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CED, an Overview of the Law — Immigration and Refugees

While the refugee crisis headlines the news, this post looks at those persons who are inadmissible to Canada, be it for security grounds and human rights violations, criminal inadmissibility, health grounds, misrepresentation and various other grounds of inadmissibility. It also covers section 77 certificates (which the Minister must sign indicating that a foreign national or permanent resident is believed to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality) under the Immigration and Refugee Protection Act.

Immigration and Refugees



By: Patricia Maia, M.A., LL.B; Rekha McNutt, B.Comm., LL.B; Jean Munn, B.A., LL.B; Peter Wong, Q.C. all of the Alberta Bar.



III: Persons Who are Inadmissible to Canada



Click HERE to access the CED and the Canadian Abridgment titles for this excerpt on WestlawNext Canada





III.1: Security Grounds and Human Rights Violations



See Canadian Abridgment: IMM.IV.2.f Immigration and citizenship | Exclusion and removal | Inadmissible classes | Security; IMM.IV.2.i Immigration and citizenship | Exclusion and removal | Inadmissible classes | Human and international rights violations



A permanent resident or foreign national is inadmissible to Canada on security grounds for being a danger to the security of Canada, or engaging in acts of violence that would endanger persons in Canada and engaging in, or being a member of an organization that is reasonably believed to engage in, an act of espionage, subversion, or terrorism.1 Being a member of an organization as described is a two stage analysis: the first step is a factual determination of whether there are reasonable grounds to believe that the organization in question committed acts of violence attributed to it, and the second step is a determination of whether those constitute acts of terrorism.2



With respect to engaging in or instigating the subversion by force of any government,3 the person concerned must have the intention of actually using force in subverting a government. The use of force in subversion must be more than an accident: it must be intended means by which to affect the overthrow of the government.4



Terrorism includes any act intended to cause death or serious injury to a civilian or a person not taking an active part in armed conflict, the purpose of which is to intimidate a population or to compel a government or international organization to act in a certain manner.5 An individual's status as a minor is relevant where the minor is a member of a terrorist organization. The minor's knowledge or mental capacity must be taken into consideration prior to making a finding of inadmissibility.6



Espionage has been held to include lawful domestic intelligence-gathering with no hostile intent.7 



A permanent resident or foreign national is inadmissible for human or international rights violations for committing a war crime outside Canada, that is referred to in the Crimes Against Humanity and War Crimes Act,8 or for being a prescribed senior official in the service of a government that engages or has engaged in terrorism, systemic or gross human rights violations, genocide, or crimes referred to under the Crimes Against Humanity and War Crimes Act.9



The standard of proof to be applied in determining whether a person is inadmissible on security grounds or human rights violations, is "reasonable grounds to believe".10 A foreign national may apply to the minister for a declaration that he or she is not excluded on security grounds or for human or international rights violations if he or she can satisfy the minister that it is not contrary to the national interest.11



In order for a government official to be found inadmissible on human rights violations, it must be shown that they were complicit in the crime or criminal activities of the government in question. Complicity requires voluntary, knowing and significant contribution to the crimes against humanity or the criminal purpose of the government.12 



III.2(a): Criminal Inadmissibility – General 



See Canadian Abridgment: IMM.IV.2.d Immigration and citizenship | Exclusion and removal | Inadmissible classes | Criminality



There are several categories of criminal inadmissibility. These categories are divided between serious criminality,1 criminality2 and organized criminality.3 Both foreign nationals and permanent residents can be inadmissible for serious criminality and organized criminality, whereas only foreign nationals can be inadmissible for criminality.



III.2(b): Criminal Inadmissibility – Serious Criminality and Criminality 



See Canadian Abridgment: IMM.IV.2.d Immigration and citizenship | Exclusion and removal | Inadmissible classes | Criminality




A permanent resident or foreign national is inadmissible to Canada for serious criminality if they have been convicted in Canada of an offence under an act of Parliament that is punishable by a maximum term of imprisonment of ten years or more, or for which a term of imprisonment of more than six months was imposed.1 A permanent resident or foreign national is also inadmissible if they have been convicted of an offence outside Canada that would constitute an offence under an act of Parliament in Canada that is punishable by a maximum term of imprisonment of ten years or more,2 or for having committed an act outside Canada that is an offencein the foreign jurisdiction and which constitutes an offence in Canada, under an act of Parliament, that is punishable by a maximum term of imprisonment of ten years or more.3



Only a foreign national can be held to be inadmissible for criminality. A foreign national is inadmissible to Canada if they have been convicted in Canada, or outside Canada of an offence that is, or is equivalent to a Canadian indictable offence, a hybrid offence, or of two offences under any act of Parliament, not arising out of a single occurrence.4 Foreign nationals are also inadmissible for criminality if they have committed an act outside Canada that is an offence in the foreign jurisdiction and that would constitute an indictable offence in Canada.5 Further, foreign nationals are inadmissible for criminality if they commit certain offences upon entering Canada, as prescribed by the regulations.6



For crimes committed within Canada by foreign nationals, collateral consequences such as deportation are to be taken into account during sentencing if it is appropriate to proportionality and other sentencing goals.7 



The applicable standard of proof is "reasonable grounds to believe", except in the case of a permanent resident who is alleged to have committed a criminal act outside of Canada. In such a case the standard of proof is higher, on a "balance of probabilities".8 



Where the offence is committed outside Canada, the actions comprising the offence must also constitute a crime in Canada. The failure to properly conduct such an "equivalency assessment" is a reviewable error and warrants setting aside the decision.9 The essential elements of the Canadian offence and the offence abroad must be compared to determine whether they correspond.10 A comparison of the offences includes a comparison of the defences particular to those offences, such that a person may be found guilty abroad, but the same actions in Canada would not constitute an offence in Canada based on an available defence.11



III.2(c): Criminal Inadmissibility – Pardons and Rehabilitation 



See Canadian Abridgment: IMM.IV.2.d Immigration and citizenship | Exclusion and removal | Inadmissible classes | Criminality




Serious criminality and criminality do not apply in respect of a conviction for which a record suspension has been ordered or in respect of which there has been a final determination of an acquittal.1 Where the person concerned has been pardoned abroad, three elements have to be established in order for the foreign pardon to be recognized: (1) the foreign legal system had to be similar to Canadian law; (2) the aim, content and effect of the foreign pardon had to be similar to that of the Canadian pardon; and (3) there had to be no valid reason not to recognize the effect of the foreign law.2



If the offence took place outside Canada, a foreign national or permanent resident may, five years after the expiration of any sentence imposed (or after the offence was committed), satisfy the minister that they have rehabilitated themselves, in which case they are no longer criminally inadmissible.3 In other cases, a foreign national or permanent resident may be deemed rehabilitated due to the passage of time. This is five years, in the case of a summary conviction offence and ten years if the offence is indictable and punishable by a term of imprisonment of less than ten years. There is no deemed rehabilitation where the offence is punishable by a term of imprisonment of more than ten years.4



The question of whether someone has been rehabilitated takes into account their character and their ability to function in society without committing criminal acts.5 



III.2(d): Criminal Inadmissibility – Organized Criminality 



See Canadian Abridgment: IMM.IV.2.d Immigration and citizenship | Exclusion and removal | Inadmissible classes | Criminality; IMM.IV.2.e Immigration and citizenship | Exclusion and removal | Inadmissible classes | Organized crime




A permanent resident or foreign national is inadmissible for organized criminality for being a member of an organization that engages or has engaged in planned criminal activity, organized by a number of persons acting in concert, or for engaging in transnational crime, such as people smuggling, trafficking in persons or money laundering.1 The standard of proof required to determine that someone is inadmissible for organized criminality, is "reasonable grounds to believe".2



Membership in a criminal organization need not be current. "Organized criminality" includes persons who were former members of criminal organizations, but have ceased to be members at the time of reporting.3 The word "organization" is given broad interpretation, however, general characteristics, include identity, leadership, a loose hierarchy and a basic organizational structure.4



The minister may, on application of a foreign national or on the minister's own initiative, declare that organized criminality does not constitute inadmissibility in respect of the foreign national if they satisfy the minister that it is not contrary to national interest.5

 

III.3: Health Grounds 



See Canadian Abridgment: IMM.IV.2.b Immigration and citizenship | Exclusion and removal | Inadmissible classes | Health




A foreign national is inadmissible on health grounds if their health condition is likely to be a danger to public health,1 public safety,2 or might reasonably be expected to cause excessive demand on health or social services.3

A contagious disease which is possibly active can render the foreign national inadmissible.4 



An assessment as to whether a health condition might cause excessive demand must be individualized, taking into consideration the applicant's available resources to pay for services, at least in the context of an application for permanent residence in the economic classes.5 A strong willingness to pay for services is not sufficient to overcome a negative assessment on health grounds. There must also be evidence of the ability to pay for those services.6



Where the allegation is excessive demand, the issue is the likelihood of demand based on the person's circumstances and health conditions, and not simply their entitlement and eligibility for services.7 



Certain foreign nationals are exempt from the provisions concerning "excessive demand". These exceptions are in respect of a family class sponsor, a spouse, common law partner, conjugal partner, child or person under 18 years of age whom the sponsor intends to adopt in Canada, who have been determined to be members of the family class,8 Convention refugees or protected persons who have applied for permanent residence, and protected persons.9



An officer shall determine that a foreign national is inadmissible based on the results of a medical examination.10 The medical examination can include a physical exam, mental exam, review of the foreign national's past medical history and laboratory test results.11 While the officer determining the issue of admissibility is generally bound by the opinion of the officer responsible for conducting the medical examination, where the medical opinion is based on unreasonable errors of fact, or where principles of natural justice were breached, the officer's reliance on the report constitutes an error of law.12 The medical opinion relied on by the officer must be coherent and understandable and must address probabilities rather than mere possibilities.13



The applicant must be informed of a negative assessment and provided an opportunity to respond, before a final determination is made concerning his or her medical admissibility.14 



III.4: Misrepresentation 



See Canadian Abridgment: IMM.IV.2.j Immigration and citizenship | Exclusion and removal | Inadmissible classes | Misrepresentation




A permanent resident or foreign national is inadmissible for misrepresentation for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of the Act,1 or for being sponsored by a sponsor who is inadmissible for misrepresentation, but only where the minister is satisfied that the bar is justified in the circumstances.2 A permanent resident or foreign national who has had their refugee protection vacated is also inadmissible for misrepresentation.3 Further, Canadian citizens who have ceased to be citizens due to fraud or false representation are inadmissible for misrepresentation.4



Past misrepresentations which were not relied upon or considered in the application of the Act, cannot be said to be "material" or capable of inducing an error in the administration of the Act.5 However, simply withdrawing a misrepresentation prior to a decision being rendered, is sufficient to trigger the application of the section.6



An "indirect misrepresentation" includes a misrepresentation made by another person which is relied upon, even where the person concerned does not know that the subject information provided is false.7 



Inadmissibility for misrepresentation continues to apply for five years following: the final determination of inadmissibility if the determination is made outside Canada, or the date the removal order is enforced where the determination is made inside Canada.8 



III.5: Other Grounds of Inadmissibility  



See Canadian Abridgment: IMM.IV.2 Immigration and citizenship | Exclusion and removal | Inadmissible classes




A foreign national is inadmissible to Canada for financial reasons if they are or will be unable or unwilling to support themselves and their dependants, except those persons who have satisfied an immigration officer that they have made adequate arrangements for their care and support.1 Persons are also inadmissible for failing to comply with the Act. Foreign nationals who breach provisions of the Act are inadmissible for non-compliance2 whereas permanent residents are only inadmissible for non-compliance where they have breached the residency obligation or have breached some other condition imposed on them under the regulations.3 Foreign nationals, other than protected persons, are inadmissible for having an inadmissible family member.4 The inadmissible family member may be accompanying (included in an application for permanent residence where the foreign national is the principal applicant) or non-accompanying, where the foreign national has made an application for permanent residence and the inadmissible family member is the foreign national's spouse, common law partner, dependent child, or a dependent child of a dependent child.5 If the principal applicant is inadmissible, then any accompanying family members are also inadmissible on the grounds of an inadmissible family member.6



An inadmissible family member will only affect a foreign national's application to enter or remain in Canada as a temporary resident if the inadmissible family member is inadmissible on grounds of security,7 grounds of violating human or international rights,8 or grounds of organized criminality.9



A foreign national or a permanent resident is inadmissible on a final determination that their refugee protection has ceased.10 



III.6: Section 77 Security Certificates  



See Canadian Abridgment: IMM.IV.5.d Immigration and citizenship | Exclusion and removal | Removal from Canada | Security certificates




Where the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness sign a certificate in which they indicate that a foreign national or permanent resident is believed to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality, the certificate shall be referred to the Federal Court.1 The signing and referral of the certificate initiate an alternate and separate procedure for determining if certain persons are inadmissible because they pose a danger to national security or are a danger to the public which procedure ensures that intelligence information received is protected and not fully disclosed.2



The Minister of Public Safety and Emergency Preparedness is required to file the information and evidence on which the certificate is based with the Federal Court, together with a summary of the information and other evidence that enables the person concerned to be reasonably informed of the case against him or her but which excludes any information which the minister believes would be injurious to national security or the safety of any person.3 



The Chief Justice of the Federal Court or the Federal Court Judge designated by the Chief Justice shall determine whether the certificate is reasonable.4 If the certificate is not reasonable, the Chief Justice or designated judge will quash the certificate.5



The minister may, without it being necessary for the judge to certify that a serious question of general importance is involved, appeal, at any stage of the proceeding, any decision made in the proceeding requiring the disclosure of any information or evidence if, in the minister's opinion, the disclosure would be injurious to national security or endanger the safety of any person.6 



The Act sets out certain provisions concerning the Federal Court proceedings to determine whether the certificate is reasonable.7 These include that the judge will appoint a special advocate to act for the person concerned, from a list established by the Minister of Justice.8 However, the person concerned may select a representative of his or her own choosing provided the judge determines that the representative selected meets designated criteria.9 The role of the special advocate is to protect the interests of the person concerned in the determination proceeding and during any proceeding related to the person's arrest and detention based on the allegations in the certificate.10 The Act is clear, however, that the relationship between the person concerned and the special advocate is not that of a solicitor and client and the special advocate is not a party to the proceeding.11 The Act sets out the special advocates' responsibilities and powers.12



During the course of the determination proceedings, the judge may, on his or her own motion, or must, on each request of the minister, hold an ex parte hearing to hear information or other evidence.13 The judge must also allow the person concerned an opportunity to be heard.14 The judge may receive into evidence anything that, in the judge's opinion, is reliable and appropriate, even if it is inadmissible in a court of law.15 The judge may also base a decision on information or other evidence even where that evidence or a summary of it has not been provided to the person concerned.16



The Minister of Citizenship and Immigration or the Minister of Public Safety and Emergency Preparedness may issue an arrest warrant for the detention of the person named in the certificate, where they have reasonable grounds to believe that the person is a danger to national security or to the safety of any person or is unlikely to appear at a proceeding or for removal.17 A Federal Court Judge will review the detention within 48 hours of the detention and further reviews will be conducted at least once in each six-month period following the conclusion of the last review.18 A person who is released on conditions may have those conditions reviewed by the Federal Court if a period of six months has passed since those conditions were imposed.19 No appeal in respect of a decision regarding the person concerned's arrest or detention can be made to the Federal Court of Appeal unless the judge has certified a serious question of general importance.20 The minister may, without it being necessary for the judge to certify that a serious question of general importance is involved, appeal any decision made in the proceeding requiring the disclosure of any information or evidence if, in the minister's opinion, the disclosure would be injurious to national security or endanger the safety of any person.21



The Minister of Public Safety and Emergency Preparedness may, at any time, order that the person concerned be released from detention to permit their departure from Canada.22 





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