Inadmissibility Part 2

1
Inadmissibility Part 2

2
Criminality - Burdens.

• Criminality - Burdens.
• Remember s.33 IRPA Reasonable Grounds to
  Believe
• But note s.36(3) (d) The determination of acts
  committed outside Canada by Permanent Resident
  must be on balance of probabilities.

3
Application of 36(1)(c)

• What of a person who had been acquitted of an
  offence outside Canada? Policy Manual suggests
  no (ENF-2, 3.9) (Think O.J. Simpson)
• However, policy manual also suggests that word
  from the authorities that charges have been laid
  or may be laid may be enough.

4
Serious Criminality - Equivalency

• Li (688)
• 1) essential elements (ingredients) of the
  offence are the same
• 2) look at the evidence of the acts committed by
  the individual and determine whether they would
  be criminal in Canada (must use this method when
  the foreign offence is defined more broadly)
• 3) Essential element includes defences but it is
  not necessary to compare all the general
  principles of criminal responsibility (690).
• 4) But you do not look to see if the procedures
  for conviction are equivalent to those in Canada,
  or whether the process would pass Charter
  scrutiny.
• Does this make sense?

5
Saini

• Saini Decided under former law. Under 36(3)(b)
  IRPA the issue of foreign pardons is unclear
• When is a foreign pardon relevant to determining
  inadmissibility
• Aircraft hijacker who had been pardoned by the
  president of Pakistan
• Refers to the case of Burgon
• 1) Canadian law does allow for rehabilitated
  people to be admissible.
• 2) In Canada a pardon removed any
  disqualification from the conviction.
• 3) Absolute and conditional discharges could be
  given the person is deemed not to have been
  convicted.
• 4) Convicted refers to a conviction that has
  not been expunged.
• 5) The UK law is similar to Canadian law

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Saini

• In Burgon it was proper for the Court to
  recognize the UK law. BUT the law of another
  country cannot be controlling in relation to an
  inquiry about the implications of conviction for
  immigration.
• In this case
• 1) the pardon does erase the conviction
• 2) But should it be treated as a Canadian pardon
  would be treated.?
• decide by asking 3 questions Are the legal
  systems similar? Not enough to assume that it is
  similar.
• Are the legal provisions similar? Need to figure
  out if Pakistani law aims to eliminate the future
  consequences of conviction. In Canada Royal
  prerogative of mercy is rare.
• Is there a good reason to ignore the foreign
  pardon Consider the gravity of the offence The
  offence was so abhorrent that our court is not
  required to respect a foreign pardon.

7
Rehabilitation

• IRPA 36(3)(c) Some people who are inadmissible
  because of Acts or convictions outside Canada are
  deemed to be rehabilitated They are defined in
  Regulation 18(2) (passage of time plus no
  offences)
• Some people must satisfy the Minister (after a
  prescribed period) that they have been
  rehabilitated The period is identified in the Reg
  17 as 5 years.

8
Organized Crime

• Chiau Member of a criminal organization
• The substantive issue What is a member?
• P706 belonging to A persons participation in
  a legitimate business knowing that it is
  controlled by a criminal organization, in some
  circumstances may support a reasonable belief
  in membership.
• Definition of reasonable grounds bona fide
  belief in a serious possibility based on credible
  evidence

9
Chiau procedural issues

• In this case there was found to be a need for an
  interview
• Must confidential information be supplied to
  applicant? (cf Charkaoui) Big difference Not a
  Charter case.
• No says Evans Takes into account 4 factors to
  conclude that procedural fairness does not
  require it importance to individual (lack of
  connection to Canada) nature of decision
  (dissimilar to decisions of independent tribunals
  makes reference to absence of legal counsel)
  public interest and the factual circumstances.
• Need for information at judicial review? s. 87
  IRPA

10
Security

• Suresh relies on definition of terrorism found in
  international instruments (709, 710)
• Canadas anti-terrorism laws include a different
  definition (struck down in part in Khawaja)
  Criminal Code 83.01 much broader in scope
  (including property damage and conspiracy)

11
Innocent membership

• Suresh considers the possibility of innocent
  membership in a terrorist group.
• Parliament didnt intend to include them BUT
• The individual may have to satisfy the Minister
  that their admission is not detrimental to
  national interest. (p710) A confusing analysis.

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Crimes against Humanity

• The importance of International Criminal Law
• To be a guilty of a crime against humanity,
• A person must have committed a proscribed
  criminal act with the mens rea The list includes
  murder and persecution (para 129) Counseling of
  murder not sufficient.
• It must be part of a widespread or systematic
  attack directed against civilian population
• Actor must know it is part of a
  widespread/systematic attack

13
Impact on Successful Refugee Claimants

• NB Refugee Claimant may be ineligible to make a
  claim before IRB on grounds of serious
  criminality. Requires conviction. (Note 2 year
  sentence or danger opinion required under s.101
  IRPA )
• Successful Refugee Claimant will be issued a TRP.
  And may then apply for PR status for self and
  (close) family members.
• But they will not be given PR status if
  inadmissible under ss. 34, 35, 36(1) or 37(1)
  They will be given PR status after a number of
  years under other grounds of inadmissibility
  (s38(1)(c) does not apply)
• See Regs. S.65 and 65.1

14
Inadmissibility and PRRA

• IRPA s.112(3) Minister cannot grant protection
  to those found inadmissible on grounds of
  security, international rights and organized
  criminality or those who meet the ineligibility
  criteria of serious criminality. (conviction
  required)
• The PRRA will focus only on s.97 issues (not s.96
  issues)
• These individuals may be granted stay of removal
  after ministerial balancing ( risk to individual
  balanced against danger to the public) (s.113)

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Consequences of inadmissibility

• Overseas Visa rejected
• Port of Entry and In Canada process leading to
  issuance of removal order

16
Removal Orders

• Casebook page 729, Regulations 223 -229
• Three types of Removal Order
• Departure Order Person may return to Canada
  without further authrorization e.g. a permanent
  resident who has lost status by not meeting
  residence requirement or person who has failed to
  meet conditions imposed under the regs, or a
  refugee claimant whose claim is rejected.
• Exclusion Order GenerallyAuthorization for
  return within one year is required. Unless the
  ground is misrepresentation in which case it is
  two years
• Deportation Order Written authorization is
  required to return to Canada.

17
Deemed Deportation Order

• Regulation s.224(2) After an unsuccessful refugee
  claim, claimant is issued a departure order. It
  becomes a deportation order unless person
  complies.
• Discussed in Sahakyan (729)
• S was told he needed authorization to re-enter
  Canada. It was refused because he demonstrated a
  clear and determined effort to remain in Canada
  by any means (731)
• Court holds the inquiry should have focused on
  the reasons for his delay in leaving Canada
• He was not provided procedural fairness and the
  court owes no deference to the visa officers
  decision.

18
Proving inadmissibility Secret Information

• IRPA and Bill C-3 allow for the use of secret
  information not just in security certificate
  cases.
• Bill C-3 is an attempt to meet Charkaoui
  problems.Special Advocate may a) challenge the
  claim of risk to national security and b)
  relevance reliability and sufficiency of evidence
  provided by Minister.
• CBA concerns full disclosure of all relevant
  evidence required involvement of SIRC
  beneficial criteria for balancing, choice of
  representation by special advocate Advocate
  should have continued contact and meaningful
  communication

19
Detention (generally)

• May be imposed where flight risk, issues of
  identity or public danger
• S.60 IRPA makes it clear that it is a last resort
  for children. Reg 249 identifies special
  considerations.
• Detention Review part of the jurisdiction of
  Immigration Division and a concern in Charkaoui.