Slaw: On the Importance of Language

The post on the use of “irregular” versus “illegal” was originally published on

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.


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!