Immigration Law - OCA

A licensed paralegal sought leave to intervene as a friend of the court in an appeal challenging the Law Society of Ontario's restrictions on the permitted scope of practice for paralegals in immigration matters.

The motion judge found the proposed intervener failed to identify how her intervention would assist the court beyond the contributions of the existing parties and three previously granted interveners.

The proposed intervener's own action against the LSO raising substantially similar issues had been stayed pending the outcome of this appeal.

The motion was also brought well past the deadline for intervention motions.

Leave to intervene was denied with no order as to costs.

The appellant pleaded guilty to robbery and attempted robbery arising from a carjacking spree and was sentenced to 2.5 years' incarceration.

He appealed on two grounds: that the sentencing judge erred in treating denunciation and deterrence as primary sentencing objectives for a youthful first-time offender, and that the sentencing judge failed to account for collateral immigration consequences.

The Court of Appeal found that despite a misstatement of the law, the sentencing judge did not overemphasize denunciation and deterrence, as evidenced by a below-range sentence.

The court also held that immigration consequences could not be avoided without imposing an unfit sentence.

The appeal was dismissed.

The Court of Appeal for Ontario dismissed an appeal by the Attorney General of Canada from a certification order of a class action brought by immigration detainees.

Between May 2016 and July 2023, the Canada Border Services Agency placed approximately 8,360 immigration detainees in provincial and territorial prisons instead of Immigration Holding Centers.

The respondents challenged this practice as violating sections 7, 9, 12, and 15 of the Canadian Charter of Rights and Freedoms, and as constituting negligence.

The motion judge certified the class action, finding that the Charter and negligence claims disclosed reasonable causes of action and that common issues existed.

The appellate court upheld the certification, finding no palpable and overriding errors in the motion judge's analysis.

The appellant, Errol Francis, appealed the sentence imposed for sexual assault.

The only issue on appeal was whether the sentencing judge erred by not considering that a conditional sentence order would have preserved the appellant’s right to appeal under s. 36(1)(a) of the Immigration and Refugee Protection Act.

The Court of Appeal found that, although defence counsel misstated the law, the sentencing judge’s reasons made clear that a conditional sentence would have been unfit given the seriousness of the case.

Leave to appeal sentence was granted, but the appeal was dismissed.

The appellant appealed his conviction for possessing proceeds of crime and his 26-month sentence.

He argued the verdict was inconsistent with his acquittal for possessing cocaine for the purpose of trafficking, and that the trial judge erred in her circumstantial evidence analysis.

The Court of Appeal dismissed the conviction appeal, finding the evidence of knowledge and control over the cash was compelling, unlike the evidence regarding the cocaine.

The court also dismissed the sentence appeal, holding that the trial judge properly considered the collateral immigration consequences but correctly concluded that a sentence under six months would not adequately address the gravity of the offence.

The appellant, Mr. Berhe, sought leave to appeal from three orders made by the Summary Conviction Appeal Court Judge (SCACJ) relating to four summary conviction appeals.

Two applications (C63256, M49551) concerned his awareness of immigration consequences when entering guilty pleas, and one (M49552) challenged a conviction for harassing communications.

The Court of Appeal refused leave to appeal for the harassing communications conviction (M49552), finding no error of law in the SCACJ's decision to dismiss the appeal as abandoned and no merit to the proposed grounds, including the interpretation of "person" under s. 372(3) of the Criminal Code.

For the immigration-related appeals (C63256, M49551), leave was granted, but the appeals were dismissed.

The court found that the appellant had sufficient knowledge of the negative immigration implications of his guilty pleas, given his extensive history with the immigration system, and that his claim of subjective prejudice was not supported by objective circumstances, as the Crown's case was overwhelming.

This is an appeal from convictions under the Immigration and Refugee Protection Act for aiding or abetting persons to possess a passport to contravene the Act and aiding or abetting illegal entry into Canada.

The appellant drove individuals to a border crossing, presenting Canadian passports that did not match the individuals, with Nigerian passports subsequently found.

The appellant challenged the admissibility of lay opinion identification evidence from border services officers, arguing a voir dire was required.

The Court of Appeal found no voir dire was necessary, as the evidence constituted admissible lay opinion based on direct observations.

The appellant also argued the trial judge misapprehended evidence, which the Court found to be an error in narration, not substance, and thus not warranting appellate intervention.

Finally, the Court dismissed the unreasonable verdict argument, finding the circumstantial evidence of guilt overwhelming.

The appeal was dismissed.

The appellant appealed the dismissal of its motion for summary judgment, which sought to dismiss the respondent's action for false arrest, false imprisonment, and Charter breaches as statute-barred.

The respondent had been detained by the CBSA for 467 days before being deported, but only discovered evidence of alleged CBSA misconduct years later when internal notes were disclosed in separate litigation.

The Court of Appeal upheld the motion judge's finding that the presumptive limitation period starting on the date of arrest was rebutted, as the respondent did not have sufficient material facts to discover his claim until the internal notes were disclosed.

The appeal was dismissed.

The appellant, a disbarred lawyer and unlicensed immigration consultant, was convicted of providing unauthorized immigration advice for consideration and counselling misrepresentation under the Immigration and Refugee Protection Act.

She appealed her convictions, arguing that the charging provisions were ultra vires the federal government, violated section 7 of the Charter, and that the trial judge made numerous evidentiary and instructional errors.

The Court of Appeal dismissed the appeal, finding the provisions were validly enacted under the federal criminal law power, were neither vague nor overbroad, and that the trial judge made no errors in her rulings or jury instructions.

The appellant mother took her three children from Kuwait to Canada without the respondent father's consent and claimed refugee status, alleging domestic violence.

The father applied for the children's return to Kuwait.

The application judge ordered the children returned, finding no risk of serious harm under s. 23 of the Children's Law Reform Act.

On appeal, the Court of Appeal found the application judge erred by rejecting uncontradicted expert evidence that the children's fears of their father were independent and not influenced by the mother.

The Court also held that ordering the children's return before their refugee claims were determined violated the principle of non-refoulement.

The appeal was allowed and a custody hearing was ordered in Ontario.

The applicant, facing extradition to the United States for identity theft and misrepresentation, applied for judicial interim release pending the Minister of Justice's decision on surrender.

The applicant had previously fled the United States to Canada while on bail and made a refugee claim.

The Court of Appeal dismissed the application, finding that the applicant failed to establish on a balance of probabilities that he would surrender himself into custody, given his history of using fraudulent identification and breaching bail conditions to avoid returning to Ghana.

The appellant was convicted of several offences arising out of an armed home invasion and sentenced to 10 years' imprisonment.

He appealed his convictions and sentence, and his counsel pursued production of records to advance an alibi and alternate suspect defence.

However, the appellant was subsequently found inadmissible to Canada for serious criminality and deported.

As he was no longer amenable to the court's jurisdiction, the appeal was dismissed as abandoned.

The appellant was convicted of two counts of attempting to purchase sexual services from a young person through an undercover police sting operation (Project Raphael).

He was sentenced to eight months in jail and two years of probation.

On appeal, the appellant challenged his conviction on Charter grounds and sought leave to appeal his sentence.

The Court of Appeal dismissed the conviction appeal, finding the arrest was lawful and the trial judge properly applied the legal test for objective reasonableness.

However, the Court allowed the sentence appeal, reducing the sentence to six months less one day to preserve the appellant's right of appeal to the Immigration Appeal Division, as a sentence exceeding six months would result in deportation as a permanent resident.

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 appellant sought leave to appeal his sentence for assault against his girlfriend.

The appellant was convicted under s. 265 of the Criminal Code and received a suspended sentence with nine months of probation.

The Summary Conviction Appeal Court dismissed his appeal.

The appellant argued that leave to appeal should be granted because the Summary Conviction Appeal Court erred in relying on aggravating factors not considered by the sentencing judge and in misapplying the law regarding immigration consequences.

The Court of Appeal denied leave to appeal, finding that any errors were inconsequential and that both the sentencing judge and Summary Conviction Appeal Court properly considered the appellant's immigration status.

The appellant was convicted of sexual assault for anally penetrating a 19-year-old co-worker at a workplace Christmas party without consent.

The trial judge sentenced him to nine months' imprisonment followed by two years' probation.

The appellant, a permanent resident of Canada, appealed on the basis that the sentence was unfit, particularly given that a sentence of six months or more would trigger immigration consequences under the Immigration and Refugee Protection Act, resulting in loss of the right to appeal a removal order.

The Court of Appeal dismissed the appeal, finding the sentence fit and holding that the trial judge did not err in first determining an appropriate sentence and then considering whether immigration consequences warranted reduction.

The appellant pleaded guilty to assault and breach of probation and was sentenced to 183 days in custody based on a joint submission.

He subsequently discovered that this sentence triggered potential inadmissibility as a permanent resident.

He appealed the sentence based on fresh evidence regarding the immigration consequences.

The Crown conceded that a sentence of six months less a day would have been fit and that the fresh evidence should be admitted.

The Court of Appeal allowed the appeal and reduced the sentence to six months less a day to obviate the unforeseen immigration consequences.

The appellants appealed their sentences for drug trafficking to avoid deportation resulting from the retrospective application of the Faster Removal of Foreign Criminals Act.

The Court of Appeal allowed the first appellant's appeal on Crown consent, reducing his sentence to six months less a day as it remained fit.

The Court dismissed the second appellant's appeal, finding that the requested reduction would render his sentence unfit given his criminal record and the aggravating factors, and would circumvent parliamentary intent.

The applicant sought an extension of time to file a notice of appeal from her 2010 convictions, citing unforeseen immigration consequences that recently culminated in an admissibility hearing.

She argued her guilty plea was uninformed regarding collateral consequences and raised potential ineffective assistance of counsel.

The Court of Appeal granted the motion, finding that the applicant acted promptly upon receiving notice of the admissibility hearing and that there were arguable grounds of appeal, making the extension in the interests of justice.

The appellant pleaded guilty to robbery and was sentenced to one year of imprisonment.

On appeal, she introduced fresh evidence that her trial counsel failed to advise the sentencing judge of a co-accused's six-month sentence and the immigration consequences of a sentence of six months or more.

The Court of Appeal admitted the fresh evidence, found the appellant's culpability similar to her co-accused, and reduced the sentence to six months less a day to preserve her right to appeal to the Immigration Appeal Division.