Immigration Law - SCJ

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.

Following a successful habeas corpus application resulting in his release from immigration detention, the applicant sought costs on a partial indemnity basis.

The respondent opposed the quantum, arguing the applicant should have pursued judicial review in Federal Court.

The court found that the respondent had treated the matter as a test case to defend the jurisdiction of the Immigration Division, despite agreeing the applicant should be released.

The court awarded the applicant his full requested costs of $61,760.50 on a partial indemnity scale pursuant to section 24(1) of the Charter and Rule 57.01.

The offender was convicted of aggravated assault and assault with a weapon after striking the victim over the head with a beer bottle outside a bar.

The Crown sought a penitentiary term, arguing the offender was a party to a subsequent, more severe assault by another individual.

The court found the offender was not a party to the second assault.

Considering the offender's status as a permanent resident and the collateral immigration consequences of a sentence of six months or more, the court imposed a sentence of six months less one day to preserve his right to appeal a deportation order, followed by two years of probation.

The applicant, a refugee claimant, sought a writ of habeas corpus to be released from immigration detention after being held for 17 months.

The detention was based on a series of alleged breaches of release conditions that were either inadvertent or based on errors by police and immigration authorities.

The Superior Court of Justice granted the application, finding that the continued detention lacked a valid purpose, was arbitrary, and violated the principles of fundamental justice under sections 7 and 9 of the Charter.

The court held that the Immigration Division's deference to the Canada Border Services Agency in determining breaches constituted procedural unfairness.

Derrick Harvey, an American citizen, appealed his 2011 guilty pleas for assault and failing to comply with a recognizance, which subsequently led to his permanent residence application being refused due to criminality.

He argued his plea was not informed as his trial counsel failed to advise him of the significant immigration consequences.

The Superior Court of Justice, on summary conviction appeal, found that Harvey's plea was not informed because he was unaware of the critical ramifications, specifically the distinction between border entry and criminal inadmissibility for permanent residence.

The court emphasized that a plea must be voluntary, unequivocal, and informed, including collateral consequences.

It was not necessary to find counsel ineffective.

The appeal was allowed, the guilty plea set aside, and a new trial ordered, with the decision to re-prosecute left to the Crown.

Grace Gaurino was convicted of fraud over $5,000 and theft over $5,000, with the theft count stayed under the Kienapple principle.

The fraud involved $16,629.96 from her 98-year-old vulnerable employer, Eileen Rennie, through altered cheques.

The Crown sought 18-21 months custody, while the defence requested 90 days or less intermittent.

A key consideration was the collateral immigration consequence under the Immigration and Refugee Protection Act, where a custodial sentence of six months or more would remove the right to appeal a deportation order on humanitarian and compassionate grounds.

The court balanced denunciation, general deterrence (paramount in breach of trust fraud), and rehabilitation, alongside mitigating factors (first offence, admissions, personal difficulties, late remorse) and aggravating factors (breach of trust, vulnerable victim, some planning).

Finding the appropriate sentence range to be between 90 days and 12 months, the court imposed a 90-day intermittent sentence to preserve Gaurino's right to appeal deportation, considering her three Canadian citizen children and strong rehabilitation prospects.

A restitution order of $16,629.96 and a 2-year prohibition from positions of financial authority were also imposed.

The applicants, foreign nationals under house arrest due to immigration proceedings, sought a writ of habeas corpus or modification of their release terms.

The Attorney General of Canada opposed and brought a preliminary motion for a stay based on lack of jurisdiction, arguing that house arrest does not constitute "detention" for habeas corpus purposes.

The court dismissed the application, finding that house arrest, while restrictive, does not amount to detention or a deprivation of liberty in the context of habeas corpus, distinguishing it from jail or imprisonment.

The court noted that the applicants had alternative remedies through the Immigration Division and Federal Court for modifying release terms.

The applicant, subject to a deportation order since 1995 due to serious criminality, had been held in immigration detention for over seven years because authorities could not determine his country of citizenship.

Despite numerous detention reviews maintaining his detention, the applicant sought habeas corpus, challenging his continued detention as unlawful.

The Superior Court allowed the application, finding the detention unduly lengthy and its duration uncertain, thereby violating the applicant's rights under sections 7 and 9 of the Charter.

The court concluded that the applicant was not actively thwarting removal efforts and posed a limited public risk, and that the Minister failed to justify continued detention for immigration purposes.

The applicant was ordered released on specific terms and conditions.

Marek Adam pleaded guilty to eight charges related to four armed robberies and four wearing a disguise charges.

The robberies involved the use of a pellet gun and an axe, with victims confined.

The Crown sought a 7-year global prison term, while the defence sought 5 years.

The court considered sentencing principles, aggravating and mitigating factors, including the offender's youth, lack of criminal record, and guilty plea, balanced against the seriousness and number of offences, and the impact on victims.

The court also addressed the parity principle with a co-accused who received a 7-year sentence and the collateral consequence of deportation for the non-citizen offender.

A global sentence of 5 years was imposed, with credit for pre-trial custody and restrictive bail conditions, resulting in an actual sentence of 4 years and 4 months.

Ancillary orders included a DNA sample, a lifetime weapon prohibition, and a non-communication order.

The appellant, R. J.-B., appealed his sentence of 35 months in custody for two convictions of sexual assault, arguing that the sentencing judge failed to adequately consider the immigration consequences, which would lead to his automatic deportation.

The appellant sought a reduced sentence of six months less one day per count (consecutive) or a conditional sentence of 18 months per count to preserve his right to appeal the removal order.

The court acknowledged that immigration consequences can be relevant in sentencing but found the proposed sentences manifestly unfit given the egregious nature of the crimes, which involved digital and attempted vaginal penetration of his 16-year-old cousin, whom he was supposed to be helping after she had been previously sexually abused.

The court dismissed the appeal, upholding the original sentence as fit and not demonstrably unfit.

The applicant, Angelina Marie Codina, sought release on bail review, arguing a material change in circumstances since her previous detention order.

The changes included the staying of her breach of recognizance charges, the Court of Appeal setting aside a habeas corpus decision for inadequate reasons, and the duration of her pre-trial custody potentially exceeding a likely sentence for her immigration offences.

The Crown opposed release, citing the seriousness of the offences, the applicant's criminal record, and the potential for consecutive sentences.

The court found that the new factors, particularly the stayed charges and the extended pre-trial custody, constituted a material change in circumstances, rendering her continued detention no longer justified.

Her Majesty the Queen in Right of Ontario brought a motion for summary judgment to dismiss the plaintiff's claim regarding his sponsorship of his former spouse as a permanent resident.

The plaintiff sought a declaration that his former spouse was not entitled to social assistance she received and a return of monies confiscated due to his sponsorship obligation, arguing an implied term that repayment only applied to rightful payments and that estoppel applied.

The court, relying on Supreme Court precedent, held that a sponsor's statutory obligation to reimburse social assistance is absolute, regardless of whether the sponsoree obtained benefits fraudulently, and that estoppel does not apply against a statute.

The motion for summary judgment was granted, and the plaintiff's action against Ontario was dismissed.

The offender, an immigration lawyer, was convicted of fabricating a fraudulent refugee claim for an undercover police officer posing as a client.

The Crown sought a penitentiary sentence of three to five years, while the defence requested a conditional sentence.

The court emphasized the paramount principles of denunciation and general deterrence, noting that the offender's status as a lawyer and the systemic impact of immigration fraud aggravated the offences.

Despite mitigating factors including the offender's mental health struggles and loss of her legal career, the court found a conditional sentence inappropriate and imposed a concurrent sentence of 12 months' incarceration on each count.

The appellant, a permanent resident and recognized convention refugee, appealed his conviction for possessing a weapon for a dangerous purpose.

He argued his guilty plea was invalid due to ineffective assistance of duty counsel regarding immigration consequences and lack of intent due to intoxication.

The court found that duty counsel had advised the appellant to seek immigration advice and that the appellant had signed an acknowledgment of potential immigration consequences.

The court declined to find ineffective assistance of counsel due to lack of evidence on the standard of care.

It also rejected the argument that the plea was uninformed due to the appellant's own failure to seek advice, distinguishing it from cases where erroneous advice was given.

The court further dismissed the intoxication argument, finding the appellant admitted to possessing the weapon.

The appeal was dismissed.

The appellant appealed two separate convictions resulting from guilty pleas to charges including uttering death threats, criminal harassment, and failing to comply with a recognizance.

He argued that his pleas were uninformed and involuntary due to ineffective assistance of counsel, specifically alleging a failure to advise him of the immigration consequences of his pleas and the elements of the offences.

The Superior Court of Justice dismissed the appeals, finding the appellant's testimony lacked credibility and that he failed to establish either incompetence by his former counsel or any resulting prejudice.

The applicant brought a habeas corpus application seeking release from a five-year immigration detention pending deportation, along with a claim for Charter damages under s. 24(1) for alleged violations of his ss. 7, 9, 10, and 12 rights.

During the hearing, the applicant was deported to Jamaica, rendering the habeas corpus application moot.

The court proceeded to hear the Charter damages claim, finding it had jurisdiction to do so without requiring bifurcated proceedings.

Ultimately, the court dismissed the Charter claims, concluding that the lengthy detention was lawful, subject to regular review, and not grossly disproportionate or cruel and unusual, as the delay was primarily caused by Jamaican authorities' failure to issue a travel document.

The self-represented applicant, facing charges under the Criminal Code and the Immigration and Refugee Protection Act, brought an originating application seeking declarations that various provisions of those statutes violate the Charter.

The court dismissed the application, holding that interlocutory Charter challenges during ongoing criminal proceedings should generally be declined absent special circumstances, which were not present here.

The court also rejected the applicant's arguments that s. 524(8) of the Criminal Code violates the presumption of innocence and that Part 18 of the Criminal Code is unconstitutional for failing to grant preliminary inquiry judges the jurisdiction to decide Charter issues.

The offender was found guilty of multiple offences including offering a bribe to an immigration officer, possession of identity information, forgery, and misrepresentation under the Immigration and Refugee Protection Act, relating to 170 fraudulent refugee sponsorship applications.

The court rejected the application of the Kienapple principle to stay the forgery charges.

Emphasizing denunciation and deterrence due to the sophisticated, profit-driven nature of the scheme and the harm to the integrity of the immigration system, the court rejected a conditional sentence and imposed a global penitentiary sentence of 45 months.

The applicant, facing extradition to Romania for a murder conviction, brought a disclosure application to obtain records from the Canadian and Romanian governments to support an abuse of process motion based on allegations of torture.

The court dismissed the application, applying the Larosa test and finding no 'air of reality' to the torture allegations due to significant inconsistencies in the applicant's evidence and his failure to disclose his conviction to Canadian immigration authorities.

The court also found the requested documents were largely irrelevant or amounted to a fishing expedition.