In Canada (Public Safety and Emergency Preparedness) v. Shpati, the Federal Court of Appeal considered the question of whether removal from Canada should be deferred for a refugee claimant who has a pending judicial review of a negative pre-removal risk assessment ("PRRA"). The claimant submitted that if they were removed, their right to have a negative PRRA judicially reviewed would be rendered moot.
The Federal Court of Appeal found that, should removal be deferred for these reasons, it would amount to an automatic stay where a refugee claimant applies for a judicial review of a negative PRRA. Since the Immigration and Refugee Protection Act, S.C. 2001, c. 27 already prescribes a number of circumstances where an automatic stay would be applied, interpreting otherwise would be contrary to the statutory scheme. Furthermore, the potential mootness of the judicial review does not necessarily constitute irreparable harm under the tripartite test described by El Ouardi v. Canada (Solicitor General), 2005 FCA 42 and Palka v. Canada (Minister of Public Safety and Emergency Preparedness), 2008 FCA 165. Since the mootness of the action does not constitute irreparable harm, there is no reason why enforcement officers should be legally obligated to consider it when determining a request for deferral of removal.
October 18, 2011
Link to Decision
Mary Phan
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Showing posts with label Immigration. Show all posts
Showing posts with label Immigration. Show all posts
Tuesday, October 18, 2011
Friday, July 15, 2011
The Minister of Citizenship v. Immigration and Rachidi Ekanza Ezokola, 2011 FCA 224
In The Minister of Citizenship and Immigration v. Rachidi Ekanza Ezokola, the Federal Court of Appeal considered whether a senior official with a foreign government, who remains in his or her position without protest and continues to defend the interests of his or her government while being aware of the crimes committed by this government, can nonetheless be considered a refugee under s. (1)(F) of the United Nations Convention relating to the Status of Refugees. The court held that such a conclusion is possible, and clarified the legal test on whether such an individual has been complicit in the crimes committed by his or her government.
In the Court’s view, a senior official may, by remaining in his or her position without protest and continuing to defend the interests of his or her government while being aware of the crimes committed by this government, demonstrate “personal and knowing participation” in these crimes and, thus, be complicit with the government in their commission. However, the final outcome will always depend on the facts particular to each case.
The Court noted that the test to determine complicity does not necessarily require personal participation by the individual in the crimes alleged, whether by carrying them out personally or facilitating their commission in the manner described; such a rendering of the “personal and knowing participation” test is too narrow. The Court also distinguished between the “personal and knowing participation” test and a “personal and knowing awareness” test, noting that the latter is too broad and, thus, an error of law.
In obiter, the Court called for an end to using the term “complicity by association,” arguing that it is misleading since it is contribution to the commission of a crime (i.e. personal and knowing participation) rather than simply association that leads to liability. Instead, it argued, “complicity” alone should be referred to.
July 15, 2011
Link to Decision
Mark Carter & Dominik Swierad
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In the Court’s view, a senior official may, by remaining in his or her position without protest and continuing to defend the interests of his or her government while being aware of the crimes committed by this government, demonstrate “personal and knowing participation” in these crimes and, thus, be complicit with the government in their commission. However, the final outcome will always depend on the facts particular to each case.
The Court noted that the test to determine complicity does not necessarily require personal participation by the individual in the crimes alleged, whether by carrying them out personally or facilitating their commission in the manner described; such a rendering of the “personal and knowing participation” test is too narrow. The Court also distinguished between the “personal and knowing participation” test and a “personal and knowing awareness” test, noting that the latter is too broad and, thus, an error of law.
In obiter, the Court called for an end to using the term “complicity by association,” arguing that it is misleading since it is contribution to the commission of a crime (i.e. personal and knowing participation) rather than simply association that leads to liability. Instead, it argued, “complicity” alone should be referred to.
July 15, 2011
Link to Decision
Mark Carter & Dominik Swierad
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Wednesday, June 15, 2011
R. v. Arganda (J.R.), 2011 MBCA 54
In R. v. Arganda, the Manitoba Court of Appeal reduced a sentence that the Court found unfit at the time of its imposition due to facts not known to the sentencing judge, and held that the sentence could not nonetheless be upheld given the post-sentence criminal conduct of the accused.
The appellant received a two-year jail sentence in 2007 for his involvement in a fraudulent cheque-writing/cashing scheme. In April, 2010, he was given a fine of $500 and a one-year sentence of unsupervised probation for possession of a weapon for a dangerous purpose. He received a deportation or removal order in December, 2010. His right to appeal this deportation order to the Immigration Appeal Division was foreclosed under the Immigration and Refugee Protection Act by virtue of the fact that he had received the two-year sentence in 2007; a sentence of anything less than two years would have preserved this right of appeal. Despite having already served the two-year sentence, the appellant sought to have the sentence reduced on the basis that the sentencing judge had not considered the immigration consequences of the sentence.
The Court held that the sentence should be reduced. Finding first that the sentencing judge's failure to consider the appellant's immigration status amounted to an error, MacInnes, J.A. went on to reject the argument that the two-year sentence should nonetheless be upheld given the appellant's subsequent criminal conduct. While noting that there appeared to be a negative impact on broader societal interests in reducing the original sentence despite the appellant's post-sentence criminal conduct, the Court held that, given the "unique or near unique circumstances of this case," the post-sentence conduct was not sufficiently serious to result in the maintaining of the two-year sentence. MacInnes, J.A. stated that the fact that the accused had already served out his sentences, and that to uphold the sentence would give rise to a disproportionately severe penalty in this case, weighed in favour of the Court's holding. As a result, the Court varied the appellant's original sentence, reducing it by one day.
July 15, 2011
Link to Decision
Mark Carter & Kai Sheffield
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The appellant received a two-year jail sentence in 2007 for his involvement in a fraudulent cheque-writing/cashing scheme. In April, 2010, he was given a fine of $500 and a one-year sentence of unsupervised probation for possession of a weapon for a dangerous purpose. He received a deportation or removal order in December, 2010. His right to appeal this deportation order to the Immigration Appeal Division was foreclosed under the Immigration and Refugee Protection Act by virtue of the fact that he had received the two-year sentence in 2007; a sentence of anything less than two years would have preserved this right of appeal. Despite having already served the two-year sentence, the appellant sought to have the sentence reduced on the basis that the sentencing judge had not considered the immigration consequences of the sentence.
The Court held that the sentence should be reduced. Finding first that the sentencing judge's failure to consider the appellant's immigration status amounted to an error, MacInnes, J.A. went on to reject the argument that the two-year sentence should nonetheless be upheld given the appellant's subsequent criminal conduct. While noting that there appeared to be a negative impact on broader societal interests in reducing the original sentence despite the appellant's post-sentence criminal conduct, the Court held that, given the "unique or near unique circumstances of this case," the post-sentence conduct was not sufficiently serious to result in the maintaining of the two-year sentence. MacInnes, J.A. stated that the fact that the accused had already served out his sentences, and that to uphold the sentence would give rise to a disproportionately severe penalty in this case, weighed in favour of the Court's holding. As a result, the Court varied the appellant's original sentence, reducing it by one day.
July 15, 2011
Link to Decision
Mark Carter & Kai Sheffield
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Tuesday, May 24, 2011
Jaballah v. Canada (Citizenship and Immigration) (2011 FCA 175)
In Jaballah v. Canada (Citizenship and Immigration), the Federal Court of Appeal: (1) interpreted s. 82.1(2) of the Immigration and Refugee Protection Act (“IRPA”) as it relates to waiting periods between subsequent security certificate conditions variations appeals; and, (2) interpreted s. 82.1(1) of the IRPA and the test for whether to grant a security certificate variation order. Noel J.A. held that the six-month waiting period under s. 82.1(2) begins at the more recent of either the most recent review or the most recent variation order, and that other circumstances cannot be considered under s. 82.1(1) without first addressing the risk attached to the requested variation.
Jaballah was subject to a security certificate the conditions of which he applied to have varied. IRPA s. 82(4) allows a person to apply to have their security certificate conditions varied if six months have elapsed since the conclusion of the preceding review (this is not the same remedy as a variation order). IRPA s. 82.1(2) deems that the conclusion of the preceding review takes place on the day that a variation order is made. It had been six months since the last variation order for Jaballah’s security certificate, but less than six months since the last review. Jaballah argued that the deeming provision meant that he was outside of the waiting period, since it had been more than six months since the last variation order. Noël J.A. disagreed, holding s. 82.1(2) to read harmoniously with the scheme of the Act, and concluded that absurd results would emerge if Jaballah’s narrow interpretation was accepted.
IRPA s. 82.1(1) permits a judge to vary conditions that were ordered attached to a security certificate if “the judge is satisfied that the variation is desirable because of a material change in the circumstances that led to the order”. The Federal Court judge restricted her analysis to the threat or risk that Jaballah posed to national security. Jaballah argued that the judge should have considered other circumstances, specifically his difficulties in finding a supervisor during specified activities. Noël J.A. agreed with the lower court, finding that Jaballah could not ask for a variation without first addressing his security risk.
May 24, 2011
Link to Decision
Steve Holinski & Ryan MacIsaac
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Jaballah was subject to a security certificate the conditions of which he applied to have varied. IRPA s. 82(4) allows a person to apply to have their security certificate conditions varied if six months have elapsed since the conclusion of the preceding review (this is not the same remedy as a variation order). IRPA s. 82.1(2) deems that the conclusion of the preceding review takes place on the day that a variation order is made. It had been six months since the last variation order for Jaballah’s security certificate, but less than six months since the last review. Jaballah argued that the deeming provision meant that he was outside of the waiting period, since it had been more than six months since the last variation order. Noël J.A. disagreed, holding s. 82.1(2) to read harmoniously with the scheme of the Act, and concluded that absurd results would emerge if Jaballah’s narrow interpretation was accepted.
IRPA s. 82.1(1) permits a judge to vary conditions that were ordered attached to a security certificate if “the judge is satisfied that the variation is desirable because of a material change in the circumstances that led to the order”. The Federal Court judge restricted her analysis to the threat or risk that Jaballah posed to national security. Jaballah argued that the judge should have considered other circumstances, specifically his difficulties in finding a supervisor during specified activities. Noël J.A. agreed with the lower court, finding that Jaballah could not ask for a variation without first addressing his security risk.
May 24, 2011
Link to Decision
Steve Holinski & Ryan MacIsaac
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