Obligation upon Entry

Subsections 16(1) and (2) of the Act holds a person must answer truthfully and provide relevant evidence such as a visa that the officer reasonably requests, including, in the case of foreign nationals, proof of photographic and fingerprints and a medical examination.  Subsection 16(3) pertains to evidence such as photographic or fingerprints or other materials that may be used to establish the identity of a permanent resident or a foreign national who is arrested, detained or subject to a removal order. It is important to note that section 23 of the IRPA allows an officer to authorize a person to enter Canada for the purpose of further examination or an admissibility hearing. In such a case the person remains under examination until a decision has been made.  But if an Officer does not ask, is the person seeking entry in the clear?

Primary Examinations

Primary examination questions are designed to obtain essential information, such as citizenship, residency, intention, employment, length of stay and identity as quickly as possible. Typically, the CBSA officer conducting the examination at the Primary Inspection Line (PIL) does not ask a person about criminality. Officers are trained to direct person’s with criminality issues to the Immigration Secondary Examination as this allows for more time to conduct an in-depth examination. So should a CBSA officer at any time suspect through questioning, behaviour or other indicators that a foreign national may have a criminal record, that person should be referred to the secondary examination. The privacy of the individual is protected under the Act. Therefore, officers should not ask any questions regarding criminality in the presence of accompanying family members or other travelers.

So this sounds as if the person is not asked or suspected of having a criminal record there is no obligation on the person entering the country.  Not quite.  All persons seeking to enter Canada must appear for an examination to determine whether they have the right to enter Canada or may become authorized to enter and remain in Canada. If a foreign national or permanent resident has a criminal record that renders the person inadmissible to Canada and has not received a record suspension, been deemed rehabilitated or received a certificate of rehabilitation that person cannot enter Canada without a temporary resident permit.  So there exists a positive obligation to declare the criminality even if not asked or previously entered Canada without any issue.

Once declared, expect a referral to secondary.  It is always best to consult with a Canadian immigration lawyer if you have any concerns about your status and potential admissibility.  In Part Two, I will discuss what happens at the Secondary Examination.

For more information on Criminality and TRPs, please click here and here.

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Undoubtedly, the government is given more latitude in the collection and use of private information as crossing a border is not considered a constitutional right.  Also, when Canadian information is pulled into the U.S. database, or vice versa, it is not subject to the privacy laws of the originating country, but rather the policy of the country now holding the information.  So border officers can search your vehicle, body, luggage, pockets, etc. This includes electronic devices, i.e.: cell phones, tablets and laptops.

The Customs Act authorizes officers “to examine all goods and conveyances including electronic devices, such as cell phones and laptops”. If you are a foreign national you have no right of entry. If you refuse to consent to searches or hand over passwords to phones and laptops, the remedy is that they do not have to let you in the country. Moreover, even if you are a Canadian citizen or permanent resident in refusing to turn over these items like Mr. Phillippon, this can result in a charge of hindering or preventing border officers from performing their role. The principal difference in law thus far from regular interaction with officers is the arguable voluntary nature of the engagement with a border officer (i.e.: you are presenting yourself there/ you do not have to go).

In turn, the Supreme Court of Canada over the past number of years has held privacy attaches to electronic devices in a number of decisions but the issue of what aspect and scope of that privacy survives a border crossing has not been litigated beyond provincial courts.  So despite hopes this case could have led to a more focused decision on this specific issue, we will have to await another day.  So for now, your clever password may be hacker proof but likely not “border officer” proof . . .

The post Is Your Electronic Device Password CBSA-Proof? first appeared on Bellissimo Law Group.

The State party should refrain from detaining irregular migrants for an indefinite period of time and should ensure that detention is used as a measure of last resort, that a reasonable time limit for detention is set.

This strong statement is not surprising, given that immigration detention in Canada has no prescribed limit, unlike other Western countries which have established a presumption against detention in excess of 90 days (and judicial oversight should longer periods of detention be ordered).

In sharp contrast, recent research has highlighted cases of immigration detainees in Canada being held for seven or eight years, unable to be removed to their countries of origin often because their identities cannot be positively confirmed. While most detainees are legally entitled have their continued detention reviewed every 30 days, in reality, release rates are at only 15 per cent nationally, and 9 per cent in Ontario. This does not even address the cases of Designated Foreign Nationals (deemed as “irregular arrivals” under subsection 20.1 of the Immigration and Refugee Protection Act), who face mandatory detention and the review of their continued detention only every 6 months.

The UN Human Rights Committee’s report was released following extensive research conducted in the Canadian context. A study released by the University of Toronto law school’s International Human Rights Program (IHRP) found that Canada breaches international human rights obligations on a routine basis by detaining non-Citizens with mental health conditions in maximum-security prisons for extensive periods of time. The IHPR’s study, entitled, “‘We Have No Rights’: Arbitrary imprisonment and cruel treatment of migrants with mental health issues in Canada,” was presented to the UN in July.

IHPR executive director, Renu Mandhane, said that their research revealed “shocking gaps in the rule of law,” especially given that there are no legal criteria governing how or when a detainee is to be transferred from an immigration holding centre to a provincial jail. One third of immigration detainees in Ontario were found to be held in provincial prisons intended for criminal populations. The IHRP study found:

Once a detainee finds him or herself in provincial jail, they fall into a legal black hole where neither CBSA nor the provincial jail has clear authority over their conditions of confinement. This is especially problematic since in Ontario at least, there is no regular, independent monitoring of provincial jails.

The IHRP study also includes an interview with Reg Williams, the director of Canadian Border Services Agency’s (CBSA) immigration enforcement in Toronto from 2004 to 2012. Mr. Williams explained a concerning trend, stating that “the culture [of the CBSA] is heading in one direction only—towards a more para-militaristic organization where the emphasis is on power and force, and less on interaction, cooperation and engagement.”

This intense focus on immigration detention follows the June 11^th death of Abdurahman Ibrahim Hassan, a Somali foreign national who suffered from mental illness. Mr. Hassan died in a Peterborough hospital after three years in immigration detention. As recently as last week, protesters were demanding an inquest into the circumstances surrounding Mr. Hassan’s death.

There is no doubt that the immigration detention regime in Canada demands increased scrutiny and review, not only due to alarming human rights implications, but also considering the ever-expanding costs associated with increased detention. On the whole, the UN’s recommendations are a stark reminder of the work that needs to be done if Canada is to reassert itself as a world leader in the promotion and protection of human rights.

(Sources)

The post Criticism Continues for Canada’s Immigration Detention System first appeared on Bellissimo Law Group.

The early resolution process at the Immigration Appeal Division (“IAD”) aims to streamline appeal processing by identifying certain cases which have the potential to be resolved without the need for a full IAD hearing. At times, an appellant will be asked to provide written submissions in support of the appeal (called a “paper hearing process”). The Hearings Officer representing the Canadian Border Services Agency (“CBSA”) will be given the opportunity to respond and ultimately render an opinion on whether early resolution is appropriate. However, it can be very frustrating when the Hearings Officer’s response to a comprehensive package of legal submissions and evidence is a one-line statement that the case is “not suitable” for early resolution and that a full hearing is required. That said, if the Hearings Officer does consent to allowing the appeal through early resolution, then this is an efficient and effective way to resolve the matter, which certainly benefits all parties.

Appellants can also be streamed to attend an Alternative Dispute Resolution (“ADR”) conference, which is an informal hearing involving the appellant and his/her counsel, a Hearings Officer (again, representing the CBSA), and an Early Resolution Officer. In this process, the appellant will submit a package of evidence and submissions before the ADR conference, and the Hearings Officer will question the appellant at the conference to see if the issues can be resolved without a full hearing. This process is less formal than an IAD hearing, as there is no Member present to render a decision (rather, it is the parties who are attempting to resolve the matter with the help of the Early Resolution Officer), and the hearing is not recorded.

Again, while an ADR conference can be a valuable tool, it is very important to consider the likely outcome. For example, in a spousal sponsorship refusal, the concerns may stem from the intentions of the applicant spouse overseas who is being sponsored. In these types of cases, regardless of how well prepared the sponsoring appellant is, or how strong the evidence and submissions are, the Hearings Officer may still decide that they simply need to hear from the applicant spouse to overcome the credibility concerns – meaning that a full IAD hearing will be required. This can be very disappointing for an appellant who has done everything possible to try to make the ADR process work. Also, if ADR is not successful and a full IAD hearing is required, then this can cause longer delays, as the appellant will be put at the back of the queue for regular IAD scheduling.

While it is certainly not the usual course of action to recommend that an appellant opt out of any process which could resolve their appeal, in certain clear cases it may be advisable to wait for a full IAD hearing. On the other hand, for other appellants it may be beneficial to proactively apply for early resolution, depending on the full circumstances of the case and the nature of the refusal.

Overall, early resolution can simplify matters tremendously, and the Immigration and Refugee Board is continuing to improve the process. However, it is important that appellants are fully informed about how all of these processes work and interrelate when deciding how best to proceed with their particular case.

For more information on Immigration Appeals, please click here.

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