Paddling a Canoe While Impaired Can Lead to Deportation from Canada

January 2019

This past November, the Huntsville Forester reported that a criminal court judge had ruled that a canoe was a vessel under the Criminal Code of Canada.  This meant that charges against a man could go ahead for impaired operation of a vessel causing death.  He had been paddling a canoe that capsized, while allegedly impaired by alcohol.  The other occupant of the canoe, an eight-year-old boy, drowned.

On December 18, 2018, Canada increased the possible maximum jail sentence for those convicted of operating a conveyance (which includes a vessel) while under the influence of drugs or alcohol.  The maximum sentence is now 10 years, from the former 5 years.  This makes the possible immigration consequences much more serious.

In Canada, you can be inadmissible for ‘serious criminality’ if you are convicted of an offence for which the maximum sentence is 10 years or longer. This is contrasted to simple ‘criminality’, which is for offences with lesser maximum sentences.

The difference between ‘criminality’ and ‘serious criminality’ is significant.

  • Permanent residents are not deported for ‘criminality’. However, if they are convicted of an offence that creates inadmissibility for ‘serious criminality’, removal proceedings could be started. Permanent residents would only be able to appeal their removal orders if their jail sentences were for less than six months. If they commit or are convicted of a DUI’s outside Canada, they will have no right to appeal, regardless of the sentence imposed.

  • Formerly, temporary resident permits could be issued for foreign nationals with DUI offences by most minister's delegates. Now, it will require approval of a program manager or director. Applying for a TRP at the port-of-entry, which is commonly done by US residents, will become more difficult.

  • It is not possible to be ‘deemed rehabilitated’ of an offence that leads to serious criminality, regardless of how much time has passed since the sentence was completed. Previously, if 10 years had passed, you could be ‘deemed rehabilitated’. Now, everyone with a DUI offence committed outside of Canada will have to apply for rehabilitation. This process can take a year or longer, and now carries a government application fee of $1,000. You cannot apply for rehabilitation until 5 years have passed since you completed your sentence. Those with Canadian DUI offences will need to apply for record suspensions. These applications can only be made five years after the conviction.

  • Individuals with ‘serious criminality’ cannot make a refugee claims in Canada.

  • Citizenship applications will be delayed or voided if the DUI charges proceed by indictment, as opposed to the less serious summary process.

Fortunately, the new law will only apply to offences committed after it came into effect, as a result of a recent Supreme Court of Canada decision that limits retrospective application of new laws.  Accordingly, those with DUI offences from before December 18, 2018 will not be considered to have committed ‘serious criminality’ but only ‘criminality’, and permanent residents with historic DUI offences should not be facing deportation proceedings. 

The potential impact of this legislative change is not lost on some politicians. Senator Ratna Omidvar has been pushing for changes to reduce the impact on permanent residents.  Also, the Canadian Bar Association has advocated for changes to Canada’s immigration laws either to allow appeals for deportations due to DUI offences, or to state that DUI offences are not ‘serious criminality’ for inadmissibility purposes.  Unfortunately, there has yet to be a government response. 

Coupled with the legalization of cannabis on October 17, 2018, these changes could have a wide impact. I have been procrastinating sending out this month’s newsletter, hoping that the Canada Border Services Agency would have published guidance on how officers are to use their discretion in determining whether to pursue enforcement action.  However, we have yet to see an Operational Bulletin from CBSA to date. 

In the interim, I would highly recommend hanging up your paddle if you’ve had one too many.

No Shortcuts - Study Permit Requirements for Elementary and Secondary School Students

December 2018

Last June I did a consultation appointment for a family who wished to apply for study permits for their two children. One was an elementary school student, and the other was a secondary school student. The family was in Canada as visitors.  They had been accepted by the school board they applied to.  The school board advised that they could study in Canada for the month of June, without a study permit.  When they came to see me, the children had already been attending classes for two weeks.

I advised the family that the children required study permits, and they should stop studying immediately.  I then wrote a sharply worded email to the school board representative, outlining the applicable legislative provisions along with excerpts from the Canadian government’s website.  I received this response from the school board representative:

"Their study period is less than 6 months (ends in June) and the assumption was that they would apply for study permits for the next school year. We have been told that if the study period was less than 6 months, the minor student could attend without a permit. I’m not sure how this would cause a problem since the study period is less than 6 months and our other students have done this as well.  Each school year is September to June and students that come for one semester or less don’t typically have a study permit. I advised the family to speak to an immigration consultant since our school board can not provide immigration services. Education is provincial and our education act states that minors can be admitted regardless of status. Can they not finish the year and return to apply for a study permit for the next year (a different study period). I feel that IRCC is unclear in this case, particularly with minor students (since they are entitled to education despite status). Maybe there is a misunderstanding on this." 

 I responded as follows:

"I disagree that they were coming to study for less than six months.  Their intention was to study in June then resume their studies in September for an indefinite period.  The July-August period was a scheduled academic break and did not mean that their period of study was less than six months.  If they were only intending to study for the month of June, that would be one thing.  But they were not. 

I further disagree that minor students are entitled to education despite status.  The Education Act may permit them to enroll in school, and children in Canada without status may study tuition free, as per the attachment:

Students in Canada Unlawfully

If the student is in Canada unlawfully, section 49.1 of the Education Act provides that "A person who is otherwise entitled to be admitted to a school and who is less than eighteen years of age shall not be refused admission because the person or the person's parent or guardian is unlawfully in Canada."

The children referred to in this excerpt are already in Canada and are without status; studying without a study permit does not create further inadmissibility from an immigration perspective.  The problem with the children who are the subject of my email is that that they have legal status to be in Canada as visitors, but not as students.  Whether or not they have a right to study under provincial law does not impact their immigration status. 

Further, see http://www.cic.gc.ca/english/helpcentre/answer.asp?qnum=484&_ga=2.177633251.797021866.1528936512-339549967.1498578828

You can study in Canada without a study permit if:

  • the duration of your course or program of study is six months or less; and

  • you will complete your course or studies within the time you are allowed to stay in Canada.

The duration of their course was not less than six months.  They were not going to complete their studies in June.  As such, they are not exempt from requiring a study permit just because school will break for the months of July and August. 

See also the line, ‘You must apply for a study permit if your main reason for coming to Canada is to study for more than six months.’  They intend to study for more than six months. In fact, the intended duration of their studies is indefinite.  This is an additional reason why the exemption for a six-month program is inapplicable."

I wanted to follow-up on the school board’s statement that, ‘We have been told that if the study period was less than 6 months, the minor student could attend without a permit.’ Immigration representatives have access to a special email address that can be used to ask questions about immigration law and policy. I sent an email to this address, hoping to get their position on this issue. I would have been happy to have been wrong.

After a few non-answers, I finally just received this response from Immigration:

"This is in response to your enquiry regarding eligibility to study in Canada for minor foreign nationals on a visitor status accompanying their parents who are also on visitor status in Canada.

Minor children of a temporary resident (visitor) who is not authorized to work or study require a study permit to study in Canada.

In regards to the duration of studies that the foreign national intends to undertake, please note that foreign nationals may enter Canada or remain in Canada without a study permit to attend a course or program of study of 6 months’ duration or less [R188(1)(c)]. However, the duration of the course or program of study is often a more important consideration than the number of months the foreign national intends to study. With the exception of exchange programs, even if foreign nationals plan to study for 6 months or less, if the course or program is longer than 6 months, they need a study permit. Thus, the foreign national minor may not study at the elementary or secondary level without a study permit because they intend to study for less than six months, since the duration of the elementary or secondary schooling is longer than 6 months."

So, it is clear. If you are visitors to Canada and want your child to study at the elementary or secondary school level, you need to apply for and have received a study permit, even if there are only a few weeks left in the school year. There are no shortcuts.

The rules for children who have another type of status in Canada, or whose parents have another type of status in Canada, are different. If you are unsure if your child needs a study permit, please contact our office.

How will the Canadian government use my fingerprints? A Primer on Biometrics

November 2018

The Canadian government is expanding the use of biometrics information when determining who to allow to enter Canada. First, some information on biometrics:

What are biometrics?

            Biometrics consist of your photograph and fingerprints. 

Why does the Canadian government collect biometric information?

            By collecting fingerprints and photographs at the time an application is made, Canadian border officials can easily confirm the identity of individuals when they arrive in Canada.  Information can be compared to previous applications, to prevent fraud.  Fingerprint information can be compared against police databases so known criminals are identified. 

Who must provide biometrics?

            Eventually it will be almost everyone who wants to come to Canada, and who is not already a citizen or permanent resident.  For now, it only applies to individuals from certain countries.  This link will tell you if you need to give biometrics according to your country of citizenship.  

            There are exemptions.  For example, the Queen need not provide us with fingerprints.  Neither must infants.  Visitors with valid electronic travel authorizations (eTA’s) need not provide biometrics.  US citizens are also exempt, along with a few other groups of people.

When must you give biometrics?

            Biometrics must be provided when applying for visas to visit Canada, work or study permits, or for permanent residence.  Refugee claimants must also provide biometrics.

How much does it cost?

            The biometric collection fee is $85 CAD, or $170 CAD per family.  There are some other special rates and exemptions from paying the fee.  Refugee claimants, for example, are exempt.

            The biometric fee should be paid along with the application fee, to avoid delays in processing.  Individuals submitting their application in person at a Visa Application Centre (VAC) will pay the fee at the time of submission and have their biometric information collected at the same time.  Individuals applying online and by way of paper application mailed to an immigration office will receive a letter to present to a biometric collection centre. 

Where is biometric information collected?

            All Visa Application Centres (VACs) can take biometric information.  Additional VACs are being set up in countries which currently do not have one.  In the USA, there are Application Support Centres (ASCs).  Some embassies in Europe are providing biometric collection services while their VAC networks are being expanded.  Finally, certain Canadian ports-of-entry (POEs) have the equipment.  Right now, this is limited to airports, but eventually all POEs should be able to collect the information.  However, only individuals eligible to apply at a POE can have their biometrics collected there.

            Notably, there is currently no way to provide biometrics within Canada.  In a few months, Service Canada locations will be providing this service. 

            These links will help you find where you can provide biometrics:

Visa Application Centres (VACs) – this link also has the list of POEs, through a pop-up window

Application Support Centers (ASCs) in the United States

Temporary locations in Europe

How long is the biometric information valid for?

            You must have your biometrics taken every 10 years.  This is significant, because a permit will not be issued for longer than what your biometric information is valid for.  If you are applying to renew a work or study permit, it is important to know not only when your passport will expire, but also your biometric information.  Otherwise, your permit may be issued for less time that you wish.

            Use this link to determine how long your biometric information is valid for.

            For reasons I do not understand, if your biometric information from a temporary resident application is still valid, you must still give new biometric information when you apply for permanent residence.  

What if I can’t give my biometric information?

            There is an exemption available when it is ‘impossible’ or ‘not feasible’ to provide the information.  For example, it would be ‘impossible’ for someone with amputations to give fingerprints and they would request an exemption from this portion of the requirement.  ‘Not feasible’ is a more difficult requirement.  It should apply where urgent travel is required, or where the person cannot travel to a biometrics collection facility.  However, as this tweet from one of my colleagues to Immigration indicates, they are going to be very stingy in granting exemptions for the ‘not feasible’ ground:

 

The big question is, what is the Canadian government going to do with all of this personal information they are collecting?

Once the biometric information is collected, it is sent to the Royal Canadian Mounted Police (RCMP). The RCMP screens for Canadian warrants, convictions, refugee claims, prior removals, and prior temporary or permanent applications.  The information is automatically checked against USA immigration fingerprint holdings, although it appears not to check against USA criminal databases.  Finally, the information is also checked against UK, New Zealand, and Australian immigration holdings, as Canada shares its biometrics information with these countries.   

After these checks are made, the personal information (name, date of birth) will be deleted, but the biometrics information itself will be kept in a national repository for screening and storage.

In terms of how the information is used to confirm the identity of a person entering Canada, this too is an evolving process as equipment becomes available. Currently, only major airports have automated, self-serve primary inspection kiosks (PIKs).  Travellers using these kiosks can scan their passports, make on-screen declarations regarding items they are bringing into Canada (they could also do this in advance using an eDeclaration app and then scanning the QR code upon arrival), and have their fingerprints verified and photo taken.  Facial recognition technology is used to match the photo with the biometric information. 

At other ports-of-entry, equipment has been installed to verify fingerprints, but this is only used where the person is referred to secondary inspection. Eventually all ports-of-entry will have the same technology. 

This may seem futuristic, but it is only the start. Transport Canada has a pilot project with the USA, the Netherlands, Interpol and others to test a new airport security system called the “Known Traveller Digital Identity”.  Biometrics are just a stepping stone.  This more extensive system would see that both travel documents and biometrics would be digitized and sent to authorities in advance of the person arriving at the country.  This will allow border officials to pre-screen passengers even before their flights take off.  The information sharing is done by a smartphone app.  That’s either very cool or scary, depending on how you view this sort of thing.

Predicting Express Entry Scores is an Inexact Science

August 2018

In my November 2016 newsletter I made a prediction of what the Express Entry minimum comprehensive ranking system (CRS) score would drop to in 2017.  I based my forecast on the 2017 immigration levels plan and the composition of the Express Entry pool of applicants based on the 2015 Express Entry Year-End Report, which at the time was the most recent source of data available.

My prediction was 370 points. Boy, was I ever wrong.