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Episode 9 – Garth Barriere & Eric Purtzki on retrospective laws, plus Donald Trump and Canadian immigration

Steven Meurrens

Garth Barriere and Eric Purtzki joins Peter Edelmann and Steven Meurrens to discuss the constitutionality of laws that are retroactive or retrospective.

Garth and Eric are both criminal defence attorneys in Vancouver.  Both have appeared before the Supreme Court of Canada on numerous occasions.

A retrospective law is a piece of legislation that operates going forward, but looks to change the consequence for a past action.

A retroactive law changes the legal consequences of what the act was in the past. It changes someone’s legal status as it was in the past.

There is a presumption against both retrospectively and retroactivity in Canada, however, there is no general Charter protection against it.

The Supreme Court of Canada in R. v. K.R.J.can be found here. Garth and Eric both appeared as counsel in this case, which formed the basis for our discussion.  In this case, the Supreme Court affirmed that while criminal laws should generally not operate retrospectively, an exception would be made in the case of sentencing for sexual offenders involving minors.

In reading this case, and listening to the summary of it, it is helpful to keep section 11(i) of the Charter in mind, which states:

11. Any person charged with an offence has the right …
(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment

It is also helpful to understand how s. 1 of the Charter works.  Section 1 of the Charter states that:

  1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

As such, a breach of s.11(i) of the Charter will still be constitutional if the law is demonstrably justified.

The Supreme Court of Canada decision in Canada (Attorney General v. Whaling) .can be found here. Garth and Eric were both counsel in this case, in which the Supreme Court found that the retrospective changing of parole requirements to make them more onerous was a form of punishment, and unconstitutional.

Another leading Supreme Court of Canada case on retrospective legislation, which Garth briefly mentions, is R. v. Dineley, in which the Supreme Court of Canada stated that where new legislative provisions affect either vested or substantive rights, retrospectivity is undesirable, and accordingly Parliament must have a clear intent that legislation be retrospective.

The Supreme Court of Canada decision in Canada (Citizenship and Immigration) v. Khosa that Peter mentions can be found here. In this case, the Supreme Court ruled that courts should give a measure of deference to administrative tribunals, including the Immigration and Refugee Board.  Garth was lead counsel in this case.

Starting at around the 31 minute mark we discuss the retrospective nature of the 2013 amendments to the Immigration and Refugee Protection Act.  Previously, a permanent resident who had been convicted of an offence and got a sentence of 2 years or more could not appeal a deportation to the Immigration Appeal Division.  In 2013, the 2 year sentence rule was changed to 6 months, and applied retrospectively.

Finally, Peter’s factum in Tran v. Canada (Public Safety and Emergency Preparedness), which the Supreme Court of Canada will hear in January, can be found here.

Episode 8 – Lobat Sadrehashemi on whether Maryam Monsef’s Canadian citizenship could be revoked.

Steven Meurrens

Lobat Sadrehashemi joins Peter Edelmann, Deanna Okun-Nachoff and Steven Meurrens to discuss issues in Canada’s citizenship revocation and refugee determination processes. The recent controversy around Maryam Monsef guides our discussion.

Lobat Sadrehashemi is an Associate Counsel at Embarkation Law Corporation.  She is also the Vice President of the Canadian Association of Refugee Lawyers (“CARL“).

Sorry about the sound quality at some points in this episode. We’re still getting the hand of this equipment.

CARL’s reform proposals for Canada’s inland refugee determination system and other aspects of the immigration system, which we recently submitted to the Ministers, their staff, IRCC, and the Immigration and Refugee Board can be found here.

Lobat’s paper on Refugee Reform and Access to Counsel in British Columbia can be found here.

Episode 5 – Marilyn Sanford -Search of Electronic Devices at the Border

Steven Meurrens

Marilyn Sanford joins Peter Edelmann and Steve Meurrens to discuss whether the Canada Border Services Agency can search people’s electronic devices.

In addition, we discussed the recent stay of proceedings in the Nuttall decision, a well publicised case in which two individuals were charged with attempting to blow up the BC legislature. Marilyn was counsel to Mr. Nuttall, and provided her insights on the case.

Finally, Peter and Steve touched on recent developments in Canadian immigration law, including the Owner Operator Labour Market Impact Assessment recruitment exemption, a puzzling case in which the Federal Court upheld an officer’s determination that people who extend their visitor status in Canada cannot complete short term courses during that extension without first leaving Canada, and the Supreme Court of Canada dismissing leave in the Torres case.

Episode 1 – Peter Edelmann, Deanna Okun-Nachoff, Steven Meurrens

Steven Meurrens

In this introductory episode Peter Edelmman, Deanna Okun-Nachoff, and Steven Meurrens discuss recent developments in Canadian immigration law, as well as some recent news items and a specific case.

00:30 – 8:39 – Peter, Deanna, and Steven discuss how immigration policy in general has changed under the Liberal government, with a specific emphasis on the Liberal’s repealing the portions of Bill C-24 which revoked the Canadian citizenship of certain individuals convicted of certain offences related to national security.

8:39 – 19:03 – The conversation shifts to Donald Trump, BREXIT, and whether Canada under the Liberal government is bucking an international trend towards increased protectionism.

19:03 – 25:06 – In discussing immigration policy under the new Liberal government, we note that unlike under the Conservatives, where Jason Kenney seemed to be directly or indirectly responsible for all government departments related to immigration law, the Liberals are providing autonomy to the Ministers of each Ministry, and what impact that this may have.

25:06 – 38:50 – Peter Edelmann leads off a discussion on Immigration, Refugees and Citizenship Canada’s current consultations regarding immigration levels planning in Canada. The discussion becomes a very philosophical one about whether centralised planning is necessary, what Canada’s population should be, and how Canada attempts to meticulously control permanent resident numbers while at the same time does not have an overall plan for how many temporary residents are admitted.

38:50 – 41:25 – Steven Meurrens provides a case summary of Sendwa v. Canada (Citizenship and Immigration), 2016 FC 216. In this decision the Federal Court greatly broadened the ability of Canadian permanent residents and citizens to sponsor their relatives. Canadian immigration law provides that a relative of a sponsor, regardless of age, can be sponsored by a Canadian citizen or permanent resident, if that sponsor does not have a spouse, a common-law partner, a conjugal partner, a child, a mother or father, a relative who is a child of that mother or father, a relative who is a child of a child of that mother or father, a mother or father of that mother or father or a relative who is a child of the mother or father of that mother or father. Traditionally IRCC interpreted this as requiring that the Canadian sponsor not have a living spouse, child, parent, grandparent, etc. However, the Federal Court clarified that this is too stringent, and instead stated that the law only requires that the Canadian sponsor not have a sponsorable child, parent, grandparent, etc. The distinction will likely be important for Canadians who either do not meet the income requirements for the parents and grandparents program, or whose parents may be medically inadmissible.

41:25 – 53:16 – Deanna Okun-Nachoff comments on how John McCallum, Canada’s Minister of Immigration, Refugees and Citizenship Canada, recently committed to “getting rid of silly rules.” She discusses some of the rules that she finds silly, including the Temporary Resident Permits issued to victims of human trafficking, and numerous quirks of Express Entry.