Immigration Law - SCJ

The appellants appealed their guilty pleas and suspended sentences for assault, claiming ineffective assistance of counsel.

They sought to introduce fresh evidence demonstrating they were misinformed by both their criminal and immigration lawyers regarding the immigration consequences of their pleas, specifically that they would face deportation.

The Superior Court of Justice admitted the fresh evidence, finding the pleas were uninformed and non-consensual.

The appeals were allowed, the convictions set aside, and a new trial ordered.

The defendant, the Attorney General of Canada, brought a motion to strike the plaintiff's action for damages and declaratory relief arising from the denial of public health care while she was an irregular migrant.

The plaintiff alleged violations of her Charter rights and customary international law, relying on a decision by the United Nations Human Rights Committee.

The court dismissed the motion to strike, finding that the Ontario Superior Court has jurisdiction, the claims are not statute-barred, it is not plain and obvious that the claims are barred by res judicata, and the claims disclose a reasonable cause of action that is not doomed to fail.

The applicant pleaded guilty to assault causing bodily harm in 2015 and received a suspended sentence.

He later learned that the conviction constituted 'serious criminality' under the Immigration and Refugee Protection Act, creating a likely insurmountable barrier to his application for permanent resident status.

He brought a motion for an extension of time to appeal his conviction and sentence, arguing he was not informed of the immigration consequences at the time of his plea.

The court granted the extension, finding the applicant had a reasonable explanation for the delay, the proposed appeal had merit based on an uninformed plea and ineffective assistance of counsel, and the interests of justice favoured granting the extension.

The applicant, facing extradition to the United States on charges of human smuggling, applied for release on bail.

The United States alleged the applicant led a scheme to smuggle Indian nationals into the US from Canada.

The court found that the applicant failed to justify his release on the primary ground, as he posed a significant flight risk given his tenuous immigration status in Canada, lack of assets, and the strong case against him.

The court also found detention was necessary on the tertiary ground to maintain confidence in the administration of justice.

The bail application was dismissed.

The applicant, having been found guilty of conspiracy to commit human smuggling, challenged the constitutionality of the three-year mandatory minimum sentence under s. 117(3.1)(a) of the Immigration and Refugee Protection Act.

The applicant argued the provision violates s. 12 of the Charter as it would be grossly disproportionate when applied to a reasonably foreseeable hypothetical offender who plays a minor role for little profit.

Applying the framework from R. v. Nur, the court agreed that a three-year sentence for a minor participant would be grossly disproportionate and shock the conscience.

The court further found the infringement was not justified under s. 1 of the Charter, declaring the mandatory minimum provision unconstitutional and of no force and effect.

The applicant was charged with possessing and importing fraudulent documents under the Immigration and Refugee Protection Act (IRPA).

He brought a constitutional challenge seeking to strike down the mandatory rebuttable presumption in s. 122(2) of the IRPA, which presumes an intent to contravene the Act upon proof of possession of altered documents.

The court found that the presumption violates the right to be presumed innocent under s. 11(d) of the Charter because proof of possession does not lead inexorably to an intent to contravene the IRPA.

The court also found a violation of s. 7 of the Charter.

The violations could not be saved under s. 1, as the presumption did not minimally impair the applicant's rights.

Section 122(2) was declared of no force and effect.

The applicant father brought a Hague Convention application seeking the return of his two children to the UK.

The respondent mother sought an adjournment pending the children's refugee claims in Canada.

The court bifurcated the hearing, proceeding first with the issues of habitual residence and wrongful removal.

The court found that the family had relocated to London, UK, following the end of the father's diplomatic posting in Canada, and that the children were habitually resident there.

The mother's removal of the children to Canada was found to be wrongful.

The second stage of the hearing regarding whether the children should be ordered returned was deferred until after the refugee claims are decided.

The appellant children's aid society appealed an order granting the Minister of Public Safety and Emergency Preparedness disclosure of child protection records.

The Minister sought the records to make submissions under s. 50(a) of the Immigration and Refugee Protection Act regarding a pending removal order against the respondent mother.

The Superior Court dismissed the appeal, finding that the Minister had a legitimate interest in determining whether a genuine lis existed in the child protection proceedings, and that the Ontario Court of Justice had jurisdiction under the Family Law Rules to order disclosure to a non-party to ensure a fair procedure.

The court also rejected arguments that the motion judge demonstrated bias during a case conference.

The appellant, a permanent resident, appealed his 12-month sentence for assault causing bodily harm and breach of recognizance.

He argued the sentencing judge failed to adequately consider the immigration consequences, which rendered him inadmissible to Canada, and provided insufficient reasons.

The Summary Conviction Appeal Court dismissed the appeal, finding the trial judge properly considered the immigration consequences but correctly concluded they did not justify a sentence below the appropriate range given the gravity of the violent assault.

The 12-month sentence was held to be fit and not demonstrably unfit.

The accused, an immigration consultant and his IT company, were charged with misrepresentation and counselling misrepresentation under the Immigration and Refugee Protection Act relating to Syrian refugee sponsorship applications.

At the close of the Crown's case, the accused brought a motion for a directed verdict, arguing there was insufficient evidence.

The Superior Court of Justice dismissed the motion, finding that the Crown had presented circumstantial evidence reasonably capable of supporting inferences of guilt regarding the source of settlement funds and the collection of fees, which must be left to the jury to weigh.

The applicant, having been convicted of offences under the Immigration and Refugee Protection Act and having had her appeals dismissed, applied for a writ of habeas corpus alleging unlawful detention.

The court applied the two-part test from R. v. Olson and found no reasonable and probable grounds for the complaint.

The grounds raised had either been previously dismissed at trial and on appeal, or were the subject of a pending application to re-open her appeal.

The application was dismissed.

The Attorney General of Canada, on behalf of the United States, applied for an order committing the respondent into custody pending a decision on his extradition.

The United States sought the respondent for allegedly preparing fraudulent asylum applications and providing false identification documents.

The court found that the double-criminality requirement was met, as the alleged conduct would constitute counselling misrepresentation under the Immigration and Refugee Protection Act if committed in Canada.

The court also dismissed the respondent's arguments regarding identity, finding sufficient evidence that the respondent was the person sought.

The committal order was granted.

The applicant received a seven-month conditional sentence in 2013.

Subsequent retroactive amendments to the Immigration and Refugee Protection Act made her liable to deportation without a right of appeal due to the sentence length exceeding six months.

Unaware of her right to appeal the sentence until recently, she applied for an extension of time to file a notice of appeal.

The court applied the Menear factors and granted the extension, finding that the delay was adequately explained, the proposed appeal had merit based on unforeseen collateral immigration consequences, and denying the extension would be unjust.

The applicant sought an extension of time to appeal his 2017 convictions, arguing his guilty pleas were uninformed because he was unaware they would render him inadmissible to Canada.

The court dismissed the application, finding it moot because the Immigration Appeal Division had recently granted a conditional stay of his removal order.

The court also noted the application would have been dismissed regardless due to the applicant's significant delay in bringing the application and serious credibility issues with his evidence.

The defendant, the Attorney General of Canada, brought a motion to strike portions of the plaintiff's statement of claim.

The plaintiff sued for torts and Charter breaches arising from his seven-year immigration detention.

The court struck the claims against the Adjudicators of the Immigration Division, finding they were barred by statutory and common law immunity.

However, the court declined to strike the claims of malicious prosecution against the CBSA for the plaintiff's detention in Canada, the claim for intentional infliction of emotional harm, and the section 15 Charter claim, finding it was not plain and obvious that these novel claims would fail.

The offender, a disbarred lawyer with a prior criminal record for fraud and similar offences in the United States, was convicted of four counts of providing unlicensed immigration advice and one count of counselling misrepresentation.

The court emphasized denunciation and deterrence, noting the offender's sophisticated, profit-driven scheme that preyed on vulnerable immigrants and undermined the integrity of Canada's immigration system.

The court imposed a total sentence of 7 years imprisonment, reduced to 5 years after applying credit for pre-sentence custody, along with full restitution orders for the victims.

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 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.

The accused was charged with offences under the Immigration and Refugee Protection Act for his role in transporting individuals who had been smuggled across the US-Canada border into Cornwall.

The accused claimed he was merely doing a favour for his brother and was unaware of the illegal nature of the enterprise.

The court found that the accused's brother had informed him of the passengers' documentary deficiencies, raising a real suspicion that the accused deliberately chose to ignore.

Applying the doctrine of wilful blindness, the court concluded the accused possessed the requisite mens rea and entered convictions.