Canadian Bar Association (CBA) National Immigration Conference 2017

Transcription

1 CRIMMIGRATION: Issues of Note in Criminal Inadmissibility Law Canadian Bar Association (CBA) National Immigration Conference 2017 Aris Daghighian, J.D. Green and Spiegel LLP We resolve the doubts in favor of [the individual] because deportation is a drastic measure, and at times the equivalent of banishment or exile...it is the forfeiture for misconduct of a residence in this country. Such a forfeiture is a penalty. Fong Haw Tan v. Phelan, 333 U.S. 6 (1948) at para. 10 Having been provided a broad topic and wide-latitude as to which issues to address, I have narrowed my focus to a few select categories in the realm of criminal inadmissibility. My aim is not to provide an expansive overview, as that would be redundant and infeasible, but to simply highlight a few recent and notable issues that may be of interest. Contents I. Tran and the Reliance on Past Charges and Arrests... 1 i. Reliance on Police Reports Instead of Underlying Evidence... 4 ii. Right to Disclosure... 7 II. Youth Offences... 8 III. The Impact of Jordan I. Tran and the Reliance on Past Charges and Arrests There are three issues under consideration by the Supreme Court in Tran v. MPSEP, SCC File No , all of which turn on the intersection between criminal and immigration law. Among these, it is arguably the third and least discussed, which warrants the most separate attention. The first, whether a conditional sentence order can constitute a 6 month term of imprisonment for Bay S t r e e t, S u i t e T o r o n t o, O n t a r i o, Canada, M 5 H 2 Y 2 t f i n f g a n d s. c o m w w w. g a n d s. c o m

2 the purposes of IRPA ss. 36(1) and 64(2), is a discreet issue of statutory interpretation that will ultimately be decided either in the affirmative or negative by the Supreme Court. The second issue concerns whether the maximum applicable term of imprisonment is determined at the time the person was sentenced or at the time an admissibility report is prepared. This question will again likely be answered by the Supreme Court in a dispositive manner. While issues of retrospectivity do arise in Canadian immigration law more generally, they are not common, and it is not certain the arguments and ultimate holding in Tran will be more broadly relevant to other retrospective circumstances. While the outcome of the first two issues will have a significant impact on the lives of many who are affected, the ultimate holdings will likely be clear. Further, the arguments are detailed at length in the comprehensive factums of both the Appellant and Respondent. However, the final question posed in Tran is the extent to which immigration decision-makers can rely upon the existence of past arrests or charges, which were either withdrawn or did not lead to conviction. This issue is the least addressed in both factums as well as the reasons of the lower courts. It is also the issue which is least likely to lead to a clear answer from the Supreme Court due to fact specific nature of the inquiry. Nevertheless, it is a long-standing concern that has broad applicability to any context in which criminality is being assessed under Canadian immigration law. This includes assessments of TRP and rehabilitation applications, appearances before the Immigration Appeal Division, and the preparation of s. 44 reports or danger opinions. Far too often are applicants impugned in discretionary immigration decisions by the existence of past arrests, charges, or reports which never led to conviction, yet are treated by officials as dispositive proof of recidivist criminality. Likewise, far too often do applicants and counsel allow such evidence to be used without challenging its veracity or relevance. It is therefore useful to provide a summary of where the lines may currently be drawn in this regard. 1 The maxim that an individual must be considered innocent of any wrongdoing unless proven guilty does not, unfortunately, hold true under current immigration law. However, in Veerasingam v. MCI, 2004 FC 1661, the Honourable Madame Justice Snider reviewed and summated the law surrounding whether and how immigration officials are allowed to consider past criminal arrests and charges which did not result in conviction: Having reviewed the jurisprudence...i would conclude from the cases that there is a 1 N.B. Much of the information in this section is a product of the work done by co-counsel in Tran, including lead counsel, Peter Edelmann. 2

3 unanimous view that a withdrawn charge, in and of itself, may not be relied on. Veerasingam, 2004 FC 1661 at para. 5 [emphasis added] The Court then set out the applicable test in determining whether immigration officials have erred in reliance on past charges and arrests, which has since been adopted as follows: 1. Was the IAD relying on the charge to come to its conclusion or was it relying on evidence underlying the charge? 2. Is the evidence underlying the charge reliable and credible and, thus, sufficient to provide a foundation for a good-faith opinion that, having regard to all the circumstances of the case, the Applicant should be removed from Canada? Veerasingam, 2004 FC 1661 (CanLII) at para. 6. The Honourable Madame Justice MacTavish has also confirmed succinctly: In my view, a distinction must be drawn between reliance on the fact that someone has been charged with a criminal offense, and reliance on the evidence that underlies the charges in question. The fact that someone has been charged with an offense proves nothing: it is simply an allegation. Thuraisingam v. Canada (Minister of Citizenship and Immigration), 2004 FC 607 at para. 35 [emphasis added] 2 In Tran, the Delegate preparing the s. 44 treated prior charges and arrests with a great deal of significance as if they were dispositive proof of past criminal activity. He concluded the evidence showed the applicant had been involved in past criminal activity and had demonstrated a pattern of reoffending. This same error was highlighted in Younis v. Canada (Citizenship and Immigration), 2008 FC 944:...it is clear that the IAD relied on the Report and the proposed charges therein to support its finding that the Applicant had not demonstrated an appreciable degree of rehabilitation and that the Applicant posed a danger...in doing so, the IAD failed to make the necessary distinction between the fact that the proposed charges were mere allegations and that the Applicant had not been convicted of the offences...based on the evidence before it, including the Applicant s testimony in which he denied many of the allegations, and the fact that the Applicant had not been convicted of the charges set out in the Report, the IAD s finding that the Applicant committed the offences in the Report was, in my view, unreasonable. Although it was open to the IAD to consider the 2 See also Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326 at para 50 [ The jurisprudence of this Court indicates that evidence surrounding withdrawn or dismissed charges can be taken into consideration at an immigration hearing. However, such charges cannot be used, in and of themselves, as evidence of an individual s criminality. ] 3

4 evidence underlying the charges in question, it was not open to the IAD to conclude that this evidence was sufficient to find that the Applicant was guilty of the offences proposed in the Report. Younis, 2008 FC 944 at para. 55 [emphasis added]. In Kravchov, the Court confirmed that in making immigration removal decisions, past criminal charges and arrests cannot be "material to the decision": The error in law is that the Member referred to two criminal charges which were withdrawn. The Member should not have taken those charges into consideration. *** As to reference to the withdrawn charges, if they were material to the Decision and Reasons, then they would be cause for concern (Bertold v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1492, 175 F.T.R. 195, at paragraph 49 and Bakchiev v. Canada (Minister of Citizenship and Immigration, [2000] F.C.J. No. 1881, 196 F.T.R. 306, and Veerasingam v. Canada (Minister of Citizenship and Immigration, 2004 FC 1661 (CanLII), 2004 FC 1661, [2004] F.C.J. No. 2014). Kravchov v. Canada (Citizenship and Immigration), 2008 FC 101 at paras. 18, 24 [emphasis added]. Yet, in that case, the two charges were recited among a list of 26 other offences and many convictions; therefore the Court found the IAD had merely listed but not relied on those two specific charges. By contrast, in Veerasignam, the decision maker relied on myriad actual convictions for violent offences amidst which reference was also briefly made to the circumstances of a single withdrawn charge. Yet, Justice Snider ultimately found this single reference was sufficient to undermine the decision as a whole. Veerasingam, 2004 FC 1661 at paras i. Reliance on Police Reports Instead of Underlying Evidence In going beyond the existence of a charge, a decision-maker cannot merely rely on details contained in police reports as evidence of proven facts. Rather, any evidence underlying police reports must be assessed with respect to reliability and credibility. In Rajagopal, even though the applicant was convicted of the offence, the Court found immigration officials had erred in relying on the police report supporting the conviction as the presumed facts of the incident. The Court held in detail: [40] [T]he applicant in the present case is arguing that the IAD erred because it mischaracterized the evidence, by proceeding on the incorrect assumption that the report set out the facts on which the plea was based. In support of this contention, the applicant points to the fact that after describing the applicant s version of events 4

5 the IAD went on to state: [h]owever, as the appellant pled guilty to the charge as described in the report, I find that I prefer the above over the testimony of the appellant and that it is the truth as to what happened, on a balance of probabilities [emphasis mine]. The IAD further stated that it could not go behind the conviction. [41] At first glance, it is not clear whether the IAD s statement emphasized above is a finding of fact or an assumption that the plea of guilty must necessarily correspond to the facts as alleged in the police report. *** [43]...This is a mischaracterization of the nature of the police report. The report contains allegations as the officer recorded them upon investigating the complaint, not the findings of fact reached by the court that convicted the applicant and imposed sentence. Though the IAD could have referred to evidence or testimony to support an argument that on a balance of probabilities the police report likely characterized the underlying facts of the offence in an accurate manner, the IAD did not do so. It is not open to the Court to revisit or re-weigh the evidence in order to substantiate the findings of the IAD. *** [45] This standard has not been met in the present case. The IAD s finding with respect to the nature of the police report informed the rest of its analysis to such an extent that it cannot be said that any line of analysis remains to support its conclusion when this error is removed. [46] In the result, the application for judicial review is accepted. The decision of the IAD is quashed and will be sent back for re-consideration by another panel. Rajagopal v. Canada (Public Safety and Emergency Preparedness), 2007 FC 523 (CanLII) at paras [emphasis at para. 43 added, emphasis at para. 40 original]. Likewise, as the late venerable Honourable Justice Blanchard explained: [29] [T]he police report does not record findings of fact, but rather allegations of fact following an investigation. In my view, it was not open to the Board to accept as fact the allegations contained in the police report without pointing to evidence or testimony to support an argument that on a balance of probabilities the police report characterizes the underlying facts in an accurate manner. Singh Dhadwar v. Canada (Public Safety and Emergency Preparedness), 2008 FC 482 at para. 29 This jurisprudence makes clear that police reports are not the definitive version of facts surrounding incidents and cannot be blindly relied upon as such. This is especially true when, unlike in Rajagopal, the reports relied upon by an officer did not result in criminal conviction. Similarly, simply because the information comes from a police department does not in and of itself render the information credible and reliable without undertaking a substantive analysis: 5

6 [56] Further, as noted above, the IAD s Decision is void of any discussion regarding the reliability and credibility of the Report to Crown Counsel. The absence of any analysis in this regard suggests that the IAD failed to turn its mind to whether the Report was reliable and credible. This omission constitutes an error of law. [57] For the reasons above, I conclude that the IAD s decision must be set aside. Younis, 2008 FC 944 at paras [emphasis added]. This analysis is the basis of the second prong of the test in Veerasingam; that is, the underlying evidence inside police reports may be used provided there is an assessment as to the reliability, credibility, and adequacy of the evidence such that it can be shown to be sufficient to provide a foundation for a goodfaith opinion. 3 In Tran, the Officer did not undertake such an analysis; he instead based his cursory conclusion as to reliability and credibility simply on the fact the reports came from police departments. There was no assessment as to the reliability and credibility of any evidence, and no way to determine whether such an assessment would reasonably yield sufficient evidence. 4 By contrast, in another matter, the Federal Court upheld a Minister s Delegates decision which looked to and detailed the underlying evidence upon which it was relying for making its determination as to whether there were reasonable grounds to believe the acts occurred. This included detailed witness reports and polygraph evidence: [23] In this case, there was sufficient evidence in the police reports for the Delegate to conclude that the applicant was complicit in the commission of a homicide. In particular, the Delegate relied on the police homicide investigation report and the interviews of witnesses contained therein. [24] The Delegate was also permitted to consider polygraph evidence: Maire v Canada (Minister of Citizenship and Immigration), [1999] FCJ No She found that the polygraph results supported the other evidence in the police reports, in particular the various interviews. Muneeswarakumar v. Canada (Citizenship and Immigration), 2013 FC 80 (CanLII) [emphasis added] 3 Veerasingam, 2004 FC 1661 (CanLII) at para It should be noted that while the Trial Division in Tran agreed with the Applicant on this issue, the FCA took it upon itself to review the evidence underlying the reports to determine whether there was sufficient evidence to support the officer s ultimate conclusion. The validity of this approach on judicial review is a question enmeshed with issues surrounding the standard of review and implied reasons, which is beyond the scope of the current discussion. 6

7 Similarly, in Thanabalasingham, the Court distinguished the case before it with that in Veerasingam: [56] The situation here is clearly distinguishable from the one before Justice Judith Snider in Veerasingam...where the IAD had made a disturbing number of references to a withdrawn charge and failed to distinguish between the evidence underlying that charge and the fact that the applicant had been charged. It never weighed or looked at the underlying evidence. [57] In the present instance, the IAD clearly focused on the evidence. As noted, it refers to the fact that the affidavit of Constable Malcolm indicates that Mr. Thanabalasingham was linked to the supply and transportation of guns even before the wiretap investigation. This was also one of the elements on which this affiant relied in order to seek a warrant Thanabalasingham v. Canada (Public Safety and Emergency Preparedness), 2007 FC 599 (CanLII) at paras [emphasis added] The Honourable Gauthier J., as she then was, went on to describe a litany of evidence the IAD considered in coming to its conclusion, including wiretap evidence, affidavits, witness statements and more. 5 ii. Right to Disclosure As a corollary of the above, should a decision-maker wish to rely on police reports, witness statements or other evidence on record with law enforcement agencies, this information must be disclosed to a client and counsel in advance. In considering the duty of fairness owed by officers when assessing admissibility under s.44(1) of IRPA, the Federal Court provided in Hernandez: I would think that the duty of fairness would require the immigration officer put to the interviewee any information he has that the interviewee would not reasonably be expected to have. 6 The Federal Court has specifically contemplated an applicant s knowledge of convictions and charges in Galvez Padilla. In reviewing the issuance of a danger opinion, the Court provided: [56] Procedural fairness, however, goes beyond the obligation to ensure that the applicant is aware of the information that will be used in making a decision affecting him. The fact that the applicant knows about the charge and conviction does not relieve the delegate of the duty of procedural fairness to ensure that all evidence to be relied 5 See also Bankole v. Canada (Citizenship and Immigration), 2011 FC 373 at paras. 7, 46-48, where an RCMP file was available detailing a charge that was not laid because the witnesses were overseas. The Court determined that the decision on admissibility was reasonable as the officer reviewed the evidence, including the factual findings made by the RCMP based on the evidence collected during their investigation. 6 Hernandez v. Canada (Citizenship and Immigration), 2005 FC 429 at para 71. 7

8 upon is provided to the applicant for rebuttal prior to a decision being rendered. Galvez Padilla v. Canada (Citizenship and Immigration), 2013 FC 247 at para 56 [emphasis added]. In addition, the Minister cannot rely on the directions from the police forces in question to avoid disclosure when seeking and then considering information from those sources. In Tran, the record eventually revealed that numerous police agencies had shared information with the CBSA on the condition that it was not to be disclosed to the Applicant or any third-parties. However, if the Minister agrees to receive such information and then considers it, it must be disclosed. In the context of a statutory right to information or a summary of that information in the prison context, the Federal Court said of information from the RCMP and CSIS: In my view, the Correctional Service cannot avoid its obligations to inmates by means of an agreement with third parties. The Service's obligation to comply with subsection 27(2) is qualified only by subsection 27(3) and not by any contractual arrangements which the Correctional Service may make with other agencies. Marachelian v. Canada (Attorney General), [2000] 1 F.C. 17 at para 26. In the end, it is unclear to what extent the holding of the SCC in Tran will affirm or modify the current law on this important third issue. However, as it stands, if a decision-maker wishes to impugn an applicant s history, credibility, or potential for rehabilitation based on withdrawn charges and allegations, it is incumbent on him or her to substantiate the determination with sufficient underlying evidence. There is a positive obligation to carefully weigh any actual evidence surrounding the past incidents and assess their reliability and credibility, while providing the individual an opportunity for full comment and response. Veerasingam holds: If the IAD has relied on the charge to come to its decision or if the underlying evidence is not sufficient, the IAD has erred. Veerasingam, 2004 FC 1661 at para. 6 [emphasis added]. Going forward, this reasoning can and should be applied more frequently at the IAD as well as numerous other immigration contexts. II. Youth Offences Formerly ambiguous lines regarding the admissibility of those convicted abroad as a youth, have become further blurred with the passage of the Youth Criminal Justice Act (S.C. 2002, c. 1) and subsequent amendments to IRPA. 8

9 IRPA s. 36(3)(e)(iii) exempts young offenders who receive a youth sentence under the YCJA, providing in full as follows: (e) inadmissibility under subsections (1) and (2) may not be based on an offence *** (ii) for which the permanent resident or foreign national is found guilty under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, or (iii) for which the permanent resident or foreign national received a youth sentence under the Youth Criminal Justice Act. Therefore the admissibility of a minor convicted under the YCJA turns on whether he is given a youth or adult sentence. However, the Act is silent on how this provision is to be treated with respect to determining the equivalency of foreign convictions. Current IRCC policy, pursuant to Guide IMM 5312, appears to be that an individual is not inadmissible if they: were treated as a young offender in a country which has special provisions for young offenders; or were convicted in a country which does not have special provisions for young offenders but the circumstances of the conviction are such that they would not have received an adult sentence in Canada. 7 Available online: This interpretation is a hold-over from the policy and guidance provided when IRPA referenced only the Young Offenders Act, see ENF 14 Criminal Rehabilitation, Citizenship and Immigration Canada, at s. 24, However, the interpretation does not find direct support under the Act, which does not reference special provisions in foreign countries for young offenders, or circumstances under which an individual would not have received an adult sentence in Canada. This policy also appears to be at odds with policy provided under the more recent ENF 1 Manual, which provides succinctly: 7 The application of the second exemption, even assuming it is a correct statement of the law, is subject to interpretation. This is because under current Canadian law, almost any offence committed after the age of 14, may be subject to an adult sentence as long as the adult sentence carries a penalty of 2 years or more [Youth Criminal Justice Act, s. 64(1)]. 9

10 Inadmissibility under A36 may not be based on an offence committed while the person would qualify under the Canadian Young Offenders Act regardless of the foreign law. 8 For this proposition, the Manual cites the brief decision of the Honourable Justice Campbell under the prior Immigration Act: [2] since the Applicant was 17 at the time of his conviction, he could not, under normal circumstances, be found it to be guilty of an "offence" in Canada "punishable by indictment". This is so because he would have been dealt with in Canada as a "young person" under the Young Offenders Act, , c Wong v. Canada (Minister of Citizenship and Immigration), 2000 CanLII (FC) at para. 2 The Court did not engage in an analysis of the foreign law or whether the applicant could have been treated as an adult under Canadian law. In contrast, pursuant to IRPA and the YCJA, the Board has since taken a much different approach. For equivalency purposes, the ID and IAD have espoused the broad position that if the foreign offence could have been subject to sentencing as an adult under the YCJA, then the individual may be inadmissible and the maximum penalty as an adult is applicable. This holds true even if it is not likely the youth would have been sentenced as an adult in Canada. In most relevant part, the Board has held: [21] If convicted in Canada under the YCJA for the Criminal Code offence of Sexual Assault a young person might be subject, by way of the processes and procedures available in the YCJA, to the adult penalties in s. 271(a), a maximum of ten years imprisonment. The imposition of an adult sentence may be a rare or unlikely outcome but that does not diminish the fact that ten years imprisonment remains the penalty that might be imposed. This satisfies the requirement of paragraph 36(1)(b) that the equivalent Canadian offence be punishable by a maximum term of imprisonment of at least 10 years. In my opinion Potter remains the authority and I am required to follow it. My only reservation is that Potter did not concern itself with the unsettled issue of young persons who have been convicted outside of Canada. MPSEP v. X, 2009 CanLII (CA IRB) at para. 21 This reasoning was quoted at length and upheld at the IAD in Flores Giron v. Canada (MPSEP), 2009 CanLII (CA IRB), and then adopted again in Singh, 2010 CanLII (CA IRB). 9 8 ENF 1 Inadmissibility, Citizenship and Immigration Canada, at p. 56 [emphasis added] 9 It should be noted that while Singh adopted the reasoning and analysis of the previous ID decision, the appeal was ultimately allowed as the particular offence in question could not have been subject to an adult sentence under the YCJA. Singh, 2010 CanLII (CA IRB) at paras

11 Currently, under s. 64(1) of the YCJA, the Attorney General may seek an adult sentence for any offence committed after the age of 14, as long as the adult sentence carries a penalty of 2 years or more. This casts a wide net of inadmissibility under the interpretation of the Board, which contradicts IRCC s own long-standing policy as detailed in their prior Manuals and currently online. Despite the above, I am not aware of any recent Federal Court case law on this issue. There is a valid counter-argument that the Board s analysis treats young offenders convicted abroad much more harshly than if they had committed the same crime in Canada. That is to say, a youth who commits a simple assault in Canada will likely receive a youth sentence under the YCJA and therefore not be inadmissible. However, if the youth committed the same simple assault abroad, they would be considered inadmissible under the reasoning adopted by the Board, for the mere fact that they could have been subject to an adult sentence in Canada. This, of course, is an absurd result that treats similarly situated youth offenders drastically differently. It also paradoxically favours someone who commits a crime against Canadian society versus someone who committed the same or perhaps a much lesser offence abroad sometime in the past. 10 It may further be argued that the Board s reasoning for adopting this analysis is misplaced. The Board analogizes to the analysis required by A36(1)(b) under Potter, whereby an individual convicted of an offence abroad is subject to inadmissibility on the basis of the maximum potential sentence that could be imposed were the offence committed in Canada, as opposed to what would likely be imposed. While this line of argument appears cogent, it is flawed in one important respect. Under s. 36(1), any individual is inadmissible based on the maximum potential sentence that could be imposed, regardless of whether it was committed in Canada or abroad. For example, an individual convicted of assault with a weapon either in Canada or abroad would equally be inadmissible, regardless of the actual sentence received in Canada or abroad, due to the maximum applicable sentence for the offence in Canada. As discussed, the same does not hold true for young offenders. A youth who receives a youth sentence under the YCJA is not inadmissible simply on the ground their offence could have been treated as an adult sentence. In the interests of parity and basic fairness, the same should apply to foreign offenders despite the Board s findings to date. Perhaps the most viable alternative is to require decision-makers assess the various factors that would be considered in Canada, in determining whether a youth s foreign conviction would have likely received 10 It s trite law that interpretations leading to absurd consequences must be avoided, even if such an interpretation accords with the plainest meaning or most direct application of a statute. See e.g. Akhter v. Canada (Minister of Citizenship and Immigration), 2006 FC 481 at para. 31 (citing, inter alia, Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27) 11

12 a youth or adult sentence under Canadian jurisprudence. While this may seem unwieldy or unduly cumbersome, it is notably the approach previously advised by ENF 14 under the Young Offenders Act. 11 In the end, greater clarity on this issue is required for applicants and counsel. There is divergence between IRCC s own policy manuals, the jurisprudence of the IRB, and the limited guidance provided thus far by the Federal Court. The right circumstances may allow counsel to seek a definitive holding from the Federal Court and advance this area of law to the benefit of all future applicants. III. The Impact of Jordan In Blencoe, the seminal decision concerning abuse of process due to delay in administrative proceedings, the Supreme Court of Canada was in agreement that an abusive administrative delay is wrong and it does not matter if it wrecks only your life and not your hearing. Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44 at para The Court explained: Unnecessary delay in judicial and administrative proceedings has long been an enemy of a free and fair society. At some point, it is a foe that has plagued the life of almost all courts and administrative tribunals. It s a problem that must be brought under control if we are to maintain an effective system of justice, worthy of the confidence of Canadians. The tools for this task are not to be found only in the Canadian Charter of Rights and Freedoms, but also in the principles of a flexible and evolving administrative law system. *** In order to find an abuse of process, the court must be satisfied that, the damage to the public interest in the fairness of the administrative process should the proceeding go ahead would exceed the harm to the public interest in the enforcement of the legislation if the proceedings were halted. Blencoe, 2000 SCC 44 at paras. 140, 120 As such, the Court established a three-pronged balancing test in assessing whether or not an unreasonable administrative delay has occurred: 1) The time taken compared to the inherent time requirement of the matter before the particular administrative body, which would encompass legal complexities and factual complexities, as well as reasonable periods of time for procedural safeguards that protect parties or the public; 11 ENF 14 Criminal Rehabilitation, Citizenship and Immigration Canada, , at s

13 2) The causes of delay beyond the inherent time requirements of the matter, which would include consideration of such elements as whether the affected individual contributed to or waived parts of the delay and whether the administrative body used as efficiently as possible those resources it had available; and 3) The impact of the delay, considered as encompassing both prejudice in an evidentiary sense and other harms to the lives of real people impacted by the ongoing delay. Blencoe, 2000 SCC 44 at para In the immigration context, the test in Blencoe has been applied successfully on a handful of occasions in which the Federal Court has ordered a stay of proceedings due to the unreasonable length of delay. See: Fabbiano v. Canada (Citizenship and Immigration), 2014 FC 1219 Canada (Minister of Citizenship and Immigration) v. Parekh, [2010] F.C.J. No. 856 Canada v. Sadiq, [1990] F.C.J. No (QL) In Fabianno, the Court explained that an abuse of process due to delay does not only apply to cases where important evidence has been lost, witness memory has faded, or the hearing itself has been otherwise compromised. Rather, it can also apply when it would simply be unduly prejudicial to an individual and basic decency: [8] Alternatively, a court can provide a remedy where the proceedings have become oppressive for other reasons including, for example, where the person carried on with his life reasonably believing that no further action would be taken against him (Ratzclaff v British Columbia (Medical Services Commission) (1996), 1996 CanLII 616 (BC CA), BCJ No 36 (BCCA) (QL), at para 23). *** [32] In turn, the integrity of our justice system has been compromised as a result The delay shows that officials were not concerned that Mr Fabbiano s presence in Canada posed a risk to Canadians. [33] Further, there is no adequate alternative remedy in the circumstances. The delay has not only created unfairness and infringed on the integrity of our justice system, it has occasioned serious personal and psychological harm to Mr Fabbiano and his family. The only possible alternative remedy would be to remit the matter back to the delegate to carry out a proper analysis of the evidence. However, that recourse would only add significant further delay, psychological stress, and costs. [34] Therefore, in my view, the interests favouring a stay of proceedings far outweigh the public interest in proceeding to an admissibility hearing where the outcome is a foregone conclusion, without there having been any serious 13

14 consideration of the personal circumstances of a long-term permanent resident of Canada and his family. Fabbiano, 2014 FC 1219 at paras [emphasis added] Most recently, the benchmark decision in R. v. Jordan, 2016 SCC 27 reaffirmed and expanded the importance that must be placed on the assessment of unreasonable delays in legal proceedings brought against individuals by the government. The case was of course decided in the criminal context under s.11(b) of the Charter, however, it has since been applied more broadly as cited below. The Court s ultimate holding was not exclusively centred on the Charter but also on principles of fundamental fairness and natural justice. Arguably, the Honourable Court s overarching affirmation that justice delayed is justice denied [at para. 19] must be heeded in any judicial or quasi-judicial proceeding in which fundamental rights are at stake. In the immigration context, it is perhaps most relevant to the context of removals of long-term permanent residents for criminality. Many of the specific issues decided by Jordan in examining the concept of undue delay are equally applicable to the administrative context. Specifically, both the previous test for unreasonable delay in the criminal context under Morin and the test for unreasonable delay under Blencoe, share a common prong regarding the need to show substantial prejudice. These two prongs are almost identical in both tests. R. v. Morin, [1992] 1 SCR 771 at pp In fact, much as in criminal law, a majority of cases in which abuse process due to delay has been claimed in the immigration context have failed at the third stage of assessing prejudice. See e.g. Faroon v. Canada (Citizenship and Immigration), 2015 FC 931 at paras Canada (Citizenship and Immigration) v. Bilalov, 2013 FC 887 at paras Montoya v. Canada (Attorney General), 2016 FC 827 (CanLII) at paras In these cases, while the Federal Court invariably found there had been an inordinate delay for which no reasonable justification had been proffered by the Minister, the justices did not find there to be evidence of sufficiently substantial prejudice to meet the high bar they believed had been set by the Supreme Court in Blencoe. As such, the Supreme Court s reformulated approach to concept of prejudice in Jordan, and the modification it made to the strict assessment of prejudice under the test in Morin, is highly applicable to the same assessment under Blencoe. In pertinent parts the Supreme Court held: 14

15 [33] Second, as the parties and interveners point out, the treatment of prejudice has become one of the most fraught areas in the s. 11(b) jurisprudence: it is confusing, hard to prove, and highly subjective. As to the confusion prejudice has caused, courts have struggled to distinguish between actual and inferred prejudice. And attempts to draw this distinction have led to apparent inconsistencies, such as that prejudice might be inferred even when the evidence shows that the accused suffered no actual prejudice. Further, actual prejudice can be quite difficult to establish, particularly prejudice to security of the person or fair trial interests. Courts have also found that it may not always be easy to distinguish between prejudice stemming from the delay versus the charge itself (R. v. Pidskalny, 2013 SKCA 74 (CanLII), 299 C.C.C. (3d) 396, at para. 43). And even if sufficient evidence is adduced, the interpretation of that evidence is a highly subjective enterprise. [34] Despite this confusion, prejudice has, as this case demonstrates, become an important if not determinative factor. Long delays are considered reasonable if the accused is unable to demonstrate significant actual prejudice to his or her protected interests. This is a problem because the accused s and the public s interests in a trial within a reasonable time does not necessarily turn on how much suffering an accused has endured. Delayed trials may also cause prejudice to the administration of justice. *** [54] Third, although prejudice will no longer play an explicit role in the s. 11(b) analysis, it informs the setting of the presumptive ceiling. Once the ceiling is breached, we presume that accused persons will have suffered prejudice to their Charter-protected liberty, security of the person, and fair trial interests. As this Court wrote in Morin, prejudice to the accused can be inferred from prolonged delay (p. 801; see also Godin, at para. 37). This is not, we stress, a rebuttable presumption: once the ceiling is breached, an absence of actual prejudice cannot convert an unreasonable delay into a reasonable one. *** [109] Second, the new framework resolves the difficulties surrounding the concept of prejudice. Instead of being an express analytical factor, the concept of prejudice underpins the entire framework. Prejudice is accounted for in the creation of the ceiling. It also has a strong relationship with defence initiative, in that we can expect accused persons who are truly prejudiced to be proactive in moving the matter along. [110] Prejudice has been one of the most fraught areas of s. 11(b) jurisprudence for over two decades. Understanding prejudice as informing the setting of the ceiling, rather than treating prejudice as an express analytical factor, also better recognizes that, as we have said, prolonged delays cause prejudice to not just 15

16 specific accused persons, but also victims, witnesses, and the system of justice as a whole. R. v. Jordan, [2016] 1 SCR 631, 2016 SCC 27 (CanLII) at paras , 54, [emphasis added] Likewise, the difficulties of showing concrete prejudice, and what constitutes sufficiently substantial prejudice, are the same under Blencoe as they were under the test in Morin. These issues are not s. 11(b) specific, but are rather inherent in what the Court found to be the highly subjective and fraught inquiry of assessing the level of prejudice an individual has suffered. The applicability of the rationale in Jordan to administrative law and the test in Blencoe was the subject of a recent publication by the public law and litigation department of Lavery LLP. 12 Outside of the criminal context, numerous recent cases have applied the reasoning in Jordan to other forums. This includes family law, where the Ontario Superior Court recently held that while s.11(b) of the Charter does not apply to child protection proceedings, the same principles elucidated in Jordan should be applied given the interests of the parties at stake: [74] Since the Supreme Court of Canada released its decision in R. v. Jordan, [2016] 1 S.C.R. 631 much attention has been focused on the pace of the administration of justice as it relates to criminal proceedings. This is proper, as a trial within a reasonable time is a right guaranteed to all accused persons by the Canadian Charter of Rights and Freedoms. At the same time, however, it is worth considering that while not a constitutional imperative, a trial without delay is an important feature of a child protection application since passage of time has a real and meaningful negative impact on a child caught up in this context. The same attention and energy now being directed toward lowering time to trial in the criminal sphere should also be turned to this sort of case. Children's Aid Society of Ottawa v. B.H., [2017] O.J. No at para. 74 The takeaway is that Jordan is not solely a decision on the application s.11(b) but an admonishment of delay in any legal proceeding in which fundamental interests are at stake. This is especially so when the government as an institutional actor has inexplicably and unreasonably delayed taking action against an individual. The application of Jordan outside the criminal context has also included disciplinary and regulatory proceedings; see e.g.: Organisme d'autoréglementation du courtage immobilier du Québec c. L'Écuyer, 2016 CanLII Impact of the decision in R. v. Jordan on public law, Charlotte Fortin, Lavery, De Billy LLP, October

17 Organisme d autoréglementation du courtage immobilier du Québec c. Safdar, 2016 CanLII 78378, at para. 57 Mississauga (City) v. Uber Canada Inc., 2016 ONCJ 746 Thus Jordan has been applied to such quasi-criminal and regulatory contexts, where it must be acknowledged the interests involved are considerably lower than those at issue in a criminal deportation. Whether a long-term permanent resident of Canada, potentially with a family and children, is removed from the country after many years of delay, is at least as significant as the interests at stake in professional disciplinary proceedings or whether the corporation Uber is subject to municipal bylaw violations. Arguably then, applicants in the immigration context are no less deserving of consideration under the broad reasoning and framework regarding delay in the administration of justice set in Jordan. In the end, the Court s ultimate holding is that there comes a point at which a delay has become so long, and so absurd, that it is in itself abusive and prejudice can be inferred without placing a difficult and subjective burden on an applicant to demonstrate it. 13 While there is no need to go so far as to establish numerical ceilings in immigration law as the Court did in Jordan, counsel should push for the recognition that the principles affirmed and expanded by the Supreme Court must be heeded in the immigration context to modify the standards that have been applied to date. A certain level of delay in immigration proceedings becomes unacceptable on its face and cannot be allowed absent compelling justification. 13 Jordan, 2016 SCC 27 at para. 54 [ prejudice to the accused can be inferred from prolonged delay ] 17