papers that showed he had been in Canada under a different name. The woman then gave him the visa and a piece of paper "that permit me to come back". The appellant said that these documents were in his apartment in Stoney Creek but he had not been able to get them since he had been in custody for two years.

[12] On cross-examination, the appellant was asked about the word "no" typed beside the question: "Have you ever been convicted of a crime or an offence, refused admission to Canada, required to leave Canada?" in the Immigrant Visa and Record of Landing. The appellant claimed not to be able to make out the [page245] word "no". During cross-examination Crown counsel also produced to the appellant his application for Canadian citizenship. In answer to a series of questions, including the question whether he had ever been under a deportation order, the appellant had checked the box: "Do not apply to me." The appellant was not asked for an explanation for this falsehood.

[13] Finally, the appellant was asked what efforts he had made to retrieve the document giving him permission to return to Canada. He testified that he was living alone when he was arrested and there was nobody to contact to get his document. He said everything in the apartment was lost.

The Trial Judge's Reasons

[14] The trial judge began his reasons by stating that there was "no evidence given that an officer allowed [the appellant] to return to Canada as proof of the fact stated". After reviewing the evidence, the trial judge rejected the appellant's testimony that he had received permission to return to Canada. He took into account that the appellant had made no effort to get the document he claimed to have received in Jamaica and that he lied in the Immigrant Visa and Record of Landing and lied in the citizenship application. The trial judge stated that he believed the appellant "neither sought, nor was given permission by any official to return to this country". The trial judge stated that the Crown had proved the case beyond a reasonable doubt.

[15] Then, the trial judge turned to the appellant's argument that the burden was on the Crown to prove that he did not have permission to return to Canada. The trial judge rejected that position in these terms:

· However, there need not be any legislative provision in order for the Crown to make out its case. The burden is always on the Crown to prove the allegations beyond a reasonable doubt.

· There comes a time, however, when the burden of adducing evidence compels the production of an excuse, proviso, or other reasonable description when it is alleged that a certain individual did a thing without the requisite permission.

· In my view, as I have noted, the Crown has proven its case; and I find the accused guilty as charged.

The Nature of the Appeal

[16] Counsel for the appellant submits that "without the written consent of the Minister" is an element of the offence. Section 55(1) of the Immigration Act did not expressly shift the burden of proof of that element to the accused and, consistent with [page246] Canadian Charter of Rights and Freedoms values, it should not be interpreted as doing so. She also points out that s. 794(2) of the Criminal Code, which puts the burden of proof for an "exception, exemption, proviso, excuse or qualification" on the defendant, only applies in summary conviction proceedings. In this case, the Crown proceeded by indictment. She also notes that in upholding the constitutionality of provisions such as s. 794(2), the courts have tended to give it a restricted interpretation.

[17] Crown counsel submits that placing the burden on the appellant with respect to consent to enter Canada is consistent with the common law principle recognized by the English Court of Appeal in R. v. Edwards, [1975] Q.B. 27, [1974] 2 All E.R. 1085 (C.A.). He submits that this principle is not limited to summary conviction offences and should apply in the circumstances of this case. Although s. 794(2) and Edwards appear to have been interpreted as placing a persuasive burden on the accused,2 Mr. Rahman only argues that there should be an evidentiary burden on the accused. As such, he submits, there would be no violation of the Charter. I point out that Mr. Rahman did not base his argument on the theory that requiring the Crown to prove lack of consent would place a difficult or impossible burden on the prosecution.3 As I have noted, the Crown seems to have had a document to prove lack of consent but, for some reason, did not tender it: see also R. v. Suraleigh, [2005] O.J. No. 807, 2005 ONCJ 62 (C.J.).


· (1)

Interpretation of section 55(1)

[18] In my view, this case principally involves a question of interpretation of legislation. For convenience, I set out s. 55(1) of the Immigration Act:

· 55(1) Subject to section 56, where a deportation order is made against a person, the person shall not, after he is removed from or otherwise leaves Canada, come into Canada without the written consent of the Minister, unless an appeal from the order has been allowed. [page247]

[19] We were referred to two decisions that have considered the interpretation of the unlawful entry offence. In R. v. Singh, [1981] M.J. No. 381, 63 C.C.C. (2d) 156 (Co. Ct.), Jewers Co. Ct. J. considered former s. 57(1) of the Immigration Act, 1976, which was worded in virtually identical terms to s. 55(1). The Crown had proceeded by way of summary conviction and Jewers Co. Ct. J. held that the burden was on the accused to prove that he had the consent of the Minister by reason of former s. 730(2) of the Criminal Code (now s. 794(2)). My reading of Singh suggests that Jewers Co. Ct. J. was of the view that there is a persuasive burden on the accused to prove consent.

[20] More recently, in R. v. Zeplin, [1998] N.J. No. 204, 165 Nfld. & P.E.I.R. 306 (C.A.), Green J.A. speaking for the court seemed to be of the view that lack of consent of the Minister was an element of the offence that must be proved beyond a reasonable doubt by the prosecution. The accused in Zeplin was prosecuted by indictment. Green J.A. held as follows [at para. 18]:

· As to the second issue, namely, whether the record discloses sufficient evidence to support the conviction, appropriate viva voce and documentary evidence was adduced at trial to establish that the appellant was made subject to a deportation order dated August 17th, 1997 and that pursuant to that order, he departed Canada at Woodstock, New Brunswick on September 17th, 1997. Furthermore, evidence was given that a search had been made of the Immigration Query Response Center which indicated that the Minister of Citizenship and Immigration was not recorded as having given his consent to the appellant for his return to Canada. The search was made in the appellant's name as well as six aliases. The evidence clearly supports the external elements of the offence.

(Emphasis added)

[21] Green J.A. was aware of the earlier decision in Singh, but he limited its application in Zeplin to the proposition that even where the prosecution has proved lack of consent, the accused can avoid prosecution by proof that he exercised due diligence.

[22] In my view, the holding in Zeplin is preferable because it is generally consistent with the approach taken by this court in interpreting a similar offence in the Criminal Code. Section 121(1)(c) makes it an offence for a government official to accept from a person having dealings with the government any kind of benefit for himself or a member of his family "unless [he has] the consent in writing of the head of the branch of government that employs [him]". In R. v. Greenwood (1991), 5 O.R. (3d) 71, [1991] O.J. No. 1616, 67 C.C.C. (3d) 435 (C.A.), at pp. 445-46 C.C.C. and again in R. v. Fisher (1994), 17 O.R. (3d) 295, [1994] O.J. No. 358, 88 C.C.C. (3d) 103 (C.A.), this court held [page248] that the absence of consent of the accused's superior is an element of the offence. In Fisher, the court went on to hold a portion of s. 121(1)(c), which placed the onus on the accused to prove consent on a balance of probabilities, unjustifiably violated the presumption of innocence contrary to s. 11(d) of the Charter.

[23] Similarly, it is my view that lack of written consent of the Minister should be considered an element of the s. 55(1) offence. Entry into Canada, for example as a visitor, is not a criminal offence. What makes it an offence is: (1) a deportation order was made against the person; (2) the person was removed or otherwise left Canada; and (3) the person returned to Canada without the written consent of the Minister.

[24] Since it is an element of the offence, the Crown has the burden of proving beyond a reasonable doubt that the accused did not have the Minister's consent. There is neither a persuasive burden nor evidentiary burden on the accused: see the discussion of the burden of proof in McWilliams Canadian Criminal Evidence at 24:20 to 24:40.20.30.

· (2)

The common law rule in Edwards

[25] I will also briefly consider the application of the common law rule in Edwards. As indicated, the Crown submits that the common law principle referred to in Edwards and codified for summary conviction offences in s. 794(2) applies. The Crown submits that it is a common law principle that in certain circumstances an accused has the burden of proving, or at least the evidentiary burden of leading some evidence, that he has a status in law that would permit him to do an otherwise prohibited act. The common law principle was expressed in Edwards in the following terms at pp. 39-40 Q.B.:

· In our judgment this line of authority establishes that over the centuries the common law, as a result of experience and the need to ensure that justice is done both to the community and to defendants, has evolved an exception to the fundamental rule of our criminal law that the prosecution must prove every element of the offence charged. This exception, like so much else in the common law, was hammered out on the anvil of pleading. It is limited to offences arising under enactments which prohibit the doing of an act save in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorities. Whenever the prosecution seeks to rely on this exception, the court must construe the enactment under which the charge is laid. If the true construction is that the enactment prohibits the doing of acts, subject to provisos, exemptions and the like, then the prosecution can rely the exception.

[26] Edwards was approved by the House of Lords in R. v. Hunt, [1987] A.C. 352, [1987] 1 All E.R. 1 (H.L.), and was referred to by [page249] this court in R. v. Lee's Poultry Ltd., [1985] O.J. No. 4, 17 C.C.C. (3d) 539 (C.A.). Lee's Poultry Ltd. concerned the constitutionality of s. 48(3) of the Provincial Offences Act, R.S.O. 1980, c. 400, which is similar to s. 794(2) of the Criminal Code.

[27] The interpretation of the common law principle, like s. 794(2) or s. 48(3), is far from self-evident. To use the phrase from s. 794(2), what is an "exception, exemption, proviso, excuse or qualification" as opposed to an element of the offence or a defence? Some assistance is provided by the decision of this court in R. v. H. (P.), [2000] O.J. No. 306, 143 C.C.C. (3d) 223 (C.A.), at para. 14. The offence of occupying a vehicle known to be taken without the owner's consent under s. 335(1) of the Criminal Code is subject to s. 335(1.1), which provides that the offence does not apply to an individual who attempts to leave the vehicle on becoming aware that it was taken without the owner's consent. In H. (P.), Finlayson J.A. explained the relatively narrow reach of s. 794(2) in a prosecution for the offence under s. 335(1) [at para. 14]:

· Section 794(2) of the Code simply has no application to the defence set out in s. 335(1.1). It applies in narrow circumstances, usually regulatory offences, where a status in law has been conferred upon the accused who otherwise would be culpable.

(Emphasis added)

[28] The written consent of the Minister does not comfortably fit within the concept of "a status in law [that] has been conferred upon the accused who otherwise would be culpable". As I understand the scheme of the Immigration Act, the Minister's written consent constituted permission for the act of entry or, in the words of the provision, to "come into Canada". It does not confer any status, such as refugee, visitor or landed status, on the former deportee. Nor, in my view, would it be accurate to characterize the s. 55(1) offence as a regulatory offence, and Crown counsel did not suggest otherwise. The section creates a criminal offence, exemplified in this case by the significant prison sentence imposed on this appellant.

[29] In holding that s. 48(3) of the Provincial Offences Act did not infringe s. 11(d) of the Charter, this court in Lee's Poultry Ltd. at p. 544 C.C.C. considered the provision fair and just:

· Lawton L.J. in R. v. Edwards, supra, said, referring to the experience of centuries, that the exception was needed "to ensure justice is done both to the community and the defendant". Weighing the fundamental rule, the exception with which he was concerned and justice, he clearly did not consider the exception put the accused "in a most unfair position", rather that it was a just position and I think it is fair to say that our Legislature and Parliament, has so regarded it over these many years. As my brother [page250] Dubin commented during the argument: "How could it be unfair to ask a person to produce his licence or evidence that he has one? Surely, it is the sensible thing to do."

[30] In my view, the same cannot be said about written consent under s. 55(1). As I have said, the consent is permission for a specific act. On the hearing of the appeal, counsel were unable to inform us whether the person keeps the written consent upon entering Canada, whether the person must hand it in at the border to the immigration officer but keeps a copy, whether it is attached to the visa or passport and so on. In any event, consider the position of someone like this appellant who is charged with the offence ten years after he entered. While he might be expected to keep the visa or other document that gives him status in Canada, it is not clear that he could be expected to keep a document that appears to have relevance only upon entry.

[31] Like the consent of the government employee's superior to the s. 121(1)(c) offence, the Minister's consent is not a licensing scheme. The words of Arbour J.A. in Fisher at pp. 305-06 O.R., p. 113 C.C.C., are helpful in understanding the difference:

· In my opinion, the written consent contemplated by s. 121(1)(c) is not analogous to a registration certificate, or to a licence or permit. In fact, the only thing that might suggest otherwise is the requirement that the consent be in writing. Typically, a licensing scheme is one that regulates and monitors a field of activity for a fee. There is no suggestion, in s. 121, of governments administering a licensing scheme to permit their employees to obtain benefits and rewards from government contractors. What is contemplated by the requirement that government employees obtain the consent of their superiors before accepting benefits is the removal of any secrecy and the judgment of a person in authority to the effect that the proposed gift will not compromise the integrity of the government. What the employee obtains from his or her superior is not a permit or a licence, but a consent. There are other activities governed by the Criminal Code which may be criminal absent a person's consent, but not so if consent is obtained. Assault and theft readily come to mind. I would not be prepared to hold that the consent contemplated by s. 121(1)(c) becomes a form of licensing merely because it has to be in writing... I, therefore, conclude that the reverse onus provision contained in s. 121(1)(c) of the Code infringes s. 11(d) of the Charter.

(Emphasis added)

[32] Thus, in my view, the common law rule has no application to the Minister's consent under s. 55(1) and the burden was on the Crown to prove beyond a reasonable doubt that the appellant entered Canada without the Minister's consent.4 As [page251] I have pointed out, Crown counsel fairly did not take the position that the burden should be placed on the accused because to do otherwise would place an inordinate burden on the prosecution. Indeed, on the basis of Zeplin, a database called the Immigration Query Response Center is available to the Crown.

[33] It was common ground that the trial judge at least placed the evidentiary burden on the appellant to adduce some evidence of lack of written consent. In my view, this is a fair reading of the trial judge's reasons. I do not believe he placed a persuasive burden on the accused. The question is whether this error affected the verdict. Resolution of that issue depends on whether the Crown proved lack of Ministerial consent.

[34] At the conclusion of the Crown's case, the only possible circumstantial evidence of lack of written consent was the falsehood contained in the appellant's Immigrant Visa and Record of Landing. During the defence case there was the additional falsehood in the citizenship application.

[35] I am not satisfied that the falsehood on the Immigrant Visa and Record of Landing is a sufficient basis for a conviction. While one might be able to infer something about the appellant's conduct or state of mind from this falsehood, the point in issue is not the appellant's state of mind but the conduct of the Minister. The citizenship application falsehood also cannot be the basis for inferring that the appellant did not have written consent when he entered Canada some eight years earlier.

[36] Finally, this is not a case where rejection of the appellant's testimony can bolster the Crown's case or otherwise provide affirmative evidence of guilt: see R. v. Davison, DeRosie and MacArthur (1974), 6 O.R. (2d) 103, [1974] O.J. No. 2146, 20 C.C.C. (2d) 424 (C.A.), at pp. 428-30 C.C.C.; R. v. Witter (1996), 27 O.R. (3d) 579, [1996] O.J. No. 358, 105 C.C.C. (3d) 44 (C.A.).


[37] In my view, the conviction was unreasonable. Accordingly, I would allow the appeal, set aside the conviction and enter an acquittal.


Apologize now, and likely apologize later

Shachi Kurl
Special to the Sun

Thursday, May 29, 2008

'Sorry" really does seem to be the hardest word, except maybe when you're trying to get out of the doghouse, or when you think you've got something to gain.

So it was particularly telling when Liberal house leader Mike de Jong rose in the British Columbia legislature last week, and eloquently apologized on behalf of the provincial government for the way 376 South Asian would-be immigrants to Canada on board the Japanese vessel Komagata Maru were treated when they sought admission at Vancouver Harbour in 1914.

Only a handful were allowed to stay. The rest were sent back following a two-month standoff fuelled by hysterical suspicion, racism and mistrust of the men who had come from India to test Canada's immigration laws.

De Jong and his colleagues said all the right words, and I truly believe they were sincere. But why now?

I suppose it would seem churlish to point out that the B.C. Liberals have a relationship with South Asian voters that has been described by government insiders variously as "difficult" and, at times, as "bi-polar."

The premier's office is still licking wounds inflicted by not one but two years of negative press over the decision first to send Premier Gordon Campbell and later to keep him away from Surrey's controversial Vaisakhi parade.

The Liberals have still not fully recovered from the damage of a horrific crash in March 2007 took the lives of three South Asian farm workers. Their deaths, combined with budget and program cuts around vehicle inspections, led many members of the community to conclude Liberals do not care about their safety.

It's tough to court votes within a demographic that has for decades pledged the bulk of its loyalties to the New Democratic Party.

How better then, to earn a little political love by doing something the New Democrats had a decade to get around to while in power, but never bothered with?

As sincere as I believe politicians on both sides of the House were when they spoke last Friday, there is no doubt that, with less than a year to the next election, the very act of apologizing also represented a tactical master stroke.

It's the same motivation that drives the federal government, busily preparing its own apology.

Prime Minister Stephen Harper, who worked equally strategically to sway newly minted Canadians to vote Tory in 2006, is now in danger of losing them with changes to the Immigration Act. If you're worried about being banished to the couch, it's never a bad idea to buy some flowers, even pre-emptively.

Still -- the apologies, made and forthcoming, are for the best, though I am sure that is not what politicians of the day would have thought. Their convictions were firmly the convictions of British Columbians, circa 1914.

Remember, that was a time of outright hostility towards most in this country who weren't WASPs. Catholics and Jews were merely tolerated. Chinese migrants were being held at bay with that head tax. The idea of more turbaned men from India did not represent the kind of growth then premier Richard McBride had in mind for B.C. -- and the reportage in this very publication reflected the attitudes of the time.

"Hindu Invaders Now in the City Harbour on Komagata Maru," screamed The Vancouver Sun's headline on May 23, 1914. The leader of the expedition, The Sun reported, was issuing statements containing "veiled threats," while "many Vancouver Hindus collected on the waterfront in low voices, as if plotting schemes to aid their countrymen on the Japanese steamer to get ashore."

The authors of a Sun editorial published two days later were none too pleased with their Vancouver MP, one Henry Herbert Stevens. According to the column, Stevens had given a speech saying the admission to Canada of "all British subjects, was paying the price of empire."

"Mr. Stevens may be willing to pay the price of empire by throwing open the gates to undesirable aliens," replied The Sun's editors, "but we are convinced that few of Mr. Stevens' constituents would follow him so far as to consent to a measure, one result of which would be the removal of the barriers against Hindu immigration, and the eventual overrunning of this province."

It would be funny were it not so truly offensive.

Still, nothing stays static, and by 1914 standards, this province, indeed this country, have since been undeniably "overrun" by the kind of "undesirable aliens" the white majority once feared.

In fact, 50 years after the Komagata Maru's ill-fated voyage, a quirk of law allowed all British subjects in Canada the right to vote, even if they weren't citizens, even the dreaded "Hindus."

The face of Vancouver is now so changed that the latest census numbers tell us what we can plainly see: Four in 10 of us come from a visible minority group.

Old attitudes, however, still linger. You still hear the us-versus-them moaning from those who don't think the governments of B.C. and Canada have anything to apologize for.

I think they are wrong. I think decency and impartiality and serenity when faced with the unknown are basic principles for governments to follow -- and they weren't in 1914.

Some take it as a point of pride to dig their heels in. I think it's far more expedient to suck it up, say you're sorry, and move on.

But there is a caveat.

As we change, the definitions of what is acceptable and tolerable change, and in saying sorry today, we must be prepared to accept that the decisions we make today may not be seen as so defensible in the future.

Ninety years from now, the descendants of the Fujianese migrants who landed on the shores of B.C.'s north coast in 1999; the majority of whom were returned to China, their refugee claims denied, may well be demanding, and receiving apologies for the way their ancestors were treated.

In 2008, many of us reject the argument that "no one is illegal" when it comes to migration. That may not be the case in a century, and if apologies are sought and proffered it would behoove our ghosts to sit as quietly in the legislature then, as the ghosts of Richard McBride and his counterparts did on Friday.

Perhaps their spirits really were sorry, but I suspect not.

Shachi Kurl is a reporter/anchor with A-Channel News with Hudson Mack.

Saturday, May 24, 2008


'Rent-a-guest' schemes tipped off immigration

Investigators reportedly probing marriage scams

May 23, 2008
Nicholas Keung

When Canadian immigration officials in New Delhi began to notice the same guests appearing in photos of different weddings submitted as evidence for sponsoring overseas brides and grooms to Canada, an alarm went off.

Officers at the visa post pulled out all the other spousal sponsorship files to compare notes, and further investigations would discover several local temples were actually involved in "rent-a-guest" operations, setting up wedding ceremonies for immigration purposes.

"At a price, you could get packaged services with a wedding ceremony where people stand in as guests and relatives, posing for photos as in a real marriage," said immigration lawyer Richard Kurland, who obtained an internal government report on these allegations through an access to information request.

"The officials started to see the same faces over and over again. They called in people for questions. When they couldn't answer these questions, it became apparent that something was not right."

To crack down on those using phony marriages to come to Canada, Citizenship and Immigration Canada, according to news reports, is now sending investigative teams around the world, especially to high-fraud regions such as India, China and Vietnam, to gather intelligence on staged marriages.

Immigration officials would not confirm the establishment of such overseas teams.

"The government is concerned about marriages of convenience and is currently engaged in the investigation of these cases," said department spokesperson Danielle Norris. "We regularly review and examine our practices and procedures to further enhance our policies and action is taken to address concerns associated with marriages of convenience."

Until now, Canadian officials could do little to go after Canadians who knowingly enter into a marriage of convenience to bring foreign nationals here, except to reject their sponsorship applications.

While fraudulent marriages are not a new phenomenon, the investigative team, said to be made up of five undercover investigators, is a new tool for potential prosecution against the Canadian collaborators.

Kurland said these Canadian investigators can serve as expert witnesses in trials here, and their intelligence information can be used to obtain search warrants for evidence, such as email correspondence and phone bills, as well as arrest warrants to pursue Canadians involved in such scams.

Some who enter such marriages may be innocent victims, dumped by their foreign spouses as soon as they've arrived in Canada. But "this is an organized criminality that also rips off people's hearts and purses, and the (intelligence) team is an excellent use of public resources to facilitate the prosecution of immigration violations," Kurland said.

Whether in a marriage of convenience or not, a Canadian sponsor is stuck with the financial obligation to a foreign spouse required under the sponsorship for up to three years. If the spouse ends up on government assistance, the sponsor must repay the government and could risk being denied future sponsorship applications.

However, genuine couples could be paying the price for the increased scrutiny.

Toronto immigration lawyer Avvy Go has had applicants who were denied but later successfully appealed and had their cases sent back to the visa posts for reassessment.

"There is no time limitation on that. Some of my clients ended up being separated from their spouses for three, four years before they were joined in Canada," said Go, of the Metro Toronto Chinese and Southeast Asian Legal Clinic.

Immigration's Norris said a survey and a case assessment tool have been created to help the regional offices identify gaps and a staff anti-fraud manual has been updated.

Wednesday, May 21, 2008


Fraud squads chase down marriages of convenience

Ottawa dispatches secret teams in bid to crack down on phony foreign weddings

From Wednesday's Globe and Mail

May 21, 2008 at 4:08 AM EDT

OTTAWA — The Harper government is deploying clandestine teams to fan out across foreign countries and gather raw information about elaborately staged phony weddings aimed at duping Canadian immigration officials.

The teams, which comprise up to five people, are part of a wider bid by the Department of Citizenship and Immigration to crack down on marriages of convenience as immigrant communities warn that thousands of foreign fraudsters are leaving lonely Canadians broke and broken-hearted.

The wedding spies report back to their colleagues staffing Canada's visa desks about particular regions or communities where lavish parties and convincing photos are little more than a front for getting a passport. "It's a serious issue. That's why there are fraud teams around the world now," a government source said.

Officials are loath to identify which countries have been targeted for added fraud measures for fear of upsetting diplomatic relations. They also say that providing too much detail would undercut their effectiveness.

For Conservatives eager to build support among Canada's ethnic communities, the measures approved by Immigration Minister Diane Finley require some political balancing, as well.

Vocal complaints of fraud by Indo-Canadians, for instance, must be addressed in a way that avoids triggering a backlash in such communities, where overseas arranged marriages are common. Critics warn that large numbers of genuine marriages arranged by relatives are being mistakenly rejected as fraudulent because Canadian officials misunderstand the tradition.

Visa officials are now being trained to ask better questions of couples requesting a life together in Canada. The minister is expected to announce further improvements this fall.

Immigration lawyers and consultants say they have come across everything from phony photos to the conception of children purely so applicants can gain an edge in their bids to live in Canada.

Ms. Finley is working with the B.C. government - which asked to co-operate with Ottawa on the issue - to warn and remind Canadians they will be on the hook financially if their new husbands or wives immediately leave them and apply for social assistance.

Fraudulent marriages have been an immigration concern for years. Ms. Finley has said gathering firm statistics is a challenge for the government because even good-faith marriages fall apart. Officials say the phony unions appear to be increasing and concern among immigrant communities is on the rise.

Palwinder Gill of Surrey, B.C., had an arranged marriage that quickly fell apart two years ago. The 43-year-old said his wife left him one year after he sponsored her entry into Canada from India. He is convinced she used him purely for immigration purposes. Now he advocates for change as part of a group called the Canadian Marriage Fraud Victims' Society.

The group says these marriages have devastating effects, leading to depression, embarrassment and economic hardship. "This is a very huge problem in Canada," Mr. Gill said. "Marriage is the easiest and fastest way to get Canadian immigration, so people are using marriage as a route to get into Canada. ... There are thousands of cases in each and every immigrant community."

Current law allows Canadians to sponsor a spouse for quick entry into Canada, but Mr. Gill's group wants Canadians to lose this privilege for seven years if they are found to have attempted marriages of convenience. It wants a similar ban to apply to foreigners who try to fraudulently marry a Canadian.

Vancouver immigration lawyer Andrew Wlodyka says he has seen it all during his past 17 years in practice, and over the previous seven years in various roles with the Immigration and Refugee Board.

"In many communities it's epidemic," Mr. Wlodyka said. He mentioned India, China and Vietnam as frequent sources of marriage fraud, but stressed those countries are also a major source of overall immigration to B.C. and that fraud is being committed by people of all backgrounds.

Mr. Wlodyka said the vast majority of fraud cases involve a Canadian sponsoring an overseas spouse with genuine good intentions, only to be betrayed by the new spouse. But Canadians are also taking part in jilting. The Indian government was forced to launch a booklet campaign in 2006 warning women about the so-called wedding "menace" to address the rise of Indo-Canadian men travelling to India's Punjab region to marry for dowries only, and to leave their brides behind.

Toronto immigration consultant Roy Kellogg, a former immigration officer, said the challenge for officials is that the most suspicious marriages may actually be the most genuine. Couples with little money often use phone cards to make calls and cannot afford lavish weddings or photos, leaving them with slim evidence of a long courtship. Meanwhile, couples with lots of money can stage elaborate but phony wedding ceremonies overseas and sail through the process.

Other than having visa officers ask better questions, Mr. Kellogg doubts there's much Ottawa can do. "It's impossible to know whether a couple is in a loving relationship," he said.

For those with money, the relative speed with which immigrants are approved through marriage makes fraud an attractive option.


Fighting fraud

Anyone who is allowed into Canada as a spouse of a Canadian qualifies for permanent residency. Many other countries take a more restrictive approach.


Congress passed the Immigration Marriage Fraud Act in 1986 in response to controversy over so-called sham marriages. For a couple who have been married less than two years, the law allows the status of "conditional resident." Interviews are conducted after two years and, if officials deem the marriage to be genuine, the immigrant receives permanent resident status.


Immigrants must live with their spouses for two years before receiving permanent partner visas.


Immigration New Zealand's website states: "A partner will only be granted residence if both people in the partnership have been living together for at least 12 months."

How big is the problem of marriage fraud in Canada?

Immigration Minister Diane Finley said she was unable to answer that question when it was posed to her in writing by Toronto-area Liberal MP ROY CULLEN.

"Quantifying the rate of marriage fraud is difficult as relationships can break down at any time in a marriage, from the date of entry to Canada to several years into the marriage," the minister said.

When a New Democratic Party MLA organized a meeting on the issue in Burnaby, B.C., in 2006, nearly 200 people filled a town hall. An advocacy group called the Canadian Marriage Fraud Victims' Society estimates the number of victims to be in the thousands.

Bill Curry

Sunday, May 11, 2008


Dozens of potential migrants from India were promised non-existent jobs by unscrupulous "consultants" and lost thousands, the Toronto Star reported in an investigation today. The story can be found at:

Wednesday, May 7, 2008


Thousands of illegal immigrants missing: A-G


Globe and Mail Update

May 6, 2008 at 4:19 PM EDT

OTTAWA — There are 41,000 people that Canada wants to deport but cannot find, Auditor-General Sheila Fraser announced Tuesday in her latest report on the efficiency of government operations.

“Due in part to a lack of exit controls, there is a growing number of individuals whose whereabouts are unknown and who might remain in Canada illegally, thereby jeopardizing the integrity of the program,” said the Auditor-General's office in the report.

The inability of the Canada Border Services agency to keep a tight rein on people who are in Canada illegally was just one of several deficiencies highlighted by the auditor in the wide-ranging document that covered seven investigations and an overview of examinations of Crown corporations.

“If people can come into the country and stay here illegally, why would they go through what was a very long and complicated process to become a resident in Canada?” Ms. Fraser said during a news conference.

Auditor-General's report

Canada's border agency doesn't know the whereabouts of 41,000 people Sheila Fraser says

A data-sharing agreement was recently signed between Ontario and the federal government but the Public Health Agency has yet to make similar arrangements with other provinces, says the report. Instead, the Agency must rely on the goodwill of the provinces and territories.

“The 2003 SARS crisis demonstrated why such arrangements were needed,” says the report. Until these arrangements are in place, it may be more difficult for the agency to obtain the information needed to prevent and respond to a disease outbreak.”

On air safety, Ms. Fraser found that Transport Canada did not assess the risks as it shifted away from conducting its own inspections and audits to a system in which it assesses the aviation companies' own plans for managing safety. Nor has the department determined how many inspectors and engineers it will need during and after the transition – or what their qualifications should be.

The Auditor-General also came down hard on the federal government for its handling of child welfare programs on Canada's native reserves. Auditors visited nearly a dozen native reserves and reported back with staggering findings. In communities ravaged by substance abuse, auditors found the number of babies born addicted to drugs is increasing.

Federal user fees for everything from passports to camping lots also come under the auditors' watch in the report. “Based on our calculations, we concluded that the Department has overstated costs of the consular services,” states the report. “Consequently, adult passport holders are, in effect, helping to cover the costs of activities that are outside the scope of what they would receive for the fee.”

Foreign Affairs vehemently disagrees. In its response, it points to the costs incurred to evacuate passport holders from Lebanon in 2006-07 and a series of planned improvements to consular services for Canadians abroad.

On the topic of Afghanistan, the report says that Canada's ability to supply its war effort is at risk of being jeopardized by problems with shipping delays, parts shortages and lost equipment. “Unless the problems we found can be resolved, the Canadian Forces could have increasing difficulty supporting the mission,” wrote the auditor.

Ms. Fraser's office flagged problems in shipping parts and equipment to the southern Afghan province of Kandahar, where 2,500 Canadian soldiers are fighting the Taliban, saying a shortage of parts is delaying repairs there for combat equipment.

“For example, shortages of spare parts from the manufacturer contributed to the armoured wheeled vehicle known as the Nyala being sent back to Canada,” the Auditor-General's Office said.

And, on a more amusing note, Ms. Fraser found that Canada's official residences are in a bad states of repair – particularly the Prime Minister's residence at 24 Sussex Drive where the electricity is 50 years old, the air conditioning is limited, the plumbing is deficient, there is asbestos but no fire sprinklers and the windows are and do not keep in the heat.

Ms. Fraser says the Prime Minister and his family may have to vacate the building for 12 to 15 months – as long as nothing new turns up – to allow the repairs to be completed.

But it was the section of the report on the vanishing refugee claimants that was one of the most hard-hitting.

The auditor found that the federal government has failed to fulfill its 2004 commitment to introduce a new “Global Case Management System” for tracking would-be immigrants slated for deportation, her office said.

While the number of deportees on the lam has risen nearly 14 per cent, the Canada Border Services Agency has improved its ability to boot people out. The number of would-be immigrants deported rose to 12,600 in 2006-2007 from 8,700 in 2002-2003.

Ms. Fraser's office carried out a follow-up audit on Canada's deportation system after a request from the Commons Public Accounts committee that it revisit its 2003 findings.

With a report from Canadian Press

Tuesday, May 6, 2008


Thousands of illegals elude border agency, federal watchdog says

1 hour ago

OTTAWA — Canada's border agency doesn't know the whereabouts of 41,000 people ordered to leave the country, makes flawed decisions about when to lock up suspected illegals and keeps poor tabs on spending when it does usher them out of Canada, says the federal auditor general.

In a report Tuesday, Sheila Fraser criticized the Canada Border Services Agency for failing to monitor its detention and removal decisions across the country to ensure they are being made properly.

Fraser says as a result, growing numbers might be in Canada illegally, jeopardizing the integrity of Canada's immigration program.

"If people can come into the country and stay here illegally, why would they go through what was a very long and complicated process to become a resident in Canada?" she said during a news conference.

Some of the problems were traced to difficulties with a major new computer system that lagged years behind schedule.

"The agency needs to track the status of cases at a national level according to its priority areas - which are to remove dangerous individuals and criminals first," the auditor's report says.

In her review of other federal activities and programs, Fraser also found:

-Children on native reserves across Canada are eight times more likely to wind up in unevenly funded, poorly tracked foster care that appears to be failing them;

-Renovating drafty and crumbling 24 Sussex Drive, the prime minister's residence, would involve about $10 million of intensive repairs that could take as long as 15 months;

-Foreign Affairs lumps an unfair consular services fee of $25 - a kind of travel insurance for Canadians who might need assistance abroad - into the $85 cost of an adult passport.

-Several weaknesses in how Transport Canada has managed the transition to a new approach for overseeing air transportation safety.

-The federal Public Health Agency of Canada risks not reporting the spread of infectious diseases to the World Health Organization in a timely way because it lacks information-sharing agreements with the provinces.

The report tabled in Parliament marks the second time the auditor general has come down hard on the border services agency, created in December 2003 as part of a government reorganization to bolster national security. Previously she found weaknesses allowed many potentially dangerous people and goods to slip into the country.

The auditor general undertook the latest review following a request by the House of Commons public accounts committee to report on whether management of detentions and removals had improved under the border agency since 2003.

The agency has the power to detain foreign nationals and permanent residents considered a risk or danger to the public, and to remove people ruled ineligible to enter Canada.

In 2006-07, it held more than 9,000 people in its own facilities and another 3,500 in provincial cells.

Fraser found, however, the border agency failed to ensure it meets its standards for treatment of detainees. And it has not established backup plans for bed shortages. For instance, the Toronto holding centre has sometimes increased space by placing sleeping bags and blanket on the floor.

"In another region, holding cells for individuals awaiting hearings, which are designed for three people, had been used to hold 10, without enough space for some to sit."

Further, the auditor concluded the agency was not effectively managing detention costs, which amounted to more than $36 million in 2006-07.

Fraser says the agency has increasingly used alternatives to detention, such as releasing individuals on condition they post a sum of money. But she noted 368 of 2,038 cash bonds posted in 2004-05 were forfeited because the individuals failed to comply with terms of release.

The agency has located 178 of these people, removing 146 from Canada. But it doesn't know what happened to the remaining 190 who forfeited their bonds, and has issued warrants for their arrest. Eighteen have criminal histories.

"While infrequent, there have been cases where individuals who have been released on condition committed violent crimes," the report says.

Both the border agency and Citizenship and Immigration have power to allow people into the country under temporary resident permits even if they would otherwise be ineligible. Exceptions include humanitarian grounds or economic benefit to Canada - for instance a visiting performer or athlete with a criminal record.

The auditor found, however, that reasons for issuing the permits were often poorly documented and the border agency did not monitor whether the individuals with permits left the country upon their expiry.

Fraser found while the number of people removed from Canada annually has climbed in the last five years, there is still cause for concern.

As of September 2007 there were 63,000 people slated for removal. Among these were 22,000 facing formal orders, whose whereabouts were known to the border agency. However, the agency lacked contact information for another 41,000 due for removal under immigration warrants.

Part of the difficulty stems from an aborted plan to replace a computerized case management system, originally intended to be in place three years ago.

"As a result, the agency's ability to track individuals in the detention and removal process remains limited," the report says, adding five-year-old recommendations from her office on case tracking remain to be addressed.

Fraser noted that the precise number of people remaining in Canada illegally is impossible to determine due in part to the fact Ottawa does not record departures from the country.

People considered violent or a potential flight risk are escorted by officers to their destination country, which can cost thousands of dollars per case and tallied more than $8 million in 2006-07. Fraser said there was no assurance escorted removals were being done cost-effectively.

The border services agency agreed with all of the auditor's recommendations for improvement.

Thursday, May 1, 2008


Recent immigrants income falling behind

Meagan Fitzpatrick, Canwest News Service

Published: Thursday, May 01, 2008

OTTAWA -- Recent immigrants are losing the battle to close the earnings gap with Canadian-born workers, and women in particular are falling behind, according to the latest release of 2006 census data from Statistics Canada.

In its report of results from the census, released Thursday and focusing on income and earnings, Statistics Canada says the gap continues to widen even though the education levels of recent immigrants in the workforce rose much faster than among their Canadian-born counterparts.

Recent immigrants were counted as those who arrived between 2000 and 2004.

The analysis compared the median earnings -- the point at which half a population falls above and half below - of recent immigrant earners in the core working-age population (ages 25 to 54) whether they were employed full-time all year or not to the median earnings of their Canadian-born counterparts. Self-employed workers were not included.

In 2005, recent immigrant men earned 63 cents for every dollar earned by Canadian-born male workers.

The report points out that between 2000 and 2005 there was a drop in employment in the information and communication technologies sector and that had a large impact on earnings for recent male immigrants, who were heavily trained in computer sciences and engineering.

The earnings gap was even wider for immigrant, the census results showed. They pulled in only 56 cents for every dollar earned by their Canadian-born counterparts. It was a quick slide down the scale from where they were in 2000, when recent immigrant women were earning 65 cents for every dollar earned by Canadian-born women.

In 1980, recent immigrant men and women earned 85 cents for every dollar earned by their Canadian-born counterparts.

An earlier census report on education indicated that more than 51% of recent immigrants who arrived between 2001 and 2006 had a university degree. But according to this latest report, having a degree didn't make a difference in closing the earnings gap. In fact, the disparity between recent immigrants and Canadian-born workers was larger among those people with a degree than among their less-educated counterparts.

University-educated males from other countries earned just 48 cents for each dollar earned by Canadian-born male graduates. In contrast, recent immigrant men with no degree earned 61 cents for every dollar received by their Canadian-born counterparts. A similar pattern was seen among women.

"The larger earnings disparities among university graduates were observed as many recent immigrants with a university degree were employed in low-skilled occupations," Statistics Canada said.

In 2005, almost 30% of recent immigrant male university graduates were working in jobs that require no more than high school education.

In terms of median earnings, recent immigrant men with university degrees were making less -- close to 25% less -- than Canadian-born men who never attended university.

Getting foreign credentials recognized and language barriers are among the challenges newcomers face when trying to integrate into the workforce, says Mario Calla, executive director of COSTI Immigrant Services, a Toronto-based organization that provides employment and other services.

It's true that many of Canada's newer immigrants are more highly educated, but so is the Canadian population in general, said Mr. Calla, which adds to the challenges.

"There's also a more competitive market that they're coming into," he said in an interview leading up to the census report.

He said it's key to get immigrants into jobs in their field as soon as possible after they arrive in Canada.

"If they don't get a job in their field in the first few years, it's unlikely they ever will," he said.

Mr. Calla says initiatives such as enhanced language training programs are important to help immigrants get the appropriate jobs and fulfill their earning potential. A newcomer educated in accounting, engineering, or some other profession might have English skills but not the specific language skills necessary for their field.

"If we can make an investment to leverage that education to get immigrants into an occupation here that is commensurate with their skills, it's a small investment to make," said Mr. Calla.

He said the federal government, in addition to supporting language training programs, has made efforts to educate prospective immigrants before they arrive about what skills and qualifications they should have in order to find work and how to have their credentials recognized. In China and India for example, the government has helped co-ordinate orientation sessions to increase awareness about the application process.

The government has taken other steps it says will get immigrants to work faster, but they've caused quite a controversy. Proposed changes to the immigration system would give Immigration Minister Diane Finley authority to instruct her staff to fast-track the applications of certain categories of immigrants and put a cap on the number of applications. The changes are meant to help clear the backlog of applications and meet labour shortages in certain sectors. But critics are worried the changes would give too much power to the minister and they say it's unfair that some candidates could get pushed back in line.

The controversial bill will be put to a vote in the House of Commons and if it does not get enough support from the opposition parties, its defeat could trigger an election.


Here is a story that exemplifies how insane our refugee determination system really is. I am still trying to decide if the Board members who heard this case are naive, dumb, or simply incompetent:

Immigration laws give gang member a shot at staying in Canada, B.C. lawyer says

17 minutes ago

VANCOUVER — An El Salvador man's bid to seek refuge in Canada from the violent gang he once belonged to is among the scenarios covered under laws designed to protect people facing harm in their home countries, a Vancouver-based immigration lawyer says.

The case of Jose Francisco Cardoza Quinteros, who arrived in Canada in September 2007 and told border officers he had killed four people in El Salvador, has raised questions about why someone with an admitted criminal past would be allowed to apply for protected status.

But immigration lawyer Doug Cannon says while Cardoza Quinteros doesn't appear to meet the UN definition of a refugee, there is a section of Canadian law that offers protection to people facing unreasonable harm abroad.

"What we're really talking about here are broader requirements to protect people who are at risk of life, cruel and unusual punishment or treatment, or torture," Cannon said in an interview Thursday.

"The refugee division considers cases like this because it is part of protecting human beings from unfair treatment, wherever they may face it in the world."

Cardoza Quinteros later retracted his statements about his gang activities - which varied greatly during his original interview with border officers - and an immigration board member recently said she doubted he had ever killed anyone.

Cardoza Quinteros claimed he was fleeing his former gang, the Mara Salvatrucha, which wants him dead because it believes he was an accomplice in the deaths of gang members during a 2004 prison riot.

His refugee claim was denied in February because of his ties to a criminal organization and he was ordered deported, but he'll still be able to argue during the pre-removal risk assessment process that he will face danger if returned to El Salvador.

Cannon said Cardoza Quinteros isn't fleeing the justice system.

"What he's really afraid of is a situation where he feels he has done no wrong yet his life is at risk and the authorities cannot protect him," Cannon said.

"And that's the key issue in his case - can the authorities protect him from the harm that he fears?"

Cardoza Quinteros's lawyer in Vancouver declined to comment about the case.

In the meantime, the federal government will ask the Federal Court on Friday to overturn an immigration board decision to release Cardoza Quinteros while the case moves through the immigration system.

Federal lawyers will argue Cardoza Quinteros poses a danger to the public, but earlier this week an immigration board member ruled that Cardoza Quinteros is not a significant risk and that conditions placed on him were adequate.

In ordering him released, refugee board member Daphne Shaw Dyck noted Cardoza Quinteros had been living free in Surrey for seven months without incident and has expressed a desire to turn his life around.

It's not clear how often claimants have used their criminal past to justify claims for protected status, as federal immigration officials don't compile such statistics.

A similar example occurred last year, when a teenage gang member from Nashville facing extradition on charges of murder asked for refugee protection in Edmonton.

Nasser Muhsin, 17, argued he might be hurt or killed by rival gangs if he was sent back to the United States.

Muhsin was initially released by the refugee board in Edmonton, but in January a Canadian judge ordered him extradited.

The Cardoza Quinteros case in Surrey has prompted fierce criticism from local politicians in British Columbia who say such admitted criminals should never be released into the public, much less be allowed to apply for protection in Canada.

"I think the vast majority of Canadians will have absolutely no sympathy with that claim (that Cardoza Quinteros deserves protection from his former gang)," said Liberal public safety critic Ujjal Dosanjh.

"Fleeing political, religions, ethnic persecution and the like really bears no resemblance to running away from a criminal gang. Canada's refugee system should not provide you with a shield against your past or current sins."

Dosanjh said he supports Ottawa's fight to keep Cardoza Quinteros detained, but he said legislation should be changed to prevent such refugee claims from moving forward.

A spokesman for Public Safety Minister Stockwell Day, who first applied to have Cardoza Quinteros held in custody, declined to comment on the case but said Ottawa wants to ensure anyone trying to enter Canada who poses a danger to the public is removed.

"Our government is committed to detaining and removing foreign nationals who may pose a threat to national security or engaged in serious criminality," John Brent wrote in an e-mail.