#22 – The Implications of R v. Wong

R v. Wong is a 2018 Supreme Court of Canada decision in which the Supreme Court of Canada had to determine whether a person could withdraw a guilty plea if they they did not know that their pleading guilty would lead to deportation.

Peter Edelmann and Erica Olmstead are lawyers at Edelmann & Co. They represented the accused at the Supreme Court. Lobat Sadrehashemi represented one of the invervenors, the Canadian Association of Refugee Lawyers.

2:00 – The facts of the case. Mr. Wong pleads guilty to trafficking cocaine. He learns afterwards that this will lead to his deportation. He did not know this when he pled. Can he reverse his plea?

4:29 – How does a guilty plea work? Is it like in the movies?

7:40 – What was the judicial history of this case?

8:50 – What was the perspective of the Canadian Association of Refugee Lawyers regarding whether previously unknown immigration consequences should result in a person being able to set aside their guilty plea?

14:00 – When Peter, Erika and Lobatt talk about whether people should know about the immigration consequences of a guilty plea, what does “immigration consequences” mean? How did the court rule?

19:00 – If the Crown or a judge now have the obligation to ensure that an individual is informed about immigration consequences when they make a guilty plea, should defense counsel worry that this might usurp their role?

19:30 – What is problematic about the incompetence of counsel framework?

23:40 – What was the majority ruling in R v. Wong?

25:06 – The court ruled that to set aside a guilty plea a person has to show that their plea would have been different. What does this subjective requirement look like?

33:18 – At what point in the criminal justice system would someone’s immigration system become known?

34:45 – How complicated are the immigration consequences of a guilty plea? What level of immigration consequences should determine whether a guilty plea is informed? Is it just deportation? Or should it be other things, such as inability to sponsor a spouse, or being ineligible to apply for citizenship, for example.

Episode 21 – What a Thirty Year Career as an Immigration Lawyer was Like, with Darryl Larson

Darryl Larson practiced immigration law in Vancouver, British Columbia for almost thirty years. He was a former Chair of the Canadian Bar Association of British Columbia’s Immigration Section, counsel to both individuals and corporations, at one point represented China’s most wanted fugitive, and successfully implemented a succession plan when he retired in 2018.

In this episode Peter, Steven, Deanna and Darryl discuss Darryl’s career as an immigration lawyer in a candid discussion about what practicing immigration law is like.

00:51 – Why did Darryl get into immigration law? (Darryl’s answer really becomes a tale of his move from Edmonton to Vancouver).

8:20 – Who were Darryl’s initial clients? How did Darryl get his initial clients?

11:15 – What was practicing immigration law like in the 1990s compared to what it’s like now?  Was the introduction of the IRPA really that big a game changer?

18:15 – What steps did Darryl take to become an expert in the area of immigration?

20:00 – How did Darryl go from practicing mainly immigration enforcement to developing a corporate immigration practice?

22:30 – What were some of Darryl’s most memorable cases?

37:45 – How did some of those cases change Darryl’s perspective on being an immigration lawyer.

41:00 – What did the last ten years of Darryl’s practice look like? How did succession planning work?

43:00 – What would Darryl say to people looking to enter the immigration field?

44:00 – Did Darryl encourage his kids to go to law school?

44:55 – Where does Darryl see the profession going in the next 4-5 years?

48:50 – What things does Darryl think he did right? What things would Darryl have done differently?

52:00 – Does Darryl think that there has been a decline in the number of sole practcioners practicing immigration law?

Episode 20 – An Overview of Canadian Medical Inadmissibility Law, with Erin Roth

Erin Roth is a Lawyer with Edelmann & Co. Her work involves court proceedings regarding Extradition and Mutual Legal Assistance requests from foreign states and civil litigation on behalf of government agencies.

In this episode Deanna and Erin discuss issues in Canadian medical inadmissibility law.  When can someone be inadmissible to Canada because they are sick?  How does one confront such an allegation? What changes are upcomming?

1:30 – This episode was recorded in November 2017. Deanna, in an introduction to the episode, provides an overview of the changes to Canadian medical inadmissibility law that the Government of Canada announced would be taking place this summer.

6:30 She explains the conditions for which a country will extradite an individual, the international treaties that must have been ratified by the Parties as well as the concept of double criminality.

8:50 Amanda explains the second criteria for extradition which is that it be an indictable offence with a minimum prison sentence of two years.

13:00 We ask about the process of extradition from foreign countries to Canada. Amanda explains that her department is not responsible for these, and she describes the procedures to be followed in such scenarios.

14:45 Amanda explains the extradition treaties to which Canada abides to and the differences between them.

28:00 – 

Episode 19 – An Introduction to Canadian Extradition Law, with Amanda Lord

Amanda Lord is a lawyer in the Criminal Law and International Assistance group at the Department of Justice of Canada. Her work involves court proceedings regarding Extradition and Mutual Legal Assistance requests from foreign states and civil litigation on behalf of government agencies.

In this episode we discuss the current state of Extradition Law in Canada.

2:30 Amanda Lord clarifies the distinction between extradition and immigration deporting proceedings. It is a different process with a different set of principles that apply, so it is important that people understand what extradition entails.

6:30 She explains the conditions for which a country will extradite an individual, the international treaties that must have been ratified by the Parties as well as the concept of double criminality.

8:50 Amanda explains the second criteria for extradition which is that it be an indictable offence with a minimum prison sentence of two years.

13:00 We ask about the process of extradition from foreign countries to Canada. Amanda explains that her department is not responsible for these, and she describes the procedures to be followed in such scenarios.

14:45 Amanda explains the extradition treaties to which Canada abides to and the differences between them.

18:45 An overview of the committal process and Charter protections.

25:45 The question of where an individual can be prosecuted is one that is commonly misunderstood. Amanda explains that foreign states decide if they can prosecute a person for offences committed outside their boundaries. Persons who commit offences in Canada may still be at risk of extradition where the effect of the offence is felt in a foreign state. An example would be sexual exploitation of children over the Internet though explicit messaging and photos, or distribution of child pornography.

36:13 An overview of how to challenge the prosecutor’s evidence.

43:00 Amanda provides examples of cases that resolve by way of a voluntary agreement at the Committal stage.

49:20 Amanda and Peter discuss the surrender stage.  Will a person be surrendered? If so, will there be conditions?

56:00 When should assurances be given? Would Canada extradite to countries that torture?

Episode 17 – Issues with PreClearance at Customs Offices, with Michael Greene

Michael Greene, Q.C. is an immigration lawyer in Calgary. He served as the National Chair of the Canadian Bar Association’s Citizenship & Immigration Section in 2000-2001

In this episode we discuss Bill C-23, the Preclearance Act, 2016.  This episode was recorded in June 2017.

The United States currently operates border preclearance facilities at a number of airports and ports in Canada. These are staffed and operated by U.S. Customs and Border Protection officers. Travelers pass through U.S. Immigration and Customs, Public Health, and Agriculture inspections before boarding their aircraft, ship, or train.

Bill C-23 will:

  • provide United States preclearance officers with enhanced powers, including the ability to carry firearms;
  • establish that the exercise of any power and performance of any duty or function by a United States preclearance officer is subject to Canadian law, including the Canadian Charter of Rights and Freedoms, the Canadian Bill of Rights and the Canadian Human Rights Act;
  • authorizes Canadian police officers and the officers of the Canada Border Services Agency to assist United States preclearance officers in the exercise of their powers and performance of their duties and functions;
  • allows a traveller bound for the United States to withdraw from the preclearance process, unless the traveller is detained;
  • authorize Canada to set up preclearance facilities in the United States;
  • specifies how Canadian immigration law will apply to travellers bound for Canada who are in preclearance areas and preclearance perimeters in the United States, and extends the application of other Canadian legislation that relates to the entry of persons and importation of goods into Canada to those preclearance areas and preclearance perimeters; and
  • deems an act or omission committed in a preclearance area or preclearance perimeter to be committed in Canada, if the act or omission would constitute, in Canada, an offence relating to the entry of persons or importation of goods into Canada.

The Canadian Bar Association’s comments can be found here – http://www.cba.org/CMSPages/GetFile.aspx?guid=1b0e8f11-c92b-4d80-859b-1e06c379a538

A copy of the Agreement on Land, Rail, Marine and Air Transport Preclearance Between the Government of Canada and the Government of the United States of America is embedded below.

http://meurrensonimmigration.com/wp-content/uploads/Preclearance-Agreement-reduced-size.pdf

#18 – The Deportation Consequences of Criminal Records

The Supreme Court of Canada in October issued its decision in R v. Tran, a case which Peter litigated. Deanna, Peter and Steve discuss the issues that the Supreme Court addressed in this landmark decision, including whether conditional sentences are terms of imprisonment for the purposes of deportation and retrospectivity in law.

This was the first of two Supreme Court cases that Peter arguedin Ottawa this year. While he was in Ottawa for the second case, he joined Michael Spratt and Emilie Taman, the creators of the Docket, a fantastic podcast about criminal law in Canada. Peter, Emilie and Michael discussed all sorts of issues regarding the intersection of immigration and criminal law, and Peter even explained how he got into practicing immigration law.

Episode 16 – The History of the Immigration Consultant Profession in Canada

Ron McKay is a past Chair of the Immigration Consultants of Canada Regulatory Council’s (“ICCRC”) Board of Directors. He is a former Immigration Officer who spent ten years at the Canadian Embassy in Tokyo, Japan. He is also a past National President of the Canadian Association of Professional Immigration Consultants.

In this episode we discuss the history of the immigration consultant profession in Vancouver and current issues that it faces.

Topics

3:30 – We discuss the history of immigration consultants in Canada, including an in depth discussion of the Mangat case, in which the Supreme Court of Canada determined that the federal government could allow non-lawyers to practice immigration law. We also discussed the Canadian Society of Immigration Consultants (“CSIC”), the first regulatory body of immigration consultants in Canada.

24:00 – We get into governance issues at regulatory oversight issues at both CSIC and the ICCRC.

38:30 – We talk about ghost consultants and what the immigration consultancy profession can do about it.

50:00 – We discuss how the immigration consulting profession needs to be regulated yet at the same time be independent of the government.

53:00 – Steven asks how the ICCRC determines how many consultants there should be. Are we reaching a saturation point? Should there be limits as to which aspects of immigration law they can practice?

 

 

 

Episode 15 – Gordon Maynard on New Can Consulting and the Biggest Immigration Fraud in Vancouver History

Gordon Maynard is a Vancouver based lawyer who practices exclusively in Canadian immigration law.  He is a past Chair of the Canadian Bar Association’s Immigration Section.

In this episode we discuss the biggest immigration scam in Vancouver’s history, which is still unfolding. Xun (Sunny) Wang was a ghost consultant who is estimated to have made $10 million by filing fraudulent immigration applications for clients of his two firms, New Can Consulting and Well Long Enterprises.  Mr. Wang, who is currently serving an eight year jail sentence, and his staff, apparently put fake passport stamps in peoples’ passports in order to lie about having spent sufficient time in Canada to qualify for various immigration programs.  The Canada Border Services Agency is now endeavouring through what the Department is calling Project New Can to remove over 1,500 former clients of his for having committed misrepresentation to obtain Canadian permanent residency and/or maintain it.  All of the lawyers involved in this podcast have and are representing some of his clients in these removal proceedings.

Topics

1:39 – Gordon provides an overview of the timeline involved in Sunny Wang’s alleged fraud.

7:50 – What constitutes misrepresentation in Canadian immigration applications?

10:30 – We discuss some of the mechanics of what Sunny Wang is alleged to have done.

12:00 – Many New Can clients are saying that they signed blank forms and did not know that the applications were fake. Is this a defence to misrepresentation in Canadian immigration law?  Plus Steven reads a summary of what a typical Project New Can procedural fairness letter or allegation looks like.

19:30 – What is the process for having a permanent resident or a foreign national removed from Canada for misrepresentation?

23:00 – What sorts of misrepresentations can actually lead to removal from Canada?

28:30 – What sort of flexibility is there amongst enforcement officers once they have found a misrepresentation to still not have someone removed?

34:45 – As a lawyer, if a client comes to you and says “I submitted an immigration application with fake stamps in my passport and I knew they were fake,” what would you recommend? Do they have a chance of staying in Canada?  And other issues representatives need to be aware of.

 

Episode #14 – How to overcome systemic barriers in LGBTQ asylum claims, with Sharalyn Jordan

Sharalyn Jordan is an Assistant Professor in the Faculty of Education at Simon Fraser University.  She works with with community agencies that support LGBTQ and refugee mental health as they develop and assess their counselling practices and programs.

In this episode we discuss how to overcome systemic barriers in LGBTQ asylum claims.  Much of this episode is dedicated to establishing how LGBTQ asylum claimants must prove their sexual identity during their refugee claim.  How does someone from a country where being gay is illegal and who has been a closeted homosexual for their entire life prove that they are gay? What do Immigration and Refugee Board members expect?  How can counsel assist? Finally, we discuss whether LGBTQ asylum claimants should even be required to prove their sexual orientation as part of their asylum claim.

Topics

1:13 – Sharalyn provides an overview of the history of how Canada’s immigration and refugee system has restricted the ability of LGBT people to relocate to Canada.

5:12 – Canada’s immigration and refugee system often requires that people prove their sexual orientation. How can LGBT people prove their orientation?

20:00 – Are there circumstances in which an Immigration and Refugee Board member can reject a person’s claimed identity?

34:30 – What degree of membership in a LGBT community is required or the norm for an LGBT refugee claimant?

36:40 – What is the standard of persecution in the LGBT context?

44:10 – What changes does Sharalyn think need to be made to Canada’s refugee system?

53:30 – Steven expresses concerns with the idea of not questioning one’s identity, and has his concerns answered.

Episode #13 – Efrat Arbel on Problems with the Safe Third Country Agreement and Interdiction

Efrat Arbel is Assistant Professor at the Allard School of Law at the University of British Columbia.  She is an executive member of the Canadian Association of Refugee Lawyers.  A list of Dr. Arbel’s recent publications can be found here.

During this podcast we talk about three areas that Dr. Arbel has recently focused her research on.  These include the distinction between physical borders and legal borders in the refugee context, how interdiction works, and the Safe Third Country Agreement.

The Safe Third Country Agreement between Canada and the United States requires that persons seeking refugee protection must make a claim in the first country they arrive in unless they qualify for an exception to the Agreement.  In other words, an asylum seeker who wishes to seek refugee status in Canada will typically be denied the ability to do so if they attempt to enter Canada by land from the United States.

This episode was recorded before President Trump’s recent Executive Order imposed a moratorium on asylum claims in the United States. President Trump’s decision has only intensified and magnified many of the issues that Dr. Arbel discusses in this podcast.

 

 

1:43 – Dr. Arbel explains different concepts of what a country’s border is, and the distinction between the physical border and the legal border.

 

4:10 – We discuss the Canada Border Services Agency’s multiple border strategy, the role of Canada Border Services Agency liaison officers, and interdiction.

mbs

 

16:15 – We briefly summarize Canada’s new Electronic Travel Authorisation.

 

19:00 – Dr. Arbel provides an overview of global refugee flows.

 

22:50 – Can claim asylum at a Canadian embassy abroad.

 

28:30 – Peter Edelmann addresses how the previous government tried to address the supply and demand of refugee intake.

 

33:20 – Steven asks Dr. Arbel what she thinks about the Government of Canada’s recent announcement that if a certain number of Mexicans claim asylum then the visa requirement against Mexico will be re-imposed.

 

41:00 – We introduce the Safe Third Country Agreement.

 

44:00 – Why someone would prefer to claim refugee status in Canada rather than the United States.

 

51:40 – What are the exceptions to the Safe Third Country Agreement?