Immigration Law

The accused was found guilty of assault with a weapon (a USB charger cord) against his six-year-old son.

At sentencing, the Crown sought 30 days custody followed by probation, while the defence sought a conditional discharge.

The court granted a conditional discharge with 36 months probation, finding that despite the seriousness of the offence, the accused's exemplary rehabilitation efforts, lack of criminal record, genuine remorse, mental health issues at the time of the offence, and strong family support warranted restraint and emphasis on rehabilitation rather than incarceration.

The court distinguished the case from Crown authorities involving offenders with criminal records and lack of remorse.

The appellant appealed his eight-month sentence for uttering a death threat to a correctional officer.

The appeal raised the issue of collateral immigration consequences that were not considered at sentencing.

As a landed immigrant, a sentence of six months or more would trigger mandatory deportation without a right of appeal under the Immigration and Refugee Protection Act.

The Court of Appeal admitted fresh evidence regarding the appellant's immigration status and the danger opinion process initiated by the Canadian Border Services Agency.

The court reduced the sentence to six months less one day, finding that while collateral immigration consequences are relevant to sentencing, the sentence must remain proportionate to the offence and the offender's degree of responsibility.

The appellant appealed his conviction and sentence for criminal harassment.

The appellant abandoned his conviction appeal but sought leave to introduce fresh evidence and to appeal his sentence on the grounds that it was imposed without consideration of collateral immigration consequences that arose from amendments to federal immigration legislation introduced after sentencing.

The Crown conceded that had these consequences been known at sentencing, they would have affected the result.

The court granted the fresh evidence application, granted leave to appeal sentence, and allowed the appeal, imposing a suspended sentence with credit for six months less one day of pre-sentence custody and two years' probation.

The appellant appealed a sentence imposed on June 5, 2012 by the Ontario Court of Justice.

On consent, the Court of Appeal allowed the appeal and reduced the sentence to 6 months less one day due to potential immigration consequences that were not known during the original sentencing process.

The appellant was convicted of assault causing bodily harm and sexual assault on August 27, 2010, and sexual assault on October 31, 2010.

He was acquitted on one count.

The trial judge sentenced him to nine months for the August 27 assault causing bodily harm (concurrent with three months for sexual assault) and six months consecutive for the October 31 sexual assault, for a global sentence of 15 months.

The appellant appealed both conviction and sentence.

The Court of Appeal upheld the August 27 conviction but found the trial judge's reasons inadequate regarding the October 31 sexual assault conviction and ordered a new trial on that count.

On sentence, the Court adjusted the sentences to account for immigration consequences not considered by the trial judge, reducing the assault causing bodily harm sentence to six months less ten days and converting the sexual assault sentence to consecutive rather than concurrent, maintaining the overall nine-month sentence for the August 27 incident.

The appellant, a Jamaican citizen and former permanent resident of Canada, was detained for five years by the Canada Border Services Agency pending removal to Jamaica following a removal order based on serious criminality.

The appellant brought a habeas corpus application and sought Charter damages under sections 7, 9, and 12 of the Canadian Charter of Rights and Freedoms, alleging that his detention was arbitrary, indefinite, and constituted cruel and unusual treatment.

The application judge dismissed the Charter damages claim.

On appeal, the Court of Appeal upheld the dismissal, finding no breach of the Charter rights and clarifying that Charter damages claims cannot be joined to habeas corpus applications.

The accused, an unlicensed immigration consultant, was charged with providing unauthorized immigration advice and counselling misrepresentation under the Immigration and Refugee Protection Act.

During her jury trial, she brought a motion for a directed verdict of acquittal, arguing that her conduct did not meet the statutory definitions of 'advice', 'represent', or 'counsel'.

The court interpreted the relevant provisions, finding that 'advice' involves personalized recommendations rather than general information, and that 'counselling' requires active encouragement.

The court concluded there was sufficient evidence on all counts for a properly instructed jury to potentially return guilty verdicts and dismissed the motion.

The self-represented applicant, charged with unauthorized provision of immigration advice under the Immigration and Refugee Protection Act (IRPA), brought pre-trial motions challenging the jurisdiction of the Canada Border Services Agency (CBSA) to prosecute her and the constitutional validity of several IRPA provisions.

The court found that the CBSA had statutory authority to investigate and prosecute the offences pursuant to s. 138(1) of the IRPA and a valid delegation of power.

The court also dismissed the division of powers argument, holding that s. 91(1) of the IRPA is a valid exercise of federal jurisdiction over immigration and criminal law, and does not improperly intrude on provincial regulation of legal professionals.

The applicant's section 7 Charter challenges based on vagueness were dismissed, with specific interpretive issues deferred to trial.

The self-represented applicant, charged with unauthorized immigration consulting and counselling misrepresentation under the Immigration and Refugee Protection Act, brought pre-trial Charter applications challenging her arrests, the search of her office, and the Crown's disclosure.

The court found that the CBSA officers had reasonable and probable grounds for both the initial arrest warrant and a subsequent warrantless arrest for breaching bail conditions.

The court also upheld the validity of the search warrant and found no breach of the Crown's disclosure obligations, noting that communications between Crown counsel and investigators are privileged.

All Charter applications were dismissed.

The responding party, a Convention refugee, was convicted in absentia of drug trafficking in Albania.

Upon discovering the conviction, the Minister of Immigration, Refugees and Citizenship applied to vacate his refugee protection.

The responding party brought an application in the Superior Court seeking declarations that his foreign conviction was invalid and should not preclude him from obtaining Canadian status or benefits.

The moving party (Attorney General) brought a motion to permanently stay the Superior Court application.

The court granted the motion and stayed the application, finding that the matter was fundamentally an immigration dispute and that the Federal Court and the Immigration and Refugee Board were the appropriate forums to address the issues.

An applicant convicted of possession of cocaine for the purpose of trafficking sought bail pending his sentence appeal under s. 679(4) of the Criminal Code.

The applicant had been sentenced to two years in custody, less five months' pre-sentence credit.

The Crown opposed bail, arguing the appeal lacked sufficient merit.

The applicant's primary ground of appeal concerned collateral immigration consequences, as a sentence of six months or greater would render him inadmissible to Canada and subject to deportation without a right of appeal.

The court granted leave to appeal but dismissed the bail application, finding the appeal lacked sufficient merit and that continued detention would not cause unnecessary hardship.

The appellant appealed both his conviction for drug trafficking and his sentence of 12 months imposed by the trial judge.

The Court of Appeal dismissed the conviction appeal, finding that the evidence fully justified the conclusion that crack cocaine in the possession of a third party came from the appellant through an intermediary.

However, the court allowed the sentence appeal, finding that the trial judge erred in law by failing to consider that this was a one-off transaction for a minimal amount of crack cocaine with no profit motive, and by failing to adequately weigh the appellant's rehabilitation efforts and significant immigration consequences.

The sentence was reduced to 160 days, which the appellant had already served through pre-sentence custody.

The appellant appealed her convictions on four offences relating to marijuana grow-operations and one count of breach of recognizance, as well as seeking leave to appeal her sentence.

She argued that her guilty pleas were invalid because she was uninformed of immigration consequences, that the facts did not support her pleas, that her counsel was in a conflict of interest, and that she was deprived of effective assistance of counsel.

She also challenged the sentence as unfit due to failure to consider immigration consequences and claimed the forfeiture orders were grossly disproportionate.

The Court of Appeal dismissed the conviction appeal and denied leave to appeal sentence, finding the guilty pleas were informed, no conflict of interest existed, the appellant received effective assistance of counsel, and the forfeiture orders were part of the accepted plea offer.

The offender was convicted after trial of possessing a weapon (knife) for the purpose of committing a criminal offence and knowingly uttering a threat to cause bodily harm.

He subsequently pled guilty to failing to appear in court and breaching a recognizance condition.

The central sentencing issue was whether to impose a conditional discharge or a suspended sentence, given the offender's status as a permanent resident and the potential immigration consequences of a conviction.

The court considered the Supreme Court's decision in R. v. Pham regarding the relevance of collateral immigration consequences to sentencing decisions and concluded that while such consequences may be considered, they cannot dominate the sentencing process or result in inappropriate sentences.

The court imposed suspended sentences with probation rather than a discharge, finding that the serious nature of the offences and the offender's disregard for the justice system precluded a discharge despite significant personal mitigating circumstances.

Appeal from conviction and sentence for possession for the purpose of trafficking and possession of proceeds of crime.

The Crown conceded that the two convictions for possession of proceeds of crime could not stand and those convictions were set aside with acquittals entered.

The convictions for possession for the purpose of trafficking were upheld as the trial judge had a reasonable basis to uphold the warrant issuance and police had reasonable grounds to arrest and conduct searches incident to arrest.

The sentence was reduced from 14 months on each count to 6 months less one day on each count running consecutively, resulting in a global sentence of 12 months less two days, to account for the appellant's risk of deportation and demonstrated rehabilitation.

The Attorney General of Canada appealed two decisions granting habeas corpus relief to an individual detained on account of an outstanding deportation order.

The applicant had been detained for approximately 25 months on immigration grounds.

The Court of Appeal upheld the application judge's decision to release the applicant on habeas corpus, finding that the detention was lengthy and of uncertain duration and could no longer be justified as furthering the machinery of immigration control.

However, the Court found that the application judge erred by assuming jurisdiction to supervise any subsequent re-incarceration by immigration authorities.

The Court struck the problematic supervisory clause and provided guidance on appropriate conditions for release in immigration detention cases.

The plaintiffs, a couple who sponsored the immigration of the wife's elderly parents (the Nikityuks) from Russia, sued the parents and the YMCA (and an employee) for inducing breach of contract, negligence, conspiracy, and defamation after the parents moved out of their shared home into social housing.

The Nikityuks counterclaimed for fraud, misrepresentation, conversion, unjust enrichment, breach of contract, and breach of fiduciary duty, seeking damages for lost capital and a constructive trust on the home.

The court dismissed all of the plaintiffs' claims, finding no malice or unlawful conduct by the YMCA defendants.

The court granted the Nikityuks' counterclaim, finding that the plaintiffs had financially abused the Nikityuks, breached their contract and fiduciary duties, and committed civil fraud by misrepresenting investment returns on the Nikityuks' capital, which was subsequently lost in the stock market.

The Nikityuks were awarded damages for their lost capital, interest, a constructive trust on the Innisfil property, and punitive damages.

The Supreme Court allowed the appeal and quashed a ministerial referral for an admissibility hearing under s. 36(1)(a) of the Immigration and Refugee Protection Act.

It held that a conditional sentence is not a 'term of imprisonment' for the serious criminality threshold based on an imposed sentence.

It also held that the 'maximum term of imprisonment of at least 10 years' must be assessed based on the law at the time the offence was committed, not at the time of the admissibility determination.

The matter was remitted to a different delegate for redetermination on a correct legal interpretation.

The applicant, a foreign national subject to a removal order, applied for habeas corpus after being detained in a maximum security provincial jail for over four years pending removal.

The court found that while the length of detention was exceptional, its duration was not uncertain because the applicant's recent cooperation provided a reasonable prospect for removal, thus not violating sections 7 and 9 of the Charter.

However, the court held that detaining the applicant in a maximum security facility with frequent lockdowns, rather than an immigration holding centre, was grossly disproportionate to his flight risk and constituted cruel and unusual treatment under section 12 of the Charter.

The court ordered his immediate transfer to an immigration holding centre.

The offender was convicted of being an accessory after the fact to an armed robbery committed by her son, having disposed of a sweater he wore during the crime.

The Crown sought a 12-month sentence, while the defence requested a sentence of less than six months to preserve the offender's right to appeal a potential removal order under the Immigration and Refugee Protection Act.

The court applied a 1:1 credit for 157 days of pre-trial custody to avoid the draconian immigration consequences, sentencing the offender to one day in jail and 18 months of probation.