Raj Sharma's Canadian Immigration Blog

2009 Access to Justice Awards

I am honoured (and humbled) to be chosen as the 2009 recipient of the Legal Aid Alberta Access to Justice Award for the Calgary region.

Access to Justice is a very important issue, and the staff of the Legal Aid Society of Alberta should be recognized and commended for their daily commitment to this ideal. Serving the needs of the marginalized, and those of limited economic means is no easy task, but the Legal Aid Society staff do so with remarkable respect and efficiency.

The Chief Justice of the Supreme Court has characterized the inability of a majority of Canadians to afford legal services as a "crisis":

Although McLachlin has spoken out about the problem in the past, she sharpened her remarks yesterday and went further than she has before, citing what she described as an "increasingly urgent situation."

...

A Toronto Star investigation this year determined the cost of a routine three-day civil trial in Ontario to be about $60,000, more than the median Canadian family income.

"The price of justice should not be so dear," McLachlin said in a speech to the bar association's governing council at the opening of a four-day legal conference here.

"Something must be done," she urged. "We must all get on the same track and move down it together."

There's "no point" in having a justice system that nobody can afford to use, McLachlin said. "We need to keep the justice system relevant and available to Canadian men, women and children."

     

Fraud warning

It looks like the federal government is now warning against the plethora of immigration scams that abound in both Canada and abroad. I've met with many individuals who have paid thousands to unscrupulous individuals many of whom continue to advertise in ethnic community newspapers. I hope this is but a beginning of a sustained effort.

Multiculturalism

National post has a story on Jason Kenneys 'muscular multicultualiam' (see todays post A6). He has expressed a hard line against US military deserters and George Galloway. He's had a public spat with the Canadian Arab Federation and has expressed concerns regarding Canadas refugee determination system and the language proficiency of prospective immigrants. I'm willing to wait and see; give the new minister the benefit of the doubt for now. I too am opposed to ethnic enclaves and hope for greater integration. Without a doubt attempts need to be made so that we avoid the issues that the UK is facing now. The fact that Kenney apparently boarded an entire family newly arrived from India, and has built up other connections with various immigrant communities will shield him to some extent from the inevitable accusations of racism that flow from even proposed changes to immigration and multiculturalism policy. Unfortunately continuity is now something that has been demonstrated in this particular portfolio. An election or cabinet shuffling will bring an end to Kenneys well intentioned aims.

Vancouver

In the beautiful (but presently cloudy) city of Vancouver. Will be back in the office on Monday.

UK "Memorandum of Conviction"

I finally figured this out. CHC London often requires a ‘memorandum of conviction’ for a criminal rehabilitation. I spoke to two UK lawyers/barristers who assured me that this term had no meaning in the UK. Fortunately, a client was able to point me in the right direction.

 

All you have to do is email the appropriate court (see http://www.hmcourts-service.gov.uk/HMCSCourtFinder/CourtList.do) and request it. You’ll probably need an authorization signed by the client (UK Data Protection Act) and the criminal record. They’ll email you the ‘memo’ and send a hard copy by mail. I believe the fees are 40 pounds.

Mexican Refugee Claims Jump In Calgary

Recent CBC article here indicates the jump in refugee claims from Mexico in Calgary (with the director of a non-profit suggesting it was due to the existence of a direct flight from Mexico City to Calgary).

My own experience and what I've heard from other immigration lawyers here suggests the same - Mexico is the top source country (perhaps followed closely by Haiti).

At the same time, the situation in Mexico is quite fluid at this time, with a number of country condition documents/evidence suggesting that it is on the verge of being a 'failed state'.

While the refugee acceptance rate is below 20% for Mexican refugee claims, I would envision a higher acceptance rate for a subsequent humanitarian and compassionate application which can encompass broader issues such as hardship and generalized country conditions.

George Galloway

British MP George Galloway has been deemed inadmissible to Canada.

Recent Macleans article here.

Interestingly, veteran immigration lawyer Barbara Jackman is representing Galloway's challenge to the decision. Article here.

CIC Minister Kenney asserts that Galloway is not being denied admission into Canada for words, that he is instead being denied because of his deeds.

John Ivison of the National Post has an interesting article here. I found it particularly interesting as Ivison knows Galloway and can attest to his 'odious' opinions. Notwithstanding those opinions, Ivison still calls for Galloway to be allowed to enter Canada.

The CBA Immigration list-server also witnessed several heated exchanges between lawyer on this issue. I think the issue is this: Is Galloway guilty of 'subversion' under s. 34 of the Immigration and Refugee Protection Act?

What the Galloway matter does demonstrate is the hard line taken by CBSA. There is no doubt in my mind that enforcement, removal and inadmissibility issues will continue to make the news. Criminal and immigration law will continue to intersect, not just given ethnic gang warfare but also the definite emphasis on enforcement by this government.

Name this lawyer

A semi famous criminal lawyer who wears colourful socks. Hint: its not Bjorn

Happy St Patricks Day

A nice ending to a long day.

Criminal charges and deportation

Last week we presented before the Criminal Defense Lawyers Association of Calgary. The critical issue was establishing that a permanent resident sentenced to two years would lose his right to appeal his removal order based on criminality. We also discussed the Khosa decision. By taking the initiative, the defense bar is looking out for all possible ramifications of a criminal conviction. I imagine that immigration and deportation may increasingly be used as a collateral weapon in removing undesirables from Canada. Or in other words, another option for those fighting the escalating gang violence in Calgary.

Disparity in Refugee Determination

Sean Rehaag, an Associate Professor at Osgoode Hall, has obtained data via Access to Information Requests with respect to the determinations made by tribunal members of the Immigration and Refugee Board. Confirming anecdotal information based on experience, Rehaag indicates wide disparities in outcomes.

The data is very interesting - especially because it is broken down by Member and by Country of Origin.

See:

Sean Rehaag, “2008 Refugee Claim Data & IRB Member Grant Rates” (4 March 2009) online: http://www.ccrweb.ca/documents/rehaagdatamarch09.htm.

See also Professor Rehaag's journal article which seems to indicate (unfortunately) that outcomes in refugee determination "appear to hinge" (in part) on the identity of the decision maker.

Done...

The judicial review was heard before Justice O'Keefe this morning. It was a lengthier and more complex argument than usually the case. I enjoyed understanding the principles underlying complicity and crimes against humanity - even if it took most of my weekend. I'm now enjoying a celebratory post court coffee.

Justice Morris Fish

I'm impressed with the lone dissent in the recent Khosa decision, Justice Fish: "So much cannot be reasonably made of so little." I'm coming to that same conclusion after review of the voluminous material for this mornings judicial review. There appears to be little or no credible evidence in support of the RPD decision and the analysis (in my view anyway) was fundamentally wrong. Let's see what happens.

Article 1fa

Just preparing for an appearance before the federal court on Monday. The matter involves judicial review of a decision by the refugee board excluding my client because of alleged complicity in a war crime. Its an interesting and complex area of refugee law.

Sukhvir Singh Khosa

I doubt that any immigration practitioner would have imagined that Sukhvir Singh Khosa's IAD appeal would reach the Supreme Court of Canada. The 2004 decision was heard by a three member panel. It appears that Khosa's failure to show sufficient "insight" was a major issue for the majority decision:

23     Counsel for the appellant made lengthy submissions contending that it is
not the function of the Division to mete out further punishment to this
appellant for his offence. Counsel is entirely correct that it would be
inappropriate for the panel to take that role upon itself. The criminal justice
system has spoken with respect to the appellant's guilt and handed down a
sentence consistent with principles of sentencing in Canada. The role of the
Division is distinct and separate from the criminal courts. This is an
application for discretionary relief. Domestic immigration legislation provides
that a removal order may be made as against permanent residents who are
inadmissible on the grounds of serious criminality. When an appeal is taken from
a removal order, the Division must look at all the circumstances in any given
case, weigh the various factors both supportive and non-supportive of special
relief and reach a determination. Counsel for the appellant urges the panel to
conclude the appellant is not a danger to the Canadian public and, on that
basis, find in the appellant's favour. While noting the trial judge's
conclusions with respect to likelihood of re-offence and the absence of a prior
criminal record, the fact is that, given the failure of the appellant to
acknowledge his conduct and accept responsibility for his reckless behaviour,
particularly street-racing with another vehicle on a public roadway, there is
insufficient evidence upon which I can make a determination that the appellant
does not represent a present risk to the public. Even were I to do so, in
balancing all the relevant factors, I determine the scale does not tip in the
appellant's favour and decline to exercise favourable discretion in all the
circumstances of this case.

At the same time, the dissenting opinion, written by Sherry Wiebe, appears (to me at least) to be more compelling:

32     [6] The Appellant committed a reckless act with grievous consequences,
which cannot be undone. He was convicted of one crime. The Appellant is a young
man with no criminal history, or even a history of antisocial behaviour. There
is little if any risk to the public, I find. The Appellant remains under the
sanction of the courts for years to come and has complied with the conditions
imposed on him. He is, and has from the time of the tragedy, been remorseful. He
has suffered serious consequences for his actions, as he will continue to do for
the rest of his life. His family too has suffered.

...

42     [16] There is no evidence that the Appellant is a committed street racer.
To the contrary41 , the evidence led the B.C.C.A. to find that the Appellant's
actions are less serious than other street racing crimes. The race was found to
be spontaneous and of short duration.42 In particular, the Appellant's car was
travelling at speeds less than street racers often drive, and the car was not
modified.

43     [17] Taking these factors into account, including the conclusions of the
courts, I place significant mitigating weight on this having been a spontaneous,
unplanned race of short duration, as well as on the evidence the Appellant does
not fit the usual profile of street racers.

44     [18] I too find that the Appellant's complete absence of prior criminal
history is important in assessing the weight to attach to the seriousness of the
Appellant's criminality in the immigration context, and correspondingly
mitigates it.

45     [19] There is no evidence of an escalation in criminal activity. This is
the Appellant's only criminal conviction, a marked contrast to the history of
criminality often seen in these appeals. The Appellant's conduct prior to this
was considered exemplary. There is no evidence of criminal propensity or of a
pattern of criminal conduct.

46     [20] I find that the evidence in this appeal overwhelmingly supports that
the Appellant is hard-working and, with the exception of this conviction, is
also a law-abiding individual. The trial judge too found, and I accept, that the
Appellant and his co-accused are "hard working, law abiding persons and good
sons."

...

51     [25] I find that the Appellant is contrite and remorseful. The Appellant
at hearing was regretful, his voice tremulous and filled with emotion. His
appearance was that of a defeated man who was extremely sorrowful. Early on, he
apologized to the deceased's family through his counsel. In testimony, he
expressed his profound regret for the loss of life as a result of his unthinking
actions when he decided to drive fast on that fateful day. He apologized
directly to the family present, and I find his expression of regret for their
loss is sincere.

52     [26] I find that the evidence proves that the Appellant has been
devastated by these events, and that he is not likely to forget the trauma he
has experienced, or the loss suffered by the Thorpe family. I find the evidence
proves that the Appellant's actions in future will be governed by this
experience.

53     [27] The majority of this panel have placed great significance on the
Appellant's dispute that he was racing, when the criminal court found he was.
And while they concluded this was " not fatal" to his appeal, they also
determined that his continued denial that he was racing "reflects a lack of
insight." The panel concluded that this "is not to his credit." The panel found
that the Appellant was remorseful, but concluded it was not a "compelling
feature in light of the limited nature of the Appellant's admissions".

54     [28] However I find the Appellant's remorse, even in light of his denial
he was racing, is genuine and is evidence that the Appellant will in future be
more thoughtful and will avoid such recklessness.

55     [29] I find the evidence proves on balance that the Appellant comes from
a modest family with good values, and that overall he is responsible, and a good
son. He does not now drink alcohol or use any illicit substances.

...

74     [48] In summary, I am satisfied that the evidence proves that there would
be hardship from dislocation that would be experienced by the Appellant, his
wife and his immediate family, and that it would be significant. I find too that
there is evidence of establishment, including of a solid work history, that is
positive. I find that the Appellant has made his life in Canada. I find that the
relationship between immediate family members, including Manjeet Kaur's
relationship with her family in Canada, is close and significant. I find that
the banishment of an only son in a close family to a distant geographic location
would work a hardship in the circumstances of this case. There is no evidence of
the best interests of a child directly affected by the decision.

Conclusion

75     [49] In light of my finding that the weight of the basis for the removal
order is mitigated, and that there is minimal, if any, risk to the public, and
in that there is significant credible evidence of humanitarian considerations, I
find that compassion is called for and hence, in this case, special relief is
warranted.

Street Racer Ordered Deported

Sukvir Singh Khosa has lost his bid to remain in the country. The Supreme Court, in a 7-1 ruling, reaffirmed the original IAD decision ordering his deportation. The decision has important implications for judicial review of IAD and other IRB decisions.

Ottawa Citizen article here:

Justice Ian Binnie, writing for the majority, concluded that there was "no basis" for the appeal court to interfere with the board's deportation order unless it was unreasonable.

"Reviewing courts ought not to reweigh the evidence or substitute their own appreciation of the appropriate solution, but must rather determine if the outcome falls within a range of reasonable outcomes," wrote Binnie.

"In this case, the question whether K (Khosa) had established "sufficient humanitarian and compassionate considerations" to warrant relief from his removal order was a decision which Parliament confided to the IAD (Immigration Appeal Division), not to the courts."

Khosa, who immigrated from India with his family as a teenager, was convicted in the death of 51-year-old Irene Thorpe, who was out for an evening walk in Vancouver in 2000 when she was hit by Khosa's speeding Chevrolet Camaro.

Also convicted was Bahadur Singh Bhalru, who was deported to India in 2005.

The two men were driving about 120 kilometres per hour in a 50-kilometre zone, court testimony revealed.

Canada brings deported gangster back "home"

Can't summarize better than the National Post:

Panchalingam Nagalingam, who was deported in 2005 because of his involvement in a violent Toronto street gang, arrived back on Tuesday morning, and Canadian officials say they facilitated and paid for his return. The circumstances have one official lamenting that the government is "in the business of putting gangs and gangsters out of business, not in bringing them back to Canada."

This 2007 Toronto Star article discusses Mr. Nagalingam's case and the original (successful) Federal Court decision that had allowed Mr. Nagalingam's application (it was that decision that was recently set aside by the Federal Court of Appeal).

It appears that Mr. Nagalingam was returned because of a successful judicial review application:

The Ministry of Justice agreed in December, 2005, that it would allow Mr. Nagalingam to return to Toronto if the courts ever overturned a decision that found he was a danger to the public, officials said. The Federal Court of Appeal did just that in April, 2008, ruling that the judge who decided Mr. Nagalingam's case had made a procedural mistake.

The Federal Court of Appeal decision can be found here:

[78]           In this case, the Delegate found that the A.K. Kannan was a criminal organization generally involved in severe criminal acts, and that the appellant was an active member in that group. This is not sufficient to meet the threshold of paragraph 115(2)(b) of the Act. On this point, I note that the specific rank of the appellant within the A.K. Kannan criminal organization is unclear.  In the Request for Minister’s Opinion, supra, the appellant is said to be a “leader” by a source “confirmed [to be] reliable” (at paragraph 24), whereas in the Delegate’s Opinion, he is referred to as an “enforcer” on the basis of a witness’ statement who later disowned his prior declaration to that effect.
 
[79]           While this general approach used by the Delegate would be consistent with a determination under paragraph 37(1)(a) of the Act, it falls short of meeting the personalized fact-driven inquiry dictated by paragraph 115(2)(b) of the same Act. Ultimately, not having to make an express finding of complicity does not mean that the Delegate was not required to conclude, on reasonable grounds, that the evidence pointed to the appellant as being complicit in the acts of organized criminality committed by the organization, acts that were of such nature and severity as to warrant his removal. The Delegate failed to do so.

Somehow, I think that Mr. Nagalingam will face another danger opinion (I'm now aware of any "double jeopardy" criminal concept applying stopping the government from doing so) in short order, and with the assistance of his able counsel (Ms. Barbara Jackman) will again make the rounds before the Federal Court.