Author Archives: Steven Meurrens

Addressing Newfoundland Nurses

On December 15, 2011 the Supreme Court of Canada (“SCC”) issues its decision in Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR 708 (“Newfounland Nurses”).  As far as I can tell, the Department of Justice (“DOJ”) has since relied on this decision in almost every immigration judicial review since.

In Newfoundland Nurses, the Supreme Court essentially abolished “adequacy of reasons” as a stand-alone ground for judicial review.  Rather, the SCC stated that an officer’s reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes.  The SCC further stated that:

Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis. A decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion (Service Employees’ International Union, Local No. 333 v. Nipawin District Staff Nurses Assn., 1973 CanLII 191 (SCC), [1975] 1 S.C.R. 382, at p. 391). In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met.

The fact that there may be an alternative interpretation of the agreement to that provided by the arbitrator does not inevitably lead to the conclusion that the arbitrator’s decision should be set aside if the decision itself is in the realm of reasonable outcomes. Reviewing judges should pay “respectful attention” to the decision-maker’s reasons, and be cautious about substituting their own view of the proper outcome by designating certain omissions in the reasons to be fateful.

As one immigration lawyer put it, the DOJ has since argued that under the Newfoundland Nurses reasonableness standard the Federal Court must uphold a tribunal’s decision as long as it falls within the most extremely close to unreasonable range of possibilities that the most extreme officer dictates.  In one case of mine, the DOJ even argued that there could basically be no reasons so long as the Federal Court thought that the decision was a possibly correct one that the tribunal could reach.  But is this really the case?

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Standard of Review in Refugee Appeal Division Hearings

On December 15, 2012, the Refugee Appeal Division (“RAD”) began considering appeals against decisions from the Refugee Projection Division (“RPD”) to allow or reject refugee claims.  According to the Immigration and Refugee Board of Canada’s website, the steps to a RAD appeal are:

  • Once you receive the written reasons for the decision from the Refugee Protection Division, you have 15 days to file a Notice of Appeal.
  • You have 30 days from the day you received your written reasons for the RPD decision to perfect your appeal by filing an Appellants Record.
  • The Minister may choose to intervene at any point in the appeal.
  • The RAD Member makes a decision on your appeal. In most cases, this decision will be provided to you no later than 90 days after you have perfected your appeal, unless an oral hearing is held.

Almost immediately there was uncertainty over what the role of the RAD was.  The RAD began operating under the assumption that it would review RPD decisions using the reasonableness standard, and its members began stating that the following principles governed its appeals:

  • that deference is owed to RPD findings of fact and questions of mixed law and fact;
  • that deference is owed to the RPD where the issue in a claim is factual;
  • that the role of the RAD was to ensure a fair and efficient adjudication and that refugee protection be granted where appropriate. As such, the RAD can substitute the RPD’s determination with its own;
  • that in some cases the RAD, in order to bring finality to the refugee process, may be entitled to show less deference to the RPD;
  • that while both the RPD and the RAD are specialized tribunals, the RPD had advantages in fact finding (particularly on credibility) which suggests deference; and
  • that the failure to show deference to the RPD would undermine the RPD’s process.

In Huruglica v. Canada (Citizenship and Immigration Canada), the Federal Court determined that this was an incorrect approach.

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Labour Market Impact Assessments – Recruitment Requirements

Employers wishing to apply for Labour Market Impact Assessments are required to conduct recruitment efforts to hire Canadian citizens and permanent residents.  The Ministry of Economic and Social Development (“ESDC” or “Service Canada“) is very stringent in its recruitment requirements, many of which are not publicly available.  In this blog post I seek to provide a comprehensive overview of Service Canada’s recruitment requirements, including providing a summary of the publicly available information on the Service Canada website, as well as summarizing and reproducing internal ESDC directives.

I would like to thank Jacobus Kriek, an immigration consultant with Matrixvisa Inc., for providing me copies of the internal Service Canada directives and e-mails that he has obtained.

Please note that what I have reproduced below should not be viewed as legal advice by ESDC or Service Canada.  The reproduction of the material below has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada. As well, given the nature of relying on internal documents, some of the information may be out of date.

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Court Certifies Question on Judicial Review of 117(9)(d) Refusals – [Updated August 6]

The Federal Court (the “Court“) in Habtenkiel v. Canada (Citizenship and Immigration), has certified a question that if answered in the affirmative would seem to pretty much shut the door on humanitarian & compassionate (“H&C“) appeals of s. 117(9)(d) refusals.  The certified question is:

In light of sections 72(2)(a), 63(1) and 65 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, and the case of Somodi v. Canada (Minister of Citizenship and Immigration)2009 FCA 288 (CanLII), [2010] 4 F.C.R. 26 (F.C.A.), where the applicant has made a family class sponsorship application and requested humanitarian and compassionate considerations within the application, is the applicant precluded from seeking judicial review by the Federal Court before exhausting their right of appeal to the Immigration Appeal Division where the right of appeal is limited pursuant to paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations, SOR/2002-227?

That question is long and confusing, but lets break it down.

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Grounds for Judicial Review – Findings of Fact in a Perverse or Capricious Manner

Section 18.1(4) of the Federal Court Act, RSC 1985, c F-7, states that the grounds for judicial review are:

The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal

(a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;

(b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;

(c) erred in law in making a decision or an order, whether or not the error appears on the face of the record;

(d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;

(e) acted, or failed to act, by reason of fraud or perjured evidence; or

(f) acted in any other way that was contrary to law.

Based its Decision or Order on an Erroneous Finding of Fact in a Perverse or Capricious Manner

In Rahal v Canada (Minister of Citizenship and Immigration), 2012 FC 319, Justice Gleason provided the following guidance on interpreting s. 18.1(4): 

In the seminal case interpreting section 18(1)(d) of the FCA, Rohm & Haas, Chief Justice Jacket defined “perversity” as “willfully going contrary to the evidence” (at para 6). Thus defined, there will be relatively few decisions that may be characterized as perverse.

The notion of “capriciousness” is somewhat less exacting. In Khakh v Canada (Minister of Citizenship and Immigration), (1996), 116 FTR 310, [1996] FCJ No 980 at para 6, Justice Campbell defined capricious, with reference to a dictionary definition, as meaning “marked or guided by caprice; given to changes of interest or attitude according to whim or fancies; not guided by steady judgment, intent or purpose”. To somewhat similar effect, Justice Harrington in Matondo v Canada (Minister of Citizenship and Immigration), 2005 FC 416 at para 1, [2005] FCJ No 509, defined “capricious” as being “so irregular as to appear to be ungoverned by law”. Many decisions hold that inferences based on conjecture are capricious. In Canada (Minister of Employment and Immigration) v Satiacum (1989), 99 NR 171, [1989] FCJ No 505 (FCA) at para 33, Justice MacGuigan, writing for the Court, stated as follows regarding conjecture:

The common law has long recognized the difference between reasonable inference and pure conjecture. Lord Macmillan put the distinction this way in Jones v. Great Western Railway Co. [citation omitted]:

The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible but it is of no legal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence, and if it is a reasonable deduction it may have the validity of legal proof. …

Turning, finally, to the third aspect of section 18.1(4)(d), the case law recognizes that a finding for which there is no evidence before the tribunal will be set aside on review because such a finding is made without regard to the material before the tribunal (see e.g. Canadian Union of Postal Workers v Healy, 2003 FCA 380 at para 25, [2003] FCJ No 1517). Beyond that, it is difficult to discern a bright-line. The oft-cited Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration) (1998), 157 FTR 35, [1998] FCJ No 1425) [Cepeda-Gutierez] provides a useful review of the sorts of errors that might meet the standard of a decision made “without regard to the material” before the tribunal which fall short of findings for which there is no evidence. There, Justice Evans (as he then was) wrote at paragraphs 14 – 17:

… in order to attract judicial intervention under section 18.1(4)(d), the applicant must satisfy the Court, not only that the Board made a palpably erroneous finding of material fact, but also that the finding was made “without regard to the evidence” …

The Court may infer that the administrative agency under review made the erroneous finding of fact “without regard to the evidence” from the agency’s failure to mention in its reasons some evidence before it that was relevant to the finding, and pointed to a different conclusion from that reached by the agency. Just as a court will only defer to an agency’s interpretation of its constituent statute if it provides reasons for its conclusion, so a court will be reluctant to defer to an agency’s factual determinations in the absence of express findings, and an analysis of the evidence that shows how the agency reached its result.

On the other hand, the reasons given by administrative agencies are not to be read hypercritically by a court [citations omitted]… nor are agencies required to refer to every piece of evidence that they received that is contrary to their finding, and to explain how they dealt with it … That would be far too onerous a burden to impose upon administrative decision-makers who may be struggling with a heavy case-load and inadequate resources. A statement by the agency in its reasons for decision that, in making its findings, it considered all the evidence before it, will often suffice to assure the parties, and a reviewing court, that the agency directed itself to the totality of the evidence when making its findings of fact.

However, the more important the evidence that is not mentioned specifically and analyzed in the agency’s reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact “without regard to the evidence”: … In other words, the agency’s burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency’s finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact.

Humanitarian & Compassionate Applications – The Establishment Factor

Subsection 25(1) of Canada’s Immigration and Refugee Protection Act provides immigration officers with the flexibility to grant on humanitarian and compassionate (“H&C”) exemptions to overcome the requirement of obtaining a permanent residence visa from abroad and/or to overcome class eligibility requirements and/or inadmissibilities.

H&C applications may be based on a number factors, including:

  • establishment in Canada;
  • ties to Canada;
  • the best interests of any children affected by their application;
  • factors in their country of origin (this includes but is not limited to: Medical  inadequacies, discrimination that does not amount to persecution, harassment or  other hardships that are not related to a fear of return based on refugee determination factors;
  • health considerations;
  • family violence considerations;
  • consequences of the separation of relatives;
  • inability to leave Canada has led to establishment; and/or
  • any other relevant factor they wish to have considered not related to a fear of return based on refugee determination factors.

Establishment in Canada

Citizenship and Immigration Canada’s Inland Processing Manual (the “Manual“) provides that the degree of an applicant’s establihsment may be measured with questions such as the following:

  • Does the applicant have a history of stable employment?
  • Is there a pattern of sound financial management?
  • Has the applicant remained in one community or moved around?
  • Has the applicant integrated into the community through involvement in community organizations, voluntary services or other activities?
  • Has the applicant undertaken any professional, linguistic or other studies that show integration into Canadian society?
  • Do the applicant and their family members have a good civil record in Canada? (e.g. no criminal charges or interventions by law enforcement officers or other authorities for domestic violence or child abuse).

Establishment and Legal Status in Canada

Being in Canada without status does not automatically lead to the non-application of H&C factors.  For example, remaining in Canada pending the outcome of legal procedures, including after a failed refugee claim, would not necessarily be a negative factor.  However, “flouting the law and ignoring lawful orders to leave the country” will likely result in the establishment factor being negative.

As the Federal Court of Appeal stated in Canada (Minister of Citizenship and Immigration) v. Legault, 2002 FCA 125:

In short, the Immigration Act and the Canadian immigration policy are founded on the idea that whoever comes to Canada with the intention of settling must be of good faith and comply to the letter with the requirements both in form and substance of the Act. Whoever enters Canada illegally contributes to falsifying the immigration plan and policy and gives himself priority over those who do respect the requirements of the Act. The Minister, who is responsible for the application of the policy and the Act, is definitely authorised to refuse the exception requested by a person who has established the existence of humanitarian and compassionate grounds, if he believes, for example, that the circumstances surrounding his entry and stay in Canada discredit him or create a precedent susceptible of encouraging illegal entry in Canada. In this sense, the Minister is at liberty to take into consideration the fact that the humanitarian and compassionate grounds that a person claims are the result of his own actions. (emphasis added)

In Molina v. Canada (Citizenship and Immigration), 2014 FC 530, the Federal Court added that:

When establishment is a function of having deliberately chosen to evade removal, it should not provide an applicant with an advantage over those who have complied with the law.

Circumstances Beyond the Applicant’s Control

The Manual provides guidance to officers in determining whether positive consideration may be warranted where the period of inability to leave Canada were beyond the applicant’s control, and where there is evidence of a significant degree of establishment in Canada such that it would cause the applicant unusual or disproportionate hardship to apply from outside Canada.  It states:

Circumstances beyond the applicant’s control 

If general country conditions are considered unsafe due to war, civil unrest, environmental disaster, etc., the Minister of Public Safety may impose a temporary suspension of removals (TSR) on that country.

If general country conditions are considered unsafe due to war, civil unrest, environmental disaster, etc., the Minister of Public Safety may impose a temporary suspension of removals (TSR) on that country.

Circumstances Not Beyond the Applicant’s Control

An applicant, in Canada for a number of years, is unwilling to sign a passport application or provide particulars for a passport application.

An applicant wilfully loses or destroys their travel document(s).

Applicant goes “underground” and remains in Canada illegally.

Human Smuggling – A Very Broad Offence

A Canadian citizen helps an undocumented refugee claimant come to Canada without the proper documentation to seek asylum by paying for part of his transportation.

A Canadian marries a foreign national, and helps bring her to Canada without going through the proper process. The couple are now staying with the Canadian’s mother, who is providing temporary accommodation while the couple looks for a place to rent.

When asked to describe a human smuggler, most people are unlikely to think of the above two scenarios. Rather, they will generally describe organized criminal elements who are paid to transport people across borders. However, in Canada the offence of “human smuggling” encompasses a wide range of actions, including the above two scenarios.

The broadness of human smuggling legislation in Canada is currently the subject of numerous challenges, and anyone who assists an undocumented individual in Canada should be aware of the ongoing judicial proceedings in R v. Appulonappa, 2014 BCCA 163.

Background to Appulonappa

Appulonappa arose from the October 17 2009 arrival to Vancouver Island of the MV Ocean Lady, which carried 76 undocumented Sri Lankan Tamil asylum seekers to Canada. The Crown charged four individuals with human smuggling pursuant to s. 117 of the Immigration and Refugee Protection Act, S.C. 2001, c 27 (“IRPA”), which states:

No person shall knowingly organize, induce, aid or abet the coming into Canada of one or more persons who are not in possession of a visa, passport or other document required by this Act.

No proceedings for an offence under this section may be instituted except by or with the consent of the Attorney General of Canada.

IRPA s. 117 is very broad, and consists of the following four elements:

  1. The person being smuggled did not have the required documents to enter Canada;
  2. The person was coming into Canada;
  3. The accused organized, induced, aided, or abetted the person to enter Canada; and
  4. The accused knew the person lacked the required documents for entry.

Prior to their trial, the accused brought an application before the British Columbia Supreme Court (“BCSC”) for an order declaring that IRPA s. 117 infringed s. 7 of the Canadian Charter of Rights and Freedoms (the “Charter”), which states:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Generally, legislation that is overbroad will not be in accordance with the principles of fundamental justice, and breach s. 7 of the Charter. Overbroad legislation is that which interferes with conduct that bears no connection with the legitimate state objective that necessitated the creation of the offence. As the Supreme Court of Canada stated in Canada (Attorney General) v. Bedford, 2013 SCC 72:

Overbreadth deals with a law that is so broad in scope that it includes some conduct that bears no relation to its purpose. In this sense, the law is arbitrary in part. At its core, overbreadth addresses the situation where there is no rational connection between the purposes of the law and some, but not all, of its impacts. …

Overbreadth allows courts to recognize that the law is rational in some cases, but that it overreaches in its effect in others. Despite this recognition of the scope of the law as a whole, the focus remains on the individual and whether the effect on the individual is rationally connected to the law’s purpose. For example, where a law is drawn broadly and targets some conduct that bears no relation to its purpose in order to make enforcement more practical, there is still no connection between the purpose of the law and its effect on the specific individual. Enforcement practicality may be a justification for an overbroad law, to be analyzed under s. 1 of the Charter.

The accused in Appulonappa argued that the objective of IRPA s. 117 was to deter and penalize only those who engage in international human smuggling for material gain, but that the offence was overbroad as it criminalized the actions of individuals including humanitarian workers or family members who, for altruistic reasons, assist refugee claimants in entering Canada illegally. The BCSC agreed.

The BCCA Appulonappa Decision

The BCCA overturned the BCSC’s decision. It is interesting to note that during the appeal the Crown changed its position on why IRPA s. 117 is not overbroad.

At the BCSC, the Crown argued that IRPA s. 117 was enacted to stopping human smuggling, and that the offence would not result in humanitarians and family members being charged with human smuggling because the Attorney General would exercise his discretion to preclude such prosecutions. In essence, the Crown was arguing that the scenarios mentioned at the start of this blog post did not constitute human smuggling.

At the BCCA hearing, however, the Crown reversed its position, and argued that IRPA s. 117 applies universally without regard to the motive of those who provide assistance in entering Canada to undocumented refugee claimants.

The BCCA agreed, and affirmed that motive is not a constituent element of human smuggling. Rather, the motivation of an individual convicted of human smuggling is rather relevant only as an aggravating factor for the purpose of sentencing. It also affirmed that IRPA s. 117 criminalizes the actions of anyone who provides assistance to persons entering Canada illegally without the required entry documents. It explicitly found that a person whose motive is to assist a family member, or whose motive is for altruistic purposes, is encompassed by IRPA s. 117. Indeed, as the BCCA noted at para. 108 of its decision:

An examination of the terms “humanitarian” or “altruistic” demonstrates the legitimacy of these concerns. Such words are inherently subjective and imprecise, and rest on motive alone. Can one be a self-declared humanitarian? Will membership in any non-governmental organization, church, or a registered charity suffice? Is it enough that one does not profit from providing assistance? A question of purity of motive arises as well. I note those addressing this issue, including the parties and the trial judge, tend to preface the word “humanitarian” with descriptive terms such as “genuine”, “legitimate”, or “bona fide”, which suggests there exists a class of less reputable humanitarians who should not be exempt from charges. Hypotheticals can be portrayed from both sides that demonstrate the multiple factors at play. For example, should a humanitarian motive forestall charges in situations that compromise the integrity and efficiency of Canada’s refugee procedures? What of a person who, though well-intentioned, repeatedly, and after warnings, persists in assisting large numbers of refugee claimants to enter Canada illegally? What if those assisted, having jumped the queue, are routinely found to be illegal aliens rather than “genuine” refugees?

Outcomes

Unlike the BCSC’s decision to strike down Canada’s human smuggling legislation, the BCCA decision is not getting the media publicity that it arguably deserves. Many Canadians offer free assistance to undocumented individuals in Canada, often with the full knowledge that they came here without the proper documentation. These individuals are likely unaware that their benevolently motivated actions are likely considered human smuggling under Canadian law. Appulonappa is likely on its way to the Supreme Court of Canada, and hopefully that decision receive the media attention that this issue (which IMO is the criminalization of benevolent actions) observes.

Disguised Extradition

Extradition and deportation are two different things.  Extradition is the official process whereby one country transfers a suspected or convicted criminal to another country, generally for prosecution.  Deportation, on the other hand, is the removal of an individual from a country generally done for the purpose of achieving an immigration objective.  In Roncarelli v. Duplessis, [1959] S.C.R. 121, the Supreme Court of Canada (the “SCC”) recognized that it was an abuse of process for a government department to exercise a statutory power for a reason that is unrelated to the purpose for which that power was granted.  In the immigration context, it is accordingly an abuse of process for immigration authorities to initiate removal proceedings against an individual to extradite someone.

In United States v. Rogan, 2014 BCSC 116 (“Rogan”), Justice Fish summarized the principles of what is known as “disguised extradition” as follows: (Citations and paragraph numbers removed)

Deportation and extradition have fundamentally different underlying objectives. Deportation is a discretionary decision made by Canadian immigration authorities aimed at protecting the public good. Extradition, which is initiated by foreign authorities, is aimed at delivering a person sought for prosecution to that foreign authority.

A person subject to extradition proceedings has a panoply of constitutionally-enshrined protections not available to a person subject to an IRPA admissibility hearing. For example, a person ordered extradited is immune from prosecution in the requesting state for offences that have not been identified in the surrender order. By contrast, there are no restrictions on what a deported person can be prosecuted for once removed from Canada.

The essence of a “disguised extradition” claim is that removal proceedings were not instituted to pursue a valid immigration objective, but to procure, on behalf of a foreign state, a person’s return for prosecution.

A heavy onus rests on the party advancing a disguised extradition claim to establish, on clear and convincing evidence, that deportation proceedings were a mere artifice, sham, façade or device to achieve the ulterior objective of extradition.

In the face of such a claim, it is open to the Court to inquire whether the conduct of government reflects good faith pursuit of a legitimate Canadian immigration objective, or bad faith utilization of the power to deport for the collateral purpose of surrendering a person to a foreign state for prosecution. To succeed with a claim of disguised extradition, a person must first demonstrate that the Minister did not genuinely consider it to be in the public interest to expel the person in question in pursuit of a legitimate Canadian immigration objective.

Where, as in this case, a stay of proceedings is sought, the remedy will only be granted in the clearest of cases where the conduct at issue so shocks the conscience of the community that preservation of the integrity of the justice system requires termination of the proceedings by judicial order.

Given the high bar erected by the governing tests, it has been said that “disguised extradition” claims will succeed only in extremely rare cases.

The Purpose the Immigration Proceedings

As demonstrated in the summary above, what generally matters is the purpose of the government officials in initiating removal proceedings.  Canadian courts often cite the following passage from Lord Denning in R v. Brixton Prison (Governor), [1962] 3 All E.R, as endorsed by the SCC in Moore v. Minister of Manpower and Immigration, [1968] S.C.R. 839:

So there we have in this case the two principles:  on the one hand the principle arising out of the law of extradition under which the officers of the Crown cannot and must not surrender a fugitive criminal to another country at its request except in accordance with the Extradition Acts duly fulfilled;on the other hand the principle arising out of the law of deportation, under which the Secretary of State can deport an alien and put him on board a ship or aircraft bound for his own country if he considers it conducive to the public good that that should be done.  How are we to decide between these two principles?  It seems to me that it depends on the purpose with which the act is done.  If it was done for an authorized purpose, it was lawful.  If it was done professedly for an authorized purpose, but in fact for a different purpose with an ulterior object, it was unlawful.  If, therefore, the purpose of the Home Secretary in this case was to surrender the applicant as a fugitive criminal to the United States of America, because they had asked for him, then it would be unlawful; but if his purpose was to deport him to his home country because he considered his presence here to be not conducive to the public good, then his action is lawful.

Evidence of Disguised Extradition

Whether a removal proceeding amounts to a “disguised extradition” is very fact specific.  In Rogan, Justice Fish listed the following four reasons as for why in that case there was an air of reality to the “disguised extradition” claim:

  • several FOSS entries reflect CBSA’s pre-occupation with the concern that Mr. Rogan would not be returned to the United States for prosecution purposes if immigration authorities continued to admit and allow him to remain in Canada;
  • [Enforcement Officer] Papp’s email of May 9, 2008 reflects his expectation that a s. 44 report would be written in three or four weeks, despite the fact that, by his own admission, he had no specific information until May 23, 2008 that criminal charges would be laid against Mr. Rogan in the United States;
  • Papp’s rationale for proceeding with the s. 44 reports on May 23, 2008 as reflected in his Highlights report and, specifically, the extent to which the s. 44 reports appear to be based not on the conduct underlying the criminal charges filed in United States, but on the civil suit, the amount of money Mr. Rogan owed the U.S. government, and the adverse findings of fact and credibility made against Mr. Rogan in the civil proceeding – considerations Papp previously concluded would not make Mr. Rogan inadmissible under s. 36 of the IRPA; and
  • [Hearings Officer] Zuck’s suggestion, adopted by [Enforcement Officer] Fast, that two additional s. 44 reports subsequently be prepared based on the factual findings made in the civil proceeding – circumstances which Papp considered but ultimately rejected as the foundation for reasonable grounds to believe that Mr. Rogan was inadmissible to Canada under s. 36 of the IRPA.

In United States v. Wilson, 2013 ONSC 779, meanwhile, the close timing between an arrest warrant in the United States and an inadmissibility report being prepared in Canada raised the notion of an “air of reality” to he possibility that the removal proceedings were a disguised extradition.  Justice Hainey wrote:

The timing and circumstances of the formal commencement of criminal proceedings against Mr. Wilson in the United States and the initiation of deportation proceedings against him in Canada raise a realistic possibility that the Canadian deportation proceedings resulted from communications with the US authorities. The immigration arrest warrant was issued in Canada the day after the criminal complaint and arrest warrant were issued in the United States.

Further, the criminal complaint and arrest warrant were issued in the United States two days after Mr. Wilson left the United States and entered Canada. The FBI investigation of Mr. Wilson had been ongoing for over a year at this point

I find that the very close timing of these events raises a realistic possibility that there may have been communications between officials in Canada and the United States concerning Mr. Wilson’ return to the United States to face the outstanding charges. I therefore find that the requested disclosure could be relevant to Mr. Wilson’s allegation that the deportation proceedings were, in fact, disguised extradition proceedings.

And of course, for anyone interested in this topic, I encourage you to read the decision of United States of America v. Tollman.  The lawyers in that case were Michael Code, my first year criminal law professor at the University of Toronto, and David Martin, a criminal defence and extradition lawyer in Vancouver that our law firm works regularly with.  Some key paragraphs of this fascinating decision read:

Further, this is not simply a case of disguised extradition. The US authorities did not simply discover that a fugitive from their justice system was living in Canada and attempt to persuade Canada to turn him over, rather than commence extradition proceedings. The entire process in this case was engineered by the United States. Because the complaint and warrant were sealed, Mr. Tollman had no idea the United States was seeking to prosecute him. He went about his life in the normal course. US authorities waited for Mr. Tollman to leave his own country and tracked him to Canada. He was only going to be here for two days and the US was keen to have him arrested before he could get back home to the United Kingdom. US authorities deliberately laid in wait to trap Mr. Tollman in a jurisdiction where he would be without any kind of support system, where it would be relatively easy to effect his removal and where they expected to have the cooperation of local authorities. That is not to say that the CBSA was privy to all of the United States’ machinations. However, the CBSA was willing to take action it would not otherwise have taken, solely to assist the US in obtaining Mr. Tollman’s return and are therefore complicit, at least to that extent, in the scheme. The United States hoped that once arrested in a foreign country Mr. Tollman would be held in custody or under restrictions that were sufficiently onerous that he would waive his rights and surrender. Against this engineered backdrop the actual steps taken by way of disguised extradition take on an even more sinister character.

It is odd that Mr. Tollman was detained at the Metro West Detention Centre, the most restrictive facility in which he could be imprisoned. He had no criminal record and no history of violence and the offences with which he was charged were non-violent in nature. He had no history of disobeying court orders and, apart from the outstanding charges in the United States, appeared to be a respectable, law-abiding citizen. The usual detention centre for immigration matters is a secure facility and people held in custody there are not free to come and go as they wish. Such a facility would surely have been adequate to ensure Mr. Tollman did not simply leave the jurisdiction. His passports had been seized. There was no reason to believe he would “break out of” the usual immigration detention centre and then illegally flee the jurisdiction. The only basis for believing him to be a flight risk was his financial worth. In these circumstances, it is unusual that he would have been kept in custody in such harsh conditions. The allegation was made in this application that Mr. Tollman’s placement at the Metro West Detention was part of the overall scheme to intimidate him into giving up. Those allegations have gone unanswered. There is good reason to believe that the US authorities influenced the decision as to where Mr. Tollman would be detained, and further that their purpose in doing so was to ensure that his detention was as unpleasant as possible so as to pressure him into abandoning his rights and surrendering to the United States. This is a contributing factor to the abuse of process.

It stretches credulity to suggest that at the very time the United States was scrambling to get the extradition process commenced and arranging to apply on an urgent basis for an extradition arrest warrant, by pure happenstance, the person charged with the responsibility of carrying out the IRB order for Mr. Tollman’s release, all on his own, willfully refused to do so, and then left for the day, closing the office. How fortuitous. I acknowledge there is no direct evidence linking this deliberate refusal to obey a valid IRB order to any motivation to delay Mr. Tollman’s release until an extradition warrant could be obtained. However, it is clear there were communications at various levels about what was going on, communications that that were either not committed to writing, have not been preserved, or were not in the records of the CBSA that were ordered to be disclosed. The refusal to release in the face of an order that was not under appeal, the timing of that refusal, the all-too-convenient delay as a result of the release, and the communications that were ongoing between US and Canadian authorities raise a very real concern about the bona fides of the delay in releasing Mr. Tollman. The motivation behind this conduct was very directly challenged in the applicant’s material from the outset. Those people who are clearly in a position to clarify what happened have remained silent. That does not remove the heavy onus from the applicant to prove his case. However, in my view, this situation falls within the words of Donovan L.J. in Brixton Prison (at p. 664) in that the evidence that has been brought forward “sow[s] such substantial and disquieting doubts in the mind of the court about the bona fides . . . that the court will consider that some answer is called for.” In my opinion, the reasonable inference from the evidence (and the lack of any responding evidence) is that CBSA officials were deliberately dragging their feet in dealing with Mr. Tollman’s release, under the ruse of a jurisdictional problem with the IRB order, in order to give the US authorities and the DOJ sufficient time to obtain an extradition arrest warrant. That was improper and abusive.In addition to the personal impact on Mr. Tollman, the conduct here must be condemned as contrary to the fundamental principles upon which our justice system is based. The justice system must be fair for all who become enmeshed in it, regardless of intellect, wealth or station in life. Mr. Tollman was able to insist on his rights, albeit at considerable personal and financial cost. However, he was armed with intelligence, stamina, a social position of power and prestige, and enormous personal wealth. Very few people would have been able to do what he has done. If the system went awry for him, what hope is there for the weak, the poor and those less powerful? The answer must be in the vigilance of the justice system itself. Misconduct of this sort cannot ever be tolerated, for to do so is to condone, perhaps even to invite, similar conduct in the future. This is the kind of conduct that offends this community’s sense of fair play and decency. Having conducted itself in this manner, the requesting state is disentitled to any relief from this court. Accordingly, this extradition proceeding is permanently stayed.