Bjorn and I decided to attend the session on criminal inadmissibility. Peter Edelmann is on the panel; he's a bit of a kindred spirit, doing immigration litigation and appearing in criminal courts as well.
In keeping with Lorne Waldman's comments during the plenary, compassion has been removed from the system at least when it comes to criminals. If a PR is convicted of a crime in Canada, it's become harder to remain in Canada because the proposed law extinguishes the current ability to seek equitable relief before the IAD. Further, if a PR commits a crime outside Canada that is equivalent to one in Canada that could have resulted in a sentence of 10 yrs or more, that person is denied an ability to seek relief at the IAD.
As I have written in the past, this law throws the baby out with the bath water. It does not make any distinction as to the nature of offence, just the length of the sentence. It does not make any distinction between a long term PR and one that showed up yesterday.
Canadians don't like criminals (who does?); but this one strike and you're out is bad policy and will cause serious hardship. Some discretion must remain in the system.
Edelmann Presentation
Peter Edelmann - need to reach out to criminal law colleagues - with respect to convictions in Canada - acquittals, stays, withdrawals, discharges, peace bonds, alternative measures, NCR findings - don't count - can avoid criminal inadmissibility. Convictions must be under an Act of Parliament does not include provincial offences, contempt of court, youth offences... Convictions outside Canada need to do an equivalency of offences 1. comparison of wording in each statute - including opinions from experts in the foreign law or 2. by examining the evidence adduced before the adjudicator; or 3. by a combination of the above. Equivalency of foreign pardons (read Saini) 1. the foreign legal system as a whole must be similar to that of Canada, 2. the aim, content and effect of the specific foreign law must be similar to Canadian law, and 3. there must be no valid reason not to recognize the effect of the foreign law. Remember - no more pardons in Canada. No cases dealing with this issue - now look at record suspension regime...our record suspension regime is quite different. Things that were not the equivalent before, may be equivalent now. Record Suspensions - there's a list of offences that are not listed - before all summary convictions get pardon after 3 years (no conviction)... - summary convictions (not listed) - no conviction and of good conduct for 5 years after completion of sentence if summary conviction listed ... no conviction and good conduct for 10 years after completion of sentence. all indictable need no conviction and of good conduct for 10 years after completion. Applicant must demonstrate pardon will provide a measurable benefit; sustain rehabilitation; not bring administration of justice into disrepute. You are ineligible if more than three indictable offences.
Michael Greene Presentation
Bill C43: The Faster Removal of Foreign Criminals Act
- appeared before Parliament to present the CBA position - frustrating experience - passed through Committee without any changes and through the House - now before the Senate - expected to pass before summer - deportation without right of appeal - denial of H&C relief and misrepresentation (key provisions) - currently: pr can be deported without right of appeal to IAD if imprisoned for 2 years or more and foreign offences resulted in right of appeal to IAD - proposed: pr can be deported without right of appeal to IAD if imprisoned for 6 months or ore; includes pre trial and conditional sentences; no distinction for long term PRs - no right of appeal if: conviction for offence that equates to Canadian offence punishable by 10 yrs or more; regardless of foreign lack of due process; regardless of sentence - if foreign offence - no charge or conviction required; officers belief sufficient - organized criminality - bars consideration of H&C (no remedy if s.37) - Courts give liberal interpretation to organized criminality - no distinction between mom and pop grow op and drug syndicate - misrepresentation: currently 2 yr inadmissibility; proposed: 5 year inadmissibility - retroactivity - applies to any offence, conviction where no s.44 report decision to refer to inquiry and therefore could apply to offences and convictions from many years ago. tips - work closely with criminal bar - ignorance breeds insurmountable results - multiple short sentences better than long global - avoid longer conditional sentences - get involved prior to plea and sentencing -
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My comments:
In keeping with Lorne Waldman's comments during the plenary, compassion has been removed from the system at least when it comes to criminals. If a PR is convicted of a crime in Canada, it's become harder to remain in Canada because the proposed law extinguishes the current ability to seek equitable relief before the IAD. Further, if a PR commits a crime outside Canada that is equivalent to one in Canada that could have resulted in a sentence of 10 yrs or more, that person is denied an ability to seek relief at the IAD.
As I have written in the past, this law throws the baby out with the bath water. It does not make any distinction as to the nature of offence, just the length of the sentence. It does not make any distinction between a long term PR and one that showed up yesterday.
Canadians don't like criminals (who does?); but this one strike and you're out is bad policy and will cause serious hardship. Some discretion must remain in the system.
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Sean McLuckie - good number of visa offices have been closed - lot of changes in the CIC network - impact on TRP and rehabs - as of now, you can only submit an application for TRP or rehab to LA or NY - otherwise POE - pressures ... what are options - patience or make better use of POE - urgent cases flag to NY or LA - be judicious To minimize delays - do it right, do it once. Every time we have to open a file and request information ... need complete submissions up front ... if application for PR involves inadmissibility CPP-O will transfer to LA and NY ... provide the evidence and information for officers to issue TRPs or rehabs - some offices have different checklists - police clearances, court dispositions key... connect the dots. provide the necessary analysis. perform the analysis for us. make the argument. in terms of the consideration - maynard did an excellent paper two years ago - rehab the officer has to be satisfied that individual is rehab and at low risk - TRP is need vs risk analysis ...
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I need some clarification as to whether IAD jurisdiction will extinguished over a sponsorship appeal where there is criminal inadmissibility on the part of the sponsored person...I may ask the panel - or make Bjorn go up ...
Raj Sharma JD LLM
Partner
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