Immigration Law - ONCA

This endorsement addresses motions for leave to intervene in an appeal by Antonio Caruso challenging the Law Society of Ontario’s restrictions on paralegals’ scope of practice in immigration matters.

The Court grants leave to intervene to the Ontario Paralegal Association, the Canadian Immigration Lawyers Association, and the College of Immigration and Citizenship Consultants, but denies leave to the Canadian Paralegal Alliance.

The decision reviews the relevant principles for intervention, the backgrounds and proposed contributions of each intervener, and the reasons for granting or denying leave.

This is a panel review of a single judge's order dismissing a motion to stay a return order for an infant child to Bangladesh, pending appeal.

The Court of Appeal majority granted the review, set aside the stay dismissal, and granted a stay of the return order.

The majority found that the single judge erred in principle by giving insufficient weight to the serious issue of the relationship between the Children's Law Reform Act and pending refugee claims, and by misapplying the irreparable harm and balance of convenience tests, particularly regarding the child's best interests and the potential loss of refugee status.

The dissenting judge argued that the majority conducted a de novo review rather than applying deference to the single judge's discretionary order.

The appellant, Dailean John, appealed his conviction for unlawful confinement and his sentence.

He argued the trial judge erred in finding him an active participant rather than a mere bystander.

The Court of Appeal dismissed the conviction appeal, finding it was open to the trial judge to conclude he played a culpable role given the evidence of the victim's confinement in his apartment and his awareness and control over her movements.

The appellant also sought to appeal his sentence, arguing it was unfit due to its impact on his Permanent Resident status and potential deportation.

The Court granted leave to appeal sentence but dismissed the appeal, holding that reducing the sentence to avoid deportation would result in an unfit sentence given the seriousness and aggravating factors of the offence.

The Court of Appeal heard cross-motions within an appeal concerning a child's return to Bangladesh.

The mother (appellant) sought to stay a lower court order for the child's return, arguing a pending refugee claim should preclude the order, and also requested initials and a publication ban.

The father (respondent) sought security for costs for the appeal.

The court dismissed the mother's stay motion, finding no evidence of merit to the refugee claim or irreparable harm, and that the child's best interests favored return to Bangladesh.

The court granted the mother's request for initials and a limited publication ban.

The father's motion for security for costs was dismissed, as it would impede access to justice.

The appellant appealed his convictions and sentence, arguing his guilty plea was uninformed due to a lack of awareness of potential immigration consequences.

The Court of Appeal dismissed the appeal against conviction, finding it unbelievable that the appellant, given his prior immigration history, was unaware of the potential consequences.

However, the court allowed the appeal against sentence, varying it to reflect the joint submission that had been made at the time of the guilty plea.

This appeal concerns the interaction between a provincial legislative scheme governing child protection (CYFSA) and a federal legislative scheme for removing those without citizenship or immigration status from Canada (IRPA).

Specifically, it addresses a disclosure order granted to the Minister of Public Safety and Emergency Preparedness in a child protection status hearing.

The motion judge granted the disclosure, which was upheld by the Superior Court.

The appellants (the parent, the Children's Aid Society, and the Office of the Children's Lawyer) argued that the disclosure order improperly prioritized the Minister's interests over the children's privacy and best interests.

The Court of Appeal found that while the motion judge had jurisdiction to order disclosure, she erred by not requiring the Minister to establish a prima facie basis for the scope of submissions or the requested disclosure.

The appeal was allowed, and the matter remitted to the motion judge for reconsideration based on a new framework requiring the Minister to justify the scope of submissions and disclosure.

The appellant pleaded guilty to possession of a narcotic for the purposes of trafficking.

The Crown conceded the appeal, acknowledging that trial counsel unintentionally misled the appellant regarding the immigration consequences of his guilty plea, which were central to his decision.

The Court of Appeal allowed the appeal, set aside the guilty plea, quashed the conviction, and ordered a new trial.

Angelina Codina applied for bail pending her application for leave to appeal three decisions of the Court of Appeal for Ontario to the Supreme Court of Canada.

The motion judge dismissed the bail application, finding that Ms. Codina had not met her burden of persuading the court that her release was in the public interest.

The court considered the strength of her proposed grounds of appeal, which were deemed not to "clearly surpass the minimal standard" of "not frivolous," and noted a residual public safety concern given her history of preying on vulnerable individuals and being "ungovernable." The court emphasized the paramountcy of enforcing trial judgments at this stage of proceedings, especially given no further right of appeal.

The applicant, Angelina Codina, sought to re-open her conviction and sentence appeals, along with judicial interim release.

She had been convicted of four counts of providing unauthorized immigration advice/representation (s. 91(1) IRPA) and one count of counselling misrepresentation (s. 126 IRPA), receiving a net sentence of five years' imprisonment.

Her previous appeals were dismissed in 2019 (sentence) and 2020 (conviction).

Codina argued for re-opening based on claims that s. 91 IRPA was ultra vires, the CBSA lacked jurisdiction, her corporate structure precluded conviction, and the trial judge misdirected the jury.

The Court of Appeal found no basis to re-open the appeals, noting that all these points had been comprehensively addressed and dismissed in its prior decision, R. v. Codina, 2020 ONCA 848.

The court concluded there was no miscarriage of justice and dismissed both the application to re-open the appeals and the application for bail as moot.

A foreign national subject to a removal order was convicted of making, distributing, and possessing child pornography after CBSA officers discovered explicit images of her children on her cell phone during a search incident to arrest.

The appellant appealed her conviction on five grounds, including Charter breaches related to the cell phone search, the reasonableness of the verdict, misapprehension of evidence, and reasonable apprehension of bias.

The Court of Appeal upheld the conviction, finding that the CBSA search was authorized under section 16(3) of the Immigration and Refugee Protection Act, that the evidence was admissible under section 24(2) of the Charter, and that the verdict was reasonable on the evidence.

The court also rejected claims of bias.

On sentencing, the court set aside the victim surcharge but otherwise upheld the sentence.

The appellant appealed both her conviction for fraud under $5,000 and her sentence of three months imprisonment with restitution of $6,339.20.

The conviction appeal was not pressed and was dismissed as fully warranted by the evidence.

On the sentence appeal, the appellant argued for a conditional discharge based on collateral immigration consequences, as she faced deportation as a foreign national convicted of an indictable offence.

The court dismissed the sentence appeal, finding the three-month term was fit and at the very low end of the appropriate range for fraud involving social assistance funds, particularly given the appellant's prior similar conviction and breach of probation.

The appellant, a permanent resident, pleaded guilty to eight offences arising from assaults on his spouse.

The day before his plea, an Immigration Enforcement Officer informed him that he could be deemed inadmissible to Canada due to prior convictions and that he would lose his right to appeal a removal order if he received a sentence exceeding six months.

The appellant pleaded guilty to a joint submission of 12 months' imprisonment less 247 days pre-trial custody credit, resulting in a four-month custodial term.

A removal order was subsequently issued.

On appeal, the appellant sought to withdraw his guilty plea, claiming it was uninformed because he was unaware of the specific immigration consequences regarding appellate rights, and that his trial counsel provided ineffective assistance.

The Court of Appeal dismissed both grounds of appeal, finding that the appellant had adequate understanding of the immigration consequences and failed to establish prejudice.

The appellant appealed his sentence imposed by the trial judge.

The parties agreed that the trial judge was inadvertently misled regarding the immigration consequences of the sentence.

A sentence of exactly 6 months would preclude an appeal of a removal order, whereas a sentence under 6 months would permit such an appeal.

On consent, the Court of Appeal varied the effective sentence from 6 months to 5 months 29 days concurrent on all counts, with the probation order remaining unchanged.

The variation included credit for 98 days of pre-trial custody.

Foreign nationals released from immigration detention on terms amounting to virtual house arrest sought habeas corpus relief when their application to modify the conditions was rejected.

The application judge dismissed the application, finding that habeas corpus was unavailable because the applicants were not held in custody.

The Court of Appeal allowed the appeal, holding that habeas corpus applies to any deprivation of liberty, not merely incarceration in a custodial facility.

The court remitted the matter to the Superior Court of Justice to determine whether the remaining requirements for habeas corpus were satisfied.

The appellant was convicted of multiple offences under the Criminal Code and the Immigration and Refugee Protection Act in respect of fraudulent refugee applications totalling 170 applications.

The trial judge imposed a sentence of 45 months' imprisonment less credit for pre-sentence custody.

The appellant appealed both his convictions and sentence.

The Court of Appeal found no merit in the conviction appeal, noting that the evidence overwhelmingly supported the trial judge's findings and that the trial judge properly evaluated witness credibility and the appellant's unworthy evidence.

The court also dismissed the sentence appeal, finding that the sentence was appropriate given the serious aggravating factors including the number of fraudulent applications, multiple breaches of trust, and the appellant's motives of financial gain and community standing.

The appellants, Chinese and Dominican citizens detained by the Canada Border Services Agency in immigration proceedings, appealed a Superior Court order dismissing their application for a writ of habeas corpus.

The lower court found no deprivation of liberty and dismissed the application.

The Court of Appeal addressed a jurisdictional issue regarding whether the appeal should proceed to the Divisional Court under section 8(1) of the Habeas Corpus Act or to the Court of Appeal under section 6(1)(b) of the Courts of Justice Act.

The court held that because the lower court's dismissal was based on a finding of no deprivation of liberty, the statutory criteria in section 8(1) of the Habeas Corpus Act were not met, and therefore the appeal properly lay to the Court of Appeal.

The appellant appealed a sentence of 18 months incarceration (less pre-sentence credit) imposed for multiple offences including making false documents, possessing identity documents, using forged documents, possession of property obtained by crime, and trafficking in identity information.

Duty counsel argued the sentencing judge erred by failing to consider serious immigration consequences, specifically that the appellant faced deportation to the United Kingdom as a permanent resident.

The court dismissed the appeal, finding the sentence was fit given the appellant's extensive criminal record of 24 convictions for dishonesty and multiple failures to comply with community supervision orders.

The court rejected the argument that a conditional sentence should be imposed to preserve immigration appeal rights, holding that sentencing flexibility should not be misused to avoid collateral statutory consequences.

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, 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 appellant appealed his conviction for trafficking cocaine, seeking to set aside his guilty plea on the ground that it was uninformed.

The appellant, a permanent resident, was not advised of the immigration consequences of his conviction, which rendered him inadmissible to Canada and subject to removal with no right of appeal.

The trial judge had accepted the plea after a complete plea comprehension inquiry, and the sentence was imposed pursuant to a joint submission.

The Court of Appeal admitted fresh evidence establishing that the appellant was unaware of the immigration consequences and would not have pleaded guilty had he known.

The court found the plea was uninformed and therefore invalid, set aside the conviction, and ordered a new trial.