By Catherine Sas, K.C. and Gentiana Morina (Articled Student)
Special to The Post

In our immigration law firm, we are often consulted by persons with criminal records facing deportation from Canada. Deportation is the severest penalty a person can face under the Immigration and Refugee Protection Act (“IRPA”). For most individuals who are found inadmissible to Canada, there are immigration options such as Criminal Rehabilitation, a Temporary Resident Permit or a Humanitarian and Compassionate application for permanent residence to remain in Canada.

Recently, however, the Supreme Court of Canada (“SCC”) rendered a decision that stipulates that to be inadmissible on security grounds for engaging in acts of violence that might or would endanger the lives or safety of persons in Canada, government officials must be able to establish that the act(s) of violence have a nexus with national security or the security of Canadians. This is a dramatic pronouncement and requires a significant shift in the evidentiary burden required of Canada Border Services Agency (“CBSA”) and Immigration Refugee and Citizenship Canada (“IRCC”) to deport persons they accuse of posing a threat to Canada’s national security.

At the heart of this SCC decision is S.34(1)(e) of the IRPA, which provides that a permanent resident or a foreign national is inadmissible on security grounds for:

s.34(1)(e) engaging in acts of violence that would or might endanger the lives or safety of persons in Canada.

Section 34 and other inadmissibility provisions became the law of the land when the IRPA was enacted on June 28, 2002. It represented a massive shift in the loss of individual applicants’ rights in that CBSA and IRCC could engage in proceedings against individuals with a very low evidentiary basis. Criminal proceedings in Canada have a very high threshold of proof—a person is presumed innocent unless there is proof beyond a reasonable doubt. However, immigration proceedings have a much lower standard of proof. CBSA frequently claims that the mere criminal charge constitutes reasonable grounds to believe the act occurred. As we will see in the case of Mason v Canada, the charges against Mr. Mason were dropped. Yet, CBSA still proceeded to seek to have him deported from Canada as a threat to national security.

Mr. Mason is a foreign national in Canada who made a refugee claim in June 2010. During his time in Canada, he was charged with two counts of attempted murder and two counts of discharging a firearm with intent to wound or disfigure. Yet in 2015, his charges were stayed, and he was not found guilty of any criminal offence. However, a Minister’s Delegate issued a deportation order against Mr. Mason. Mr. Mason challenged his deportation order as there was no conviction to support him being found to pose a risk or threat to national security.

The SCC held that the charges against Mr. Mason were insufficient to warrant the application of s.34(1)(e) and to render him a national security threat such that he should be deported from Canada. The SCC affirmed that an officer has to be able to establish that any act(s) of violence in question, whether they are similar to crimes committed by Mr. Mason or not, must have a nexus with national security or the security of Canada.

As mentioned above, deportation is Canada’s severe immigration penalty. A deportation order is a permanent bar from returning to Canada unless a person obtains the written permission of the Minister of Immigration. Actions that pose a threat to Canada’s national security warrant the strongest possible action to protect the safety of Canadians. However, in a democratic country that upholds the Rule of Law, it is also important to maintain the principles of procedural fairness and natural justice against individuals accused of such serious charges. It has taken over twenty years for Canada’s highest court in the land to reinstate a higher standard of evidence for allegations of criminal inadmissibility in upholding the provisions of IRPA.

Catherine Sas, K.C. has over 30 years of legal experience. She provides a full range of immigration services and is a leading immigration practitioner (Lexpert, Who’s Who Legal, Best Lawyers in Canada). Go to canadian-visa-lawyer.com or email catherine@
sasanding.com.