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TOPMay 2017

Immigration Consequences for Permanent Residents Convicted of a Criminal Offence in Canada

By: Ali Esnaashari, Barrister & Solicitor

Criminal lawyers are often unsure about the immigration consequences that could befall their client as a result of a criminal conviction. This article seeks to bring some clarity to the issue, specifically in regards to permanent residents of Canada who have been convicted of a criminal offence under the Criminal Code, RSC 1985, c. C-46.

The protection of public safety and ensuring security of Canada is at the heart of the Immigration Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"). The objectives of IRPA have been outlined under section 3(1) of the Act, and include:

"(1)(h) to protect public health and safety and to maintain the security of Canadian society;

3(1)(i) to promote international justice and security by fostering respect for human rights and by denying access to Canadian territory to persons who are criminals or security risks;"

In pursuit of these objectives, a permanent resident can be found inadmissible to Canada on the grounds of security (section 34), a human or international rights violation (section 35), serious criminality (section 36) and organized criminality (section 37). If found inadmissible, a permanent resident will be issued a removal order and can subsequently be deported. Almost all criminal convictions in Canada that result in inadmissibility are based on serious criminality (section 35) and organized criminality (section 36). In this article, I outline the circumstances under which a criminal conviction could deem a permanent resident inadmissible to Canada under section 36 of IRPA due to serious criminality. Due to the limited scope of this article, the issue of organized criminality will be addressed in a subsequent piece.

Who is a Permanent Resident?

There are three types of immigration statuses under the IRPA: Canadian citizens, permanent residents and foreign nationals.

A permanent resident ("PR") is an individual who is authorized to reside in Canada on a permanent basis. There are no requirements to renew a permanent resident status and thus, many permanent residents in Canada have lived in the country for decades without applying to obtain citizenship. Unlike Canadian citizens, permanent residents could lose their status if they fail to comply with the relevant sections of the IRPA.


Bain v UBS Securities Canada Inc,
2016 ONSC 5362

By: A. Jane Milburn, Milburn & Associates

A recent trial decision from the Ontario Superior Court of Justice, Bain v UBS Securities Inc, has solidified the long-standing principle in Ontario that executive employees who are terminated without cause are entitled to wrongful dismissal damages based on their total compensation, regardless of whether it is cash or equity based. In addition, the court's decision should serve as a warning to employers who attempt to use their discretion regarding bonuses to unreasonably deprive an employee of a fair determination of his or her bonus in circumstances where that same employee has been terminated without cause or a termination is under consideration.

The plaintiff, David Bain, was 49 years old and had 14 years of service at the time of his termination. He began working for the defendant, UBS Securities Canada Inc., in June 1999 after he was recruited away from secure employment with Scotia Capital. After a series of promotions, at the time of his termination Mr. Bain held the role of Managing Director, Head of Canadian Mergers & Acquisitions ("M&A"). His compensation was comprised of a base salary of $385,000 plus bonuses and referral fees.

In 2006, there was a plan of arrangement involving various subsidiaries and affiliated companies of UBS. Following this step, the Canadian employees of these companies were advised that their salaries and bonuses would be consistent with the practices of UBS and that the Equity Ownership Plan ("EOP") was put into place in Canada effective in fiscal 2008.

In early 2013, a decision was made by UBS to close down the M&A arm of UBS in Canada. As a result of that decision, various Canadian employees were terminated, including Mr. Bain. Notwithstanding the fact that Mr. Bain had been told by his direct report, Alain Auclair, that he had outstanding performance in fiscal 2012 and the revenue for Canadian M&A had increased significantly in that same year, he did not receive a bonus for fiscal 2012 or for the three months worked in 2013.



Expert Panel Releases its Review of Canada's Environmental Assessment Process

By: Stan Berger, Fogler, Rubinoff LLP 

On April 5, 2017, the Federal Minister of Environment and Climate Change received her report from an expert panel of four, comprised of three lawyers with significant environmental and aboriginal law experience as well as a retired senior executive of a resource company.

What's New

Environmental Assessment (EA) becomes Impact Assessment (IA).
Moving beyond the biophysical environment to encompass all impacts on matters of federal interest both positive and negative.

Sustainability is central to IA. The five pillars of sustainability are environmental, social, economic, health and cultural well-being. The object of the IA must be an assurance that projects, plans and policies contribute a net benefit to the five pillars of sustainability, recognizing that trade-offs may be necessary.

Triggers for an IA. Likelihood of consequential impacts on matters of federal interest to the five pillars of sustainability should determine whether an IA is required. Federal policies, plans and programs which have consequential implications for a federal project would trigger a strategic IA.

Rights of Indigenous Peoples. Indigenous Peoples should be included in decision-making at all stages of IA in accordance with their own laws and customs. Further, Indigenous knowledge should be integrated into all phases of the IA, in collaboration with and with the permission and oversight of Indigenous Groups. The IA must reflect the principles of the United Nations Declaration on the Rights of Indigenous Peoples ( UNDRIP). Article 32 of UNDRIP enunciates the right of Indigenous Peoples to free, prior and informed consent. The Panel states: "While Indigenous Peoples have the right to say no, the Panel believes this right must be exercised reasonably". Parties would have various options including dispute resolution at various decision points to review the reasonableness of all decisions, including the reasonableness of Indigenous Groups withholding their consent to a project going forward.


Revamping the Law of Prior Consistent Statements: R. v. Khan

By:  Anna Wong, Landy Marr Kats LLP

An evidence revolution has been afoot for some years with the gradual ascendancy of a principled approach to admissibility in favour of the traditional rules-and-exceptions approach.

Marking the latest milestone in the revolution is the new analytical framework for admitting prior consistent statements articulated by Justice David Doherty in R. v. Khan.

For well over two centuries, since the famed trial of Thomas Hardy for high treason, the rule at common law has been that a witness's prior consistent statement is presumptively inadmissible. Such statement is thought to be self-serving, easy to manufacture, and so, lacking probative value. It also constitutes hearsay when tendered to prove the truth of matter asserted.

As with many evidence rules, there is an assortment of exceptions to this general exclusion, such as to rebut an allegation of recent fabrication, identification evidence, pure narrative, and narrative as circumstantial evidence. When a prior consistent statement comes in under an exception, it is admitted for a restricted purpose. The purposes differ among exceptions. For example, a prior consistent statement adduced to refute a suggestion of recent fabrication can only be used to show that the witness's story did not change as a result of a new motive to lie, and not for the truth of its contents. If a prior consistent statement is admissible under a hearsay exception, it will not be excluded by the general rule against prior consistent statements.

Against this backdrop comes R. v. Khan. The case involves a police officer charged with sexually assaulting a woman he was transporting to the police station. He searched her three times. On the third occasion, Khan pulled her top away, then looked at her chest while shining a flashlight on it. When the complainant arrived at the station and was told by another officer that she would be searched, she burst: "I've already been searched three times. Why are they searching me again?" The complainant testified at trial.
Is her prior consistent out-of-court statement about having thrice been searched admissible?


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