The Dawn of the USMCA Era: Facilitating Trade, Mobility, and Revisiting COVID-19 Temporary Travel Restrictions

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Date: 30 June 2020

The United States-Mexico-Canada Agreement (USMCA), replacing the North American Free Trade Agreement (NAFTA), will come into effect on 1 July 2020.  On its face, all its provisions dealing with the mobility of people – Chapter 16 on temporary entry for business persons –remain substantively unchanged compared to Chapter 16 in the NAFTA. Nevertheless, it might be a bit early to jump to the conclusion that the new Agreement, or how it will be interpreted and applied by border officers, will have no new affect on the mobility of people.

The USMCA primarily aims to facilitate trade among the three signatory parties to the benefit of their local industries. However, when we are talking about trade in services or goods, are we able to exclude the human aspect? It is people who are negotiating deals, who are making the investments, who are managing the businesses, who are operating the machines, and who are transporting the goods. This is especially noteworthy under current circumstances, where the border closure under COVID-19 has substantially limited the travel between Canada and the United States. The intent behind the border closure is obvious: to stop the spread of the COVID-19 virus by minimizing the influx of people. This seems to be a logical precaution to protect public health. But what is the cost of this seemingly inflexible measure? The dawn of the USMCA era might be a suitable time for us to revisit this matter.

It is obvious that the current lockdown has taken a toll on our economy. Many people are out of work, many businesses are shut down, and many tenants (both commercial and residential) can no longer afford to pay their landlords. These are all vivid examples of the economic harm that we now witness in our daily lives. Canada has for many decades enjoyed the benefits of its intimate economic connection with the United States. People used to be able to conveniently cross the border for work, tourism and shopping. Canadian companies also cooperate closely with their United States counterparts on trade and supplies. However, for the time being, other than the small number of people who qualify under the short list for “essential travel”, the expediency of cross-border travel which has played such an important role in the Canadian economy no longer exists.

The advent of the USMCA should cause us to think about border closure and the mobility of people because the Agreement contains new measures that will further the economic relationships between the signatory countries. There has not yet been any signs that the travel restrictions will soon be altered in any meaningful or substantive way. Given the inseparability between trade and the movement of people, the more benefits that the parties of the Agreement had intended, the more we are losing by prohibiting people from travelling across the border.

The USMCA has innovations that will incentivize broader participation in cross-border trade, which likely entails more frequent movement of people on a new larger scale. For example, the USMCA is raising the de minimis threshold for the exported goods to enter another country duty-free. This will exempt customs duties and taxes for lower-value shipments. As a result, this change encourages smaller businesses to participate in export, since it can now save them the duties and taxes which had been previously too burdensome. The trade in goods is essentially about the people working on various links in the supply chain, including investing, managing, manufacturing and marketing. In a world without COVID-19, people would freely make in-person business trips to negotiate deals, inspect their manufacturers’ facilities, or study their target markets. It is however paradoxical that while the USMCA is proactively taking new steps to promote trade and vitalize the economies of our three countries, the current travel restrictions are frustrating that objective by rendering virtually all cross-border travel impossible.

Notably, at the negotiation stage of the USMCA, Canada was seeking to modernize and expand NAFTA’s original list of professionals and business persons who can be granted easy access, but this endeavour did not succeed. The Trump Whitehouse would have nothing to do with it. It is a pity that the USMCA has lagged behind the pace of modernization by maintaining a list of professions that represented the economy 30 years ago. Canada’s priority has always been to maintain and promote a smooth influx of people, which is an indispensable component of our economic development. Unfortunately, because of current travel restrictions, statistics have already shown that both business travel and immigration have plummeted during the pandemic, which will likely further negatively impact the Canadian economy.

Economic benefits intended by the USMCA cannot be effectively achieved if we disregard the human aspect that is so critical to free trade. In order to uphold robust trade and commerce across borders, a flexible and efficient mechanism must be found to facilitate the mobility of people. This is especially worth noting during this lockdown period. A border closure appears to be an easy and immediate solution to the health crisis, but perhaps it is now time to work towards more flexible measures. No one can precisely estimate how long our battle against the virus will last. Maintaining the current state and allowing the economy to deteriorate indefinitely is too high a price. Risk can never be eliminated altogether but can be managed. The new opportunities brought by the implementation of the USMCA are urging us to consider gradually lifting the travel restrictions in regions and by ways where and how feasible.

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Case Commentary: Canada (Citizenship and Immigration and Public Safety and Emergency Preparedness) v. Kljajic, 2020 FC 570

Date of Decision: 30 April 2020                                            

 Commentary Date: 8 May 2020

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Introduction

Applicants for status in Canada have an obligation to honestly disclose information required of them. The consequences of failing to do so are serious and could lead to deportation. One material misrepresentation or omission, regarding a significant point, even decades comprising many successes in Canada later, can result in a complete uprooting of an individual’s life.

A recent decision by Chief Justice Crampton of the Federal Court, Canada (Citizenship and Immigration) v. Kljajic, 2020 FC 570, shows the severe consequences of failing to be forthright when applying to enter Canada and sets a new precedent that will likely deter future applicants from making false declarations on their application forms.

Despite many years of law-abiding behaviour in Canada, a purposeful misrepresentation on an application may not be forgiven in Canada, no matter how old the deception.

Background

The defendant in this case, Cedo Kljajic, obtained permanent residence in Canada as a member of the refugee class in 1995. He became a Canadian citizen in 1999. During his 25 years in Canada, Mr. Kljajic had no issues with the law, was a contributing member of society, and had planted strong and deep roots.

Both the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness, the plaintiffs in this case, alleged that Mr. Kljajic knowingly concealed important facts and made false representations when applying for status in Canada. More specifically, amongst other misrepresentations, he concealed his former high-ranking position of Undersecretary for Public Security of the Bosnian Serb Republic (“RS MUP”), a government known to have committed war crimes and crimes against humanity. On his application, Mr. Kljajic also denied any involvement in the commission of any war crime or any crime against humanity. The failure to honestly and accurately disclose will be the focus of this case commentary.

The Court found that Mr. Kljajic became a permanent resident of Canada by false representation or fraud or by knowingly concealing material circumstances. As a result, he was also presumed to have obtained citizenship by false representation or fraud or by knowingly concealing material circumstances.

Mr. Kljajic was also found inadmissible to Canada pursuant to paragraph 35(1)(b) of the Immigration and Refugee Protection Act (“IRPA”) because there were reasonable grounds to believe he was a prescribed senior official of a government that had engaged in systematic or gross human rights violations, genocide, war crimes and crimes against humanity, within the meaning of subsections 6(3) to (5) of the Crimes Against Humanity and War Crimes Act. Further, he was found inadmissible pursuant to paragraph 35(1)(a) of the IRPA because he was complicit in the crimes against humanity perpetrated by the RS MUP against non-Serbs.

The Court’s analysis of Mr. Kljajic’s inadmissibility to Canada is beyond the scope of this case commentary. Instead, I wish to focus on the duty to disclose, and the duty to answer questions honestly and accurately. These joint duties have broad application to all refugee claims, and equally to all applications for immigration (i.e.. permanent resident status) and to citizenship.

Case Analysis

Chief Justice Crampton makes several important determinations in this seminal case regarding the duty to disclose information on a refugee application. Crampton applied the leading jurisprudence and adeptly synthesized the law in this area. These determinations will likely shape the legal landscape for future cases in this area, including permanent resident and citizenship applications.

Burden of proof

First, to demonstrate that a person became a permanent resident by false representation or fraud or by knowingly concealing material circumstances, the Court ruled that the government must simply demonstrate that the deception likely had the effect of averting further inquiries in respect of circumstances that could have had a material bearing on the assessment of the person’s application. The standard of proof is the civil “balance of probabilities.”

This finding is important because it would otherwise be a very heavy burden to prove that the application would have been rejected but for the deception. Proving that the deception or misrepresentation likely stopped further inquiries about material circumstances is a more reasonable endeavour. Put differently, it would be challenging, and therefore unnecessary, to definitively conclude how the application would have been decided if Mr. Kljajic had been honest. The evidence showed that he likely would have been screened out, but he also may have simply been subject to further questioning. It would place a heavy burden on the government to prove which outcome would have occurred; to some extent it would have depended on the individual reviewing the application. Therefore, this lower standard is appropriate in these circumstances.

Materiality

Second, the withheld or misleading information does not itself need to concern a decisive or potentially important issue. Withholding material information or providing a misleading answer that likely had the effect of averting further inquires are both considered concealment of material circumstances.

The facts that Mr. Kljajic omitted were material circumstances because if they had been disclosed his application would either have been screened out or further inquiries would have been made. It is very likely that he would not have been permitted to enter Canada given the circumstances at the time.

Intent to Mislead

Third, even if the omitted facts are material circumstances, the Court must determine if the individual intended to mislead those assessing his application. The Canadian government did not have to prove that Mr. Kljajic knew the circumstances were material, they simply had to show that he there were reasonable grounds to believe that had the intent of misleading those assessing his application.

Innocent misrepresentations, inadvertent omissions of immaterial information, and mere technical transgressions, are not included in the concept of knowingly concealing material circumstances, and are not therefore violations of the law. The very narrow and limited examples include innocently forgetting to include important information, mistakes due to honest translation errors, or omitting information that one genuinely believes to be inconsequential. However, willful blindness will not be excused.

Mr. Kljajic indicated on his permanent residence application that he read and spoke English well and that no one assisted him in preparing his application. He also signed the standard declaration on the last page of the Canadian government form stating that the information provided was “truthful, complete and correct” and that he understood all of the statements in the declaration. Therefore, the Court determined that his concealment was not innocent.

Mr. Kljajic argued that he had concealed the information out of fear for the safety of himself and his family due to possible reprisals by his own nationals, and therefore he did not intentionally conceal it from Canadian immigration officials. However, the Court in this case held that even if the information is concealed due to fear, a judge cannot conclude that the deception was innocent. Mr. Kljajic specifically did not want anyone in the Canadian embassy to know about his links to the Bosnian security and intelligence operations RS MUP due to his alleged fear of other members in RS MUP and the paramilitary group Yellow Wasps. This was not an innocent misrepresentation because he did purposely hide the information. He knew this information was important or he would not have chosen to hide it.

Justifying Knowingly Concealing Material Circumstances

Fourth, knowingly concealing material circumstances can only be justifiable in very exceptional circumstances. Situations that may be justifiable include circumstances that amount to duress or where the defence of necessity applies. Since Mr. Kljajic’s application was completed of his own free will and he was not in urgent and imminent danger, these defences were not available to him.

As Chief Justice Crampton notes, a strict limitation on justifying knowing concealment of material circumstances is crucial to the integrity of Canada’s immigration and citizenship programs. He explained that without this protection, our programs would be very vulnerable as there might be a myriad of conceivable justifications for concealing material circumstances. Examples could include a desire to reunite with a spouse or family member, a desire to escape dangerous or threatening circumstances, or a desire to escape poverty and desolate circumstances. If we allow individuals to justify their deception with reasons such as these, the Court ruled, it would seriously undermine the rule of law. If Mr. Kljajic was excused from withholding material information on his application due to his fear, it could open the floodgates to many other deceptions from applicants. Our immigration system relies on honest declarations on important forms. Without such honesty, immigration officials cannot properly and fully assess whether to approve an application.

Mr. Kljajic’s excuses for his material omissions and pleas to stay in Canada were not appropriate justification for his actions. He argued that he had limited awareness of the war crimes and that the consequences he would have faced for leaving the RS MUP without official permission were severe. However, the Court found that the evidence did not support these claims. Mr. Kljajic also argued that the false representations were not intended to mislead Canadian immigration officials but instead to protect himself and his family from his superior at the RS MUP or a paramilitary group. He further testified that he sincerely believed that he had never been complicit in the commission of any war crimes.

Mr. Kljajic also testified about his work history in Canada, the absence of any troubles with the law in Canada during the last 25 years, and the fact that his children and grandchildren all live in Canada. Despite any sympathy one might feel for his situation, the Court ruled that that none of these factors justified his actions of concealment and misrepresentation.

Consequences

This case shows how serious the consequences of dishonesty on a permanent residence application can be. There is no limitation period when it comes to this type of violation. Even though Mr. Kljajic’s concealment and misrepresentation was many years ago, it is still unlawful and will likely result in his deportation from Canada where he has built his life for the past 25 years.

Canada’s strong stance on dishonesty is logical. Our courts have consistently ruled that if we were to allow individuals to deceive and misrepresent to gain status in Canada and then forgive them later for this behaviour if they could hide it for long enough, it might encourage more people to misrepresent on their applications. What reason would someone have to tell the absolute truth when they could withhold information, or make false representations, thereby giving themselves a better chance to receive refugee protection, permanent resident status, and indeed citizenship?

This case appropriately sets an example that honesty in refugee and immigration applications is mandatory. No matter what your status is at the time the material misrepresentation is discovered – whether it be refugee status, permanent resident status, or citizenship – the consequences will likely be the same. Once an individual is found to have provided misleading information about a material circumstance, they may face deportation.

As Chief Justice Crampton wrote, “The light of the law must be allowed to shine on all of the circumstances…”

Consequences of Blocking Immigration During COVID-19

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As of 23 April 2020, immigration to the U.S has been suspended for 60 days in an alleged attempt by President Trump to both protect public health and American jobs. This means that the U.S. has stopped issuing permanent residence status despite the lack of evidence that immigration is either worsening the health of Americans because of the COVID-19 pandemic, or increasing the unemployment rate of Americans. Economic evidence suggests that immigration generally benefits employment. This short-sighted decision to suspend immigration may have long-lasting negative effects on the U.S. economy. Fortunately, Canada has decided not to follow in the footsteps of the U.S.

Immigration in Canada

Canada recognizes the importance of immigration for both the labour market and economic growth. Although Canada has imposed temporary restrictions, such as closing the border to asylum seekers on 24 March 2020, the federal government recently made changes to allow entry of some asylum seekers into Canada. To its great credit, Canada is also still approving applications for permanent residence and holding immigration draws throughout the pandemic.

Canada recently announced a planned increase in immigration for the next three years. Due to Canada’s aging population and low birth rate, immigration is necessary to alleviate the associated economic and fiscal pressures. Canada’s baby boomer population of approximately 9 million people are already reaching retirement age, which makes Canada even more dependent on immigrants to support a healthy workforce and economy. COVID-19’s effect on Canada’s immigration plans for the coming years is not yet known. Immigration numbers could lower naturally due to longer processing times of some programs during COVID-19.

Although Canada is not planning to suspend or to limit immigration, one province of our country may be doing so: Quebec is considering reducing immigration because of a high unemployment rate. Quebec Premier François Legault has reduced the number of immigrants entering the province and may reduce the numbers further due to the pandemic. At a press conference this month, Premier Legault said, “This is something that we will look at… We’re not there, but actually, it’s something we’re going to watch. I think that everything must be reviewed, including the number of immigrants… We could actually reduce the number.” If Premier Legault follows through with a reduction, Canada could suffer some negative impacts as well.

Importance of Immigration

Immigration is crucial for both Canada and the U.S. due to low fertility rates. A fertility rate of 2.1 is needed to keep a population stable, but Canada’s rate is only 1.5 and the U.S. has a rate of 1.7. With the current COVID-19 economic crisis, birth rates may drop even further as people struggle with financial uncertainty. Economics professor Ron Kneebone from the University of Calgary points out that countries with low fertility, little immigration, and declining populations struggle to preserve economic growth. Immigration is needed for population growth – now more than ever. Population growth, in turn, fuels labour force growth.

Further, life expectancy in Canada is up 11.5 years since 1960. With a decreasing population and longer life expectancy, Canada will end up in a position with increased demand for elderly support and, without robust immigration programs and numbers, a workforce too small to handle the needs of both the economy and our generous social programs. Historically, as immigration goes up in Canada, so does the strength of our economy. Most immigrants arriving in Canada are of working age and are well educated, thus helping the economy to thrive.

The U.S.’s concern about protecting American jobs is short-sighted. Immigration brings in skilled individuals who boost the economy as workers, consumers, and taxpayers. One quarter of healthcare workers in the U.S. are immigrants, half of the entrepreneurs whose start-ups grew to be worth more than $1 billion are immigrants, and almost 40% of U.S. Nobel Prize winners are immigrants. The healthcare system and economy depend on immigration.

Economists expect that the Canadian economy will rebound fairly quickly once COVID-19 measures are removed. Pre-coronavirus, our economy was growing, and unemployment was at a record low, due in part to many baby boomers retiring. This created jobs for both Canadian-born workers and immigrants and will likely continue following the coronavirus pandemic. According to Statistics Canada, immigrants have a high tendency to start businesses. Continuing solid and consistent immigration numbers during this time and beyond will likely help the Canadian economy bounce back faster as immigrants fill new jobs and support job creation.

The foregoing does not constitute legal advice. Specific legal advice should be obtained if you have any questions regarding the foregoing. If you have questions, please contact Warren Creates at 613-566-2839 or wcreates@perlaw.ca.

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COVID-19 and Immigration to Canada

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The global COVID-19 pandemic has caused massive and unprecedented disruption to most business, travel, international study, and migration.  Economists and business leaders, as well as government officials, are all predicting considerable long-term effects.

When compared to most other countries of the world, Canada’s social safety nets are both robust and generous.  Our federal and provincial governments have created responsive public policy and quickly deployed programs that recognize the value of all, and the need to protect the most vulnerable.  These programs include publicly funded advanced health care, public education, and financial measures, including income subsidies, supplements and tax deferrals aimed at protecting wages, jobs and businesses.

Some of Canada’s immigration programs have slowed or have been interrupted altogether.  It is expected that this will be temporary, but unclear when the routine program delivery and processing times will return to pre-pandemic standards.  What matters most right now is how our government leaders manage the crisis, so that we get through it with the least harm to our people and to our economy.  It also matters what other countries and their nationals do now, so that healthy populations return, and risk is minimized.  The current phase that we are in can be called containment:  contain the public health risk, and also the risk to business.  The next phase can be called stabilization, during which business and governments achieve some level of stability, in response to the pandemic. 

Canada will face the biggest government deficits since the Second World War; however, experts seem to be in agreement that we can afford this crisis.  The difference is that the Second World War lasted 6 years, while this pandemic, during its worst phase, is expected to last only months.  Also, this is a health crisis that has caused the economic recession, not a financial crisis that has been born out of the collapse of economic fundamentals.  Finally, the growing government debt is occurring during unprecedented low interest rates:  there is no better time to borrow than now.

It is to be expected that the Temporary Foreign Worker Program will undergo considerable modifications.  It will be very hard for employers to justify seeking to attract foreign labour when the unemployment rate in Canada is climbing steeply each day.  The program to protect the Canadian labour market — which requires a Labour Market Impact Assessment (LMIA) as a pre-condition — is likely to present insurmountable barriers for most industries, and most positions.  Now more than ever is the time to consider programs that do not require any advertising to prove a gap or shortage in the labour market.  Provincial nominee programs will likely also be a renewed source of valuable remedy.

The third phase of the COVID-19 pandemic — the one that we are most eager to see the beginnings of — is rejuvenation.  As Canada’s economy begins to rebound, talented labour — including pools of immigrants — will be all that more important in fueling our growth and contributing to the tax base.  Such rejuvenation and talent will be critical to both pay for the government debt that is being used to protect our people now and also to fuel our recovery.  With an aging population and one of the lowest fertility rates in the World, we have no choice but to build and operate robust immigration programs.  It will also be instrumental in building resilience for when the next crisis occurs, either economic shortfalls, or another health pandemic.  These are natural cycles which we need to expect, just as global warming is inevitable.  Good governance, a cornerstone of Canada’s Peace Order and Good Government (POGG), has always been our brand, the envy of the World, and the feature that attracts most immigrants to study, work, and settle in Canada.   The perfect current display of this Canadian brand of governance is the cooperation, collaboration, and support being shown by all levels of government, no matter what the political party of our leaders.

By comparison, the divisive politics of our southern neighbor continues: the U.S. President picks fights with some governors even while that country tries to fight a common enemy in the COVID-19 virus.  President Trump even initially blamed the Democrats for perpetuating the virus as a hoax, and then for not leaving the country in very good shape to fight it.  President Trump then banned a shipment by 3M of respiratory masks to Canada, an order which he rescinded as a result of swift and resounding interventions by our Prime Minister, our Premiers, and even the Chairman of 3M himself.  Americans have responded to the virus by purchasing more guns and ammunition, with such sales soaring an estimated 700%.  While the storm continues, Canadians and our leaders calmly implement financial measures that will protect people, employers, and sow the seeds of recovery.

As all these elements highlighted above converge, we need to be thankful that Canada is a welcoming society that embraces diversity and pluralism.  We not only need more and more immigrants, we truly embrace the opportunity.  As Canadians watch in real time the unfolding of the pandemic, we are witness to good political leadership in Canada, compared to the chaos of our southern neighbor.  We doubtlessly feel very fortunate where we live.

Warren Creates is Head of Perley-Robertson, Hill & McDougall’s Immigration Law Group. He is a Certified Specialist in the fields of Immigration Law, Citizenship Law, and Refugee Law. He can be reached at wcreates@perlaw.ca or 613.566.2839.

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Letter from Can-Go Afar Foundation to UNHCR – April 2020

This letter was written to the United Nations High Commissioner for Refugees in response to the dire situation in Eritrea, where recent events have caused concern for the Afar People in both Eritrea and the neighbouring country to which they have fled: Ethiopia. You can learn more in this letter written by Warren Creates and his colleagues.

The Can-Go Afar Foundation is a humanitarian organization that aims to empower the ancient indigenous Afar People in the Horn of Africa by promoting awareness and advocacy, and by providing education, health, and food relief. Warren Creates is the President and co-founder of Can-Go Afar, and is passionate about protecting the interests, lives, and well-being of the Afar People across the globe.

Making a Successful Refugee Claim

IMMIGRATION LAW GROUP

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The decision to flee a country and travel to Canada to make a refugee claim can be very difficult. Leaving one’s homeland for an uncertain future takes unspeakable courage, and the travel itself is often hazardous. This decision is generally motivated by tremendous fear. Although there is a lot at stake and the process once in Canada can be very unfamiliar and at times confusing, freedoms that were violated or lost will hopefully be found in Canada.

It is imperative to choose a lawyer who understands the process, and who will effectively prepare and advance your case. You need a highly skilled advocate who you can trust. Doing an exceptional job on any refugee case requires many years of specialized experience. This expertise only comes from decades of working on such cases, and appearing before Canadian tribunals hundreds of times. In order to be successful, multiple government forms have to be properly and professionally completed, relevant supporting documents obtained (and often translated), testimony has to be molded, witnesses prepared, and human rights and legal research must be conducted. This preparation must all be done well in advance of the hearing, which every refugee claimant is entitled to and must have. It must be completed to a very high standard, in a way that is client and issue focused, customized to every particular case and matter.

The credibility of the applicant is often the central issue in any refugee case as the allegations must be believed by the Government of Canada in order for the claim to be successful. It is critically important to choose a lawyer who enjoys the challenge of such cases, who is dedicated to achieving a successful result, and who is knowledgeable about asylum litigation strategies.

Within my 33 years’ experience as an immigration lawyer, I have specialized expertise in refugee law and have worked on some of the most complex cases both in and outside Canada. In my previous role as a federal government lawyer, I worked at the Immigration and Refugee Board, the very tribunal where all refugee hearings in Canada are heard. My role in that position was to advise adjudicators (Board Members) on the relevant legislation, regulations, case law, the standard of review including the judicial assessment of evidence, and Canada’s international obligations pursuant to United Nations Conventions and instruments. I have successfully represented claimants having issues of inadmissibility, exclusion, and cessation, where the Government of Canada has argued that the claimant should be excluded from protection and returned to their country of nationality. I have rigorously defended such clients, and won their protection.

Asylum claims often have their own unique sensitivities: cases involving young children, and cases where medical evidence is required, including that of torture and possible Post Traumatic Stress Disorder (PTSD), can be particularly challenging. These cases often need special accommodations and specialized considerations. Cases involving political opinion and political activity are also distinct, as they often involve political opposition, human rights activists or dissidents. Persecution, or the genuine fear of it, based upon gender, religious affiliation, or sexual orientation are all grounds for protection in Canada. I have developed a deep interest for all such cases given their complex nature and the courageous individuals that they involve. My expertise is complex, broad, extensive, and includes all of the above factual and legal profiles.

In Canada, we enjoy the most important and sacred democratic rights in the world, and therefore have an obligation to protect those who are fleeing circumstances where such rights have been violated. We have a rich and noble history of doing so. While I am able to represent cases arising from any country in the world, below is a list of some of the countries from which I have represented successful cases (for some countries as many as thousands of people):

AfghanistanEthiopiaNorth Korea
AlbaniaHaitiOman
AlgeriaIndiaPakistan
BangladeshIndonesiaPanama
BelarusIranPeru
BelgiumIraqPhilippines
BoliviaIsraelRomania
BulgariaJordanRussia
BurundiLebanonSaudi Arabia
ChileLibyaSomalia
ChinaMalaysiaSri Lanka
ColombiaMexicoSyria
CubaMoldovaTunisia
DjiboutiNepalRwanda
El SalvadorNicaraguaUganda
EritreaNigeriaVietnam

My team and I understand the importance of asylum claims. We put an extraordinary amount of effort in preparing all of our clients and our cases – we spare no effort, and cut no corners. Due to this effort, we enjoy the professional record of an extremely high success rate. We are very grateful for the respect accorded us by Canadian immigration officers, by adjudicators, by Board Members, and by the judiciary.

I am certified by the Law Society of Ontario as a Specialist in three very distinct and specific areas of law which few lawyers have, who may also practice in this field: Citizenship Law, Immigration Law, and Refugee Protection Law. There are a very limited number of lawyers in Canada who have these combined certifications. In order to be certified as a Specialist, the Law Society of Ontario requires a lawyer to demonstrate extra-ordinary ability in regard to complicated issues arising in difficult or complex cases. These are the cases where my team and I shine, and how we have earned our outstanding reputation. When you hire a Certified Specialist, you are hiring a lawyer who is recognized by our governing and licensing authority- the Law Society- as having met high standards, is a leader in this area of law, and has demonstrated mastery of the field.

“Courts depend on lawyers so that they can fairly and accurately decide cases. Their skills in presenting the evidence and their knowledge of the law are indispensable to the administration of justice. (…) In no other area of law is this more true than the determination of refugee claims. (…) The Immigration and Refugee Board has the most difficult fact-finding job of any administrative tribunal or court in Canada. (…) Refugee claimants are among the most vulnerable participants in our legal system. Lawyers’ professional skills in identifying relevant evidence and presenting it cogently enable refugee decision makers to navigate around these obstacles to accurate fact-finding. (…) Lawyers also play a vital role in assisting the Board and the federal courts on the interpretation and application of the law. Refugee law is very complex.”

The Honourable John Evans, (former) Justice of the Federal Court of Canada and of the Federal Court of Appeal. The Globe and Mail, 24 April 2019

In Canada, a successful refugee case will lead to permanent resident status (including for immediate family members) and thereafter Canadian citizenship. These are 3 very significant steps and statuses. Very few countries in the world offer these benefits. If you are considering making a refugee claim in Canada, we invite you to contact us. You typically only have one chance at being granted protection in a refugee case, and choosing the right lawyer to be your trusted advocate makes all the difference. Our deep experience in this field has taught us how to win the protection and freedom for our clients.

Second Class Citizens? Not in Canada!

Former Prime Minister Stephen Harper’s Bill C-24 to amend the Citizenship Act received Royal Assent and became law on 19 June 2014. These amendments were widely criticized as having created a two-tiered citizenship system. Particularly controversial were subsections 10(2) and 10(3) of the Citizenship Act which allowed for citizenship to be revoked from dual citizens convicted of treason or terrorism offences, depending on the sentence received, or who were part of an armed force of a country or organized group engaged in conflict with Canada. Moreover, in an interview with Andrew Lawton on 30 September 2015, when asked if he might strip dual citizens who have been convicted of other crimes, such as murder, rape, or crimes against children, of their Canadian citizenship, Harper replied “well, you know, obviously we can look at options in the future.”

Current Prime Minister Justin Trudeau heavily denounced the Harper Government’s two-tiered citizenship system throughout his 2015 election campaign and famously stated that “a Canadian is a Canadian is a Canadian”. Recently, and three years after the passing of Bill C-24, the Trudeau Government’s Bill C-6 to repeal many of the Harper Government’s amendments received Royal Assent and became law on 19 June 2017.

The following chart explains the new amendments to the Citizenship Act and indicates when they are expected to come into force:

CHANGES EFFECTIVE IMMEDIATELY (AS OF 19 JUNE 2017)

Previous Citizenship Act

Citizenship Act with Bill C-6 Amendments

Citizenship could be revoked from dual citizens convicted of treason and terrorism offences, depending on the sentence received, or who were a part of an armed force of a country or organized group engaged in conflict with Canada. This provision has been repealed. Dual citizens who are convicted of these crimes will face the Canadian Criminal Justice System like all other Canadians who break the law.
Applicants were required to intend to continue to live in Canada once granted citizenship. This provision has been repealed.
The Minister had the discretion to waive certain requirements under subsection 5(1) of the Citizenship Act so a minor could obtain citizenship without a Canadian parent. The minimum age requirement for citizenship has been removed. Minors can now apply for citizenship without a Canadian parent.
No provision existed to prevent individuals serving a sentence in the community from being granted citizenship, taking the Oath of Citizenship or counting this time towards meeting the physical presence requirements for citizenship. Individuals serving a conditional sentence will not be granted citizenship, take the Oath of Citizenship, or be able to count this time towards meeting the physical presence requirements for citizenship.
The Minister has the discretion to grant citizenship to a person to alleviate cases of special and unusual hardship, or to reward services of an exceptional value to Canada. This provision continues, and statelessness has been added as a stand-alone ground that can be considered for a discretionary grant of citizenship.
Although the Department has reasonable measures to accommodate the needs of citizenship applicants, no explicit provision existed to accommodate persons with disabilities. There is now a requirement to take into consideration reasonable measures to accommodate the needs of a citizenship applicant who is a disabled person.

 

CHANGES EXPECTED TO TAKE EFFECT IN FALL 2017

Previous Citizenship Act

Citizenship Act with Bill C-6 Amendments

Applicants had to be physically present in Canada for four out of six years before applying for citizenship. Applicants must be physically present in Canada for three out of five years before applying for citizenship.
Applicants had to file Canadian income taxes, if required to do so under the Income Tax Act, for four out of six years. Applicants must file Canadian income taxes, if required to do so under the Income Tax Act, for three out of five years.
Applicants had to be physically present in Canada for 183 days in four out of the six years preceding their application. This provision has been repealed.
Time spent in Canada prior to becoming a permanent resident did not count towards the physical presence requirement for citizenship. Applicants may count each day they were physically present in Canada as a temporary resident or protected person before becoming a permanent resident as a half-day toward meeting the physical presence requirement for citizenship, up to a maximum credit of 365 days.
Applicants between 14 and 64 years of age had to meet the language and knowledge requirements for citizenship. Applicants between 18 and 54 years of age must meet the language and knowledge requirements for citizenship.

 

CHANGES EXPECTED TO TAKE EFFECT IN EARLY 2018

Previous Citizenship Act

Citizenship Act with Bill C-6 Amendments

The Minister was the decision-maker for most cases of citizenship revocation on the grounds of false representation, fraud, or knowingly concealing material circumstances. The Federal Court was the decision-maker for citizenship revocation cases involving false representation, fraud, or knowingly concealing material circumstances related to security, human or international right violations, and organized crime. The Federal Court is the decision-maker in all revocation cases, unless the individual requests that the Minister make the decision.
There was no clear authority for Citizenship Officers to seize fraudulent or suspected fraudulent documents provided under the Citizenship Act. Clear authority for Citizenship Officers to seize fraudulent or suspected fraudulent documents is provided under the Citizenship Act.

Important Reminder!

Section 22(6) of Harper’s Citizenship Act remains unchanged by Bill C-6This means that permanent residents are still required to maintain the conditions for citizenship under section 5(1) until taking the Oath of Citizenship. Essentially, applicants must, after submitting their application for citizenship and until taking the Oath:

  1. maintain their permanent resident status,
  2. not be charged or convicted with any criminal offences, and
  3. not have any removal orders issued against them.

Since this is now a statutory duty, Canadian officials are more diligent in ensuring that such requirements are met prior to allowing any applicant to take the Oath of Citizenship. Therefore, in order to ensure eventual citizenship status, it is imperative that applicants not take any chances and continue to fulfill the requirements of citizenship up until they take the Oath.

This will also mean that eligibility for citizenship determined by the physical presence rule of three out of the five years prior to the filing of the application (i.e. 60% of the time spent in Canada) is relaxed after the citizenship application is actually filed: and presence in Canada to comply with the residency obligation of only two out of five years (i.e. 40% of the time spent in Canada) is resumed.

What does this mean for permanent residents?

The Bill C-6 amendments to the Citizenship Act not only mean that permanent residents will have an easier, shorter and less onerous pathway to Canadian citizenship, but they also reflect the fundamental Canadian values of tolerance, openness and acceptance. Canada is a multicultural country that is built on diversity and inclusion, and, as stated by Prime Minister Trudeau in his 26 November 2015 speech in London, UK, “Canada has learned how to be strong not in spite of our differences, but because of them.”

Feel free to contact us and we will be happy to help you navigate the pathway to Canadian citizenship.

Warren Creates is Head of our Immigration Law Group. He can be reached at wcreates@perlaw.ca or 613.566.2839. To view his bio, please click here.

Jacqueline Bonisteel is a lawyer in our Immigration Law Group. She can be reached at jbonisteel@perlaw.ca or 613.566.2845. To view her bio, please click here.

 

Trump’s Travel Ban: America’s Loss, Canada’s Enduring Opportunity

Last Updated: 9 April 2020.

Access the PDF version of this article here.

Canada and the United States are friends, partners and allies; in trade, in security, and in international affairs. What happens south of the border impacts Canada (and Canadians) heavily, for better or for worse. It is no wonder, then, that when Canadians woke up on January 27, 2017 to news of Trump’s Executive Order restricting travel from seven Muslim-majority countries, they wondered “what does this mean for Canada?”

In the immediate term, our concerns as immigration lawyers were for our clients holding passports from these nations. Does the ban affect dual citizens? Green card holders? Should we advise recent arrivals to Canada not to travel to the United States? These questions continue to occupy many of us, especially as chaos still reigns in airports across the world, Canada included.

Today, the question remains: how are the policies of the U.S. administration affecting Canada? America’s loss continues to be Canada’s gain. Equally, many of those who initially intended to move to the U.S. have looked forward to a bright and more welcoming future in Canada.

Over 130 million people from some of the world’s most vulnerable countries fell under the initial travel ban of the U.S. administration. Until 27 January 2017, the United States was the next frontier for many doctors, scientists, tech workers, engineers, and entrepreneurs who saw their futures not in the failing states and war-torn countries affected by the ban, but rather in North America. Like many before them, they were inspired by the symbol of Lady Liberty in the New York City Harbor and the poem etched at her base: “I lift my lamp beside the golden door!? While America’s lamp now burns dimmer, Canada’s still burns bright. On 31 January 2020, the U.S. administration added six predominantly African countries to their list of nations facing travel and visa restrictions, bringing the total number of countries to 13, affecting over 350 million people.

Diversity will be even more important to Canada in the future. Canada’s demographics like those of most Western countries, are shifting. As Canadians get older, a heavier and heavier burden is being placed on a gradually shrinking population of working-aged people who will fund the health care and other needs of our aging parents and grandparents. As the population pyramid swells at the top, Canada must supplement the younger segment of the population in order to prevent that pyramid, and by extension, our economy, from toppling over. A robust and positive immigration program is part of the solution.

While we have proceeded carefully, Canada should continue to take these restrictive U.S. Executive Orders as the spark of an enduring opportunity to attract the best and brightest to our country, to help Canada build a dynamic and sustainable 21st century economy. Our local experience in Ottawa is that business leaders, large and small, identify finding talent to fill jobs as their greatest challenge. There are many ways to bridge this talent gap. One of the best is to attract skilled workers from abroad. Canada’s economy is driven by those from abroad who work tirelessly to power the engines that propel our country forward. Among these are immigrants and refugees from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. Individuals from these countries have contributed to every sector of our economy. Those who come to Canada seeking to build new lives devote themselves, in return, to making our country stronger.

Canada should look favourably upon those currently in other countries who have already been vetted and approved by U.S. authorities and consider welcoming them as foreign workers and ultimately permanent residents. This chance to add to our human capital with skilled individuals seeking a new home should not be squandered.

Apart from the economic opportunity that a new wave of talented immigrants could mean for Canada, we cannot forget our obligation, grounded in international law, to accept refugees and provide safe haven for those fleeing war, terror and persecution. The Canadian Bar AssociationAmnesty International, the Canadian Association of Refugee Lawyers and law professors from across the country, among others, have all called on the Government of Canada to reassess its Safe Third Country Agreement with the United States. As long as many refugees are barred from the United States, Canada should be considering whether we can do more to alleviate the suffering of refugees the world over. This should start with considering the claims of asylum-seekers who have already been approved to be re-settled in the United States but who are now barred from entry due to the Executive Orders.

Canada has an opportunity to become the global leader in immigrant attraction and refugee resettlement. We can use this opportunity to attract the skills we need to power our economy and support our population growth into the future. While the U.S. President continues to ban millions through the politics of fear, Canada must show those potential immigrants and refugees that our best days, as well as theirs, are still ahead of us. We can get there together.

Warren Creates is Head of Perley-Robertson, Hill & McDougall’s Immigration Law Group. He is a Certified Specialist in the fields of Immigration Law, Citizenship Law, and Refugee Law. He can be reached at wcreates@perlaw.ca or 613.566.2839.

Know Your Obligations When Employing a Foreign Worker

Foreign workers are valuable additions to a workplace, but failure to comply with the Regulations can lead to heavy consequences. In this article, we will provide you with tips on how best to comply with the requirements, and also alert you to the potential consequences of failure to do so.

Attaining a positive Labour Market Impact Assessment (LMIA) is not an easy task these days.  And the work does not end when that LMIA is issued. In fact, complying with requirements imposed by the Immigration and Refugee Protection Regulations is an ongoing obligation for employers which must be followed vigilantly.

A Canadian employer who employs foreign workers through the Temporary Foreign Worker Program must comply with four (4) requirements according to the Regulations:

  1. The employer must be actively engaged in the business in respect of which the offer of employment was made (unless the offer was made for employment as a live-in caregiver);
  2. The employer must comply with the federal and provincial laws that regulate employment, and the recruiting of employees, in the province in which the foreign national works;
  3. The employer must provide the foreign national with employment in the same occupation as that set out in the foreign national’s offer of employment and with wages and working conditions that are substantially the same as—but not less favourable than—those set out in that offer; and
  4. The employer must make reasonable efforts to provide a workplace that is free of abuse.

The requirements are fairly simply, albeit vague. It boils down to providing foreign workers with good working conditions and making sure that the job they are actually doing is “substantially the same as” the one they were offered. The government has not provided much guidance as to the meaning of “substantially the same as”.

There are three potential ways that Employment and Skills Development Canada (ESDC) can review your compliance:

  1. Random inspections;
  2. Employer Compliance Reviews, which occur as part of the LMIA application assessment process to verify past compliance; and
  3. Reviews under Ministerial Instruction, in which public policy considerations may justify the revocation of an active LMIA or a refusal to process an application.

It should be noted that LMIAs may be suspended during any of the three types of reviews.

Employers may be selected for inspection if:  there is reason for an ESDC officer or the Minister to suspect that the employer is not complying or has not complied with these conditions; the employer has, in fact, not complied; or even simply as part of a random verification of compliance.  Now a past compliance review means  reviewing only the past two years.  In 2020, this will change to six years, i.e. in year 2020 compliance review dating back to 2014 can be assessed.

If the review finds that an employer has not complied with the requirements, there are a number of potential penalties that can be applied. The following consequences are applied to employers found to be non-compliant prior to December 2015:

  1. A two-year ban from using the TFWP;
  2. Publication of their name, address and period of ineligibility on a public website;
  3. Issuance of a negative LMIA for any pending applications; and/or
  4. Revocation of previously issued LMIAs.

Since 2015, the consequences for non-compliance with employer requirements have become more significant. Non-compliance after December 1, 2015 carries the following possible consequences:

  1. Warnings;
  2. Administrative Monetary Penalties ranging from $5,000 to $100,000 per violation, up to a maximum of $1 million per year, per employer.
  3. A ban of one, two, five or ten years, or permanent bans for the most serious violations;
  4. Publication of the employer’s name, address and details of the violation(s) and/or consequence(s) on a public website; and/or
  5. Revocation of previously-issued LMIAs.

All of these consequences are based on a demerit point system, which takes the following factors into account:

  1. Type of violation;
  2. Size of the employer’s business;
  3. Employer’s history of non-compliance;
  4. Severity of non-compliance; and
  5. Whether the employer voluntarily disclosed information about potential non-compliance before an inspection was initiated.

The last point is significant as non-compliant employers are given the option to voluntarily disclose non-compliance so long as the disclosure is made prior to any compliance or enforcement action being taken. While it may be tempting to hope that the Departments of ESDC and Immigration, Refugee, and Citizenship Canada (IRCC) will not notice non-compliance, voluntary disclosure could be the difference between a temporary and a permanent ban or tens of thousands of dollars.

Foreign workers can add a lot of value to a workplace but the privilege of employing them comes with obligations. While the consequences of failing to comply with LMIA requirements are serious, the requirements are relatively easy to follow. As long as employers are careful to ensure that they are compliant, and honest and open once they realize they may have fallen below that standard, the most significant penalties can be avoided and the employer will receive the full benefit of employing a foreign worker.

Warren Creates is Head of our Immigration Law Group. He can be reached at wcreates@perlaw.ca or 613.566.2839. To view his bio, please click here.

Jacqueline Bonisteel is a lawyer in our Immigration Law Group. She can be reached at jbonisteel@perlaw.ca or 613.566.2845. To view her bio, please click here.

 

U.S. Immigration to Canada: Strength and Opportunity through Diversity

Last Updated: 9 April 2020.

Access the PDF version of this article here.

“Deep in our history of struggle for freedom, Canada was the north star. The freedom road links us together.”

– Dr. Martin Luther King Jr.

When U.S. President Barack Obama invoked the words of Dr. Martin Luther King Jr. when addressing the Canadian House of Commons in June 2016, few could have imagined that the election of Donald Trump would once again turn American eyes to the North. On election night in 2017, as state after state turned Republican red, the website of the Canadian Department of Immigration, Refugees, and Citizenship crashed. Moving to Canada could be an option for many Americans (and others) who no longer see their own values reflected in their country’s leadership and growing divisiveness.

Over the past several years under Prime Minister Justin Trudeau, Canada has been a leader in welcoming Syrian refugees, the latest in a long line of communities who have sought new and better lives on our shores. Canadians are proud of our Charter of Rights and Freedoms, which emphasizes equality for all and also has led Canada to be a leader in legalizing same-sex marriage. Reiterated in his 2019 victory speech, Prime Minister Trudeau stated “From coast to coast, tonight, Canadians rejected division and negativity… We will champion Canada in all its diversity. We will give voice to the voiceless”. To those Americans (and of course others) who want to live in a country that values diversity and progress, we welcome you.

As President Trump closes America’s doors (and builds walls), Canada is working hard to implement the 2019 Immigration Mandate – a robust plan to increase our population and to build a stronger country by actively recruiting the skill and experience of those from abroad. We value not just demographic diversity but also diversity of values and beliefs. Canada’s future depends on the contributions of newcomers.

New data shows the number of people immigrating to Canada increased by 26% between 2015 and 2019. In 2019, the United States was Canada’s fifth largest source of immigrants. As a percentage of each country’s population, Canada currently admits approximately three times as many immigrants as the U.S.

Throughout our history, many have moved north to do business, reunite with family, and to find love. The North American Free Trade Agreement, which united the diverse populations and economies of the United States, Canada and Mexico, has led not only to the free flow of goods between our countries but also of people. Thanks to NAFTA, now called the United States-Mexico-Canada Agreement (USMCA) and our bilateral relationship, American citizens do not need visas to visit Canada and can more easily apply for work permits. While Canada cannot accommodate every potential immigrant, American applicants for permanent resident status will find themselves nearer to the front of the line and with shorter wait times than those from elsewhere.

For 45 years our team at Perley-Robertson Hill & McDougall have represented American professionals, families, small business owners and entrepreneurs to navigate the process of becoming Canadian. Warren Creates is a certified specialist in Citizenship and Immigration Law (Immigration and Refugee Protection) and has successfully helped thousands of businesses and individuals create new beginnings in Canada.

Our country is stronger because of the diversity of skills and experience of those who came here to build better lives and a better country. Give us a call or write us so we can help you navigate the path of coming to Canada.

Warren Creates is Head of Perley-Robertson, Hill & McDougall’s Immigration Law Group. He is a Certified Specialist in the fields of Immigration Law, Citizenship Law, and Refugee Law. He can be reached at wcreates@perlaw.ca or 613.566.2839.

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