Criminal equivalency under immigration law is the art of judging a criminal law conviction rendered beyond our borders by a legal system that is foreign to ours. It is art because it requires a nuanced assessment of that foreign legal system and the nature of the crime convicted or committed, which can be two different things. It is often misunderstood, confused and complex — and yes, it is the job of the immigration division of the Immigration and Refugee Board of Canada — those folks that also keep people detained for no better reason than the whims of the Canada Border Services Agency — to render such decisions.
Over the past year, the Federal Court, in a small but growing list of decisions, has signaled that the effect of the Supreme Court of Canada decision in Kanthasamy v. MCI is finally making a difference in decisions rendered under s. 25 of the Immigration and Refugee Protection Act.
In a most curious manner, the Supreme Court of Canada issued the following direction in granting leave to appeal in the cases of MCI v. Vavilov and Bell Canada v. Canada: To that end, the appellant and respondent are invited to devote a substantial part of their written and oral submissions on the appeal to the question of standard of review, and shall be allowed to file and serve a factum on appeal of at most 45 pages.
Turns out it was the latter. In a recent decision of the Federal Court in Hosseini v. Canada, a visa officer’s decision that a 62-year-old retired chemical engineer posed a danger to the security of Canada was eviscerated in a strongly worded condemnation of both the process used by the officer and the very basis of the decision.
There are some issues in immigration law that quietly exist, away from great fanfare or concern. Because they are quirks in the law, they are largely unknown, ignored or taken for granted. But because they exist, they cannot just be ignored
I regularly witness how standard of review is wielded by some judges as a threat to one of the pillars of the rule of law — access to an effective remedy.
Until the Supreme Court decision in Tran v. Canada, released on Oct. 19, Immigration, Refugees and Citizenship Canada had equated a term of house arrest with a term of incarceration of the same duration. That has all changed.
“You know, that might be the answer — to act boastfully about something we ought to be ashamed of. That’s a trick that never seems to fail.” ― Joseph Heller, Catch-22
June 19, 2017|Web exclusive
When Angela Chesters learned she could not reunite with her husband in Canada as a landed immigrant because she was likely to create an excessive demand on our health and social services, she felt insulted.
April 17, 2017|Web exclusive