Thursday, December 31, 2009
Wednesday, December 23, 2009
FEDERAL COURT RULES ON MINISTERIAL INSTRUCTIONS
This is a very interesting new judgement, just released by the Federal Court. This is the first case where the Ministerial Instructions for processing Skilled Worker applications, released on November 28, 2008, have been interpreted. In this case, the court held that, while the refusal letter was somewhat confusing to the applicant, the refusal was valid in law, because it reflected the intention of the Ministerial Instructions to process only those applicants who had the required Canadian study time accumulated, and not to open the category to those whohad been students in the past.
Jin v. Canada (Minister of Citizenship and Immigration)
Between
Xiping Jin, Applicant, andThe Minister of Citizenship and Immigration, Respondent
[2009] F.C.J. No. 1552
2009 FC 1234Docket IMM-2658-09 Federal CourtToronto, OntarioMainville J.Heard: November 17, 2009.Judgment: December 3, 2009.
(25 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
1 MAINVILLE J.:-- This application for judicial review submitted by Ms. Xiping Jin (the "Applicant"), concerns the interpretation of ministerial instructions issued in 2008 pursuant to section 87.3 of the Immigration and Refugee Protection Act (the "Act") introduced into the Act by section 118 of the Budget Implementation Act, 2008. These ministerial instructions were published in the Canada Gazette Part 1 on November 29, 2008 (the "Instructions").
2 Specifically, the Applicant seeks to have this Court interpret the words "[a]pplications submitted [...] by foreign nationals residing legally in Canada for at least one year as [...] International Students" set out in the Instructions as including foreign nationals who, at any time in the past, resided legally in Canada for at least one year as International Students. This interpretation would allow an International Student who resided in Canada for at least one year at any time in the past to benefit from priority processing for Federal Skilled Workers permanent residence applications.
Background
3 The Applicant was studying at Knox College in Toronto from September 2004 to August 2006. She then took a leave from her studies and resided in China until her return to Canada to study in May of 2008. She has pursued her studies in Canada continuously since May 2008 to the time of the hearing on this judicial review. At all relevant times she has held a valid student visa. Her current student visa expires August 30, 2012.
4 In September of 2008, the Applicant applied for permanent residence in Canada under the Federal Skilled Worker class deeming herself eligible to this class as an International Student who has resided in Canada for at least one year. She processed this application through the Canadian Consulate General in Buffalo, New York state.
5 On April 17, 2009 the Immigration Section of the Buffalo Visa Office notified the Applicant that her application for permanent residence under the Federal Skilled Workers class could not be processed.
6 One of the grounds under which the Applicant initially challenged this decision was that the Instructions had not been published in the Canada Gazette at the time her application was submitted. However, at the hearing on this judicial review application held on November 17, 2009, the Applicant informed the Court that she was nevertheless seeking to have her application processed under the Instructions. Consequently, she informed the Court that she was not pursuing any argument related to the fact that these Instructions were published in the Canada Gazette after she had made her application.
7 The Applicant pursued the following arguments:
a. the ministerial instructions should be interpreted to apply to her case since, at the time of her application, she did accumulate one year of legal residence in Canada as an International Student, if her time in Canada prior to her leave of studies is taken into account, and
b. the original decision which had been made in her case dated April 17, 2009 was based on the fact her work experience did not correspond to any of the occupations identified in the Instructions. Since her application was rather based on her status as a resident International Student, the April 17, 2009 decision was wrong in that it did not provide reasons why she had been refused as an International Student. The Applicant argued that it was only in these judicial review proceedings that the Respondent finally provided the reasons for not processing her application as an International Student.
Legislative context
8 Subsections 87.3 (2) and (3) of the Act provide for the following:
(2) The processing of applications and requests is to be conducted in a manner that, in the opinion of the Minister, will best support the attainment of the immigration goals established by the Government of Canada.
(3) For the purposes of subsection (2), the Minister may give instructions with respect to the processing of applications and requests, including instructions
(a) establishing categories of applications or requests to which the instructions apply;
(b) establishing an order, by category or otherwise, for the processing of applications or requests;
(c) setting the number of applications or requests, by category or otherwise, to be processed in any year; and
(d) providing for the disposition of applications and requests, including those made subsequent to the first application or request.
(2) Le traitement des demandes se fait de la manière qui, selon le ministre, est la plus susceptible d'aider l'atteinte des objectifs fixés pour l'immigration par le gouvernement fédéral.
(3) Pour l'application du paragraphe (2), le ministre peut donner des instructions sur le traitement des demandes, notamment en précisant l'un ou l'autre des points suivants :
a) les catégories de demandes à l'égard desquelles s'appliquent les instructions;
b) l'ordre de traitement des demandes, notamment par catégorie;
c) le nombre de demandes à traiter par an, notamment par catégorie;
d) la disposition des demandes dont celles faites de nouveau.
9 These provisions were introduced in the Act through section 118
of the Budget Implementation Act, 2008. Section 120 of the Budget Implementation Act, 2008 sets out that the provisions of section 87.3 of the Act apply only to applications and requests made after February 27, 2008.
10 The concerned Instructions were subsequently issued pursuant to section 87.3 of the Act and published in the Canada Gazette Part 1 on November 29, 2008. The pertinent extracts of these Instructions are as follows:
Federal Skilled Worker applications submitted on or after February 27, 2008, meeting the following criteria shall be placed into processing immediately upon receipt:
* Applications submitted with an offer of Arranged Employment and applications submitted by foreign nationals residing legally in Canada for at least one year as Temporary Foreign Workers or International Students;
* Applications from skilled workers with evidence of experience (footnote: At least one year of continuous full-time or equivalent paid work experience in the last ten years) under one or more of the following National Occupation Classification (NOC) categories: [list of categories is set out]
[...]
Applicants to the Federal Skilled Worker Program whose applications were received on or after February 27, 2008, and which do not meet the assessment criteria described above shall be informed, in as short a time as possible, that their applications will not proceed for processing and shall be returned their processing fees, unless the Minister has otherwise instructed that applications be retained.
Les demandes présentées par des travailleurs qualifiés (fédéral) à partir du 27 février 2008 et qui répondent aux critères suivants doivent être traitées en priorité dès leur réception :
* Demandes présentées avec une offre d'emploi réservé et demandes présentées par des étrangers vivant légalement au Canada depuis au moins une année à titre de travailleurs étrangers temporaires ou d'étudiants étrangers;
* Demandes présentées par des travailleurs qualifiés (fédéral) accompagnées d'une preuve d'expérience (note de bas de page :Au moins une année d'expérience professionnelle continue à temps plein ou l'équivalent rémunéré, au cours des dix dernières années) dans l'une ou plusieurs des catégories suivantes de la Classification nationale des professions (CNP) : [liste de catégories est prévue]
[...]
Les demandeurs au titre de la catégorie des travailleurs qualifiés (fédéral) qui ont présenté leur demande à partir du 27 février 2008 et qui ne remplissent pas les critères d'évaluation énumérés ci-dessus doivent être avisés, le plus rapidement possible, que leur demande ne sera pas traitée et qu'ils seront remboursés, à moins d'instructions contraires du ministre indiquant de conserver la demande.
Analysis
11 The terms of the Instructions are clear on the residency requirements. The words "applications submitted by foreign nationals residing legally in Canada for at least one year as Temporary Foreign Workers or International Students" suffer no ambiguity. The choice of verb tense makes it abundantly clear that the Temporary Foreign Worker or the International Student must have been residing legally in Canada for at least one year immediately prior to his or her application. The French wording is also unambiguous and conveys the same meaning: "demandes présentées par des étrangers vivant légalement au Canada depuis au moins une année à titre de travailleurs étrangers temporaires ou d'étudiants étrangers".
12 Where the Ministerial instructions wish to convey that a past period of time can be considered, they state so clearly, such as in the footnote concerning applications from skilled workers with evidence of experience which clearly provides for recognition of past experience in the following terms: "[a]t least one year of continuous full-time or equivalent paid work experience in the last ten years".
13 This disposes of the Applicant's first argument. The Applicant however raises a second and stronger argument.
14 The April 17, 2009 decision conveyed to the Applicant appears to be a standard form letter that reads in part as follows:
You have not indicated in your application that you have an Arranged Employment Offer or that you are legally residing in Canada for at least one year as a Temporary Foreign Worker or an International Student. Your application has therefore been assessed on the basis of whether you have work experience in the list of occupations eligible for processing. These occupations are identified by codes and described in the National Occupational Classification (NOC). You may access the list of eligible occupations at [Internet address indicated]. The occupation(s) you indicated that you have work experience in do(es) not correspond to any of the occupations specified in the instructions. As your occupation(s) is not included on the list of eligible occupations, we are unable to process your application at this time.
15 From reading this response, it is easily understandable why the Applicant was confused. She had applied on the basis of her status as a resident International Student and the response she received back referred for the most part to occupational requirements she never applied under. The unfortunate use of form letters in responding to applications where multiple facts situations are involved can easily lead to ambiguity and misunderstanding. This whole litigation could have been easily avoided had a proper and cogent response been provided to the Applicant setting out in unambiguous terms the basis for which her application could not be processed as an International Student. This was not done.
16 The form letter states that the Applicant did not indicate in her application that she was legally residing in Canada for at least one year as an International Student. The true reason for not processing the application is thus stated, but in such a convoluted and ambiguous manner as to render the decision almost impossible to understand without further inquiry. This is not a proper way to proceed and is neither correct nor reasonable.
17 In judicial review, the Court must concern itself with the existence of justification, transparency and intelligibility within the decision-making process. Here the decision was legally correct, but the communication of the reasons for which it was made was deficient.
18 Nevertheless, this application for judicial review fails on the question of remedy.
19 Indeed, the solution to the Applicant's issues is to simply submit another application which, in light of her continued studies in Canada for well over a year since May of 2008, should now be processed pursuant to the Instructions. This Court has discretion to withhold relief when a procedural error is purely technical and occasions no substantial wrong or miscarriage of justice: Minister of Citizenship and Immigration v. Khosa, [2009] 1 S.C.R. 339 at para. 43. Returning the matter back to the decision maker on the basis of the original application for permanent residence would not provide the Applicant the results she seeks. It is therefore preferable for the Applicant to submit another application for permanent residence under the Skilled Workers Class as she has been invited to do by the Respondent's counsel.
20 However asking the Applicant to reapply does not resolve the unfortunate delay in processing a new application. Indeed, had the Applicant been properly informed of the reason for which her application could not be processed, she could have submitted a new application which answered the Instructions as early as May 2009. The Respondent's counsel has indicated that should the Applicant reapply for permanent residence under the Skilled Workers Class, her new application could be given priority processing (at page 60 of transcript of hearing). In light of this judgment and the reasons contained therein, this Court fully expects the Respondent to live up to this undertaking.
Certified question
21 The Applicant requested that the following question be certified for appeal to the Federal Court of Appeal as a serious question of general importance:
How should a visa officer correctly calculate the period of at least one year during which a foreign student has been legally residing in Canada before his or her application for permanent residence in Canada as a skilled worker?
22 The Applicant explained that the purpose of this question was, inter alia, to determine if summer recess from studies or doctoral studies abroad should be included in the calculation.
23 The Respondent objected to such a question on the basis that it does not rest on the Applicant' case and is therefore inappropriate.
24 I agree with the Respondent that the question raised is inappropriate and does not merit certification pursuant to paragraph 74(d) of the Act. In Varela v. Canada (Minister of Citizenship and Immigration), 2009 FCA 145, [2009] F.C.J. No. 549 at para. 23, the Federal Court of Appeal noted that this paragraph is not to be invoked lightly. The interpretation of this ministerial instruction on the narrow facts of this case is not of general importance. Moreover there exists an easily available alternative recourse for the Applicant through a new application. Consequently no question shall be certified.
Disposition
25 The application for judicial review is dismissed.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that the application for judicial review is dismissed.
MAINVILLE J.
Jin v. Canada (Minister of Citizenship and Immigration)
Between
Xiping Jin, Applicant, andThe Minister of Citizenship and Immigration, Respondent
[2009] F.C.J. No. 1552
2009 FC 1234Docket IMM-2658-09 Federal CourtToronto, OntarioMainville J.Heard: November 17, 2009.Judgment: December 3, 2009.
(25 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
1 MAINVILLE J.:-- This application for judicial review submitted by Ms. Xiping Jin (the "Applicant"), concerns the interpretation of ministerial instructions issued in 2008 pursuant to section 87.3 of the Immigration and Refugee Protection Act (the "Act") introduced into the Act by section 118 of the Budget Implementation Act, 2008. These ministerial instructions were published in the Canada Gazette Part 1 on November 29, 2008 (the "Instructions").
2 Specifically, the Applicant seeks to have this Court interpret the words "[a]pplications submitted [...] by foreign nationals residing legally in Canada for at least one year as [...] International Students" set out in the Instructions as including foreign nationals who, at any time in the past, resided legally in Canada for at least one year as International Students. This interpretation would allow an International Student who resided in Canada for at least one year at any time in the past to benefit from priority processing for Federal Skilled Workers permanent residence applications.
Background
3 The Applicant was studying at Knox College in Toronto from September 2004 to August 2006. She then took a leave from her studies and resided in China until her return to Canada to study in May of 2008. She has pursued her studies in Canada continuously since May 2008 to the time of the hearing on this judicial review. At all relevant times she has held a valid student visa. Her current student visa expires August 30, 2012.
4 In September of 2008, the Applicant applied for permanent residence in Canada under the Federal Skilled Worker class deeming herself eligible to this class as an International Student who has resided in Canada for at least one year. She processed this application through the Canadian Consulate General in Buffalo, New York state.
5 On April 17, 2009 the Immigration Section of the Buffalo Visa Office notified the Applicant that her application for permanent residence under the Federal Skilled Workers class could not be processed.
6 One of the grounds under which the Applicant initially challenged this decision was that the Instructions had not been published in the Canada Gazette at the time her application was submitted. However, at the hearing on this judicial review application held on November 17, 2009, the Applicant informed the Court that she was nevertheless seeking to have her application processed under the Instructions. Consequently, she informed the Court that she was not pursuing any argument related to the fact that these Instructions were published in the Canada Gazette after she had made her application.
7 The Applicant pursued the following arguments:
a. the ministerial instructions should be interpreted to apply to her case since, at the time of her application, she did accumulate one year of legal residence in Canada as an International Student, if her time in Canada prior to her leave of studies is taken into account, and
b. the original decision which had been made in her case dated April 17, 2009 was based on the fact her work experience did not correspond to any of the occupations identified in the Instructions. Since her application was rather based on her status as a resident International Student, the April 17, 2009 decision was wrong in that it did not provide reasons why she had been refused as an International Student. The Applicant argued that it was only in these judicial review proceedings that the Respondent finally provided the reasons for not processing her application as an International Student.
Legislative context
8 Subsections 87.3 (2) and (3) of the Act provide for the following:
(2) The processing of applications and requests is to be conducted in a manner that, in the opinion of the Minister, will best support the attainment of the immigration goals established by the Government of Canada.
(3) For the purposes of subsection (2), the Minister may give instructions with respect to the processing of applications and requests, including instructions
(a) establishing categories of applications or requests to which the instructions apply;
(b) establishing an order, by category or otherwise, for the processing of applications or requests;
(c) setting the number of applications or requests, by category or otherwise, to be processed in any year; and
(d) providing for the disposition of applications and requests, including those made subsequent to the first application or request.
(2) Le traitement des demandes se fait de la manière qui, selon le ministre, est la plus susceptible d'aider l'atteinte des objectifs fixés pour l'immigration par le gouvernement fédéral.
(3) Pour l'application du paragraphe (2), le ministre peut donner des instructions sur le traitement des demandes, notamment en précisant l'un ou l'autre des points suivants :
a) les catégories de demandes à l'égard desquelles s'appliquent les instructions;
b) l'ordre de traitement des demandes, notamment par catégorie;
c) le nombre de demandes à traiter par an, notamment par catégorie;
d) la disposition des demandes dont celles faites de nouveau.
9 These provisions were introduced in the Act through section 118
of the Budget Implementation Act, 2008. Section 120 of the Budget Implementation Act, 2008 sets out that the provisions of section 87.3 of the Act apply only to applications and requests made after February 27, 2008.
10 The concerned Instructions were subsequently issued pursuant to section 87.3 of the Act and published in the Canada Gazette Part 1 on November 29, 2008. The pertinent extracts of these Instructions are as follows:
Federal Skilled Worker applications submitted on or after February 27, 2008, meeting the following criteria shall be placed into processing immediately upon receipt:
* Applications submitted with an offer of Arranged Employment and applications submitted by foreign nationals residing legally in Canada for at least one year as Temporary Foreign Workers or International Students;
* Applications from skilled workers with evidence of experience (footnote: At least one year of continuous full-time or equivalent paid work experience in the last ten years) under one or more of the following National Occupation Classification (NOC) categories: [list of categories is set out]
[...]
Applicants to the Federal Skilled Worker Program whose applications were received on or after February 27, 2008, and which do not meet the assessment criteria described above shall be informed, in as short a time as possible, that their applications will not proceed for processing and shall be returned their processing fees, unless the Minister has otherwise instructed that applications be retained.
Les demandes présentées par des travailleurs qualifiés (fédéral) à partir du 27 février 2008 et qui répondent aux critères suivants doivent être traitées en priorité dès leur réception :
* Demandes présentées avec une offre d'emploi réservé et demandes présentées par des étrangers vivant légalement au Canada depuis au moins une année à titre de travailleurs étrangers temporaires ou d'étudiants étrangers;
* Demandes présentées par des travailleurs qualifiés (fédéral) accompagnées d'une preuve d'expérience (note de bas de page :Au moins une année d'expérience professionnelle continue à temps plein ou l'équivalent rémunéré, au cours des dix dernières années) dans l'une ou plusieurs des catégories suivantes de la Classification nationale des professions (CNP) : [liste de catégories est prévue]
[...]
Les demandeurs au titre de la catégorie des travailleurs qualifiés (fédéral) qui ont présenté leur demande à partir du 27 février 2008 et qui ne remplissent pas les critères d'évaluation énumérés ci-dessus doivent être avisés, le plus rapidement possible, que leur demande ne sera pas traitée et qu'ils seront remboursés, à moins d'instructions contraires du ministre indiquant de conserver la demande.
Analysis
11 The terms of the Instructions are clear on the residency requirements. The words "applications submitted by foreign nationals residing legally in Canada for at least one year as Temporary Foreign Workers or International Students" suffer no ambiguity. The choice of verb tense makes it abundantly clear that the Temporary Foreign Worker or the International Student must have been residing legally in Canada for at least one year immediately prior to his or her application. The French wording is also unambiguous and conveys the same meaning: "demandes présentées par des étrangers vivant légalement au Canada depuis au moins une année à titre de travailleurs étrangers temporaires ou d'étudiants étrangers".
12 Where the Ministerial instructions wish to convey that a past period of time can be considered, they state so clearly, such as in the footnote concerning applications from skilled workers with evidence of experience which clearly provides for recognition of past experience in the following terms: "[a]t least one year of continuous full-time or equivalent paid work experience in the last ten years".
13 This disposes of the Applicant's first argument. The Applicant however raises a second and stronger argument.
14 The April 17, 2009 decision conveyed to the Applicant appears to be a standard form letter that reads in part as follows:
You have not indicated in your application that you have an Arranged Employment Offer or that you are legally residing in Canada for at least one year as a Temporary Foreign Worker or an International Student. Your application has therefore been assessed on the basis of whether you have work experience in the list of occupations eligible for processing. These occupations are identified by codes and described in the National Occupational Classification (NOC). You may access the list of eligible occupations at [Internet address indicated]. The occupation(s) you indicated that you have work experience in do(es) not correspond to any of the occupations specified in the instructions. As your occupation(s) is not included on the list of eligible occupations, we are unable to process your application at this time.
15 From reading this response, it is easily understandable why the Applicant was confused. She had applied on the basis of her status as a resident International Student and the response she received back referred for the most part to occupational requirements she never applied under. The unfortunate use of form letters in responding to applications where multiple facts situations are involved can easily lead to ambiguity and misunderstanding. This whole litigation could have been easily avoided had a proper and cogent response been provided to the Applicant setting out in unambiguous terms the basis for which her application could not be processed as an International Student. This was not done.
16 The form letter states that the Applicant did not indicate in her application that she was legally residing in Canada for at least one year as an International Student. The true reason for not processing the application is thus stated, but in such a convoluted and ambiguous manner as to render the decision almost impossible to understand without further inquiry. This is not a proper way to proceed and is neither correct nor reasonable.
17 In judicial review, the Court must concern itself with the existence of justification, transparency and intelligibility within the decision-making process. Here the decision was legally correct, but the communication of the reasons for which it was made was deficient.
18 Nevertheless, this application for judicial review fails on the question of remedy.
19 Indeed, the solution to the Applicant's issues is to simply submit another application which, in light of her continued studies in Canada for well over a year since May of 2008, should now be processed pursuant to the Instructions. This Court has discretion to withhold relief when a procedural error is purely technical and occasions no substantial wrong or miscarriage of justice: Minister of Citizenship and Immigration v. Khosa, [2009] 1 S.C.R. 339 at para. 43. Returning the matter back to the decision maker on the basis of the original application for permanent residence would not provide the Applicant the results she seeks. It is therefore preferable for the Applicant to submit another application for permanent residence under the Skilled Workers Class as she has been invited to do by the Respondent's counsel.
20 However asking the Applicant to reapply does not resolve the unfortunate delay in processing a new application. Indeed, had the Applicant been properly informed of the reason for which her application could not be processed, she could have submitted a new application which answered the Instructions as early as May 2009. The Respondent's counsel has indicated that should the Applicant reapply for permanent residence under the Skilled Workers Class, her new application could be given priority processing (at page 60 of transcript of hearing). In light of this judgment and the reasons contained therein, this Court fully expects the Respondent to live up to this undertaking.
Certified question
21 The Applicant requested that the following question be certified for appeal to the Federal Court of Appeal as a serious question of general importance:
How should a visa officer correctly calculate the period of at least one year during which a foreign student has been legally residing in Canada before his or her application for permanent residence in Canada as a skilled worker?
22 The Applicant explained that the purpose of this question was, inter alia, to determine if summer recess from studies or doctoral studies abroad should be included in the calculation.
23 The Respondent objected to such a question on the basis that it does not rest on the Applicant' case and is therefore inappropriate.
24 I agree with the Respondent that the question raised is inappropriate and does not merit certification pursuant to paragraph 74(d) of the Act. In Varela v. Canada (Minister of Citizenship and Immigration), 2009 FCA 145, [2009] F.C.J. No. 549 at para. 23, the Federal Court of Appeal noted that this paragraph is not to be invoked lightly. The interpretation of this ministerial instruction on the narrow facts of this case is not of general importance. Moreover there exists an easily available alternative recourse for the Applicant through a new application. Consequently no question shall be certified.
Disposition
25 The application for judicial review is dismissed.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that the application for judicial review is dismissed.
MAINVILLE J.
Tuesday, December 22, 2009
Saturday, December 19, 2009
Friday, December 18, 2009
REFUGEE DETERMINATION INCONSISTENT
For many years now, Canadians have known that the refugee determination system is a joke. It is inconsistent, tainted by political allegiances, and has strangely the highest acceptance rate in the world. Some countries have as high as 80% acceptance rate, and people are allowed to move though the system (and in many cases, play it like a fiddle) for years. IRB Members are appointed based on political allegiance, activism and multiculturalism policies, and not based strictly on merit, and they are often strongly influenced by what other Members have decided on cases emanating from specific countries. A Member who mostly rejects cases from a country that otters routinely accept may become the subject of scrutiny, while the same may occur to a Member who routinely accepts cases from countries others reject. It is time to abolish the IRB and replace it with ja court of alw, composed of udges who are lawyers, appointed strictly on merit and without regard to their ethnic background, who will have tenure and will make binding decisions which will be full, fair and final. The current system penalizes those who are legitimate refugees and rewards bogus claimants who make outlandish claims to buy time in Canada. The current system inspires disregard for the rule of law and makes a mockery out of decisions which should be serious, reasoned, and based on common sense. Hearings should be open to the public in the same way that criminal and civil trials are similarly open.
CBC News - Politics - Fluctuations in refugee rulings trouble critics
CBC News - Politics - Fluctuations in refugee rulings trouble critics
Wednesday, December 16, 2009
REPORT WARNS OF POTENTIAL FLOOD OF MIGRANTS
A new report detailed in the article below warns of a potential flood of migrants to Canada as other countries tighten restrictions. This is quite obvious, as Canada fails to link immigration to the labour market in a consistent fashion. Canada needs people who are young, entrepreneurial, have capital and know-how for innovation and technological advance, and will revitalize our lagging entrepreneurial sector, not those whose only concern is how much they can extract from our naive policies, that does nothing for our future. It is time for a realignment of priorities in our immigration policy and to reward those who have potential for success, not to prop up failure out of a sense of guilt. Thousands of potential immigrants are discouraged and chose other countries because Canada fails to recognize that capital and knowledge are the cornerstones of our future, and even after migrating to Canada, eventually leave for the US or go back to their countries such as India or China, where opportunities are now abundant. We are left with those who become a burden to taxpayers because they can't find a job, do not have the skills for our economic needs, do not have the necessary English or French language skills (a huge career-killer according to all studies) . and eventually end up unhappy, on welfare, or underemployed.
As countries shut out migrants, Canada warned it will become the new safe harbour - The Globe and Mail
As countries shut out migrants, Canada warned it will become the new safe harbour - The Globe and Mail
Tuesday, December 15, 2009
TORONTO NEEDS TO CHANGE ...FAST
More evidence that Toronto is being left behind in the global race for talent: a new study reveals that expats, those Torontonians who have left, think of Toronto as a mediocre city without much influence in the world. This is quite troublesome, because the Canadian government advertises its policies to "attract the best and the brightest" ( not really, but anyway) but instead we have created a mediocre metropolis without energy or the spirit of entrepreneurship and innovation. This needs to change immediately, and it should start with our immigration policy, getting away from the naivete that permeates it and adopting a business-like approach to get serious, committed business people who will bring capital and innovation to the city, rather than treating immigration as a social welfare program that only imposes costs on taxpayers.
Toronto the good - but not good enough - The Globe and Mail
Toronto the good - but not good enough - The Globe and Mail
QUEBEC IMMIGRATION PROGRAM FAILING GRADE
This article appeared in FORBES magazine, based on a study by Oxford Analytica confirms what we have known for some time: despite Quebec's attraction of immigrants using very favourable ( and highly questionable) terms granted by the federal government to the province which insists in manging its own immigration program, Quebec has been unable to retain them, in effect transforming Quebec into a huge destination of convenience and portal to the rest of Canada. Quebec's policies discourage qualified immigrants and penalize success with its higher tax rates, resulting in an immigration flow that, while mostly French-speaking, is hardly what the province needs for economic growth.
Bienvenue A Quebec? - Forbes.com
Bienvenue A Quebec? - Forbes.com
Monday, December 14, 2009
BORDER SEARCHES A CONSTANT REMINDER OF THE LIMITS OF PRIVACY
Interesting article appeared today, highlighting the issue of searches of personal effects at the border. For those interested, you can see several articles I have published on the issue of laptop searches in my website www.karas.ca in the "Publications" section.
http://www.theglobeandmail.com/news/national/canadians-dont-forfeit-right-to-privacy-at-border-obama-official-says/article1399119/
http://www.theglobeandmail.com/news/national/canadians-dont-forfeit-right-to-privacy-at-border-obama-official-says/article1399119/
Thursday, December 10, 2009
CANADA NOT GOOD ENOUGH?
This is quite interesting: we often read about people who come to Canada and pleased not to be deported to their countries of origin. However, in the case below, the reverse is happening, a Canadian citizen has gone eon a hunger strike to avoid being sent back to Canada from Australia!!!! Go figure...
The Canadian Press: Canadian hunger striker wins reprieve from Australian deportation
Canadian hunger striker wins reprieve from Australian deportation
(CP) – 1 day ago
MELBOURNE, Australia — A Canadian citizen, who had staged a hunger strike to protest his planned deportation from Australia, has won a reprieve.
Ziad Chebib left the Maribyrnong Immigration Detention Centre in Melbourne on Wednesday, the same day he was scheduled to be deported to Canada. His supporters said Chebib was released on a temporary visa with no work rights.
They said he learned that his deportation had been cancelled when he was visited by immigration officials Tuesday night.
The 49-year-old Lebanese-Canadian went on a hunger strike last week after exhausting all appeals to live in Australia.
Many of his relatives have settled in Australia, including some of his children.
Chebib failed to meet the requirements of the visa he was granted to live in the country in 2000 and has been fighting to stave off deportation for several years.
The Australian media quoted Chebib as saying that he will continue his hunger strike until his wife and elder son join him in Melbourne.
Chebib has said he tried to appeal to Canadian diplomats earlier this year, but was rebuffed. He said the diplomats told him they had no say in an Australian immigration matter.
Chebib emigrated to Canada from Lebanon in 1976, becoming a citizen and starting up a limousine business in Calgary.
In 2000, he and his family moved to Australia because two of his siblings already lived there.
Chebib was allowed in the country on a business visa but he was unable to make the income he needed to justify the visa. Both his wife and one of his sons developed health problems and his finances became overstretched, he said.
Copyright © 2009 The Canadian Press. All rights reserved.
The Canadian Press: Canadian hunger striker wins reprieve from Australian deportation
Canadian hunger striker wins reprieve from Australian deportation
(CP) – 1 day ago
MELBOURNE, Australia — A Canadian citizen, who had staged a hunger strike to protest his planned deportation from Australia, has won a reprieve.
Ziad Chebib left the Maribyrnong Immigration Detention Centre in Melbourne on Wednesday, the same day he was scheduled to be deported to Canada. His supporters said Chebib was released on a temporary visa with no work rights.
They said he learned that his deportation had been cancelled when he was visited by immigration officials Tuesday night.
The 49-year-old Lebanese-Canadian went on a hunger strike last week after exhausting all appeals to live in Australia.
Many of his relatives have settled in Australia, including some of his children.
Chebib failed to meet the requirements of the visa he was granted to live in the country in 2000 and has been fighting to stave off deportation for several years.
The Australian media quoted Chebib as saying that he will continue his hunger strike until his wife and elder son join him in Melbourne.
Chebib has said he tried to appeal to Canadian diplomats earlier this year, but was rebuffed. He said the diplomats told him they had no say in an Australian immigration matter.
Chebib emigrated to Canada from Lebanon in 1976, becoming a citizen and starting up a limousine business in Calgary.
In 2000, he and his family moved to Australia because two of his siblings already lived there.
Chebib was allowed in the country on a business visa but he was unable to make the income he needed to justify the visa. Both his wife and one of his sons developed health problems and his finances became overstretched, he said.
Copyright © 2009 The Canadian Press. All rights reserved.
Wednesday, December 9, 2009
TheSpec.com - Local - Immigration by the numbers
Interesting statistics for the City of Hamilton, Ontario.
TheSpec.com - Local - Immigration by the numbers
TheSpec.com - Local - Immigration by the numbers
Saturday, December 5, 2009
CBC News - Politics - Backlog of refugee claims has grown under Conservatives
The real problem is in the intake that has grown steadily over the years, and in the exceedingly long process that claimants take advantage of to remain in Canada indefinitely. CBSA figures are quite telling: over 44,000 deportation and exclusion orders are issued every year, yet only around 6,000 actual deportations take place. So where are the rest? Some leave voluntarily, some become successful refugee claimants, and most just remain in Canada, change domicile, and try to stay below the radar. They system is not designed to deal with such large numbers ( around 25,000 new refugee claims each year), and those who "counsel" bogus refugee claimants know that the system can be gamed easily by stalling, filing applications doomed to failure, while at the same time trying to "settle" by marrying a Canadian, having a child, etc., to set in motion a chain of possible reviews that take years to complete.
CBC News - Politics - Backlog of refugee claims has grown under Conservatives
CBC News - Politics - Backlog of refugee claims has grown under Conservatives
Friday, December 4, 2009
CASE SHOWS INCREDIBLE BOARD FAILURES
This is an incredible case. The person concerned was convicted multiple times of very serious offences, has mental health problems, and yet the Immigration Division of the Immigration and refugee Board released him several times. One is left to wonder why this individual has managed to avoid deportation for so many years despite multiple serious convictions. This case calls into question the ability of CBSA and the government to proactively enforce immigration legislation. The many years that the person appears to have been in the system is also troubling form the point of view of cost to the taxpayers: since the person seems to be indigent, it stands to reason that the government and legal aid have picked up the cost of his many trials and hearings. This case should sound alarm amongst reasonable people who want a fair, full and final immigration process for everyone concerned. Since the judge has certified a question as of "general importance", the Federal Court of Appeal will eventually have to rule on them.
Canada (Minister of Public Safety and Emergency Preparedness)v. Samuels
BetweenThe Minister of Public Safety and Emergency Preparedness,Applicant, andMiguel Alfonso Samuels, Respondent
[2009] F.C.J. No. 1437
2009 FC 1152Docket IMM-3538-09
Federal CourtToronto, OntarioTremblay-Lamer J.Heard: October 22, 2009.Judgment: November 10, 2009.
(46 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
1 TREMBLAY-LAMER J.:-- This is an application by the Minister of Public Safety and Emergency Preparedness (the "Minister") pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"), for judicial review of an order of Louis Dubé, member of the Immigration Division (the "Tribunal") dated June 29, 2009 to release Miguel Alfonso Samuels (the "Respondent") from detention (the "Release Order").
BACKGROUND FACTS
2 The Respondent was born in Panama, but then lived for 39 years in Jamaica. He is a citizen of both countries. He came to Canada in 1991 and became a permanent resident.
3 In 1991 or 1992, the Respondent first showed symptoms of mental illness. By September 1992, he was diagnosed as having schizophrenia.
4 Since in 1993, the Respondent's criminal convictions have been so many that no-one seems able to count them anymore. Five times he was convicted for sexual assault; six or seven times for assault; six times for theft under $5000; twice for fraudulently obtaining transportation; twice for mischief under $5000; twice for failing to comply with probation orders; and once each for common nuisance and for possession of property obtained by crime. In total, the Respondent has 27 or 30 criminal convictions, as well as over ten provincial convictions.
5 The Respondent has been arrested frequently, both following his criminal and other offences and pursuant to the Mental Health Act, R.S.O. 1990, c. M.7. Cutting short an almost interminable story, I will only summarize his detention history since his last criminal conviction on March 14, 2005.
6 The respondent's court detention pursuant to that conviction ended on April 23, 2005, and he was immediately placed in immigration hold.
7 He was only released from immigration hold on October 12, 2006, under the Toronto Bail Program, for which he would be supervised by Steven Sharp.
8 The Toronto Bail Program withdrew its supervision of the Respondent in January 2007. Mr. Sharp explained that contrary to his release conditions, the Respondent repeatedly left his residence unescorted. On January 8, 2007, he was returned to his residence by a police officer. Moreover, he refused to take his medication, sometimes feigning that he had done so. In short, "Mr. Samuels [had] stopped cooperating and [was] not amenable to the services provided." Because of this, Mr. Sharp was of the opinion that public safety would be a concern if the Respondent remained in the community.
9 He was then re-arrested and returned to immigration hold, remaining in detention ever since.
10 It must further be noted that the Respondent has never had a fixed domicile in Canada; when not in detention, he lived at shelters or with family. However, he has been banned from at least two shelters, and his family, though supportive for a long time, became intolerant of his behaviour and refusals to co-operate with them in 2007.
11 In April 2007, he was interviewed by Dr. Pierce, a forensic psychiatrist at the Centre for Addiction and Mental Health, who determined that he was suffering from schizophrenia or a similar illness. While schizophrenia can often be successfully treated if the patient takes appropriate medication, the symptoms are made worse by drug use, which appeared to be the Respondent's case. Dr. Pierce also indicated that the results of a screening test suggested that the Respondent was likely to commit further sexual offences if given the opportunity.
12 On June 2, 2009, a risk-assessment officer reached a positive decision on the Appellant's Pre-Removal Risk Assessment (PRRA). The Minister is now seeking a danger opinion against the Respondent, which would lead to the Respondent's removal from Canada.
13 Following the success of his PRRA application, the Respondent sought to be released from detention.
14 In a fairly brief oral decision, the Tribunal ordered the Respondent's release on June 29, 2009. The Tribunal noted that the Respondent became, by virtue of his PRRA, a protected person. While a danger opinion was being sought, it was likely to take a considerable time - and might yet turn out to be negative, so that it "wouldn't be fair" to keep the Respondent in detention. The Tribunal noted that the respondent had "a pretty impressive criminal file," but concluded that "if there's no removal in sight, [the Tribunal is] not responsible to protect Canadian society anymore." The Minister applied for judicial review of that decision.
ISSUES
15 This application raises two issues: first, whether the Tribunal had jurisdiction to maintain the Respondent in detention notwithstanding the positive outcome of his PRRA; and if so, second, whether the Tribunal failed to perform its statutory duty to consider prescribed factors in coming to its decision.
ANALYSIS
1) Did the Tribunal have jurisdiction to maintain the Respondent in detention?
Respondent's Submissions
16 The Respondent argues that the Tribunal could not but release him, because it had no jurisdiction to keep in detention since he became, as a result of a successful PRRA application, a protected person.
17 The Respondent is relying on s. 58 of the IRPA, which provides that :
Release -- Immigration Division
58.
(1) The Immigration Division shall order the release of a permanent resident or a foreign
national unless it is satisfied, taking into account prescribed factors, that
(a) they are a danger to the public;
(b) they are unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2);
(c) the Minister is taking necessary steps to inquire into a reasonable suspicion that they are inadmissible on grounds of security or for violating human or international rights; or
(d) the Minister is of the opinion that the identity of the foreign national has not been, but may be, established and they have not reasonably cooperated with the Minister by providing relevant information for the purpose of establishing their identity or the Minister is making reasonable efforts to establish their identity.
Detention -- Immigration Division
(2) The Immigration Division may order the detention of a permanent resident or a foreign national if it is satisfied that the permanent resident or the foreign national is the subject of an examination or an admissibility hearing or is subject to a removal order and that the permanent resident or the foreign national is a danger to the public or is unlikely to appear for examination, an admissibility hearing or removal from Canada.
...
* * *
Mise en liberté par la Section de l'immigration
58.
(1) La section prononce la mise en liberté du résident permanent ou de l'étranger, sauf sur preuve, compte tenu des critères réglementaires, de tel des faits suivants :
a) le résident permanent ou l'étranger constitue un danger pour la sécurité publique;
b) le résident permanent ou l'étranger se soustraira vraisemblablement au contrôle, à l'enquête ou au renvoi, ou à la procédure pouvant mener à la prise par le ministre d'une mesure de renvoi en vertu du paragraphe 44(2);
c) le ministre prend les mesures voulues pour enquêter sur les motifs raisonnables de soupçonner que le résident permanent ou l'étranger est interdit de territoire pour raison de sécurité ou pour atteinte aux droits humains ou internationaux;
d) dans le cas où le ministre estime que l'identité de l'étranger n'a pas été prouvée mais peut l'être, soit l'étranger n'a pas raisonnablement coopéré en fournissant au ministre des renseignements utiles à cette fin, soit ce dernier fait des efforts valables pour établir l'identité de l'étranger.
Mise en détention par la Section de l'immigration
(2)
La section peut ordonner la mise en détention du résident permanent ou de l'étranger sur preuve qu'il fait l'objet d'un contrôle, d'une enquête ou d'une mesure de renvoi et soit qu'il constitue un danger pour la sécurité publique, soit qu'il se soustraira vraisemblablement au contrôle, à l'enquête ou au renvoi.
...
18 The Respondent submits that pursuant to paragraphs 232(d) and 232(e) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the "Regulations"), the effect of his positive PRRA is to stay the removal order issued against him. The Regulations provide that:
232.
A removal order is stayed when a person is notified ... that they may make an application [for a PRRA], and the stay is effective until the earliest of the following events occurs
...
(d) if a decision to allow the application for protection is made under paragraph 114(1)(a) of the Act and the person has not made an application within the period provided under subsection 175(1) to remain in Canada as a permanent resident, the expiry of that period;
(e) if a decision to allow the application for protection is made under paragraph 114(1)(a) of the Act, the decision with respect to the person's application to remain in Canada as a permanent resident is made...
* * *
232.
Il est sursis à la mesure de renvoi dès le moment où le ministère avise l'intéressé [...] qu'il peut faire une demande [pour un examen de risques avant-renvoi]. Le sursis s'applique jusqu'au premier en date des événements suivants :
...
d) s'agissant d'une personne à qui l'asile a été conféré aux termes du paragraphe 114(1) de la Loi et qui n'a pas fait sa demande de séjour au Canada à titre de résident permanent dans le délai prévu au paragraphe 175(1), l'expiration du délai;
e) s'agissant d'une personne à qui l'asile a été conféré aux termes du paragraphe 114(1) de la Loi, la décision quant à sa demande de séjour au Canada à titre de résident permanent...
19 Since subsection 48(1) of the IRPA provides that "[a] removal order is enforceable if it has come into force and is not stayed," a stayed removal is unenforceable. The Respondent argues that since the removal order issued against him is unenforceable, he is not "subject to a removal order" for the purposes of subsection 58(2) of the IRPA, and therefore the Tribunal could not continue his detention and had release him.
Minister's Submissions
20 The Minister argues that the Tribunal did have jurisdiction to keep the Respondent in detention.
21 The Minister submits the provisions of s. 58 of the IRPA and the relevant regulations contain all the criteria applicable to detention and release by the Tribunal. According to the Minister, "[a]s long as the section 58 statutory and regulatory criteria are properly considered, detention or release may be ordered, that latter with any appropriate conditions."
22 In the Minister's view, par. 58(1)(a) of the IRPA authorized the Tribunal to order the Respondent's detention if it found - as the Minister submits it ought to have - that the Respondent is a danger to the public. As the criteria set out in the several paragraphs of subs. 58(1), are not cumulative, it matters not whether the Respondent is the subject of a removal order.
23 Be that as it may, the Respondent is still subject to the removal order issued on April 15, 2004, the positive decision on his PRRA application notwithstanding. The Minister submits that the effect of that decision is "simply protection under subs. 115(1) of the IRPA against refoulement to a country where he would be at risk." While the positive PRRA decision was a factor that the Tribunal had to consider, it was not the only one. It neither granted the Respondent permanent residence nor voided the removal order. The Minister relies on s. 51 of the IRPA, pursuant to which "[a] removal order that has not been enforced becomes void if the foreign national becomes a permanent resident," which the Respondent is not.
24 Therefore, the removal order against the Respondent still exists, though its execution is stayed, pursuant to the Regulations, until a review of the Respondent's application for permanent residence. Such review will not be concluded before a decision on the danger opinion regarding the Respondent, which the Minister is seeking.
25 The Minister submits that finding that the Tribunal lacked jurisdiction to detain the Respondent would mean that "where a permanent resident or a protect person becomes subject to a removal order that cannot yet be executed the [Immigration Division] has no legal authority to detain or release the person with conditions." Such an interpretation of the IRPA would fly in the face of Parliament's objectives, notably the safety of Canadians, and such a result would be absurd.
Analysis
26 As stated above, the parties agree that a positive PRRA is a stay of a removal order issued against a refugee claimant. They differ as to whether a person a removal order against whom is stayed is still "subject to a removal order" for the purposes of subsection 58(2) of the IRPA. The Minister argues that he or she is, since the stay does not void the removal order - only a grant of permanent residence does. The Respondent submits that under a purposive interpretation of subsection 58(2) consistent with the respect of the Canadian Charter of Rights and Freedoms, and of its guarantee of liberty a removal order that is unenforceable is irrelevant.
27 I agree with the Minister. A removal order that is stayed is not void. Although it cannot be executed pending a ruling on a protected person's application for permanent residence or the passing of the deadline to file such an application, it still exists and is valid and, in my opinion, the person against whom it was issued is still "subject to it."
28 The Respondent is, in effect, asking the Court to read the exclusion of stayed removal orders into subsection 58(2), which would then provide (in the part relevant to this case) that "[t]he Immigration Division may order the detention of a permanent resident or a foreign national if it is satisfied that the permanent resident or the foreign national ... is subject to an enforceable removal order and that the permanent resident or the foreign national is a danger to the public..."
29 I am not persuaded by the Respondent's submission that this reading in is necessary to ensure that the provision complies with the Charter. Pursuant to subsection 57(2) of the IRPA, the Respondent has a right to have his detention reviewed every 30 days. The purpose of these reviews is to take into account any new events in the Respondent's case. The Immigration Division must, pursuant to section 248 of the Regulations, consider the anticipated length of his future detention and the existence of alternatives to detention. In my view, these elements confirm that the statutory scheme created by Division 6 of the IRPA and the Regulations already reflects concerns associated with the Charter.
30 I add that the Charter's guarantee of the right to liberty is not absolute; the Charter only prohibits deprivations of liberty inconsistent with principles of fundamental justice. The Respondent makes no submissions on whether detention for a limited (though admittedly potentially significant) period, of a person who is a danger to the public is in fact inconsistent with such principles. In the absence of any debate on this point, I do not think it this Court's role to re-write the statute in the way suggested by the Respondent.
31 I find that the Tribunal had jurisdiction to order the continued detention of the Respondent, if it was satisfied that he was a danger to the public.
2) Did the Tribunal fail to perform its statutory duties?
32 The Minister argues that the Tribunal failed to perform its statutory duty to assess factors which the IRPA and the Regulations mandate it to take into account in ordering the detention or release of a person.
33 The Respondent does not directly reply to this argument, but submits that "the decision, reasons and release order must be looked at in their entirety." Given that the Respondent is a protected person and that a danger opinion will not be issued before long, the Tribunal's decision to release the Respondent on conditions is reasonable.
34 Section 244 of the Regulations provides that factors set out in the following sections "shall be taken into consideration when assessing whether a person ... (b) is a danger to the public" [my emphasis] pursuant to subs. 58(1) of the IRPA.
35 The relevant provisions of the Regulations are sections 246 and 248, which provide that:
246.
For the purposes of paragraph 244(b), the factors are the following:
...
(d) conviction in Canada under an Act of Parliament for
(i)
a sexual offence, or
(ii)
an offence involving violence or weapons;
...
248.
If it is determined that there are grounds for detention, the following factors shall be considered before a decision is made on detention or release:
(a) the reason for detention;
(b) the length of time in detention;
(c) whether there are any elements that can assist in determining the length of time that detention is likely to continue and, if so, that length of time;
(d) any unexplained delays or unexplained lack of diligence caused by the Department or the person concerned; and
(e) the existence of alternatives to detention.
* * *
246.
Pour l'application de l'alinéa 244b), les critères sont les suivants :
...
d) la déclaration de culpabilité au Canada, en vertu d'une loi fédérale, quant à l'une des infractions suivantes :
(i) infraction d'ordre sexuel,
(ii)
infraction commise avec violence ou des armes;
...
248.
S'il est constaté qu'il existe des motifs de détention, les critères ci-après doivent être pris en compte avant qu'une décision ne soit prise quant à la détention ou la mise en liberté :
a)
le motif de la détention;
b)
la durée de la détention;
c) l'existence d'éléments permettant l'évaluation de la durée probable de la détention et, dans l'affirmative, cette période de temps;
d) les retards inexpliqués ou le manque inexpliqué de diligence de la part du ministère ou de l'intéressé;
e) l'existence de solutions de rechange à la détention.
36 As the Minister points out, the Tribunal seems to have been oblivious to these factors or at any rate to most of them, the length of time of past and future detention being an obvious exception.
37 While the Tribunal recognized that the Respondent has "a pretty impressive criminal file," it did not note, and seems not to have considered the implications of, the fact that this criminal file included multiple convictions for sexual offences and other offences involving violence.
38 The Tribunal failed to exercise its statutory duty, which is an error of law, and its decision must be quashed.
39 In view of this conclusion, it is unnecessary for me to consider the other issues raised by the Minister.
40 The Tribunal's order releasing Mr. Samuels is quashed, and his release application will be heard by a differently constituted panel of the Immigration Division.
SERIOUS QUESTION OF GENERAL IMPORTANCE
41 The Minister asked the Court to certify that this case involves a serious question of general importance, in conformity with par. 74(d) of the IRPA, if it found that the Tribunal lacked jurisdiction to continue the Respondent's detention or to impose conditions on his release.
42 The Minister proposes that the question be worded as follows:
Where a foreign national who is detained or released on conditions is under a removal order that cannot be executed pending an immigration process and receives a positive PRRA, does the Immigration Division have the statutory authority under the IRPA to detain the foreign national or to release the foreign national on conditions, or otherwise to continue the release of the foreign national on conditions?
43 The Minister submits that this question meets the well-known criteria set out by the Fedral Court of Appeal in Canada (Minister of Citizenship and Immigration) v. Liyanagamage (1994), 176 N.R. 4, [1994] F.C.J. No. 1637 (QL), in that it transcends the interests of the parties to this case and would be dispositive of the appeal.
44 The Respondent also submits that this case raises an important question, but suggests that it be reworded as:
Does the Immigration Division retain jurisdiction to detain a foreign national once the foreign national has been found to be a refugee or a protected person?
45 I agree that this is a serious issue of general importance. The terms "subject to a removal order" in s. 58 of the IRPA are ambiguous, because it is not clear whether the removal order must be enforceable or not. On the one hand, the statute does not expressly provide that it must; on the other, a removal order may be unenforceable, and the foreign national may remain in detention, for lengthy periods of time merely because he has been found by an administrative officer, on a balance of probabilities, to constitute a danger. This ambiguity must be resolved not only for the benefit of the parties, but also for that of any other foreign national who becomes a protected person while detained or released on conditions by the Immigration Division.
46 Therefore I certify that the following question is serious and of general importance, so that an appeal from this decision may be made pursuant to paragraph 74(d) of the IRPA:
Does the Immigration Division retain jurisdiction to detain a foreign national once the foreign national has been found to be a refugee or a protected person?
JUDGMENT
THIS COURT ORDERS that:
The application for judicial review is granted, the decision of the Tribunal is quashed, and the matter is referred for re-determination for a differently constituted panel of the Immigration Division.
The following question is certified as serious and of general importance, so that an appeal may be made from this decision pursuant to paragraph 74(d) of the Immigration and Refugee Protection Act:
Does the Immigration Division retain jurisdiction to detain a foreign national once the foreign national has been found to be a refugee or a protected person?
TREMBLAY-LAMER J.
Canada (Minister of Public Safety and Emergency Preparedness)v. Samuels
BetweenThe Minister of Public Safety and Emergency Preparedness,Applicant, andMiguel Alfonso Samuels, Respondent
[2009] F.C.J. No. 1437
2009 FC 1152Docket IMM-3538-09
Federal CourtToronto, OntarioTremblay-Lamer J.Heard: October 22, 2009.Judgment: November 10, 2009.
(46 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
1 TREMBLAY-LAMER J.:-- This is an application by the Minister of Public Safety and Emergency Preparedness (the "Minister") pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"), for judicial review of an order of Louis Dubé, member of the Immigration Division (the "Tribunal") dated June 29, 2009 to release Miguel Alfonso Samuels (the "Respondent") from detention (the "Release Order").
BACKGROUND FACTS
2 The Respondent was born in Panama, but then lived for 39 years in Jamaica. He is a citizen of both countries. He came to Canada in 1991 and became a permanent resident.
3 In 1991 or 1992, the Respondent first showed symptoms of mental illness. By September 1992, he was diagnosed as having schizophrenia.
4 Since in 1993, the Respondent's criminal convictions have been so many that no-one seems able to count them anymore. Five times he was convicted for sexual assault; six or seven times for assault; six times for theft under $5000; twice for fraudulently obtaining transportation; twice for mischief under $5000; twice for failing to comply with probation orders; and once each for common nuisance and for possession of property obtained by crime. In total, the Respondent has 27 or 30 criminal convictions, as well as over ten provincial convictions.
5 The Respondent has been arrested frequently, both following his criminal and other offences and pursuant to the Mental Health Act, R.S.O. 1990, c. M.7. Cutting short an almost interminable story, I will only summarize his detention history since his last criminal conviction on March 14, 2005.
6 The respondent's court detention pursuant to that conviction ended on April 23, 2005, and he was immediately placed in immigration hold.
7 He was only released from immigration hold on October 12, 2006, under the Toronto Bail Program, for which he would be supervised by Steven Sharp.
8 The Toronto Bail Program withdrew its supervision of the Respondent in January 2007. Mr. Sharp explained that contrary to his release conditions, the Respondent repeatedly left his residence unescorted. On January 8, 2007, he was returned to his residence by a police officer. Moreover, he refused to take his medication, sometimes feigning that he had done so. In short, "Mr. Samuels [had] stopped cooperating and [was] not amenable to the services provided." Because of this, Mr. Sharp was of the opinion that public safety would be a concern if the Respondent remained in the community.
9 He was then re-arrested and returned to immigration hold, remaining in detention ever since.
10 It must further be noted that the Respondent has never had a fixed domicile in Canada; when not in detention, he lived at shelters or with family. However, he has been banned from at least two shelters, and his family, though supportive for a long time, became intolerant of his behaviour and refusals to co-operate with them in 2007.
11 In April 2007, he was interviewed by Dr. Pierce, a forensic psychiatrist at the Centre for Addiction and Mental Health, who determined that he was suffering from schizophrenia or a similar illness. While schizophrenia can often be successfully treated if the patient takes appropriate medication, the symptoms are made worse by drug use, which appeared to be the Respondent's case. Dr. Pierce also indicated that the results of a screening test suggested that the Respondent was likely to commit further sexual offences if given the opportunity.
12 On June 2, 2009, a risk-assessment officer reached a positive decision on the Appellant's Pre-Removal Risk Assessment (PRRA). The Minister is now seeking a danger opinion against the Respondent, which would lead to the Respondent's removal from Canada.
13 Following the success of his PRRA application, the Respondent sought to be released from detention.
14 In a fairly brief oral decision, the Tribunal ordered the Respondent's release on June 29, 2009. The Tribunal noted that the Respondent became, by virtue of his PRRA, a protected person. While a danger opinion was being sought, it was likely to take a considerable time - and might yet turn out to be negative, so that it "wouldn't be fair" to keep the Respondent in detention. The Tribunal noted that the respondent had "a pretty impressive criminal file," but concluded that "if there's no removal in sight, [the Tribunal is] not responsible to protect Canadian society anymore." The Minister applied for judicial review of that decision.
ISSUES
15 This application raises two issues: first, whether the Tribunal had jurisdiction to maintain the Respondent in detention notwithstanding the positive outcome of his PRRA; and if so, second, whether the Tribunal failed to perform its statutory duty to consider prescribed factors in coming to its decision.
ANALYSIS
1) Did the Tribunal have jurisdiction to maintain the Respondent in detention?
Respondent's Submissions
16 The Respondent argues that the Tribunal could not but release him, because it had no jurisdiction to keep in detention since he became, as a result of a successful PRRA application, a protected person.
17 The Respondent is relying on s. 58 of the IRPA, which provides that :
Release -- Immigration Division
58.
(1) The Immigration Division shall order the release of a permanent resident or a foreign
national unless it is satisfied, taking into account prescribed factors, that
(a) they are a danger to the public;
(b) they are unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2);
(c) the Minister is taking necessary steps to inquire into a reasonable suspicion that they are inadmissible on grounds of security or for violating human or international rights; or
(d) the Minister is of the opinion that the identity of the foreign national has not been, but may be, established and they have not reasonably cooperated with the Minister by providing relevant information for the purpose of establishing their identity or the Minister is making reasonable efforts to establish their identity.
Detention -- Immigration Division
(2) The Immigration Division may order the detention of a permanent resident or a foreign national if it is satisfied that the permanent resident or the foreign national is the subject of an examination or an admissibility hearing or is subject to a removal order and that the permanent resident or the foreign national is a danger to the public or is unlikely to appear for examination, an admissibility hearing or removal from Canada.
...
* * *
Mise en liberté par la Section de l'immigration
58.
(1) La section prononce la mise en liberté du résident permanent ou de l'étranger, sauf sur preuve, compte tenu des critères réglementaires, de tel des faits suivants :
a) le résident permanent ou l'étranger constitue un danger pour la sécurité publique;
b) le résident permanent ou l'étranger se soustraira vraisemblablement au contrôle, à l'enquête ou au renvoi, ou à la procédure pouvant mener à la prise par le ministre d'une mesure de renvoi en vertu du paragraphe 44(2);
c) le ministre prend les mesures voulues pour enquêter sur les motifs raisonnables de soupçonner que le résident permanent ou l'étranger est interdit de territoire pour raison de sécurité ou pour atteinte aux droits humains ou internationaux;
d) dans le cas où le ministre estime que l'identité de l'étranger n'a pas été prouvée mais peut l'être, soit l'étranger n'a pas raisonnablement coopéré en fournissant au ministre des renseignements utiles à cette fin, soit ce dernier fait des efforts valables pour établir l'identité de l'étranger.
Mise en détention par la Section de l'immigration
(2)
La section peut ordonner la mise en détention du résident permanent ou de l'étranger sur preuve qu'il fait l'objet d'un contrôle, d'une enquête ou d'une mesure de renvoi et soit qu'il constitue un danger pour la sécurité publique, soit qu'il se soustraira vraisemblablement au contrôle, à l'enquête ou au renvoi.
...
18 The Respondent submits that pursuant to paragraphs 232(d) and 232(e) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the "Regulations"), the effect of his positive PRRA is to stay the removal order issued against him. The Regulations provide that:
232.
A removal order is stayed when a person is notified ... that they may make an application [for a PRRA], and the stay is effective until the earliest of the following events occurs
...
(d) if a decision to allow the application for protection is made under paragraph 114(1)(a) of the Act and the person has not made an application within the period provided under subsection 175(1) to remain in Canada as a permanent resident, the expiry of that period;
(e) if a decision to allow the application for protection is made under paragraph 114(1)(a) of the Act, the decision with respect to the person's application to remain in Canada as a permanent resident is made...
* * *
232.
Il est sursis à la mesure de renvoi dès le moment où le ministère avise l'intéressé [...] qu'il peut faire une demande [pour un examen de risques avant-renvoi]. Le sursis s'applique jusqu'au premier en date des événements suivants :
...
d) s'agissant d'une personne à qui l'asile a été conféré aux termes du paragraphe 114(1) de la Loi et qui n'a pas fait sa demande de séjour au Canada à titre de résident permanent dans le délai prévu au paragraphe 175(1), l'expiration du délai;
e) s'agissant d'une personne à qui l'asile a été conféré aux termes du paragraphe 114(1) de la Loi, la décision quant à sa demande de séjour au Canada à titre de résident permanent...
19 Since subsection 48(1) of the IRPA provides that "[a] removal order is enforceable if it has come into force and is not stayed," a stayed removal is unenforceable. The Respondent argues that since the removal order issued against him is unenforceable, he is not "subject to a removal order" for the purposes of subsection 58(2) of the IRPA, and therefore the Tribunal could not continue his detention and had release him.
Minister's Submissions
20 The Minister argues that the Tribunal did have jurisdiction to keep the Respondent in detention.
21 The Minister submits the provisions of s. 58 of the IRPA and the relevant regulations contain all the criteria applicable to detention and release by the Tribunal. According to the Minister, "[a]s long as the section 58 statutory and regulatory criteria are properly considered, detention or release may be ordered, that latter with any appropriate conditions."
22 In the Minister's view, par. 58(1)(a) of the IRPA authorized the Tribunal to order the Respondent's detention if it found - as the Minister submits it ought to have - that the Respondent is a danger to the public. As the criteria set out in the several paragraphs of subs. 58(1), are not cumulative, it matters not whether the Respondent is the subject of a removal order.
23 Be that as it may, the Respondent is still subject to the removal order issued on April 15, 2004, the positive decision on his PRRA application notwithstanding. The Minister submits that the effect of that decision is "simply protection under subs. 115(1) of the IRPA against refoulement to a country where he would be at risk." While the positive PRRA decision was a factor that the Tribunal had to consider, it was not the only one. It neither granted the Respondent permanent residence nor voided the removal order. The Minister relies on s. 51 of the IRPA, pursuant to which "[a] removal order that has not been enforced becomes void if the foreign national becomes a permanent resident," which the Respondent is not.
24 Therefore, the removal order against the Respondent still exists, though its execution is stayed, pursuant to the Regulations, until a review of the Respondent's application for permanent residence. Such review will not be concluded before a decision on the danger opinion regarding the Respondent, which the Minister is seeking.
25 The Minister submits that finding that the Tribunal lacked jurisdiction to detain the Respondent would mean that "where a permanent resident or a protect person becomes subject to a removal order that cannot yet be executed the [Immigration Division] has no legal authority to detain or release the person with conditions." Such an interpretation of the IRPA would fly in the face of Parliament's objectives, notably the safety of Canadians, and such a result would be absurd.
Analysis
26 As stated above, the parties agree that a positive PRRA is a stay of a removal order issued against a refugee claimant. They differ as to whether a person a removal order against whom is stayed is still "subject to a removal order" for the purposes of subsection 58(2) of the IRPA. The Minister argues that he or she is, since the stay does not void the removal order - only a grant of permanent residence does. The Respondent submits that under a purposive interpretation of subsection 58(2) consistent with the respect of the Canadian Charter of Rights and Freedoms, and of its guarantee of liberty a removal order that is unenforceable is irrelevant.
27 I agree with the Minister. A removal order that is stayed is not void. Although it cannot be executed pending a ruling on a protected person's application for permanent residence or the passing of the deadline to file such an application, it still exists and is valid and, in my opinion, the person against whom it was issued is still "subject to it."
28 The Respondent is, in effect, asking the Court to read the exclusion of stayed removal orders into subsection 58(2), which would then provide (in the part relevant to this case) that "[t]he Immigration Division may order the detention of a permanent resident or a foreign national if it is satisfied that the permanent resident or the foreign national ... is subject to an enforceable removal order and that the permanent resident or the foreign national is a danger to the public..."
29 I am not persuaded by the Respondent's submission that this reading in is necessary to ensure that the provision complies with the Charter. Pursuant to subsection 57(2) of the IRPA, the Respondent has a right to have his detention reviewed every 30 days. The purpose of these reviews is to take into account any new events in the Respondent's case. The Immigration Division must, pursuant to section 248 of the Regulations, consider the anticipated length of his future detention and the existence of alternatives to detention. In my view, these elements confirm that the statutory scheme created by Division 6 of the IRPA and the Regulations already reflects concerns associated with the Charter.
30 I add that the Charter's guarantee of the right to liberty is not absolute; the Charter only prohibits deprivations of liberty inconsistent with principles of fundamental justice. The Respondent makes no submissions on whether detention for a limited (though admittedly potentially significant) period, of a person who is a danger to the public is in fact inconsistent with such principles. In the absence of any debate on this point, I do not think it this Court's role to re-write the statute in the way suggested by the Respondent.
31 I find that the Tribunal had jurisdiction to order the continued detention of the Respondent, if it was satisfied that he was a danger to the public.
2) Did the Tribunal fail to perform its statutory duties?
32 The Minister argues that the Tribunal failed to perform its statutory duty to assess factors which the IRPA and the Regulations mandate it to take into account in ordering the detention or release of a person.
33 The Respondent does not directly reply to this argument, but submits that "the decision, reasons and release order must be looked at in their entirety." Given that the Respondent is a protected person and that a danger opinion will not be issued before long, the Tribunal's decision to release the Respondent on conditions is reasonable.
34 Section 244 of the Regulations provides that factors set out in the following sections "shall be taken into consideration when assessing whether a person ... (b) is a danger to the public" [my emphasis] pursuant to subs. 58(1) of the IRPA.
35 The relevant provisions of the Regulations are sections 246 and 248, which provide that:
246.
For the purposes of paragraph 244(b), the factors are the following:
...
(d) conviction in Canada under an Act of Parliament for
(i)
a sexual offence, or
(ii)
an offence involving violence or weapons;
...
248.
If it is determined that there are grounds for detention, the following factors shall be considered before a decision is made on detention or release:
(a) the reason for detention;
(b) the length of time in detention;
(c) whether there are any elements that can assist in determining the length of time that detention is likely to continue and, if so, that length of time;
(d) any unexplained delays or unexplained lack of diligence caused by the Department or the person concerned; and
(e) the existence of alternatives to detention.
* * *
246.
Pour l'application de l'alinéa 244b), les critères sont les suivants :
...
d) la déclaration de culpabilité au Canada, en vertu d'une loi fédérale, quant à l'une des infractions suivantes :
(i) infraction d'ordre sexuel,
(ii)
infraction commise avec violence ou des armes;
...
248.
S'il est constaté qu'il existe des motifs de détention, les critères ci-après doivent être pris en compte avant qu'une décision ne soit prise quant à la détention ou la mise en liberté :
a)
le motif de la détention;
b)
la durée de la détention;
c) l'existence d'éléments permettant l'évaluation de la durée probable de la détention et, dans l'affirmative, cette période de temps;
d) les retards inexpliqués ou le manque inexpliqué de diligence de la part du ministère ou de l'intéressé;
e) l'existence de solutions de rechange à la détention.
36 As the Minister points out, the Tribunal seems to have been oblivious to these factors or at any rate to most of them, the length of time of past and future detention being an obvious exception.
37 While the Tribunal recognized that the Respondent has "a pretty impressive criminal file," it did not note, and seems not to have considered the implications of, the fact that this criminal file included multiple convictions for sexual offences and other offences involving violence.
38 The Tribunal failed to exercise its statutory duty, which is an error of law, and its decision must be quashed.
39 In view of this conclusion, it is unnecessary for me to consider the other issues raised by the Minister.
40 The Tribunal's order releasing Mr. Samuels is quashed, and his release application will be heard by a differently constituted panel of the Immigration Division.
SERIOUS QUESTION OF GENERAL IMPORTANCE
41 The Minister asked the Court to certify that this case involves a serious question of general importance, in conformity with par. 74(d) of the IRPA, if it found that the Tribunal lacked jurisdiction to continue the Respondent's detention or to impose conditions on his release.
42 The Minister proposes that the question be worded as follows:
Where a foreign national who is detained or released on conditions is under a removal order that cannot be executed pending an immigration process and receives a positive PRRA, does the Immigration Division have the statutory authority under the IRPA to detain the foreign national or to release the foreign national on conditions, or otherwise to continue the release of the foreign national on conditions?
43 The Minister submits that this question meets the well-known criteria set out by the Fedral Court of Appeal in Canada (Minister of Citizenship and Immigration) v. Liyanagamage (1994), 176 N.R. 4, [1994] F.C.J. No. 1637 (QL), in that it transcends the interests of the parties to this case and would be dispositive of the appeal.
44 The Respondent also submits that this case raises an important question, but suggests that it be reworded as:
Does the Immigration Division retain jurisdiction to detain a foreign national once the foreign national has been found to be a refugee or a protected person?
45 I agree that this is a serious issue of general importance. The terms "subject to a removal order" in s. 58 of the IRPA are ambiguous, because it is not clear whether the removal order must be enforceable or not. On the one hand, the statute does not expressly provide that it must; on the other, a removal order may be unenforceable, and the foreign national may remain in detention, for lengthy periods of time merely because he has been found by an administrative officer, on a balance of probabilities, to constitute a danger. This ambiguity must be resolved not only for the benefit of the parties, but also for that of any other foreign national who becomes a protected person while detained or released on conditions by the Immigration Division.
46 Therefore I certify that the following question is serious and of general importance, so that an appeal from this decision may be made pursuant to paragraph 74(d) of the IRPA:
Does the Immigration Division retain jurisdiction to detain a foreign national once the foreign national has been found to be a refugee or a protected person?
JUDGMENT
THIS COURT ORDERS that:
The application for judicial review is granted, the decision of the Tribunal is quashed, and the matter is referred for re-determination for a differently constituted panel of the Immigration Division.
The following question is certified as serious and of general importance, so that an appeal may be made from this decision pursuant to paragraph 74(d) of the Immigration and Refugee Protection Act:
Does the Immigration Division retain jurisdiction to detain a foreign national once the foreign national has been found to be a refugee or a protected person?
TREMBLAY-LAMER J.
Thursday, December 3, 2009
IMMIGRATION ISSUES IN THE CRIMINAL SENTENCING PROCESS
Here is a recent case highlighting the consideration of immigration issues in the criminal sentencing process, particularly the ability of a person convicted of a serious offence to have access to appeal a removal order to the Immigration Appeal Division (IAD). Judges in criminal courts appear to be increasingly persuaded by defendants to impose lighter sentences so they can avail themselves of the immigration appeal process, even though a Canadian citizen would not have access to such argument. This defeats the intent of the Immigration and Refugee Protection Act, which was aimed at deporting serious criminals from Canada. Can an argument be made that such considerations are a breach of the Charter protection of equality before the law? Shuld judges in criminal proceedings treat defendants more leniently based on their immigration status? It would be interesting if the Supreme Court of Canada could tackle this issue at some point.
R. v. Gurm
BetweenHer Majesty the Queen, andGurcharan Gurm, Defendant
[2009] O.J. No. 5007
Court File No. CRIMJ(F)2501/08 Ontario Superior Court of JusticeB.J. Wein J.Heard: November 8, 2009.Judgment: November 12, 2009.
(12 paras.)
REASONS FOR SENTENCE
B.J. WEIN J.:--
Overview
1 Following a trial by jury Mr. Gurm was convicted of importing opium into Canada. The Crown recommends a sentence of between two and three years in the penitentiary while the defence submits that a reformatory sentence of between 18 months and two years less a day plus probation, is adequate to meet the principles of sentencing. Given the jurisprudence in this jurisdiction, and the particular circumstances of the case, including the fact that Mr. Gurm is a landed immigrant in this country, I am satisfied that the principles of sentencing will adequately be met with a sentence of two years less a day plus two years probation on terms.
The Facts:
2 Mr. Gurm flew into Pearson International Airport in Toronto from India via the Soviet Union. He was found to be carrying, in his carry-on bag and in one of his two larger suitcases, several packets of opium packaged in hockey puck shapes and wrapped for concealment. He was also carrying a small paper pipe made from a rolled up rupee note, which tested positive for opium. The packets were secreted in hidden pockets in the lining of a jacket and pants. One packet and the pipe were wrapped in a towel in his carry-on baggage. The commercial value of the opium, if sold in Canada at one gram street level amounts, is between $10,000 and $17,000.
3 Mr. Gurm acknowledged that while in the Punjab, where he had been visiting friends and overseeing the construction of a new home for his extended family, he frequently got together with friends who smoked opium. He denied that he himself was a user. He indicated that the night before he flew home, he got very drunk partying with his friends, such that he was still hung over when it was time to pack his bags. His friends were in his room smoking opium and preparing to say goodbye. He allowed his friends to pack his bags. They also carried the bags out to the car. He denied knowledge that there were drugs in his luggage, and denied even indirect knowledge through wilful blindness, but the jury clearly found to the contrary.
Legal Parameters:
4 Case law indicates that for substantial quantities of an opiate drug, the penalty for importation, depending on quantity and other circumstances, can range from low to mid penitentiary terms, even in the case of first offenders. See, for example, R. v. Rashidi-Alavije, [2006] O.J. No. 4015 (S.C.), affirmed [2007] O.J. No. 4005 (C.A.). However, where a person is a landed immigrant, if they receive a penitentiary sentence, they will be denied the right of appeal if ordered deported from Canada, pursuant to the provisions of s. 64 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. It has been affirmed that it is appropriate for the Court to consider the risk of deportation as a factor in deciding the sentence to be imposed and in tailoring the sentence to best fit the crime and the offender: R. v. Hamilton (2004), 72 O.R. (3d) 1 (C.A.), R. v. Suwalee Iamkhong, 2009 ONCA 478.
Reasons:
5 In this case, where Mr. Gurm is currently the sole supporter of his mother and grandmother, who reside in Canada, and who will both have to live with other relatives while he is incarcerated, a sentence of reformatory length would entitle the appellant to seek to remain in Canada. This is a strong consideration favouring the imposition of a reformatory sentence as submitted by the defence.
6 The amount imported in this case, while substantial, does not indicate that Mr. Gurm was a high level courier operating as a part of a significant drug trafficking ring. It is consistent with distribution amongst a smaller community. Similar considerations were reviewed in a recent decision of this court in R. v. Benipal, unreported, June 5, 2009, where a reformatory sentence was imposed.
7 The accused does not admit that he had knowledge, even in the sense that he was wilfully blind to the need to inquire about what his friends were putting in his luggage, but he did, in the exercise of his right of allocution, admit that he should have been more careful. The absence of a plea or admission is not an aggravating factor, but is simply the absence of a mitigating factor that is present in some cases where leniency is sought. In this case, as the defence pointed out, it must be acknowledged that the trial was run "efficiently", in the sense that all essential elements except knowledge were admitted, thereby shortening the trial and allowing the jury to focus on the sole issue in dispute.
8 As well, having observed Mr. Gurm throughout the trial and receiving the benefit of the pre-sentence report, which indicates that he has otherwise been a hard working and responsible young person, I am satisfied that the principles of sentencing, including the requirement that the sentence be sufficiently emphatic to denounce unlawful conduct, will not be impaired with the imposition of a reformatory sentence.
9 However, the seriousness of the offence does require that a maximum reformatory sentence be imposed. No real pre-trial custody has been served: Mr. Gurm was released after overnight detention. A lesser reformatory sentence would not adequately reflect the seriousness of this type of offence, or the potential for harm to society.
10 In the result, the sentence will be one of two years less a day in the reformatory, plus two years probation. The terms of probation will include, in addition to the mandatory conditions under s. 732.1(2) of the Criminal Code, conditions that Mr. Gurm remain in Ontario for the first year of probation and that he seek assessment and counselling recommended for any substance abuse problems. The latter is appropriate since one of the underlying admitted factors was an excessive consumption of alcohol, and the possibility of drug abuse is a factor that should be explored.
Ancillary Orders:
11 A mandatory weapons prohibition is ordered for a period of 10 years, pursuant to s. 109 of the Criminal Code. The appropriate provisions are to be read to Mr. Gurm.
12 For oral reasons given, an order under s. 487.051(2) of the Code authorizing the taking of a DNA sample is appropriate in this particular case, and accordingly such a sample will be ordered to be taken.
B.J. WEIN J.
R. v. Gurm
BetweenHer Majesty the Queen, andGurcharan Gurm, Defendant
[2009] O.J. No. 5007
Court File No. CRIMJ(F)2501/08 Ontario Superior Court of JusticeB.J. Wein J.Heard: November 8, 2009.Judgment: November 12, 2009.
(12 paras.)
REASONS FOR SENTENCE
B.J. WEIN J.:--
Overview
1 Following a trial by jury Mr. Gurm was convicted of importing opium into Canada. The Crown recommends a sentence of between two and three years in the penitentiary while the defence submits that a reformatory sentence of between 18 months and two years less a day plus probation, is adequate to meet the principles of sentencing. Given the jurisprudence in this jurisdiction, and the particular circumstances of the case, including the fact that Mr. Gurm is a landed immigrant in this country, I am satisfied that the principles of sentencing will adequately be met with a sentence of two years less a day plus two years probation on terms.
The Facts:
2 Mr. Gurm flew into Pearson International Airport in Toronto from India via the Soviet Union. He was found to be carrying, in his carry-on bag and in one of his two larger suitcases, several packets of opium packaged in hockey puck shapes and wrapped for concealment. He was also carrying a small paper pipe made from a rolled up rupee note, which tested positive for opium. The packets were secreted in hidden pockets in the lining of a jacket and pants. One packet and the pipe were wrapped in a towel in his carry-on baggage. The commercial value of the opium, if sold in Canada at one gram street level amounts, is between $10,000 and $17,000.
3 Mr. Gurm acknowledged that while in the Punjab, where he had been visiting friends and overseeing the construction of a new home for his extended family, he frequently got together with friends who smoked opium. He denied that he himself was a user. He indicated that the night before he flew home, he got very drunk partying with his friends, such that he was still hung over when it was time to pack his bags. His friends were in his room smoking opium and preparing to say goodbye. He allowed his friends to pack his bags. They also carried the bags out to the car. He denied knowledge that there were drugs in his luggage, and denied even indirect knowledge through wilful blindness, but the jury clearly found to the contrary.
Legal Parameters:
4 Case law indicates that for substantial quantities of an opiate drug, the penalty for importation, depending on quantity and other circumstances, can range from low to mid penitentiary terms, even in the case of first offenders. See, for example, R. v. Rashidi-Alavije, [2006] O.J. No. 4015 (S.C.), affirmed [2007] O.J. No. 4005 (C.A.). However, where a person is a landed immigrant, if they receive a penitentiary sentence, they will be denied the right of appeal if ordered deported from Canada, pursuant to the provisions of s. 64 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. It has been affirmed that it is appropriate for the Court to consider the risk of deportation as a factor in deciding the sentence to be imposed and in tailoring the sentence to best fit the crime and the offender: R. v. Hamilton (2004), 72 O.R. (3d) 1 (C.A.), R. v. Suwalee Iamkhong, 2009 ONCA 478.
Reasons:
5 In this case, where Mr. Gurm is currently the sole supporter of his mother and grandmother, who reside in Canada, and who will both have to live with other relatives while he is incarcerated, a sentence of reformatory length would entitle the appellant to seek to remain in Canada. This is a strong consideration favouring the imposition of a reformatory sentence as submitted by the defence.
6 The amount imported in this case, while substantial, does not indicate that Mr. Gurm was a high level courier operating as a part of a significant drug trafficking ring. It is consistent with distribution amongst a smaller community. Similar considerations were reviewed in a recent decision of this court in R. v. Benipal, unreported, June 5, 2009, where a reformatory sentence was imposed.
7 The accused does not admit that he had knowledge, even in the sense that he was wilfully blind to the need to inquire about what his friends were putting in his luggage, but he did, in the exercise of his right of allocution, admit that he should have been more careful. The absence of a plea or admission is not an aggravating factor, but is simply the absence of a mitigating factor that is present in some cases where leniency is sought. In this case, as the defence pointed out, it must be acknowledged that the trial was run "efficiently", in the sense that all essential elements except knowledge were admitted, thereby shortening the trial and allowing the jury to focus on the sole issue in dispute.
8 As well, having observed Mr. Gurm throughout the trial and receiving the benefit of the pre-sentence report, which indicates that he has otherwise been a hard working and responsible young person, I am satisfied that the principles of sentencing, including the requirement that the sentence be sufficiently emphatic to denounce unlawful conduct, will not be impaired with the imposition of a reformatory sentence.
9 However, the seriousness of the offence does require that a maximum reformatory sentence be imposed. No real pre-trial custody has been served: Mr. Gurm was released after overnight detention. A lesser reformatory sentence would not adequately reflect the seriousness of this type of offence, or the potential for harm to society.
10 In the result, the sentence will be one of two years less a day in the reformatory, plus two years probation. The terms of probation will include, in addition to the mandatory conditions under s. 732.1(2) of the Criminal Code, conditions that Mr. Gurm remain in Ontario for the first year of probation and that he seek assessment and counselling recommended for any substance abuse problems. The latter is appropriate since one of the underlying admitted factors was an excessive consumption of alcohol, and the possibility of drug abuse is a factor that should be explored.
Ancillary Orders:
11 A mandatory weapons prohibition is ordered for a period of 10 years, pursuant to s. 109 of the Criminal Code. The appropriate provisions are to be read to Mr. Gurm.
12 For oral reasons given, an order under s. 487.051(2) of the Code authorizing the taking of a DNA sample is appropriate in this particular case, and accordingly such a sample will be ordered to be taken.
B.J. WEIN J.
Wednesday, December 2, 2009
SERGIO R. KARAS QUOTED ON IMMIGRATION FRONT PAGE STORY
Canadian HR Reporter
11/30/2009
Immigration system not meeting labour market needs: Auditor general
More immigrants coming to Canada through provincial nominee programs
By Shannon Klie
There is a clear lack of a strategy on the government’s part to ensure permanent and temporary workers coming to Canada meet the needs of the labour market, as well as a lack of regulation that leaves temporary foreign workers vulnerable to exploitation, found a report from Canada’s auditor general.
The temporary foreign worker program, in particular, is not delivered efficiently and effectively, found the report. There is no systematic review by either Citizenship and Immigration Canada (CIC) or Human Resources and Skills Development Canada (HRSDC) to ensure job offers are genuine or that employers are complying with the terms and conditions under which the work permits were issued, according to the November 2009 report.
“The problems we noted could leave temporary foreign workers in a vulnerable position and pose significant risks to the integrity of the immigration program as a whole,” said auditor general Sheila Fraser.
In October, before the report was released but after the audit was concluded, Citizenship and Immigration Minister Jason Kenney announced changes to the temporary foreign worker program.
The proposed improvements would include a more rigorous assessment of the genuineness of an employer’s job offer, with an examination of an employer’s past compliance with federal and provincial labour laws.
The changes would also prevent employers that have failed to deliver on promises regarding compensation, working conditions or the actual job from hiring workers through the program for two years. They would also be named on CIC’s blacklist.
Most of the changes are aimed especially at protecting low-skilled workers in the program, said Bill MacGregor, leader of the immigration national practice group at the law firm Gowlings in Waterloo, Ont.
“I think it’s part of a trend generally to tighten things up and try to protect foreign workers and try to have more of an enforcement process,” said MacGregor. “I think that’s a good thing. Whether it goes far enough, I suppose, can be debated.”
Decisions made by CIC, which don’t seem to be supported by a strategy to meet the needs of the Canadian labour market, have caused a significant shift in the types of foreign workers becoming permanent residents, found the report on foreign workers (which is part of a larger report covering other Canadian issues).
While the annual targets for immigrants under the economic class have changed little in the past five years, targets for programs under the class have changed dramatically.
Targets for the provincial nominee programs (PNPs) increased 471 per cent from 3,500 in 2004 to 20,000 in 2009. On the other hand, targets for the federal skilled worker program dropped 31 per cent from 98,200 to 68,200.
The PNP might soon become the largest source of economic immigrants, which could affect how well Canada’s immigration system meets labour market demands, stated the report.
Under the PNP, certain provinces and territories can nominate candidates for immigration based on their own selection criteria to meet regional labour market needs without approval from the federal government. These candidates are not subject to the points system of the federal skilled worker program.
Because the criteria vary so widely among the different PNPs, the federal, provincial and territorial governments need to formally evaluate the programs to see if they are in fact bringing in immigrants who match labour market demands and if immigrants who enter one province actually stay there, stated the report.
“It is critical that the government’s programs to facilitate the entry of permanent and temporary workers be designed and delivered in a way to ensure that the right people are available at the right time to meet the needs of the Canadian labour market. The choices that are made now will affect the kind of society Canada has in the future,” stated the report.
Toronto-based citizenship and immigration lawyer Sergio Karas agreed with the auditor general’s findings.
“The immigration and refugee system is totally broken,” said Karas, who is the chair of the Ontario Bar Association’s citizenship and immigration section. “We need some major reforms.”
At the top of his list is the way in which the system selects skilled immigrants. Instead of relying on a points system and an outdated, political list of priority occupations, the government should work with businesses to find out exactly what kind of immigrants they need, he said.
“I would like to see an employer-driven immigration program,” said Karas. “If we would only bring in the type of immigrants that the labour market demands then they would all have jobs.”
In 2008, the government changed the Immigrant and Refugee Protection Act to give the minister of citizenship and immigration the power to set eligibility criteria in an effort to reduce the backlog of applications under the federal skilled worker program, which had nearly doubled since 2000.
In October 2008, the ministry set new eligibility criteria requiring applicants for the federal skilled worker program to have one year of experience in one of 38 occupations (down from a list of 351), to have lived in Canada for one year as a temporary foreign worker or international student, or have a job offer.
Under the new criteria, the government forecast a reduction in new applications and that processing times for new applications would take six to 12 months. But the auditor general found no evidence of policy, program or operational analysis to support that forecast.
At the end of February 2009, the backlog was 635,233. By June 30, 2009, the total backlog and new applications was 594,122, a 6.5-per-cent reduction, which was mostly due to ineligible applications made by people unaware of the new eligibility criteria, stated the report.
The auditor general called for strong structures and processes to support the identification of priority occupations to ensure there is a link between labour market needs and the selection of immigrants. While the government held consultations to select the 38 priority occupations, there is no mechanism in place to ensure the list will remain up-to-date, found the report.
The government is wasting a lot of resources by bringing in immigrants who will never work or be stuck in low-paying jobs because they don’t have the skills needed for the jobs available, said Karas. Instead, the government should focus its resources on those individuals who will have the most economic impact.
“You can’t have people coming to Canada and wandering the streets not able to find a job,” he said.
There should be a graduated immigration system that starts with work permits, so only people with a job in hand could begin the immigration process, said Karas.
As such, the temporary foreign worker program is absolutely necessary to the system. But there needs to be an acknowledgement not all participants in the program would be appropriate for permanent residency, he said.
The program is often used in industries to meet short peaks in demand. But after the peak, demand drops off and not as many workers are needed so they would no longer have a job, said Karas.
“There are people who need to go home after their services have been performed,” he said.
11/30/2009
Immigration system not meeting labour market needs: Auditor general
More immigrants coming to Canada through provincial nominee programs
By Shannon Klie
There is a clear lack of a strategy on the government’s part to ensure permanent and temporary workers coming to Canada meet the needs of the labour market, as well as a lack of regulation that leaves temporary foreign workers vulnerable to exploitation, found a report from Canada’s auditor general.
The temporary foreign worker program, in particular, is not delivered efficiently and effectively, found the report. There is no systematic review by either Citizenship and Immigration Canada (CIC) or Human Resources and Skills Development Canada (HRSDC) to ensure job offers are genuine or that employers are complying with the terms and conditions under which the work permits were issued, according to the November 2009 report.
“The problems we noted could leave temporary foreign workers in a vulnerable position and pose significant risks to the integrity of the immigration program as a whole,” said auditor general Sheila Fraser.
In October, before the report was released but after the audit was concluded, Citizenship and Immigration Minister Jason Kenney announced changes to the temporary foreign worker program.
The proposed improvements would include a more rigorous assessment of the genuineness of an employer’s job offer, with an examination of an employer’s past compliance with federal and provincial labour laws.
The changes would also prevent employers that have failed to deliver on promises regarding compensation, working conditions or the actual job from hiring workers through the program for two years. They would also be named on CIC’s blacklist.
Most of the changes are aimed especially at protecting low-skilled workers in the program, said Bill MacGregor, leader of the immigration national practice group at the law firm Gowlings in Waterloo, Ont.
“I think it’s part of a trend generally to tighten things up and try to protect foreign workers and try to have more of an enforcement process,” said MacGregor. “I think that’s a good thing. Whether it goes far enough, I suppose, can be debated.”
Decisions made by CIC, which don’t seem to be supported by a strategy to meet the needs of the Canadian labour market, have caused a significant shift in the types of foreign workers becoming permanent residents, found the report on foreign workers (which is part of a larger report covering other Canadian issues).
While the annual targets for immigrants under the economic class have changed little in the past five years, targets for programs under the class have changed dramatically.
Targets for the provincial nominee programs (PNPs) increased 471 per cent from 3,500 in 2004 to 20,000 in 2009. On the other hand, targets for the federal skilled worker program dropped 31 per cent from 98,200 to 68,200.
The PNP might soon become the largest source of economic immigrants, which could affect how well Canada’s immigration system meets labour market demands, stated the report.
Under the PNP, certain provinces and territories can nominate candidates for immigration based on their own selection criteria to meet regional labour market needs without approval from the federal government. These candidates are not subject to the points system of the federal skilled worker program.
Because the criteria vary so widely among the different PNPs, the federal, provincial and territorial governments need to formally evaluate the programs to see if they are in fact bringing in immigrants who match labour market demands and if immigrants who enter one province actually stay there, stated the report.
“It is critical that the government’s programs to facilitate the entry of permanent and temporary workers be designed and delivered in a way to ensure that the right people are available at the right time to meet the needs of the Canadian labour market. The choices that are made now will affect the kind of society Canada has in the future,” stated the report.
Toronto-based citizenship and immigration lawyer Sergio Karas agreed with the auditor general’s findings.
“The immigration and refugee system is totally broken,” said Karas, who is the chair of the Ontario Bar Association’s citizenship and immigration section. “We need some major reforms.”
At the top of his list is the way in which the system selects skilled immigrants. Instead of relying on a points system and an outdated, political list of priority occupations, the government should work with businesses to find out exactly what kind of immigrants they need, he said.
“I would like to see an employer-driven immigration program,” said Karas. “If we would only bring in the type of immigrants that the labour market demands then they would all have jobs.”
In 2008, the government changed the Immigrant and Refugee Protection Act to give the minister of citizenship and immigration the power to set eligibility criteria in an effort to reduce the backlog of applications under the federal skilled worker program, which had nearly doubled since 2000.
In October 2008, the ministry set new eligibility criteria requiring applicants for the federal skilled worker program to have one year of experience in one of 38 occupations (down from a list of 351), to have lived in Canada for one year as a temporary foreign worker or international student, or have a job offer.
Under the new criteria, the government forecast a reduction in new applications and that processing times for new applications would take six to 12 months. But the auditor general found no evidence of policy, program or operational analysis to support that forecast.
At the end of February 2009, the backlog was 635,233. By June 30, 2009, the total backlog and new applications was 594,122, a 6.5-per-cent reduction, which was mostly due to ineligible applications made by people unaware of the new eligibility criteria, stated the report.
The auditor general called for strong structures and processes to support the identification of priority occupations to ensure there is a link between labour market needs and the selection of immigrants. While the government held consultations to select the 38 priority occupations, there is no mechanism in place to ensure the list will remain up-to-date, found the report.
The government is wasting a lot of resources by bringing in immigrants who will never work or be stuck in low-paying jobs because they don’t have the skills needed for the jobs available, said Karas. Instead, the government should focus its resources on those individuals who will have the most economic impact.
“You can’t have people coming to Canada and wandering the streets not able to find a job,” he said.
There should be a graduated immigration system that starts with work permits, so only people with a job in hand could begin the immigration process, said Karas.
As such, the temporary foreign worker program is absolutely necessary to the system. But there needs to be an acknowledgement not all participants in the program would be appropriate for permanent residency, he said.
The program is often used in industries to meet short peaks in demand. But after the peak, demand drops off and not as many workers are needed so they would no longer have a job, said Karas.
“There are people who need to go home after their services have been performed,” he said.
MARRIAGE FRAUD ON THE RISE
This is unsurprising. Since the government has made it so easy and so quick to obtain unconditional residency for spouses, and very few applicants are interviewed, it is little wonder that the program has become the focus of interest by unscrupulous individuals. The solution is to grant conditional residency for a probationary period of time, much like the US does, and to ensure that the marriage is genuine before the residency becomes final. this will also prevent those who are increasingly taking advantage of Canadians by ":marrying and leaving" them as soon as they obtain residency.
Rise in fake marriages causes concern in Immigration dept. - thestar.com
Rise in fake marriages causes concern in Immigration dept. - thestar.com
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