Tuesday, June 30, 2009


This article from the Toronto Star highlights the problems that plague the sponsorship program and the need for immediate reform. Over the years, politicians have allowed immigrant communities to develop a "sense of entitlement" that they can use the sponsorship program as a pipeline for immigration. Sponsorships are attractive because they enjoy the fastest processing priority, spouses receive unconditional residency visas, and can immediately turn around to sponsor parents without the need for a qualifying period.

TheStar.com GTA Wanted: Punjabi fiancée with a Canadian cousin#

Wanted: Punjabi fiancée with a Canadian cousin


June 29, 2009


The ads, mostly in Punjabi, are short and snappy.
Jat Sikh Canadian immigrant boy 29, 5'3" seeks an Indian educated girl. Only those families should contact who can provide Canadian matrimonial alliance for his 33-year-old Indian resident brother, 5'5".
Arranged marriages, where parents introduce young people to each other and couples marry after a brief courtship, are common among South Asians, but "barter" marriages seem to be becoming increasingly common, too.
In other words: I'll get your son/daughter to Canada, you help get my niece/nephew out of India.
These ads have been around for some time, but never as bold or pervasive as they are now, as people find new ways of bringing relatives over after Citizenship and Immigration Canada plugged legal loopholes and cracked down on fraud in recent years.
A cursory look at the dozen or so Punjabi-language weekly newspapers printed in Brampton reveal dozens of such ads every week.
"From a moral and ethical perspective, they are destroying our culture," says an angry Baldev Mutta, executive director of Punjabi Community Health Services in Brampton.
"Marriages are sacred; they are not meant to be some kind of barter. But that's what we've made them in our quest to bring our relatives (to Canada)."
India is the single largest point of origin for immigrants to the GTA. There are nearly a million Indo-Canadians in this country – the majority are from the state of Punjab.
There is anecdotal evidence of phony marriages for immigration purposes, followed by divorce, but they have become less common after Ottawa clamped down on the scam.
Sometimes, when one door shuts, another opens, says T.S. Brar, a journalist for a Punjabi weekly, as he scans a newspaper page crammed with ads. They are about 50 words each, stacked one upon another, and cost $35 to $60 a week.
Brar says a couple of years ago, when he and his family were going to India for his son's wedding, someone approached him and offered a barter marriage.
"My son was engaged and I just laughed it off, but later, I fully understood what he meant," Brar says in Punjabi. "It made me really angry. Isn't this yet another form of dowry ..."
Barter ads and marriages don't break any laws, but Mutta says they give the community a bad name and provide one more reason marriages break up.
"We are using (children) as pawns. They are not getting married because they want to, but because they have to."
Such marriages are more likely to unravel, he predicts. "There is intense pressure on the kids," he says. "I can't believe when I see some of these ads – the conditions are ridiculous."
The stipulations are clearly spelled out in the ads, but when the Star called a dozen phone numbers – some in Vancouver, but mostly in the GTA – all, except for two refused to give their names or talk.
Jaspal Singh, a cab driver in Vancouver, says he was under pressure from his older brother who lives in India, to somehow get his son and daughter to Canada. "I explained it to my brother that it was very tough, but he told me I was making excuses, that I didn't want his children to have a good life."
Finally, Singh agreed to place an ad for his own 21-year-old son and 20-year-old daughter in hopes someone, somewhere would reciprocate with Canadian matches for his niece and nephew in India.
It is not only a long shot, it is also unethical, Singh admits. He says he has told his kids he will not force them to do something they are not ready for and that weddings would take place only after they have met their prospective partners and are ready.
He has paid for the ads to run for four weeks. If things do not fall into place by then, Singh says he has no intention of following up with more ads. "How long can you do it? I will not force them to get married for the sake of it."
Singh knows it will put a strain on his relationship with his brother, and is already dreading that conversation.
Compared to some things people do to come to Canada, "this is tame and legal," says Brampton's Parminder Dhaliwal on the phone. She placed an ad for her 29-year-old brother. The condition: The potential bride's family needs to find a Canadian citizen or immigrant bride for their 31-year-old brother, who lives in India.
Within a week of the ad running in the Toronto and Vancouver editions of a prominent Punjabi weekly, Dhaliwal had fielded more than two dozen calls.
Most were a waste of time, she says.
One caller, from India, offered $30,000 if a wedding could be fixed between his 38-year-old daughter and Dhaliwal's brother. Another pledged all his land and cattle in Punjab if Dhaliwal's brother married his 19-year-old daughter. He also told Dhaliwal compatibility wasn't really an issue because they would divorce very soon.
"We don't want money; we just want our entire family to be here," says Dhaliwal.
Activist Manjit Mangat, who has a law office in Brampton, admits the ads sound suspicious, but argues some are sincere efforts at family reunification, even though the method is unconventional.
"There is no ulterior motive in some cases. They put up a condition because there is no other way for maybe one member of a family to come to Canada," he says.

Thursday, June 25, 2009


This story appeared today in the National Post. It highlights the growing problem of "refugees from Mexico". This has been going on for at least three or four years now, and the authorities can not bring themselves to stem this flow of claimants seeking an easy way out of Mexico. Given the tighter US border controls, Canada has become a preferred destination for Mexicans. In addition to the ease of entry for Mexicans, free health care, social assistance, and attractive services, are a magnet for the claimants, who are often misled by unscrupulous individuals who misrepresent the potential final outcome of their claims, which typically take a couple of years to resolve, while the taxpayers pay the bill. For some claimants, this is disappointing, for others, it is a victory when staying in Canada for a few years to escape Mexican poverty and violence, and yet for others, they manage to beat the system by hiding after their refusal, or by marrying a Canadian citizen, having children in Canada, etc. In a recessionary environment, there are no jobs for these claimants, who often speak little or no English, so they become a public charge upon their arrival and for years to come, increasing the already swollen ranks of the poor and unemployed.

Mexican refugees seek haven in Canada


Here is another twist to the constant fight to avoid processing fees. Can you imagine what kind of service the government can provide with even less funding? Why should people who have already exhausted the refugee determination system, and have already been determined not to qualify, have free access to a discretionary decision that typically results in only a very small acceptance rate of around 15% or less?

TheStar.com | Canada | Migrant families challenge immigration application fee

Saturday, June 20, 2009


Canwest News service
June 19, 2009

The U.S. is strengthening efforts to intercept and to break up drug rings smuggling narcotics across the Canada-U.S. border under an agreement announced Thursday that will see a sharp increase in the number of immigration and customs agents conducting raids and making arrests.

Under the deal, U.S. Immigration and Customs Enforcement will have the power to authorize an unlimited number of agents to investigate cross-border drug crimes.

"Stay tuned. You are going to see a lot more activity out of the DEA and ICE," said John Morton, the assistant secretary of Immigration and Customs Enforcement.

"This is a national effort. And from ICE's perspective, we are going to be paying attention to the northern border, and also to our air and maritime ports as well."

The agreement reached Thursday is designed to end decades of turf wars between the Drug Enforcement Administration and the U.S. Immigration and Customs agents over who has the power to investigate drug trafficking at the country's borders and ports of entry.

The new deal gives Homeland Security the sole discretion to designate as many immigration and customs agents as it needs to take on drug smuggling. ICE agents also will now be able to conduct foreign drug investigations in co-operation with the DEA.

Morton refused to say how many more agents would be conducting drug operations along the Canada-U.S. border, or the boundary with Mexico.

Co-operation between the DEA, ICE and the FBI allowed U.S. authorities to "connect the dots" on more than 160 separate cases, Leonhart said.

Thursday, June 18, 2009


Here is a recently released case which discusses the impact of a criminal sentence on the convicted person's immigration status. The Immigration and Refugee Protection Act states that a person convicted in Canada to a sentence of more than two years cannot appeal a deportation order to the Immigration Appeal Division (IAD).

In this case, the court reduced the sentence by one day to allow the convicted person a possible appeal of a deportation order. The court followed the principles established in a previous case of R V. Hamilton. However, the court activism in this area leaves the reader to wonder why they should take into consideration the impact of the sentence on the person's immigration status: was it not Parliament's intention to have a mechanism under the legislation to ensure that those convicted of serious crimes do not have the opportunity to engage in a protracted fight to remain in Canada based on sometimes whimsical "humanitarian and compassionate" considerations that can be taken into account at the IAD? Why should individuals who have committed serious crimes in Canada not be speedily deported? Needless to say, the IAD process Can take several years. It seems that this is a fertile area for legislative reform: should not a criminal sentence be imposed in relation to the crime committed? Why should a non-citizen convicted of the same crime as a citizen receive a lesser sentence just because he or she could possibly be deported? Was it not the legislative intent to ensure that non-citizens who commit crimes be deported to protect the public? Does the preferential treatment granted to non-citizens not offend the principles of equality under the law? These are serious questions that require a national debate...

R. v. Iamkhong

Her Majesty the Queen, Respondent, and
Suwalee Iamkhong, Appellant

[2009] O.J. No. 2446

2009 ONCA 478

Docket: C47855

Ontario Court of Appeal
Toronto, Ontario

S.T. Goudge, E.A. Cronk and H.S. LaForme JJ.A.

Heard: March 24, 2009.
Judgment: June 12, 2009.

(64 paras.)

Appeal From:

On appeal from the conviction entered by Justice Todd Ducharme of the Superior Court of Justice dated January 16, 2007, and from the sentence imposed on August 16, 2007.

The judgment of the Court was delivered by

H.S. LaFORME J.A.:--


1 The appellant was convicted of criminal negligence causing bodily harm and aggravated assault against her husband by having unprotected sexual intercourse with him while she knew she had tested positive for the Human Immunodeficiency Virus (HIV). The trial judge sentenced her to two years imprisonment in addition to one year of credit for strict pre-trial bail conditions.

2 It was undisputed at trial that the appellant gave her husband HIV through repeated unprotected sex. Further, there was no dispute that, if she knew she was then HIV-positive, her conduct constituted the offences charged. The sole issue at trial was whether the appellant knew she had HIV when repeatedly having unprotected sex with her husband.

3 The appellant claimed that she thought a Canadian immigration medical assessment found her HIV-negative, some time after she received an HIV-positive result in Hong Kong. She testified that she was skeptical of the Hong Kong test because she did not trust the laboratory at which she had been tested. She claimed to trust the negative result of what she believed was an HIV test conducted in Canada as part of the immigration process.

4 The trial judge disbelieved the appellant and found that she was aware of her HIV-positive status during her marriage with the complainant. He found that she would have taken further steps to confirm that she was HIV-negative had she actually believed that she had received conflicting results on two tests.

5 The appellant appeals both her conviction and sentence.


6 Most of the facts at trial were undisputed, except whether the appellant knew she was HIV-positive while regularly having unprotected sex with the complainant, and how fluent she was in the English language. The following, however, were either undisputed or uncontradicted.

7 Around 1995, the appellant, originally from Thailand, worked in Hong Kong for a month as a prostitute. In the same year, she had an HIV test at a clinic in Hong Kong. She was told she tested positive. She testified that although she doubted the reliability of this result, she stopped having sex after receiving it, knowing the communicability of HIV.

8 Two weeks after her HIV-positive test, the appellant entered Canada on a work permit to work at the Zanzibar Tavern in Toronto as a dancer. Some time after arriving, the appellant had a Canadian immigration medical assessment for her work permit renewal. This examination included the taking of blood samples. The appellant testified that she believed she was being tested for HIV as part of this examination. There is no evidence that the assessment included an HIV test, that anyone told her it included an HIV test, or that she asked anyone whether it included an HIV test. She testified that her boss, "Wally", told her that "everything was okay" as a result of that assessment.

9 The complainant was a regular customer at the Zanzibar and met the appellant there in 1996. They began to date, and after one and a half to two months started a sexual relationship. During this period they had intercourse two to three times per week. They generally used condoms, purchased by the complainant. In the summer of 1997, they married and moved in together. After their wedding, they stopped using condoms altogether. The couple spoke occasionally about sexually transmitted diseases, and the appellant told the complainant that she was tested whenever she renewed her work permit and that she did not have HIV or any other sexually transmitted disease.

10 The appellant and complainant separated twice, first in 1999 for about a year, and again in 2002, for about nine months. There were conflicts in the marriage; however, both testified that they genuinely loved each other and that their relationship was close. The appellant continued to work at the Zanzibar on renewed work permits until she became a permanent resident of Canada on April 30, 2001.

11 In February 2004, the appellant was admitted to hospital in Toronto. She was diagnosed with cryptococcal meningitis, an AIDS-defining illness. Only when testing in March 2004 showed she had AIDS did she tell the complainant that she had HIV or AIDS. The complainant subsequently was tested for HIV and tested positive. The defence conceded that he received HIV from the appellant.


12 The appellant raises four grounds of appeal against her conviction, which are essentially that the trial judge erred in the following ways.

13 First, the appellant submits that the trial judge erred in rejecting the testimony of the appellant insofar as he failed to consider the appellant's background and lack of sophistication in evaluating the credibility of her evidence.

14 Second, the appellant submits that the trial judge failed to consider the exculpatory effect of the fact that she had conscientiously refrained from sexual activity after testing HIV-positive in Hong Kong, in order to avoid transmitting the disease, and resumed sexual activity only after the Canadian medical examination.

15 Third, the appellant submits that the trial judge erred in finding that the appellant's right to a trial within a reasonable time under s. 11(b) of the Canadian Charter of Rights and Freedoms was not violated. She says the charges should have been stayed.

16 Fourth, the appellant submits that the trial judge totally misapprehended her evidence in two respects: (i) her belief in connection with the medical tests in Hong Kong and Canada; and (ii) what she told her husband about those tests.

17 Finally, the appellant also seeks leave to appeal her sentence, asking that it be reduced by one day so as to retain her entitlement to appeal a potential deportation order.

18 We did not call on the Crown to respond to the appellant's submissions regarding: (i) the trial judge's failure to consider the appellant's background and lack of sophistication; (ii) his failure to consider her conduct after she tested HIV-positive in Hong Kong; and (iii) the s. 11(b) Charter issue. In the end, I conclude that the appellant's conviction appeal must be dismissed.

19 I would, however, grant leave to appeal sentence and for the reasons that follow, allow the sentence appeal. I would set aside the sentence of two years imprisonment and impose a sentence of two years less one day.


20 I will proceed by first briefly addressing the issues that were not the subject of any response from the Crown, and thereafter deal with the remaining grounds of appeal, including the appellant's assertion that the trial judge engaged in "circular reasoning", followed by the sentence appeal.

(i) The appellant's background and lack of sophistication

21 The appellant was thirty-seven years old at the time of trial. She was born in a small village in Thailand, left school at age ten or eleven, and contends that she has limited literacy in her own language and none in English. The appellant argues that the trial judge misunderstood the defence position regarding her background and lack of sophistication.

22 The appellant submits that the trial judge erroneously took the view that the defence at trial conceded that the appellant's background and lack of sophistication were irrelevant to whether or not her evidence was credible. Rather, she says her background was very relevant, particularly in determining whether she was telling the truth about her reaction to the Canadian test and her belief that when her boss told her that her tests came back "okay", that meant that she was HIV-negative.

23 I do not read the trial judge's reasons in this way. In my view, he decided that in light of all the evidence, the appellant's background was not particularly relevant to the issue of her credibility. His view was confirmed by the defence argument at trial, which did not explicitly raise the issue of the appellant's background. The appellant's counsel candidly noted that he could not point to any passage in defence counsel's trial submissions focusing on her background as a factor to be considered in evaluating her credibility, but contented himself with saying that the defence had called this evidence.

24 I would reject this argument. In my view, the trial judge made no error and simply attached the weight to the evidence about the appellant's background that he thought it deserved.

(ii) The appellant's conduct after testing HIV-positive

25 The appellant's argument here is that the trial judge did not consider certain circumstantial factors that support her credibility. I would dismiss this ground of appeal.

26 The appellant offers as a stark example of such circumstantial factors, her uncontradicted testimony that she stopped having sex after the positive HIV test in Hong Kong. Further, she testified that she only resumed sex once she believed that she had tested negative in Canada. The appellant submits that the trial judge never addressed whether this responsible conduct enhanced her credibility on the issue that she believed she was HIV-negative after the Canadian medical tests.

27 The appellant argues that if this and other circumstantial evidence had been properly confronted and considered by the trial judge, he would have had abundant ground for reasonable doubt as to her guilt. I disagree with the appellant's characterization of the trial judge's treatment of this evidence.

28 A trial judge is not obliged to discuss all of the evidence on any given point, provided the reasons show that he or she grappled with the substance of the live issues at trial: R. v. R.E.M. (2008), 235 C.C.C. (3d) 290, at para. 64. When credibility is at issue, "deference is in order and intervention will be rare": R.E.M. at para. 32, referring to R. v. Dinardo, [2008] 1 S.C.R. 788, at para. 26.

29 The trial judge's reasons make it abundantly clear that he was aware that the appellant's position was that she did not believe she was HIV-positive at the relevant time. Indeed, his entire reasons focus on whether the appellant thought she was HIV-negative as a result of the Canadian immigration medical assessment. In support of his rejection of the appellant's testimony on this point, he listed five different considerations, which are more than sufficient to explain to the parties why he disbelieved the appellant. There is no basis to conclude that in making this credibility assessment he failed to consider any relevant evidence.

30 In my view, the trial judge adequately addressed the live issue at trial. His conclusions are owed deference and I can find no basis to intervene.

(iii) The appellant's right to trial within a reasonable time

31 The appellant argues that her right to a trial within a reasonable time under s. 11(b) of the Charter was breached by delay. The total period of delay until the end of the appellant's trial, as determined by the trial judge, was seventeen months and one week of institutional delay, four and a half months of delay attributable to the defence, and seven and a half months of neutral delay.

32 The appellant submits that the trial judge erred in assessing a number of the periods of time making up the overall delay. In particular, she says the trial judge erred in finding that prejudice had not been established, and in his ultimate conclusion that the delay was not unreasonable. At trial, the Crown conceded that the length of the delay warrants inquiry.

33 In R. v. Morin, [1992] 1 S.C.R. 771, at p. 799, Sopinka J. found that with regard to institutional delay:

[I]t is appropriate for this Court to suggest a period of institutional delay of between 8 to 10 months as a guide to Provincial Courts. With respect to institutional delay after committal for trial, I would not depart from the range of 6 to 8 months that was suggested in [R. v. Askov, [1990] 2 S.C.R. 1199].

34 The approach required to address this issue is not simply a mathematical exercise, however. Rather, a judicial determination that balances "the interests which [s. 11(b)] is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay" is required: R. v. Morin, [1992] 1 S.C.R. 771, at p. 787; see also R. v. Batte (2000), 45 C.C.C. (3d) 498, at para. 55. The trial judge considered all the appropriate factors, including prejudice to the appellant.

35 The trial judge accepted that the length of the appellant's exposure to criminal proceedings resulting from the delay gave rise to some prejudice. He found that her fair trial interest was affected by this. However, after examining her security interest and any other prejudice to her, he concluded that the appellant failed to establish that these factors caused any delay to be unreasonable. The trial judge considered all of these aspects together in his overall assessment of whether the delay was unreasonable in all the circumstances and found it was not.

36 In my view, even if one were to change the allotments of responsibility for delay as the appellant suggests, the prejudice is not sufficient to warrant a revisiting of the trial judge's finding and the overall delay does not become unreasonable. This is so even if the trial judge was mistaken in taking a minimal view of the prejudice due to the appellant's house arrest on the basis that this factor might be taken into account in sentencing.

37 I would dismiss this ground of appeal.

(iv) Misapprehension of the appellant's evidence

38 The appellant's argument here is that the trial judge misapprehended the appellant's evidence in rejecting her assertion that she believed she was HIV-negative after the Canadian test. The defence at trial conceded that this was the only issue. That is, if the trial judge disbelieved the appellant and found that her evidence did not raise a reasonable doubt on this issue, then she had to be found guilty of both charges.

39 The specific reasons given by the trial judge as to why he disbelieved the appellant are as follows:

After careful consideration of all of the evidence, I reject Ms. Iamkhong's testimony that she believed that she was HIV-negative. Nor does that evidence leave me with a reasonable doubt about whether or not she believed she was HIV-negative. I have come to this conclusion based on the following considerations:

1. The story simply does not correspond with common sense. Given that Ms. Iamkhong understood the gravity of the first positive result for HIV, one would expect her to seek out a second test as soon as she arrived in Canada. This seems even clearer when one considers that Ms. Iamkhong seems to have had doubts about the reliability of the Hong Kong clinic and its testing. Certainly Ms. Iamkhong should have sought a second HIV test once she decided to resume sexual activity. Not only did she not attempt to have any such test while in Canada, it appears from both her testimony and the contents of the medical records filed as exhibits that Ms. Iamkhong never told any medical personnel about a previous positive test until she succumbed to Cryptococcus.

2. I also reject Ms. Iamkhong's assertion that she genuinely thought the medical test required by Immigration Canada would necessarily determine her HIV status. There is no evidence that HIV testing was even mentioned by anyone - certainly [the appellant] made no mention of this. There is no doubt that she understood she had previously tested positive for HIV and that she understood the serious consequences of such a diagnosis. One would expect that if Ms. Iamkhong was truly concerned about her HIV status, she would have sought to clarify this, even though she attended the medical examination for Immigration Canada without an interpreter.


Even if Ms. Iamkhong thought the second test indicated that she was HIV-negative, given that she understood the gravity of the situation, one would expect that she would make some greater effort to clarify the conflicting results rather than merely relying on the woefully incomplete second-hand account provided by Wally, her employer. Indeed, having received inconsistent results, one positive and one negative, I would have expected her to seek further clarification rather than merely relying on the most recent test.

4. That Ms. Iamkhong never made any effort to clarify her HIV status is supported by the medical notes relating to her contacts with other doctors. While I am aware these records are not recorded statements from Ms. Iamkhong, I note there is no mention on any of them that she was HIV-positive. This is particularly striking in that she did not even mention the HIV-positive test result when she went to see the doctor because of a concern that she had contracted a sexually transmitted disease. In such a circumstance, one would expect that Ms. Iamkhong would at least mention she had previously had a positive HIV result but was later cleared by the Immigration Canada medical examination. I do not accept, as Mr. Berg suggests, that this failure to mention the positive test is because Ms. Iamkhong believed she was not really HIV-positive. Rather, having considered all of the evidence, I find this is because Ms. Iamkhong consciously withheld this information from the medical professionals she dealt with.

5. I am also troubled by the fact that Ms. Iamkhong never told [her husband] about the positive test in Hong Kong and her belief that she was subsequently cleared by the second test. Mr. Berg did concede that Ms. Iamkhong did, on several occasions, discuss issues of condom use, sexually transmitted diseases and HIV status with [her husband]. Even if Ms. Iamkhong did not, for whatever reason, want to mention the initial positive test in Hong Kong, one would expect that she would have told [her husband] that the Immigration Canada medical examination was proof that she was HIV-negative. But Ms. Iamkhong made no mention of the latter test, the very one that she says is the basis for her belief that she posed no risk to [her husband].

40 The appellant argues that the trial judge's five reasons for rejecting her testimony demonstrate two significant errors. First, his reasons are all grounded on a basic misapprehension of the appellant's evidence. She contends that the trial judge's reasons are founded on his expectation about how a person would behave if she had received conflicting results in consecutive HIV tests and was therefore uncertain about her HIV status. Because the appellant's actions were inconsistent with these expectations, he disbelieved her when she claimed to believe she was HIV-negative.

41 The appellant argues that she did not testify that she was uncertain, or in a state of doubt, about her HIV status after the Canadian test. Rather, she testified that she did not trust the Hong Kong result and she believed the Canadian test had proven her to be HIV-negative.

42 The appellant submits that the five reasons set out by the trial judge, in effect, show that her actions were inconsistent with someone left in doubt about her HIV status by conflicting tests. However, the appellant contends, this was not a state of mind she claimed to have held at the relevant time. The trial judge, therefore, wrongly started from the assumption that the appellant would have been left in doubt by what she believed was the second HIV test, and assessed her conduct accordingly. Such an approach, she says, fails to take account of the appellant's situation, and presumes a rejection of her testimony that she believed herself to be HIV-negative.

43 The second error is said to rest on a major misapprehension of the evidence by the trial judge. Specifically, in the trial judge's fifth reason, he relies on the fact that the appellant never told her husband about the positive test in Hong Kong, and on the appellant's belief that she was subsequently cleared by the second test. The husband, in fact, testified that the appellant did tell him she had tested negative on the immigration medical examination in Canada.

(a) The appellant's belief

44 As to the first ground, the trial judge was clearly aware that the appellant's position was that she did not believe she was HIV-positive. Indeed, he prefaces his list of five specific reasons for rejecting her testimony with a clear reference to this belief:

After careful consideration of all of the evidence, I reject Ms. Iamkhong's testimony that she believed that she was HIV-negative. Nor does that evidence leave me with a reasonable doubt about whether or not she believed she was HIV-negative.

45 Further on, in reason four, he states: "I do not accept, as Mr. Berg suggests, that this failure to mention the positive test is because Ms. Iamkhong believed she was not really HIV-positive." His reasons must, therefore, be read in this context.

46 Once again, the trial judge's reasons focus almost entirely on whether the appellant believed that she was HIV-negative. The reasons address her state of mind after both HIV tests, including the one she assumed Canadian immigration officials performed, and the trial judge acknowledged her testimony that she thought she was HIV-negative.

47 The trial judge was not foreclosed from considering whether the appellant's alleged belief was believable simply because she said that she had no doubt from the two tests. I cannot find any basis upon which to conclude that the trial judge misapprehended her evidence about her belief.

(b) The appellant's revelations to her husband

48 The question to be decided here is whether the appellant has demonstrated that the trial judge's misapprehension of the evidence that she told her husband about the supposed negative Canada immigration HIV test is a material part of the evidence at trial, and whether this error played an essential part in the trial judge's reasoning process leading to a conviction, such that it constituted a miscarriage of justice pursuant to s. 686(1)(a)(iii) of the Criminal Code: R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.). In Morrissey, Doherty J.A. explained, at p. 541:

Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction then, in my view, the accused's conviction is not based exclusively on the evidence and is not a "true" verdict.... If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it must follow that the appellant has not received a fair trial, and was the victim of a miscarriage of justice. This is so even if the evidence, as actually adduced at trial, was capable of supporting a conviction.

49 These statements were cited with approval by the Supreme Court of Canada in R. v. Lohrer, [2004] 3 S.C.R. 732. Binnie J. elaborated on the Morrissey test as follows, at para. 2:

Morrissey, it should be emphasized, describes a stringent standard. The misapprehension of the evidence must go to the substance rather than to the detail. It must be material rather than peripheral to the reasoning of the trial judge. Once those hurdles are surmounted, there is the further hurdle (the test is expressed as conjunctive rather than disjunctive) that the errors thus identified must play an essential part not just in the narrative of the judgment but "in the reasoning process resulting in a conviction".

50 Each counsel offers a different approach to the application of the test in Morrissey to this case. The Crown says that the correct approach is to require the appellant to show that the result would have been different had the mistake not been made. The appellant, on the other hand, asserts that all she need show is that the result could have been different.

51 In my view, the approach required in this case is the one discussed in Morrissey at p. 541:

... any error, including one involving a misapprehension of the evidence by the trial judge must be assessed by reference to its impact on the fairness of the trial. If the error renders the trial unfair, then s. 686(1)(a)(iii) requires that the conviction be quashed.

52 This approach does not focus ultimately on whether the result would or could have been different had the evidence not been misapprehended. While that may be a relevant consideration, the focus is on the impact of the misapprehension on the fairness of the trial.

53 In his fifth reason for disbelieving the appellant, the trial judge found that had the appellant truly believed she was HIV-negative, she would have told her husband about the Hong Kong test and the Canadian test. While he misapprehended the evidence on the latter, he was correct about the former. An evidentiary basis therefore exists for the fifth reason.

54 More importantly, the other reasons all stand unimpaired. These include, especially, the first reason, namely, that the appellant's story simply does not correspond to common sense. All four reasons are well anchored in evidence that the trial judge could quite properly accept. In these circumstances, where only the trial judge's fifth reason is founded on a misapprehension of evidence, and then only in part, I cannot conclude that the appellant received an unfair trial. The misapprehension does not give sufficient cause to doubt the reliability of the verdict to render it a miscarriage of justice.

55 As I have said, the trial judge's reasons focus almost entirely on whether the appellant believed that she was HIV-negative. He provided a series of reasons for disbelieving her evidence on the core issue, namely, her state of mind. It simply cannot be concluded that the trial judge's misapprehension of evidence played an essential part in the reasoning process resulting in a conviction. In my view, it was not an essential part of the trial judge's reasoning process.

(v) The sentence appeal

56 The appellant received a sentence of two years in the penitentiary. As a result, s. 64 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, will deny her the right to appeal if she is ordered deported from Canada. This factor was not considered by the trial judge, nor by counsel at the sentencing hearing, who focused on where the appellant would receive better medical care during her incarceration.

57 The appellant does not claim that the current sentence is outside the appropriate range. Further, she concedes that defence counsel at the sentencing hearing, while seeking a conditional sentence, asked that if she were to be imprisoned that it be in federal prison due to her medical needs.

58 As this court held in R. v. Hamilton (2004), 72 O.R. (3d) 1, at para. 85: "There is seldom only one fit sentence. Fitness usually describes a range of appropriate sentencing responses."

59 This seems to me to be such a case. As was the case in Hamilton, the appellant's conviction makes her "inadmissible" under the Immigration and Refugee Protection Act, and could trigger steps resulting in her deportation. If the appellant receives a sentence of more than two years and is ordered deported, one of the avenues by which she could challenge that deportation would be lost by virtue of the length of the sentence imposed: Immigration and Refugee Protection Act, s. 64(2).

60 The risk of deportation is a factor that can be considered in deciding the "appropriate sentencing responses and tailoring the sentence to best fit the crime and the offender": Hamilton, at para. 156. I believe, as was the case in Hamilton, that the trial judge, in deciding that a sentence at or near two years was the appropriate sentence, would have been entitled to look at the deportation consequences for the appellant of imposing a sentence of two years less a day as opposed to a sentence of two years. And, as in Hamilton, had he done so, this would have been an example of the human face of the sentencing process: Hamilton, at para. 158.

61 A sentence of two years less a day after credit for strict bail conditions would be equally fit, but would entitle the appellant to seek to remain in Canada, subject to appropriate conditions. Insofar as the impact of the sentence on the appellant is concerned, this is a serious consideration.

62 It appears that the future prospects of the appellant can be assisted or improved by imposing a sentence of two years less a day, rather than two years. In such a situation, it is entirely in keeping with the principles and objectives of sentencing to impose the shorter sentence: Hamilton, at para. 158. And, as Doherty J.A. also noted in Hamilton at para. 158, "[w]hile the assistance afforded to someone like [the appellant] by the imposition of a sentence of two years less a day rather than two years may be relatively small, there is no countervailing negative impact on broader societal interests occasioned by the imposition of that sentence".

63 For these reasons, I would grant leave to appeal sentence and I would allow the sentence appeal. I would set aside the sentence of two years imprisonment imposed at trial and substitute a sentence of two years less one day.


64 For all the reasons set out above, I would dismiss the appeal against conviction. However, I would grant the appellant leave to appeal the sentence imposed at trial; I would allow that appeal and set aside the two year sentence and substitute a sentence of two years less one day.

S.T. GOUDGE J.A.:-- I agree.
E.A. CRONK J.A.:-- I agree.

Saturday, June 13, 2009


I will have the distinct honour to Chair a distinguished panel of senior government officials to learn about how Service Canada Foreign Worker Program operates in the new economic reality on Monday, June 15, 2009 at the Ontario Bar Association. For more information, please see:


Thursday, June 11, 2009


See this story appeared today in the Wall Street Journal . While the story related to the US-Mexican border, it must be noted that Canada has no visa requirement for Mexicans, an insane and negligent stance given the increasing brutality of Mexican gangs who can easily infiltrate Canada and exploit its weak enforcement policies. Someone in Ottawa is asleep at the switch. A visa-free entry makes absolutely no sense, particularly given that Mexicans are now the number one producer of refugee claims in Canada. The imposition of a visa requirement is necessary before matters get out of control. We need common sense, and fast.

JUNE 10, 2009

Immigrants Become Hostages as Gangs Prey on Mexicans


EL MIRAGE, Ariz. -- A whispered 911 call from a cellphone early one January morning brought police to a home on West Columbine Drive in this Phoenix suburb. Inside, they found more than 30 half-naked and shivering men -- prisoners, police say, of a gang that had smuggled them in from Mexico.

Beaten and threatened with a 9-mm Beretta pistol, a local detective's report said, the men were being shaken down for as much as $5,000 apiece, a ransom above the $1,000 that each had agreed to pay before being spirited across the border.

Such cases are increasingly common in Phoenix, which is gaining notoriety as the kidnapping capital of America. Authorities blame forces ranging from Mexico's rising drug violence to a gang takeover of the immigrant-smuggling business.

Scenes From a "Drop House"View Slideshow
El Mirage Police Department .In Phoenix, gangs that smuggle people in from Mexico are increasingly holding the migrants captive for ransom in rental houses.
More photos and interactive graphics .
Another factor: the volatile housing market in the city, which has left it strewn with thousands of rental houses on sometimes sparsely populated suburban blocks, handy places for smugglers to store either drugs or people. The police call these "drop houses." They say federal, state and local authorities discovered 194 such houses in 2007, then 169 last year and dozens more so far in 2009.

While most of Phoenix's abduction cases relate to the drug trade, as dealers snatch rivals to demand ransom or settle debts, increasing numbers involve undocumented migrants. "Of 368 kidnap cases last year, 78 were drop-house cases involving illegal aliens," says Sgt. Tommy Thompson of the Phoenix Police Department. Officials say that in 68 alleged drop houses identified in the first five months of 2009, authorities found 1,069 illegal immigrants.

What's happening here marks a shift in the people-smuggling business. A couple of decades ago, workers commonly traveled back and forth across the U.S.-Mexico border, going to the same American farm or construction job each year. To make the passages they often would use the same smuggler, called a "coyote," each time.

Now, organized gangs own the people-smuggling trade. According to U.S. and Mexican police, this is partly an unintended consequence of a border crackdown. Making crossings more difficult drove up their cost, attracting brutal Mexican crime rings that forced the small operators out of business. The Phoenix area also was affected because tougher enforcement at the border focused on traditional routes in Texas and California -- funneling more traffic through Arizona along desert corridors controlled by Mexico's Sinaloa drug cartel.

Even the recent falloff in immigration resulting from U.S. job losses helps to fuel kidnapping, some authorities believe. They say that as border crossings decline, gangs earn less money directly from smuggling fees than from holding some of their clients for ransom, before delivering them to their destination farther inside the U.S.

"The alien becomes a commodity," says Matthew Allen, senior agent in charge of the Phoenix office of U.S. Immigration and Customs Enforcement. "One way you raise the value of that commodity is by threatening: terrorizing someone in a drop house."

Last month, police raided two houses in the suburb of Avondale, at both of which they say they rescued undocumented immigrants. On May 12, they found 14 immigrants held at a "fortress-like" house on West Madison Street. Heavy deadbolt locks had been installed on doors, windows were sealed, and a closed-circuit video system enabled guards in one part of the house to monitor other rooms.

Police photos of the scene reveal a thick black stain running the length of one bedroom wall where hostages allegedly were kept, a residue left by sweaty bodies jammed in tightly. "The darker it is, the longer they were there," said Lt. Robert Smart of the Arizona Department of Public Safety.

Local authorities learned of the house when someone called police in New Jersey and said a relative who had recently crossed into Arizona from Mexico was being held hostage. Lt. Smart said New Jersey authorities traced the alleged extortion demand to a ring operating from Tucson, about 135 miles away from Avondale, which police believe was handling negotiations for those holding the immigrants.

Four nights later, at a second house three miles away in the same suburb, police say they rescued 34 immigrants, including two pregnant women, who law-enforcement officials estimate had been held anywhere from three days to two months.

Earlier, one house was raided twice in two months. The home on West Lumbee Street had two characteristics attractive to smugglers: a site close to an Interstate highway and a large attached garage that made it easy to move people in or out undetected.

Journal Community What's the best way to secure the U.S. border with Mexico?
On Dec. 4, police stopped a van on Interstate 10, the highway linking Phoenix and Los Angeles, and found it jammed with 19 men. An investigation led to the West Lumbee Street house, where two people were taken into custody. Yet before the end of January, police were back at the same house, this time, they say, rescuing two immigrants held captive by a different gang.

The area's housing market has facilitated such activities. When the real-estate bubble was inflating, some investors bought houses and offered them for rent while waiting for a chance to flip them. By the time the mortgage market faltered in mid-2007, according to the Maricopa County assessor's office, the supply of houses for rent in the Phoenix area had swelled to 73,700, up nearly 75% from 2000.

The bust has enlarged rental-house numbers by 12,000 more, as strapped owners of hard-to-sell homes try to rent them out. The abundance favors smugglers two ways: by making owners less picky about tenants and by spawning "dead zones" containing many unoccupied houses, where there are few residents to notice suspicious activity.

A recent survey by the state attorney general's staff of 170 former drop houses found that more than half had been mortgaged with no-money-down, interest-only financing, and 42% have gone into foreclosure.

At the West Lumbee Street house raided twice in two months, the owners, Pablo and Ana Maria Sandoval, had moved to a larger home and were eager to find a tenant to help them pay the mortgage. They rented the house out for $1,200 a month.

"We had heard about these smugglers, but something like this had never happened to anyone we knew," says Mr. Sandoval, who repairs vending machines for a living. He says he has taken the house off the rental market and it's now occupied by a son who lost his own home to foreclosure.

The Sandovals didn't face any charges. The owners of such homes are almost never charged, says Arizona Attorney General Terry Goddard, because it's hard to prove owners knew their houses were being used by renters in criminal activity. To date, after more than 500 alleged drop houses have been busted, no absentee owner has been charged with a smuggling-related offense. Most illegal aliens found inside are deported, except for a few needed as prosecution witnesses.

In all, a thousand houses in the Phoenix area are being used as drop houses at any given time, many never discovered, police say. They found out about the house in El Mirage when a dispatcher answered a 911 call at 7:50 a.m. on Jan. 31 and heard the word "help" -- along with what sounded like the chirp of a smoke alarm.

The call lasted long enough for El Mirage police to determine the street it came from: West Columbine Drive, a suburban street where early this year almost a third of the 34 homes were unoccupied and six were in foreclosure. Officers conducted a search of the street and, after detecting a smoke-alarm chirp coming from No. 12301, surrounded the house and went in.

According to a local detective's report, the upstairs windows were sealed from the inside with plywood. The police found 37 people inside, most of them illegal aliens.

A single small upstairs bedroom contained 22 men. "The subjects I found were all in their underwear and laying in a line next to each other along the walls and inside the closet," one officer wrote, in a report reviewed by The Wall Street Journal. They had been jammed in so tightly and so long that the wallboard showed indentations from bare backs pressed against it. Pink walls, decorated with stickers of Disney characters, were stained with sweat smudges.

Down a short hallway was a tiny laundry room labeled "Office." There, according to captives' accounts to investigators reviewed by the Journal, immigrants were beaten and ordered to produce phone numbers of relatives in the U.S., who were then called and told to wire ransom money.

The documents say one captive, a 39-year-old Honduran named Jorge Argueta-Pineda, told investigators that after being beaten repeatedly, he arranged to have relatives wire $3,200 to a Western Union office in Mexico. While most of those found inside were deported, Mr. Argueta has been allowed to stay in the U.S. to testify against his alleged captors. He couldn't be reached for comment.

In the case, seven Mexican nationals in custody pleaded not guilty to federal charges including hostage-taking and possession of a firearm during a crime of violence. Among them were several who, according to the local police, were in the house when it was raided, and stripped off their clothes to try to pass as captives.

The owners of the house are Aniceto Alcantar, who works at a plastics factory, and his wife, Laura, a schoolteacher. After moving to another house, the Alcantars had offered the one on West Columbine for rent in December. Weeks went by without a nibble, but finally they received a call from a young couple.

Mr. Alcantar, 37, says it didn't bother him that the two -- Mexican-born, like himself -- had no references. "They said they had just moved to Phoenix from California. Supposedly they sold cars for a living, out of their home," he says. What gave him confidence they weren't criminals, Mr. Alcantar adds, was that they said they were too poor to afford the security deposit and asked to pay it in installments.

The $750 deposit might have helped with the cleanup. After the January raid, Mr. Alcantar says he found thousands of dollars in damage to the house, from ruined carpets to damaged plumbing. He says he had to paint his children's former bedrooms several times to cover the stench of bodies that been pressed together for too long.

"I guess I got lucky: The police found out quickly," Mr. Alcantar says. "If they had been in here much longer, they would have destroyed my house."

Wednesday, June 10, 2009


Unsurprising turn of events...Terrorists know that Canada has weak enforcement, they would not dare to try to infiltrate the US, Australia or the UK, plus they have thousands of sympathizers in Canada, pushing for "quick" application approvals. Such lack of safeguards would not only be unadvisedly stupid, but would also compound a decade of mismanagement that resulted in Canada being one of the Tigers' favourite places to fundraise and support the civil war in Sri Lanka. Mr. Karigianis opinions show that his only interest is to get re-elected, and forgets that the previous Liberal governments have made a mess of the refugee system adn the family sponsorship criteria, based on their currying favour with those who have votes to offer. Mr. Karigianis should be reminded also that, after every conflict ends, those defeated seek to blend in with the displaced population to gain entry to countries that offer assistance. This was true after WWII, Vietnam, conflicts in Central America in the 1980s and the Rwandan atrocities: Canada has been saddled with war criminals from all over the worls we cannot seem to be able to expel after years of litigation, and in some cases, even decades,, at gret cost to the taxpayers. Increased vigilance and scrutiny is mandatory to prevent unsavoury characters from gaining entry to Canada. Mr.Karigianis needs a history lesson ASAP.

CSIS beefs up screening for Tamil Tigers Extra agents added in Sri Lanka as backlog grows for Canadian visa requests
Bill Curry

Ottawa — From Wednesday's Globe and Mail, Wednesday, Jun. 10, 2009 08:16AM EDT

Canada is boosting its immigration screening in Sri Lanka – shifting overseas CSIS agents from New Delhi to Colombo in a bid to keep defeated Tamil Tiger terrorists from landing here.

In addition to moving agents from the Canadian Security Intelligence Service and the Canada Border Services Agency from their posts in India, the federal immigration department is adding staff to manage the growing backlog of Sri Lankan visa requests.

Richard Fadden, the deputy minister of Citizenship and Immigration who takes over as head of CSIS on June 27, told MPs Tuesday that any hint of association to the Liberation Tigers of Tamil Eelam now triggers in-depth screening.

“We are insisting that all applications that have any possibility of involvement with the LTTE be referred to secondary review either by CBSA or by CSIS,” Mr. Fadden said during an appearance before the House of Commons immigration committee.

Liberal MP Jim Karygiannis, whose Scarborough-Agincourt riding is home to many Tamil-Canadians, accused the government of unnecessary delays at a time when families are desperate to be united in Canada.

“Is it because your department and your government has a view that if you're a Tamil, you're a Tiger, you're a terrorist?” he asked.

“Of course it's not,” replied Immigration Minister Jason Kenney, who appeared with Mr. Fadden.

Mr. Kenney has vowed to speed up family-reunification applications coming from Sri Lanka. But his deputy, Mr. Fadden, said security concerns can lead to a second, and even a third round of interviews as part of the application process.

“While we do want to do everything we can to expedite the handling of files, one aspect that can slow down these files are security concerns,” said Mr. Fadden.


Ottawa to seek biometric data on visitors

Bill Curry

OTTAWA — From Wednesday's Globe and Mail, Wednesday, Jun. 10, 2009 03:00PM EDT

The incoming head of Canada's spy agency says new rules requiring digital fingerprints and photos at foreign visa offices will be extended to every visitor from any country in the world – including close European allies such as France and Britain.

Speaking in his current position as deputy minister of Citizenship and Immigration, Richard Fadden said the use of such biometric data will be phased in over time, starting with countries considered to pose higher security risks.

The plan is to phase in the rules between 2011 and 2013 for countries whose nationals require a visa for travel, work or study in Canada. But Mr. Fadden revealed yesterday that the longer-term plan will extend the rules to citizens of the nearly 60 countries who travel to Canada relatively hassle-free through exemptions from the visa process.

Mr. Fadden did not say how biometric information will be gathered for visitors who do not require a visa. However, many countries, including Canada, have discussed the adoption of national ID cards that include biometric data.

“The intention is to capture everybody,” Mr. Fadden told MPs during an appearance before the House of Commons immigration committee yesterday. “The idea is to increase our capacity to know who is in Canada at a particular point of time.”

Mr. Fadden's appearance alongside Immigration Minister Jason Kenney provided his first public comments since his appointment as director of the Canadian Security Intelligence Service. Mr. Fadden won't begin his new job until June 27, but his testimony yesterday underscored the degree to which he is already deeply immersed in national security issues as the immigration department's top bureaucrat.

The deputy minister said no date has been set on when biometrics will be required for all visitors. He also said there's no reason why countries in the European Union should be exempt.

“Part of the difficulty is there are significant program integrity and national security issues originating from people who are citizens of EU countries,” said Mr. Fadden. “We don't see any program basis on which to distinguish our treatment of them as opposed to other parts of the world.”

The federal government tested the photograph and fingerprint technology known as biometrics during a field trial from October, 2006, to April, 2007, in two overseas visa offices. That study concluded the technology is reliable and effective at preventing fraud.

The face scans and fingerprints help identify people who are refused a visa to come to Canada and then show up at the border as refugee claimants lacking any documentation.

The 2008 budget set aside $26-million to introduce biometrics into the visa system, describing the measure as one that matches similar practices in the United States, Australia and the United Kingdom. But Mr. Fadden's comments yesterday provided much more detail on the plan. He said Canada's intention is to issue about 20 to 25 contracts with private companies around the world to accept paper visa applications and record biometric data.

“We're going to phase this in and we're going to pick countries where there are more concerns, but the intent is to cover all temporary visitors,” said Mr. Fadden.

The federal Privacy Commissioner said it will be asking the immigration department to submit a business plan explaining why the move to biometrics is necessary.

“We have expressed concerns about the necessity of using biometric information for the purposes of enforcing immigration and refugee laws,” said Valerie Lawton, a spokesperson for the commissioner. “The use of biometrics in border security is increasing and our office will be monitoring these developments closely.”


Feds target bogus immigration consultants

By Juliet O'Neill, Canwest News ServiceJune 9, 2009

OTTAWA — Immigration Minister Jason Kenney says the government is trying to curb "massive, widespread, deliberate" fraud by bogus consultants against foreign nannies, caregivers and others who seek to live in Canada.

The government has stepped up advertising and warnings about bogus consultants in 17 languages in Canada and abroad, Kenney said Tuesday, and he has asked for the matter to be a priority in discussions with some foreign governments.

One such government is the Philippines, from which thousands of nannies and caregivers come to Canada each year, some having paid thousands of dollars to consultants claiming to be Canadian government agents.

Another target country is India, where Kenney's spokesman said the government has found "a suspiciously high number of Punjabi men in their 20s trying to enter Canada as nannies."

Kenney told the House of Commons immigration committee that the government would come up with "meaningful changes to increase the penalties and the sanctions for operating outside the law and to provide a more robust regulatory framework for the consultants who operate illegally."

The new rules are expected by the end of summer.

Kenney was testifying on the eve of the committee tabling its second report on migrant workers and bogus consultants.

"The fraud is massive, it's widespread, it's deliberate, it's probably a multi-hundred-million-dollar industry on an international level," Kenney said.

"And it is taking advantage of the dream that people have coming to Canada for which some people are willing to pay a very great deal — thousands of dollars in some parts of this world."

The committee has defined bogus or "ghost" consultants as paid immigration consultants who advise clients in immigration matters without being "authorized representatives," which means without being lawyers in good standing or members of the Canadian Society of Immigration Consultants.

Kenney said the bogus consultants advertise in newspapers in Canada and abroad and on billboards abroad using "ripoff" versions of the Canadian government logo.

"The challenge is that overseas obviously we can't apply Canadian law to regulate immigration consultants in other parts of the world," Kenney said. "What I've asked is that we make the proper regulation and policing of third parties in this field in foreign countries a priority bilateral issue in our relationship with certain countries."

The committee's report also includes a segment on its examination of allegations by caregivers from the Philippines that they were mistreated while employed in the Toronto-area home that Liberal MP Ruby Dhalla shares with her mother and brother.

MPs from all parties say they are upset that a draft of their report, calling on provincial and federal authorities to investigate the allegations against Dhalla, was leaked to the media.

They voted to refer the matter to the Commons as "a breach of privilege" and ruled out a proposal by Conservative Rick Dykstra to make every committee MP, staff member and others with access to the report swear in an affidavit they did not leak it.

Tuesday, June 9, 2009


See story below. In general, Russian multimillionaires have been very keen on gaining Canadian residency, and eventually citizenship, since the fall of the Soviet Union. Canada has paid a heavy price over the years due to its initial naivete about the nature and sources of wealth of Russian multimillionaire applicants, and their objectives to obtain a safe and inexpensive way to "park" themselves or their families in Canada, and eventually accessing a passport that would entitle them to travel without visas to most international destinations.

Malkin has fought for a Canadian residency permit for more than a decade.
Billionaire Senator Can't Get Canadian Visa

09 June 2009
By Nikolaus von Twickel / The Moscow Times

Canada has refused to give a visa to Federation Council Senator Vitaly Malkin for more than a decade, claiming that the billionaire has links to organized crime, according to public records of the Canadian Federal Court.

Malkin first applied for permanent residency as an entrepreneur with the Canadian consulate in Detroit, Michigan, in 1994, and filed a complaint in 1998 after the request was denied, the records on the court's web site show.

The epic battle has dragged on ever since, with Malkin getting perhaps his first break last week when the court in Toronto ordered a review of the case after Canadian immigration authorities conceded that Malkin had been denied procedural fairness.

Malkin's name is spelled Vitali Malkine in the court records, but both their content and e-mailed comments by court spokesman Andrew Baumberg leave no doubt that Malkine and Malkin are the same person.

The court documents show that Canadian authorities used Malkin's controversial past in the turbulent 1990s as the reason to deny him residency.

A visa officer told the court that Malkin was a shareholder in a company thought to have received money diverted from a debt-reduction deal with Angola. "Mr. Malkine is reported to have personally received some $48 million in the transaction," a passage published by the court in May reads.

The visa officer also noted Malkin's association with individuals involved in money laundering, arms trade and trade in Angolan "conflict diamonds," the documents say.

Malkin's involvement in President Boris "Yeltsin's re-election campaign is also discussed, with the officer stating that Mr. Malkine had used profits from organized crime to subvert the democratic process in Russia," they say.

Malkin has vehemently denied the charges and complained that they might hurt his reputation as a senator, according to the documents.

Repeated attempts to reach Malkin, 56, for comment were unsuccessful on Thursday, Friday and Monday. He did not reply to questions sent by e-mail, and a woman who picked up the phone at his Federation Council office said he would be away for the rest of the week. Malkin's lawyer in Toronto, Robert Young, did not respond to written questions.

Malkin was an influential banker in the 1990s, serving as president of Rossiisky Kredit bank and co-owner of Impexbank. He was said to be close to Yeltsin. In 2006, he and his partner Boris Ivanishvili sold Impexbank for $550 million to Austria's Raiffeisen Bank.

Last year, he was ranked by Forbes magazine as the country's 85th-richest man, with an estimated wealth of $1 billion.

Malkin has represented the east Siberian republic of Buryatia in the Federation Council since 2004.

The allegations in the Canadian court documents closely resemble reports that surfaced in the wake of a money-laundering case involving Malkin in Switzerland in 2002.

The case was dropped two years later, but Global Witness, a London-based NGO that investigates corruption in the natural resources sector, said it had information that bank transfers of debt repayments from Angola to Russia ended up in private accounts, including Malkin's.

Global Witness and Swiss advocacy group Aktion Finanzplatz Schweiz have called for the affair, dubbed Angolagate, to be reheard by courts but so far with little success.

The two advocacy groups said more than $770 million in Angolan oil revenues were paid into a Swiss bank account belonging to Abalone Investment Limited, a shell company run by businessman Pierre Falcone and his associate, Russian-Israeli billionaire Arkady Gaidamak.

The Russian Finance Ministry received only $161.9 million, while the rest was transferred to accounts belonging to Angolan officials, a French arms broker and Malkin, the advocacy groups said. They said $48.8 million was transferred to an account belonging to Malkin and $60.5 million was transferred to an account belonging to Gaidamak.

The Swiss paper Le Temps reported in 2002 that Malkin was a shareholder in Abalone and that the Angolan debt deal might have been used to finance Yeltsin's re-election campaign in 1996.

Malkin and Gaidamak have denied the allegations.

It was unclear why Malkin would wage such a prolonged battle to enter Canada. The Canadian National Post newspaper, which broke the story last week, reported that he owns 111 condominium units in Toronto.

By 2007, Malkin had given up on moving to Canada and applied for a visitor's visa to look after his property, the newspaper said, citing no one.

Court records from 1999 say Malkin presented evidence of property purchases in Ontario by a company he headed. Yet immigration authorities decided that this does "not indicate that Mr. Malkine has been actively involved in business in Canada or that he has the intention and ability to provide active and on-going participation in the management of a business or commercial venture," it said.

Israeli newspaper Haaretz reported in 2007 that Malkin's son had lived in Canada with his mother since 1989. Leonid Malkin immigrated to Israel in 2005 and changed his name to Ilan, the report said.

Ilan Malkin did not return calls to a Tel Aviv luxury restaurant that he co-owns.

A Canadian Embassy spokesman declined to comment on the Malkin visa issue.

Malkin is not the first prominent Russian to be denied entry by Western countries. The U.S. State Department for several years refused to give a visa to metals tycoon Oleg Deripaska over concerns about his possible links to organized crime.

Crooner-turned-lawmaker Iosif Kobzon was denied a U.S. visa 1995 because of FBI reports of ties to organized crime.


This story appeared in the Edmonton Sun. If true, it would mean that Canada will move in the same direction as the US has already been doing since 9-11. Fingerprinting applicants for any visa makes sense, as it does to include biometric information in the Permanent Residence Card to ensure that a good record is kept of compliance with the residency obligation. Technology and safeguards now exist to prevent any unauthorized disclosures. It is noteworthy that while the government cannot seem to figure out how to protect data, dozens of credit card companies handle data security of millions of card users in a much more efficient and cost-effective way. I fail to understand why it is so hard to embed a Permanent Resident Card, or a Citizenship Certificate, withe the ability to track travel and identity with card readers. Perhaps this is a job for the private sector and not for the government? What a novel idea that would be :-)

Feds may fingerprint temporary residents


Last Updated: 8th June 2009, 6:32pm

OTTAWA — The federal government plans to start fingerprinting applicants for temporary resident permits as early as 2011, Sun Media has learned.

By 2013, all prospective temporary residents, including those who apply for work permits or study permits, will have to submit fingerprints and photographs.

In a request for information issued to potential contractors, the immigration department says it wants to collect biometric information because the rise of identity fraud means that traditional ways of identifying people are no longer good enough.

“Current screening tools, which rely on biographic information, are no longer accurate, as documents can be easily stolen or altered resulting in multiple or false identities,” officials wrote. “In contrast, biometrics can be used to uniquely identify and reliably verify an individual.”

Accurate identification is “the first-line of defence against individuals who pose a threat to Canadian society and economic migrants who seek to take advantage of Canada’s high standard of living,” they wrote.

According to the document, a 2006 pilot project was successful. The 2008 budget provided $26 million over two years for the initiative. Treasury Board gave preliminary approval in March and “effective project approval” is expected by March 2010.

By late 2011, the department plans to require fingerprints from 15% of prospective temporary residents. That will increase to 50% in 2012 and 100% in 2013 — roughly 1.6million people.

While they’re starting with fingerprints, the department is thinking of adding facial recognition in the future. Biometric data collected under the program will be stored at a central hub in Canada.

Fingerprints will be checked by the RCMP.

Biometrics are popular with security officials and with Immigration Minister Jason Kenney who says Canada trails Australia and the United Kingdom in using the technology.

But it also raises concerns among many privacy advocates, including Canada’s Privacy Commissioner, Jennifer Stoddart.

Spokeswoman Jennifer Gearey said collecting biometric information from prospective temporary residents is “part of a broader series of biometric initiatives,” the immigration department plans.

Gearey said Stoddart has not yet received a privacy impact assessment for this initiative. In the past, her office expressed concerns about how information would be stored, who could access it and why biometrics were necessary to enforce immigration and refugee laws.

Monday, June 8, 2009


I find it interesting that it took five years to get this individual deported despite the fact that the various tribunals found that he committed crimes against humanity. It is also noteworthy that he was not in custody, and that he was already denied asylum in Belgium. This is the "game" they play: passage of time to try to defeat the system...but it did not work this time, although it does work in many others.

Court upholds deportation of former Iranian Guard

Adrian Humphreys, National Post

A former member of Iran's Revolutionary Guard has been deported from Canada for crimes against humanity after an emergency sitting of the Federal Court upheld the role of Tehran's state security force in human rights abuses and atrocities ahead of this week's presidential elections.

The decision to deny refugee protection to Seyed Amin Hoseyni Bob Anari because of complicity in atrocities as well as the direct condemnation of the guard's use of torture, secret jails and violence has now withheld three rounds of legal scrutiny in Canada. After a five-year fight to remain here, Mr. Anari was deported to Tehran within hours of the court's denial of his request for an emergency stay proceeding.

His lawyers argued he would be imprisoned, tortured and possibly executed in Iran for his desertion.

He arrived in Tehran on the brink of an unusually acrimonious election campaign that pits President Mahmoud Ahmadinejad, himself a former guardsman, against several rivals, including Mohsen Rezai, who commanded the Revolutionary Guard for 16 years.

The branding of the guard as an organization involved in crimes against humanity effectively makes its leadership suspected war criminals under Canadian law.

Mr. Anari, 31, came to Canada in 2004 after an unsuccessful bid for refugee status in Belgium, according to documents filed in court. He settled in Vancouver with his common-law wife, worked as a sales clerk at Future Shop and made a fresh claim for refugee protection in Canada. During his hearing with the Immigration and Refugee Board, Mr. Anari admitted he was a part-time member of the guard while studying at university.

He also admitted the organization had carried out human rights abuses, including beatings and arrests of reformist students who participated in protests in the summer of 1999.

The guard, also known by its Persian name Pasdaran, operated secret prisons where detainees were subjected to inhumane treatment and torture, the refugee board ruled in 2007, concluding: "There were serious reasons for considering that the Pasdaran, and its individual members, had committed crimes against humanity."

A lawyer for Mr. Anari has said his client was ordered to infiltrate a political protest at the University of Tehran and report on the dissidents involved, but he refused to identify any participants, provoking retribution from his colleagues and forcing him to flee the country. Lawyers for Mr. Anari could not be reached over the weekend for comment.

The refugee board rejected Mr. Anari's claim for refugee status in June, 2007.

Under the United Nations convention on refugees, anyone committing a war crime or crime against humanity is not eligible for refugee protection. His appeal of that decision to the Federal Court was denied six months later.

He then applied for a pre-removal risk assessment, an appraisal by immigration officials designed to prevent people being sent to a country where they would be in serious danger. In October, 2008, his assessment concluded that, while it was possible he would face mistreatment back in Iran, he was not likely to face torture, risk to life or cruel and unusual treatment.

The risk assessment officer noted that he is unlikely to be of concern to the Iranian government because his lack of political dissent; he was not a high-ranking member of the Revolutionary Guard but merely a "part-time member" while at university.

"I note that the evidence does not support that the applicant is suspected by the security services of being involved in serious crimes or high-level anti-regime political activity," the risk assessment concluded.

In court, Mr. Anari argued he might be forced to "rejoin" the Revolutionary Guard and being forced to participate in an organization that has been accused of committing crimes against humanity would, in and of itself, be cruel and unusual treatment or punishment.

Federal Court Judge Yvon Pinard disagreed, noting Mr.

Anari was not a conscientious objector and was already found to have been a volunteer member of the organization and complicit in crimes against humanity.

Mr. Anari's appeal of his risk assessment was denied in court on May 20. With his deportation looming, Mr. Anari made a last-ditch appeal in court, prompting a special sitting of the Federal Court in Vancouver on Saturday, May 30, to review his departure order scheduled for the following day.

After a flurry of paperwork and arguments lasting more than an hour, Justice Russel Zinn dismissed Mr. Anari's motion to delay his removal.

The next morning he was sent back to Iran, said Faith St. John, spokeswoman for Canada Border Services Agency.

"Mr. Anari was removed. He was an admitted member of the Revolutionary Guard in Iran and deemed inadmissible to Canada for committing crimes against humanity," Ms. St. John said.

"Canada is not a safe haven for individuals who are involved in war crimes, crimes against humanity or genocide regardless of where or when they were committed," she said.

Saturday, June 6, 2009


It is hard to understand why Canada would not re-impose a visa on the Czech Republic. These people are, once again, taking undue advantage of the lifting of the visa restriction. The unfortunate part is that the Czech Republic is a good member of the EU and adheres by its standards, so Canada would have to penalize a potentially good trading partner, all because some unscrupulous Czech citizens are promoting this irresponsible conduct and wish to take advantage of Canada's generosity. This is redoux of the situation of a few years ago, when the Roma from Czech Republic and Hungary began to come in droves as soon as the visa was lifted. One possible solution: detain them while awaiting adjudication, the word will spread out quickly that Canada is no longer naive, and the flood will stop.

Southern Ontario shelters swamped by Roma refugee claimants

Posted: June 05, 2009, 9:36 PM

By Giuseppe Valiante, National Post

The flood of Roma refugee claimants at Pearson International is swamping southern Ontario social agencies, who say their shelters are reaching capacity and they don’t have enough resources to handle the influx.

Employees of emergency shelters will meet next week with provincial and federal officials to see what additional resources are needed to assist the hundreds of asylum claimants that have entered Canada after visa duties were lifted for Czech citizens at the end of 2007.

“I would certainly be concerned that our system is close to capacity and if we continue to see more refugee claimants coming from the Czech Republic or from anywhere in fact, we would be challenged to meet the needs,” said Sue Ritchie, manager of the community programs unit at the Region of Peel, which runs emergency shelters.

Since January, 2008, almost 2,000 Czech citizens have entered Canada and applied for asylum status—404 in April alone. This is a dramatic increase compared with 78 cases referred to the refugee board in 2007 and zero in 2006. Most stay in southern Ontario.

Ms. Ritchie said she has had to turn away new refugees, including the 95 Roma who arrived at Pearson International Airport last week. Many of them have since moved on to Hamilton, which has Canada’s largest Roma community, estimated at between 1,500 and 3,000.

The Region of Peel has sheltered 21 Roma families—92 people—since April. They provide food, early childcare, and services for families to search for housing and employment.

Ms. Ritchie said that if southern Ontario shelters run out of space, the province will rent private hotel rooms. She said shelters in downtown Toronto, Hamilton and the Peel area aren’t at that point, “but very close.”

Researchers from Citizen and Immigration Canada returned last week after being sent on a fact-finding trip to the Czech Republic to determine the reasons for the fleeing Roma minority, according to an immigration official. A report is expected by the research team, but a spokesperson for the Immigration and Refugee Board of Canada, Stéphane Malépart, wouldn’t provide a date for the release nor speculate on what’s in it.

Ms. Ritchie said community workers will ask government officials during their meeting what additional support is available and “if there are discussions under way for changing the process for individuals from the Czech Republic [to immigrate to Canada].”

Kay Blair, executive director of the community microskills development centre, who met with a Roma delegation in the Czech Republic, said their experiences were “grounded in sub-human treatment.”

“Wherever the Roma people are, the preference would be to achieve their extinction. It’s strong terminology ... I haven’t seen anywhere that we have gone where there is any form of acceptance of the Roma people,” Ms. Blair said.

A spokesperson for Immigration Minister Jason Kenney told the National Post earlier this week that Mr. Kenney is “monitoring very closely the rising number of asylum claimants from the Czech Republic [but] we find it hard to believe that [it] is an island of persecution."

Monday, June 1, 2009


Roma refugees take up residence at Pearson airport


A group of Roma refugee claimants have made themselves at home at Pearson International Airport, waiting to meet with immigration officers who will decide their future in Ontario.

As many as 30 refugees, including young children, have gathered in the arrivals section of Terminal 1. They arrived Tuesday and have passed their time chatting with each other, sleeping on benches and planning for their meeting.

One of the refugees told CTV Toronto on Sunday that they're in Toronto because Romas living in the Czech Republic have been targeted by right-wing activists. Romas are a minority in the Eastern European nation who were once referred to as "gypsies" and have been subjected to violent abuse.

The refugees arrived in Toronto with only their luggage and their hopes that Canada will allow them to stay for good. Canada has become a popular choice for refugees in Czech Republic after a documentary aired portraying the country as a haven for immigrants.

Martin Polak, one of the refugee claimants says the group is staying at the airport because people don't have a lot of money to spare for accommodations. He says, most of all, people don't want to miss their meeting with immigration officials at the airport, because if they do, they can be arrested.

Airport officials and security authorities say the Roma visitors are not causing a disturbance and therefore have been allowed to stay. Some concerned airport employees have even brought the group some food to help make their wait more comfortable.

With a report from CTV Toronto's Austin Delaney