Episode 25 – Protecting Foreign Workers and Employer Compliance Inspections, with Meera Thakrar

The Government of Canada, as well as several provincial governments, have introduced several measures to protect temporary foreign workers and maintain the integrity of Canada’s foreign worker programs.

Meera Thakrar is a Canadian immigration lawyer whose practices focus on helping companies recruit and retain foreign workers.

Meera joins Peter Edelmann, Deanna Okun-Nachoff and Steven Meurrens to discuss various measures that different levels of government have introduced to protect foreign workers, challenges do governments face in this task and how employer compliance inspections work.

2:15 – Deanna discusses vulnerabilities that caregivers face. These include nonpayment of wages, excessive hours and more. What aggravates the situation is that because caregivers typically seek permanent residency and reporting abuse could potentially jeapordize this.

4:30 – What are some of the motivations of caregiver employers who exploit their foreign workers? What are some possible solutions to reduce the vulnerability of caregivers?

10:20 – Do what extent does the caregiver program deflate Canadian wages? To what extent does the fact that foreign workers provide cheap labour, making goods and services affordable, create a disincentive to stricter enforcement of foreign worker rights.

12:20 – An overview of how the government’s enforcement of compliance in the Temporary Foreign Worker Program and the International Mobility Program works.

14:55 – Canada and British Columbia have an agreement whereby foreign workers who have been exploited can get a six month open work permit. How is this working out? What about the new British Columbia law to protect vulnerable foreign workers? How likely is that to succeed?

25:30 – Peter summarizes a criminal case that he had recently in which a trucking company was charged criminally for paying foreign workers by the mile instead of by the hour.

33:00 – Meera summarizes the case of a Canadian mine was fined for hiring Americans at a higher wage than the mine told the government that it would pay them.

36:20 – Meera discusses a case in which a company faced fines for not tracking the hours that a senior manager who made $500,000 a year was working.

40:00 – Steven discusses a case in which a company got fined for providing training to a worker in a different occupation than what they were supposed to be working in.

41:00 – What are ways to target policies and laws to actually protect foreign workers? Why do authorities seem to be keener to punish workers than prosecute employers?

 

 

Episode 23 – Appellate Advocacy Tips, with Former Supreme Court of Canada Justice Marshall Rothstein

Marshall Rothstein served as a Justice on the Supreme Court of Canada from 2006 – 2015. He previously was a Judge on the Federal Court of Canada and the Federal Court of Appeal.

Garth Barriere is a criminal defence attorney in Vancouver. He was counsel in Khosa v. Canada (Citizenship and Immigration, a major Supreme Court of Canada immigration decision in which Justice Rothstein wrote a concurring opinion.

In this episode Justice Rothstein provides tips for written and oral advocacy. While the focus is on appellate litigation, anyone interesting in strengthening their advocacy skills will benefit from what he has to say. We also discuss the Supreme Court of Canada’s decision in Khosa v. Canada (Citizenship and Immigration), and its impact on administrative law in Canada. It is a frank conversation.

9:00 – What it was like for Justice Rothstein when he was appointed to the Federal Court of Canada and to adjudicate cases on which he had no previous experience?

12:30 – How was it different being on the Federal Court vs. the Federal Court of Appeal vs. the Supreme Court of Canada?

14:20 – What strategies or approaches would Justice Rothstein suggest for counsel appearing at the appellate level instead of at the trial division?

18:23 – What is the most important thing to remember in written advocacy? What is “point-first writing?” A helpful piece to read on this can be found here. http://www.ontariocourts.ca/coa/en/ps/speeches/forget.htm

21:10 – What tips does Justice Rothstein have for oral advocacy at the Supreme Court of Canada?

31:30 – What makes a good factum? Does Justice Rothstein believe that the IP bar produces the best factums?

36:20 – What was the Supreme Court of Canada decision in Canada (Citizenship and Immigration) v. Khosa about?

41:15 – How did Khosa change the standard of review analysis?

45:00 – Justice Rothstein discusses his dissent in Khosa and his thoughts on Dunsmuir v. New Brunswick, the leading case on standard of review.

57:40 –  Garth Barriere, who was counsel in Khosa, offers a critique of the Supreme Court of Canada’s standard of review jurisprudence.

1:01:20 – What, if any, guidance should be given to judges regarding when they should show deference and when they shouldn’t?

1:08:00 – At the time of Khosa did Justice Rothstein predict how far along the deference path that standard of review deference would develop?

#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.