CBC The National: Extradition

Alastair Clarke was recently interviewed by CBC News regarding the potential criminal charges against Peter Nygard. At this point, Mr. Nygard’s son has concerns that his father may leave Canada to escape justice which would force the Government of Canada to make an extradition request. Extradition is a complex area of law; however, based on his studies in International Law at Queen’s Law (Bader International Study Centre @ Herstmonceux Castle) and his professional experience dealing with the intersection of Criminal Law, Immigration Law & extradition law, Alastair was able to provide insight on the potential legal issues.

Please note: this case has been unfolding quickly and the information is only current as of today, 18 SEPT 2020. As noted by CBC Reporter Caroline Barghout, based on an exclusive interview with Peter Nygard’s son:

The son says he’s speaking out now because he’s afraid if he stays quiet, his father’s accusers — including his two brothers — may never get justice.

“My No. 1 goal is for him not to escape,” he said.

He says Nygard spends summers in Falcon Lake in southeastern Manitoba, and would normally head to one of his properties in California or the Bahamas by the third week of September. But with his father under a cloud of sex allegations, the son thinks his father will instead set his sights on a jurisdiction that won’t extradite him if charges are ever authorized.

“He believes that he’s above the law — the law does not apply to him,” said the son, adding he bases that on his father’s past actions.extradition

This point leads directly to the possibility of an extradition request made by the Canadian government, if criminal charges are laid and the accused flees the country.

Winnipeg immigration lawyer Alastair Clarke says unfortunately, the more money a person has, the easier it can be to evade the law.

“It’s entirely possible that in this case … Mr. Nygard may find a country who is sympathetic to his, let’s say, his net worth, to his financial capacity,” said Clarke.

“And so he could find possibly a safe haven, which would be, in my view, quite unfortunate.”

He says if a country doesn’t have an extradition treaty with Canada, there may not be anything the government can do to get a person back, even if charges are laid.

Canada doesn’t track, or keep a record of, people who leave the country, he said. Only entries are monitored.

“If we had the resources in place, that would, in my view, uphold the Canadian rule of law and make sure that alleged criminals are not simply using their private chartered jets, for example — flying to places where we don’t have extradition treaties and escaping the law,” said Clarke. 

Indeed, extradition can be very messy as we have seen in both the Meng Wanzhou case and the Carlos Ghosn case. These are both ongoing legal matters that involve Canada, the United States, China, Japan, Lebanon and France. A friend of Alastair Clarke, lawyer Richard Kurland has spoken on the complexity of these cases, as reported by CBC News:

The fight may be over the technicalities of legal privilege — the right to shield sensitive communications and documentation — but observers of the case say the outcome could prove crucial in Meng’s battle against extradition to the United States.

“This disclosure of who said what to who is critical,” said Richard Kurland, a Vancouver immigration lawyer who has followed the proceedings closely.

“The line here is how much information ought to be revealed in order for the defence to know the case they have to meet and mount their defence, counterbalanced against the right of the state to conduct clandestine service. That’s quite a difficult balance in a case like this.”

For more information, please watch CBC The National on youtube. This story starts at 22:40 of the episode.

Currently, Peter Nygard is in Manitoba and there are no criminal charges. The above is purely speculation. This is an ongoing matter and, as with the other cases above, we will be following this case closely to see if extradition becomes a necessary recourse.

Success: Crim Rehab

After years of work, including multiple Temporary Resident Permits (TRPs), we successfully applied for Criminal Rehabilitation (Crim Rehab) for our client who had multiple criminal convictions in his past. These applications are never easy and the Officer at the border has significant discretionary decision making power at the POE. We did not want to have to wait for this client to be eligible for “deemed rehabilitation” as he has strong connections to Canada. Alastair is an expert in crimimmigration – the intersection between criminal justice and immigration.

Justice is at the core of our legal system and criminality may have a strong impact on immigration. This means that individuals who are convicted and have served their sentences may not be inadmissible to Canada and they may be allowed to enter if they are successful with a “rehabilitation” application according to immigration laws and regulations. In this case, we were retained by a foreign national with five (5) criminal convictions from different incidents in his past. These convictions, and a series of other events, led to a separation of family and hardship; however, after a boatload of work and strong supporting documentation,Crim Rehab we were successful with our Criminal Rehabilitation application (Crim rehab), submitted at the Canadian Port of Entry. We were able to review the application with a Superintendent prior to our client traveling to the border for a non-binding preliminary assessment. Our client got a positive decision from the Officer after only 4 hours.

In many cases, past criminal convictions are the result of bad decisions made in youth that were affected by alcohol and/or peer pressure. The Supreme Court of Canada has considered similar situations and they have provided instructions to Officers on how to make these decisions. This case was one of those cases. Our client was completely upfront about exactly what happened and how it affected his life. He demonstrated significant changes in his behaviour and he showed genuine remorse.

Our client was thoroughly prepared by our office. As with all our cases, be prepared, be prepared, be prepared! We spent hours on this application, gave him a mock interview and prepared a strong package of evidence. At the border, he passed multiple interviews and the Officers went through our package very carefully.

In the end, our client’s application was granted and he no longer needs to worry about inadmissibility to Canada. He is now with his family members in Canada, subject to the Quarantine Act and he is taking COVID-19 seriously. It has been a pleasure to work with this family and it has been very emotional. For our office, it is very important that we build a perfect application and make sure 100% of the potential issues are covered. I will say that the Officer even said to our client that our application was the best Criminal Rehabilitation application he had reviewed. Thank you Officer! Good decision!

 

WFP: Audit of Deportation Orders

The widely reported report by the Canadian Auditor General describes the significant backlog and delays in the removal process for individuals who have enforceable removal orders, including deportation orders. These removals are carried out by CBSA Officers and we have many clients who are affected by these orders. We are in contact, almost daily, with CBSA Officers on behalf of our clients to ensure our clients fully cooperate with law enforcement and Canadian regulations. At the same time, we advise our clients on their legal rights.Deportation

The report focuses on failed refugee claimants who have deportation orders. Let me make a brief comment on this group. It is important to note that even when the refugee claimant’s risk may not rise to the level of risk per sections 96 or 97 of IRPA, they may still face significant risk or hardship and/or persecution. The fact is that the legal bar to refugee status is a high legal test and claimants must go through a rigorous adjudicative process, including examination and cross-examination of testimony. Another key fact is there is a shortage of competent legal counsel and claimants may be poorly prepared for their hearing.

Winnipeg Free Press reporter Eva Wasney published an article on the Auditor General’s report that discussed the challenges faced by CBSA:

Winnipeg immigration lawyer Alastair Clarke said some of the criticisms in the report are valid, but the audit is a an “oversimplification” of the removal process because it doesn’t include specific case examples.

“My concern is that the public reads this report, they don’t understand the details, the individuals who are behind these numbers, and this type of report causes undue or exaggerated anxiety in the public,” Clarke said. “The individuals who are under enforceable removal orders in the serious criminality category are generally only a small fraction of individuals in that entire pool.”

Of the more than 34,000 cases in the agency’s wanted inventory, 2,800 were criminal.

Indeed, to a certain extent, this report provides a limited perspective on the current state of removals and it fails to provide a nuanced approach to a complex procedure. I have spoken many times on this topic. Canadian laws require CBSA Officers to adhere to procedural fairness and, in our experience, CBSA Officers in Manitoba are vigilant in following Canadian laws and regulations.

In addition, I strongly agree with my friend and advocate Dr. Lori Wilkinson who has been doing significant research at the University of Manitoba’s Immigration Research West group:

While Wilkinson said she is glad to see the immigration removal audit, she is worried that the report could have a negative impact on people who are in Canada legally.

“There could be backlashes against immigrants,” she said. “Lots of people make the leap that if the deportation system isn’t working, then the immigration system must not be working.”

This is absolutely correct. In my view, IRCC Officers and CBSA Officers are working hard to ensure integrity in the system and they take deportation orders seriously.

On the flip side, let us be reminded of deportations that have been rushed and have led to disastrous results. One example that comes to mind is the case of Lucia Vega Jimenez from 2014. She was a failed refugee claimant from Mexico with an enforceable removal order as described in the Auditor General’s report. While she was on the verge of being deported, she took her own life in Vancouver. Advocates point to the serious risks to her life. On its face, I believe anyone can understand that if she was so afraid to go back to Mexico she would take her own life to prevent deportation, she had genuine fear.

In my view, it is important to consider the people behind these numbers. Every case is different, and I can tell you from many years of experience, immigration is messy. As correctly noted by the report, CBSA Officers focus their resources on serious criminals and ensuring the safety of the Canadian public. This is exactly how the system is designed to work.

Slaw: On the Importance of Language

The post on the use of “irregular” versus “illegal” was originally published on slaw.ca:

If you are on this site, I can assume with reasonable confidence that you are already a wordsmith. I have always had an affinity for the label “wordsmith”, possibly because I am reminded of “blacksmith” and it conjures skills of which I have none. I do, perhaps, have some skills related to language, although I suppose this is also debatable. Notwithstanding, even from my humble position, I am both angered and ashamed by the comments of Ontario Minister of Social Services Lisa MacLeod and her dim view of the importance of language. In particular, her comments related to the Safe Third Country Agreement and the language used to describe those individuals who cross the border into Canada from the United States.

Language is important. The terms we use to describe how these individuals and families have crossed into Canada must be correct. And yes, there are correct terms to use and there are incorrect terms. In particular when we are dealing with a point of settled law within the Canadian immigration system. In my view, an elected official has the duty to learn and employ those correct terms so that she can understand the issues to deal with them.

In her words, as reported by CTV News:

“I just feel that it became more of a matter of rhetoric and who’s Canadian, who’s not; irregular, illegal,” MacLeod told reporters at a press conference in Ottawa. “The words around that became far more important than actually fixing the problem.”

The debate between irregular entry vs illegal entry is not new. I have published posts and given many interviews on CTV, CBC and other media outlets on issues related to the irregular crossings into Manitoba.

Typically, before I discuss the issues with reporters, we have a conversation to ensure that we are using the correct, legal terminology. Occasionally, the reporter will slip in an incorrect term and I find myself in an internal debate whether to interrupt and correct or to let it slide and try to inject the correct term in my answer so that acute listeners will catch the error.

I want to be clear on this point: refugee claimants entering Canada are not entering “illegally”. In an op-ed published in the Toronto Star by Osgoode Hall law students Jesse Beatson and Kylie Sier (who, no doubt, received good legal experience at PCLS):

“Irregular” is used by the Immigration and Refugee Board of Canada to describe border crossings “between ports of entry.” This is not about people trying to sneak across the border undetected, but about the right to seek asylum from persecution. The Universal Declaration of Human Rights protects this right. Importantly, the 1951 Refugee Convention and the 1967 Protocol, to which Canada is a signatory and which are incorporated into Canadian law, both recognize that refugee claimants should not be penalized for irregular entry to seek refuge.

They go on to explain:

Applying the term “illegal border crossing” to refugees is based on a misconception. Irregular entry is not an offence in the Criminal Code, and should not be labelled as such. The language of illegality also tends to violate the presumption of innocence. This is a principle that should inform ethical journalism.

In my view, it is even more important that our elected representatives use the correct terms and they understand the power & importance of language. If she is so keen on “fixing the problem”, perhaps she should realize that using incorrect language is part of the problem.

MCJA Conference: Guest Speaker on Criminal Justice

On 9 November 2017, Alastair will be a Guest Speaker at the annual Manitoba Criminal Justice Association conference. Here is a description of the Association and its importance in criminal justice:

criminal justice

The Manitoba Criminal Justice Association (MCJA) is a provincial affiliate of the Canadian Criminal Justice Association (CCJA) and has been actively engaged in promoting crime prevention initiatives in Manitoba for over 40 years. It is an independent, community-based organization, governed by a Board of Directors which is comprised of citizens interested in achieving the objectives of the Association. The Manitoba Criminal Justice Association exists to promote rational, informed, and responsible debate in order to contribute to the development of a more humane, equitable, and effective justice system.

Alastair will be speaking on criminal justice issues and the rights of refugees. He regularly represents refugees at the IRB, Refugee Protection Division. He also represents clients at all levels of tribunal, as well as Federal Court on appeals. He also assists clients who have criminality issues who face Section 44 Reports from CBSA and foreign nationals who have criminal convictions and need a TRP to enter Canada. His talk will cover:

The talk is part of a larger series that includes many perspectives and we welcome any questions at the end of the presentation. Please note that Alastair cannot give any legal advice on any individual matters at the conference.

MCJA is currently still accepting new registrations which can be done through their website here.

Participants at the conference will have access to all materials provided by MCJA. The purpose of the workshop is to foster coordination between agencies and to make sure that refugees are provided with sound advice and resources to potentially establish themselves in Canada.

SCC Decision: Conditional Sentences

Today, the Supreme Court rendered an important decision on the rights of permanent residents with criminality issues. The Tran decision from Federal Court of Appeal was overturned and the highest court in Canada has held that “conditional” sentences from criminal court are not considered “imprisonment”. This has a huge impact on minor convictions where the Sentencing Judge have a conditional sentence to the offender. Those Permanent Residents were subject to harsh treatment by CBSA and, in turn, the tribunal and they faced deportation.

Here is a key section from the decision by Justice Côté, paragraphs 32 to 34:

If s. 36(1)(a) is interpreted such that a conditional sentence is a “term of imprisonment”, absurd consequences will follow. As previously mentioned, conditional sentences are “for less serious and non-dangerous offenders” (Proulx, at para. 21). Thus, more serious crimes may be punished by jail sentences that are shorter than conditional sentences imposed for less serious crimes ― shorter because they are served in jail rather than in the community. It would be an absurd outcome if, for example, “less serious and non-dangerous offenders” sentenced to seven-month conditional sentences were deported, while more serious offenders receiving six-month jail terms were permitted to remain in Canada. Public safety, as an objective of the IRPA  (s. 3(1) (h)), is not enhanced by deporting less culpable offenders while allowing more culpable persons to remain in Canada.

   It would also be absurd for offenders to seek prison sentences instead of conditional sentences so that they can remain in Canada, as Mr. Tran has done in this case. Conditional sentences are designed as an alternative to incarceration in order to encourage rehabilitation, reduce the rate of incarceration, and improve the effectiveness of sentencing (Proulx, at para. 20). These objectives would be sabotaged if individuals who are subject to conditional sentences sought to replace them with prison terms, thinking the latter to be their only path for a future in the Canadian communities from which incarceration would remove them.

For these reasons, the phrase “term of imprisonment” in s. 36(1) (a) of the IRPA  cannot, by either standard of review, be understood to include conditional sentences.

As noted above, the Tran decision from the FCA has caused harsh, even “absurd” consequences for our clients. We strongly agree with Justice Côté’s decision and this has had an immediate impact on one of our clients.

12 Month Conditional Sentence

Our client was given a 12 Month Conditional Sentence in Feb 2017 and his matter was referred to the Immigration and Refugee Board of Canada, Immigration Division. Based on the SCC Tran decision, he now has a good chance of staying in Canada with his Canadian children. His conditional sentence will now not be counted as “imprisonment” and, therefore, the SCC decision will have a strong positive impact on his case.

Congratulations to Peter and all the lawyers who worked on the Tran decision!

Free Presentation: Law in the Library – Transcona

Please note that Alastair Clarke will be giving a free presentation on citizenship law and other changes to immigration law at Transcona Library as part of the Law in the Library Series presented by the Community Legal Education Association.

Here is a description of the program:

Are you new to Canada? Are you looking for help in some legal aspects of immigration? Join us for a free program to help provide you with legal information that you may need. Our guest lawyer Alastair Clarke will cover issues like immigration options, sponsorship, citizenship applications, bringing family members to Manitoba, MPNP and other options. Please bring questions for the lawyer to answer!

For more information, contact the library directly at 204-986-3954.

Law in the Library: Feb 8th Registration

Winnipeg Public Library has opened the registration for the Feb 8th presentation. For more information, CLICK HERE.

LAW IN THE LIBRARY

Tips for Spousal Sponsorship Appeal

We sat down with Alastair Clarke, Barrister & Solicitor, to discuss ways to win a Spousal Sponsorship Appeal. Mr. Clarke has handled many of these over the years. Hopefully, these questions and answers will help you and your family reunite in Canada.

Spousal Sponsorship appealQ: What is the most important factor to win a Spousal Sponsorship Appeal?

A: Good question. As I learned from my mentor, Mendel Green, Q.C. (a.k.a. the Godfather of Canadian Immigration Law), the most important factor is PREPARATION. The Sponsor and the Applicant will both provide oral testimony at the tribunal. The representative of the government will be cross-examining both of them, as well as any other witnesses. The cross-examination may be thorough and they may ask questions about any aspect of the application. Credibility is frequently a big issue at the hearing. In addition to the cross-examination, the Member (ie. Judge) may also ask probing and direct questions of the Sponsor, Applicant and witnesses. In my experience, the best way to prepare for the hearing is to prepare, prepare and prepare!

The biggest difference between a successful case and a refusal is preparation.

Q: What are the most common reasons for refusal?

A: I won’t be able to discuss all the reasons that I seen applications refused but I can cover the most common reasons why Spousal Sponsorship applications are refused:

  1. Genuine Marriage – the CIC Officer determined, for a variety of reasons that the relationship was not real and the subsequent marriage is not genuine. This is surely the most common reason that applications are refused.
  2. Primary Purpose test – the CIC Officer determined that the marriage was entered into primarily for immigration purposes. This has become increasingly common and it is a common reason for refusal for Arranged Marriages.

Q: What happens at the Tribunal?

A: The hearing at the tribunal, the Immigration and Refugee Board, Immigration Appeal Division, is a hearing de novo. “Hearing de novo” is a legal term that means that the tribunal makes a new determination based on everything that has happened with the individuals right up to the time of the hearing. In other words, the tribunal is not limited to the documents that were sent to CIC the time of the application. In other cases, lawyers are restricted to rely only on evidence that has been previously submitted to the original decision-maker and we cannot submit new evidence. The fact that Spousal Sponsorship appeals are hearings de novo is a significant tool for us to win cases.

Q: What is the craziest case you have handled?

A: I have handled many “crazy” cases over the years. Back in 2007, when I was an articling student at Green & Spiegel LLP in Toronto, I helped a couple from Hungary whose Spousal Sponsorship was refused. The husband was 70 years old and his spouse was 19 years old at the time. The husband had been married many times before in Canada and he was getting back to his roots in Hungary. We called many witnesses at the IAD and the best witnesses were the parents of the spouse. They were much younger than the husband but they got along with him very well. They gave extensive testimony about how he treated her as his wife and they were fully supportive of the relationship. Despite the 51 year age difference, we won the appeal.

Sometimes the “crazy” cases seem very normal at first. Another case I handled involved a sweet couple from India. On paper, they were the perfect couple. They came from families who were very well connected and they had known of each other for many years prior to the marriage. Their wedding was a large, traditional ceremony with more than 1000 people who celebrated. They provided extensive evidence of their history and their relationship.

Q: So why was that one refused?

A: I did an investigation into the application and discovered that the bride’s sister was promised to a man from another family. At the last minute, she refused to get married and he was deeply affected. His family was very angry and they sought revenge. We discovered that his family called the Canadian Immigration Hotline and they reported that the marriage of my clients was a sham. The CIC Officer took notes and included a “poison pen letter” in the file with details.

Q: Did you win?

A: Yes, we were able to prepare our clients and they gave testimony on the situation. The IAD accepted that the “poison pen letter” was not credible and we won the appeal.Spousal Sponsorship Appeal

Q: What is the biggest challenge with Sponsorship Appeals?

A: One challenge is the long wait. From the time we file the Spousal Sponsorship appeal, it can take up to 18 months until we actually have our hearing at the tribunal. During these 18 months, we advise our clients to be with their spouse and/or their families. It is very important that they maintain a strong relationship right up to the date of the hearing. We work with the IAD to get a positive result as quickly as possible.

Q: Which case are you most proud of?

A: I love these appeals. Helping couples reunite in Canada is one of the best parts of my job. Over the course of the many months before a hearing, I get to know the families and the couple very well and it is a pleasure to be part of their lives.

One case that stands out is a case we won quite recently. The Sponsor is a refugee who has suffered medical issues and she is unable to birth a child. She met an old friend who had a son with a previous relationship. The Sponsor fell in love with her old friend and his son and they dreamed of having a life together in Canada. She filed the Sponsorship application but it was refused because the CIC Officer did not believe the marriage was genuine. This was a complex case and we called many witnesses. There were issues with interpretation and credibility. Part of the problems was that she had previously tried to sponsor a spouse and she admitted that it was only for immigration. In the end, we won the appeal and our client is with her son in Canada. Her husband (the Applicant) will be joining them soon.

Q: Thank you for your time!