Category: Canadian Decisions

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Abuse of Safe Third Country Agreement & Coming To Canada Under False Pretenses

CLICK HERE, for previous article on the Canada/US Safe 3rd Country Agreement (signed in 2002)

1. Interesting Cases

(1) CLICK HERE, for a marriage of convenience.
Liang v Canada (Public Safety and Emergency Preparedness, 2014 CanLII 90636 (CA IRB)

(2) CLICK HERE, for committing identity fraud in order to gain entry to Canada.
Shaikh v Canada (Public Safety and Emergency Preparedness), 2018 CanLII 89040 (CA IRB)

(3) CLICK HERE, for an actual terrorist wanting to stay in Canada.
Singh v. Canada (Minister of Citizenship and Immigration), 1997 CanLII 5893 (FC)

(4) CLICK HERE, for a failed US asylum seeker, relying on falsified psychological documents.
X (Re), 2016 CanLII 152912 (CA IRB)

(5) CLICK HERE, for a failed US asylum seeker changing his story this time.
X (Re), 2013 CanLII 99499 (CA IRB)

(6) CLICK HERE, for an Indian man claiming to be from Tibet to gain asylum (Mariam Monself, take note).
X (Re), 2014 CanLII 100882 (CA IRB)

(7) CLICK HERE, for a “refugee” who lived illegally in the US for 14 years, then trying to claim asylum in Canada
X (Re), 2015 CanLII 44019 (CA IRB)

(8) CLICK HERE, for a wanted fugitive from China trying to get asylum in Canada.
X (Re), 2015 CanLII 107837 (CA IRB)

These 8 cases are just a small sample of the tidal wave of fraudulent “refugee” claims that have been made over the last several years. Although many get rejected, many still get through. This happens even when adjudicators admit that applicants have been deceptive.

2. UN Promotes Abuse Of S3CA

CLICK HERE, for the UN link.

Exceptions to the Safe Third Country Agreement with Canada

The U.S. and Canada have an agreement preventing people who first enter one country from applying for asylum or refugee status in the other. This means that if you entered the U.S. first and then try to apply for asylum in Canada, you may not be able to. However, there are exceptions to the agreement that may allow you to apply for asylum in Canada, even if you came to the U.S. first. For one thing, this agreement only applies to you if you are planning on arriving at entry ports on the U.S.-Canada land border. It does not apply if you plan on arriving in Canada at air or marine ports.

The following questions will determine whether you meet any of the exceptions that will allow you to apply for asylum in Canada at a U.S.-Canada land border even if you arrived in the U.S. first.

EXCEPTION # 1 Land Border Entry Ports Only

Are you going to arrive in Canada from a land border?

NO ==> You qualify under this exception!

YES ==> You do not qualify under this exception. Check to see if you qualify under any other exception.

EXCEPTION # 2 Family Connections in Canada

Do you have any of the following family members in Canada?

  • A spouse
  • A common-law partner (a common law partner is person of the same or opposite sex with whom you are cohabiting in a conjugal relationship and have cohabited for at least a year.)
  • A legal guardian
  • A child
  • A father or mother
  • A brother or sister
  • A grandfather or grandmother
  • A grandchild
  • An uncle or aunt
  • A nephew or niece

NO ==> You do not qualify under this exception. Check to see if you qualify under any other exception.

YES ==> Is your family member any of the following?

  • A Canadian citizen
  • A permanent resident
  • A protected person (i.e. determined to be a refugee or a person in need of protection)
  • Accepted in principle on humanitarian and compassionate grounds (removal order stayed under Immigration and Refugee Protection Regulations 233)
  • 18 years of age or over and is a refugee claimant (and the claim has not been rejected, withdrawn, found abandoned or ineligible)
  • 18 years of age or over and is in Canada on a work permit or study permit (but check the exceptions)

    • YES ==> You qualify under this exception!
    NO ==> You do not qualify under this exception. Check to see if you qualify under any other exception.

    EXCEPTION # 3 Unaccompanied Minor
    Are you under 18?
    NO ==> You do not qualify under the unaccompanied minor exception. Check to see if you qualify under any other exception.
    YES ==> Were you accompanied here by your father, mother, or legal guardian? Are you married? Is your father, mother, or legal guardian in Canada or the United States?

    If NO to all these questions ==> You qualify under this exception!
    If YES to any of these questions ==> You do not qualify under this exception. Check to see if you qualify under any other exception.

    EXCEPTION # 4 Countries to which Canada Does Not Remove

    Are you a national of any of the following countries?

    • Afghanistan
    • Burundi
    • Democratic Republic of Congo
    • Haiti
    • Iraq
    • Liberia
    • Rwanda
    • Zimbabwe

    NO ==> You do not qualify under this exception. Check to see if you qualify under any other exception.

    YES ==> Have you been convicted of any crimes?

    NO ==> You qualify under this exception!

    YES ==> You may not qualify under this exception. Canada does not admit people who have been convicted of certain crimes. Whether you qualify under this exception depends on the type of crime(s) you were convicted of.

    EXCEPTION # 5 Death Penalty

    Have you been charged or convicted of an offence punishable with the death penalty in the country?

    YES ==> You MAY qualify under this exception. Canada does not admit people who have been convicted of certain crimes. Whether you qualify under this exception depends on the type of crime(s) you were convicted of.

    NO ==> You do not qualify under this exception. Check to see if you qualify under any other exception.

    EXCEPTION # 6 Valid Visa Exception

    Do you have a valid visa to enter Canada, other than a transit visa?

    YES ==> You qualify under this exception!

    NO ==> You do not qualify under this exception. Check to see if you qualify under any other exception.

    EXCEPTION # 7 Visa Required in U.S. But Not in Canada

    Are you a national of any of the following countries?

    • Antigua and Barbuda
    • Barbados
    • Botswana
    • Cyprus
    • Greece
    • Malta
    • Mexico
    • Namibia
    • Papua New Guinea
    • Republic of (South) Korea
    • St. Kitts and Nevis
    • St. Lucia
    • St. Vincent
    • Solomon Islands
    • Swaziland
    • Western Samoa

    NO ==> You do not qualify under this exception. Check to see if you qualify under any other exception.

    YES ==> You qualify under this exception!

    From Canadian Website

    CLICK HERE, for Canadian Government website.

    Where the Agreement is in effect
    The Safe Third Country Agreement applies only to refugee claimants who are seeking entry to Canada from the U.S.:
    at Canada-U.S. land border crossings
    by train or
    at airports, only if the person seeking refugee protection in Canada has been refused refugee status in the U.S. and is in transit through Canada after being deported from the U.S.

    Exceptions to the Agreement
    Exceptions to the Agreement consider the importance of family unity, the best interests of children and the public interest.
    There are four types of exceptions:

    1. Family member exceptions
    2. Unaccompanied minors exception
    3. Document holder exceptions
    4. Public interest exceptions

    Even if they qualify for one of these exceptions, refugee claimants must still meet all other eligibility criteria of Canada’s immigration legislation. For example, if a person seeking refugee protection has been found inadmissible in Canada on the grounds of security, for violating human or international rights, or for serious criminality, that person will not be eligible to make a refugee claim.

    Family member exceptions
    Refugee claimants may qualify under this category of exceptions if they have a family member who:

    • is a Canadian citizen
    • is a permanent resident of Canada
    • is a protected person under Canadian immigration legislation
    • has made a claim for refugee status in Canada that has been accepted by the Immigration and Refugee Board of Canada (IRB)
    • has had his or her removal order stayed on humanitarian and compassionate grounds
    • holds a valid Canadian work permit
    • holds a valid Canadian study permit, or
    • is over 18 years old and has a claim for refugee protection that has been referred to the IRB for determination. (This claim must not have been withdrawn by the family member, declared abandoned or rejected by the IRB or found ineligible for referral to the IRB.)

    Unaccompanied minors exception
    Refugee claimants may qualify under this category of exceptions if they are minors (under the age of 18) who:
    are not accompanied by their mother, father or legal guardian
    have neither a spouse nor a common-law partner, and
    do not have a mother, a father or a legal guardian in Canada or the United States.

    Document holder exceptions
    Refugee claimants may qualify under this category of exceptions if they:
    hold a valid Canadian visa (other than a transit visa)
    hold a valid work permit
    hold a valid study permit
    hold a travel document (for permanent residents or refugees) or other valid admission document issued by Canada, or
    are not required (exempt) to get a temporary resident visa to enter Canada but require a U.S.–issued visa to enter the U.S.

    Public interest exceptions
    Refugee claimants may qualify under this category of exceptions if:
    they have been charged with or convicted of an offence that could subject them to the death penalty in the U.S. or in a third country. However, a refugee claimant is ineligible if he or she has been found inadmissible in Canada on the grounds of security, for violating human or international rights, or for serious criminality, or if the Minister finds the person to be a danger to the public.

    Making a refugee claim under the Safe Third Country Agreement
    For detailed information on making a refugee claim for protection in Canada at the Canada–U.S. border, please refer to the Canada Border Services Agency (CBSA).

    There are so many exemptions in this agreement that it’s difficult to find someone who “doesn’t” qualify on one or more grounds.

    4. Canada Admits U.S. A Safe Country

    Factor 3: Human rights record of the United States
    The United States meets a high standard with respect to the protection of human rights. It is an open democracy with independent courts, separation of powers and constitutional guarantees of essential human rights and fundamental freedoms.

    Factor 4: Whether the United States is party to an agreement with Canada for the purpose of sharing responsibility with respect to claims for refugee protection

    The Safe Third Country Agreement between Canada and the United States was signed on December 5, 2002, came into force on December 29, 2004, and remains in force.

    The US is a safe country. That “should” end the discussion on fake refugees coming here.

    After all, simply being in the country illegally isn’t a defense.

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    Weaponizing the Human Rights Codes and Refugee Boards

    (This is criminal, not civil, but enjoy anyway)

    ***********************************************************************
    The full text for UN Global Migration Compact is RIGHT HERE.

    Please sign this: PETITION E-1906 CLICK HERE
    ***********************************************************************

    Need some extra cash? Don’t feel like working hard? Well, here at CanuckLaw, we have the solution for you.

    Simply make some vague claim about: (a) being offended; (b) having hurt feelings; (c) loss of self confidence, and you will be well on your way to making your next year’s salary virtually overnight.

    Need that new sports car? Or have a girlfriend with really expensive taste? Now you don’t have to feel like a cheapskate. Just file a human rights complaint, and that cash is as good as yours. Just appear before the tribunal and cry up a storm.

    In court, you will be forced to ”prove damages” and likely ”hire a lawyer”. Not the case here. Just say you are offended, and the Province will pick up your tab. The slimy accused will still have to pay his bill though.

    And if you want to come to Canada, but don’t qualify, then just claim to be oppressed and fearful of persecution. And since it’s all in your head, no proof necessary.

    All joking aside, the Provincial Human Rights Tribunals are in fact a very lucrative way to cash in. We will explain here.

    One interesting case, is Sanford v. Koop, 2005 HRTO 53 (CanLII) at paras. 34-38. CLICK HERE for a link to it. It sets out a disturbingly vague, yet extensive list which people can get extra money under. Although this is Ontario, other provinces have very similar guidelines. From paragraph 35:

    [35] The Commission provided a number of cases which set out the criteria to be used in assessing the appropriate quantum of general damages. These factors include:

    • Humiliation experienced by the complainant
    • Hurt feelings experienced by the complainant
    • A complainant’s loss of self-respect
    • A complainant’s loss of dignity
    • A complainant’s loss of self-esteem
    • A complainant’s loss of confidence
    • The experience of victimization
    • Vulnerability of the complainant
    • The seriousness, frequency and duration of the offensive treatment

    See: Baylis-Flannery v. DeWilde (No.2) (2003), 48 C.H.R.R. D/197 (total general damages of $35,000); Arias v. Desai, (No.2) (2003) 45 C.H.H.R. D/308 (HRTO) (total general damages of $25,000); Curling v. Torimiro (No.4) (2000), 38 C.H.R.R. D/216 (Ont. Bd. Inq.) (total general damages of $21,000); Ketola v. Value Propane Inc. (No. 2), (2002), 44 C.H.H.R.R. D/37 (Ont. Bd. Inq.) (total award of $20,000 for general damages and mental anguish); deSouza v. Gauthier (2002), 43 C.H.R.R. D/128 (Ont. Bd. Inq.) (total award of $25,000 for general damages and mental anguish)

    [36] The Tribunal accepts the submissions of the Commission. Considering the evidence in this matter, and the similarity of the facts in this case with the facts in the cases cited by the Commission, the Tribunal awards $25,000 in general damages.
    Damages for Mental Anguish for the Reckless and Wilful Infringement of the Complainant’s Rights

    [37] Pursuant to Section 41(1)(b) of the Code the Tribunal may award damages of up to $10,000 for mental anguish, injury to dignity, feelings and pride, where such infringement has been engaged in wilfully or recklessly.

    [38] The Commission identified the factors used to assess mental anguish damages pursuant to Section 41(1)(b):

    Yes, you are reading that correctly: having hurt feelings can get you lots of money, according to the Ontario Human Rights Tribunal. In fact, they even give a price range.

    Prospective Canadians: now, if waiting years, spending money, and doing paperwork are not your thing, don’t worry. Just hop a place to the U.S. with a tourist visa,seen here, walk across the Canadian border, and get yourself detained. Free housing, food and medical care while you wait for your claim.

    Immigration and Refugee Boards (IRB) and Human Rights Tribunals (HRT) are clogged with bogus cases. In fact, a quick search reveals thousands, and those are just the ones that are published. Here are some cases pulled at random.

    (1) CLICK HERE for an attempt to silence speech critical of Islam.

    (2) CLICK HERE for getting a job in a restaurant, then refusing to do it later based on religious grounds.

    (3) CLICK HERE for a funny one, taking action against each other for discrimination.

    (4) CLICK HERE for a member of the Islamic Salvation Front wanting refugee status.

    (5) CLICK HERE for a claim that asking a prospective tenant for a 12 month lease is discrimination.

    (6) CLICK HERE for a member of Hamas (a terrorist group), wanting to be declared a refugee.

    (7) CLICK HERE for an unsubstantiated claim of fear of safety.

    (8) CLICK HERE for a member of the Students Islamic Movement of India, with at least 6 arrests, wanting asylum based on persecution.

    (9) CLICK HERE for a woman seeking asylum due to an interfaith marriage gone wrong (Islam and Hindu)

    (10) CLICK HERE for a blind man being denied to bring his guide dog due to cab driver’s religion.

    (11) CLICK HERE for a judicial review (and a well cited case) of an asylum decision.

    (12) CLICK HERE for taking Rebel Media to he cleaners for offering commentary deemed offensive.

    (13) CLICK HERE for a claim about saying mean words to someone.

    http://canlii.org is a free site, available to anyone. You can do actual legal research from here, and research decisions from all over the country. Thing is, no lawyer is necessary.

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    Supreme Court of Canada Affirms Protections for Self Represented People

    April 23, 2017 — The Supreme Court of Canada has affirmed the protection for self represented persons and accused people

    Based on the 2006 Statement of principles from the Canadian Judicial Council, the SCC has enshrined these principles into law. See here, here, here, and here.

    STATEMENT:
    Judges, the courts and other participants in the justice system have a responsibility to promote
    access to the justice system for all persons on an equal basis, regardless of representation.

    PRINCIPLES:
    1. Judges and court administrators should do whatever is possible to provide a fair and impartial process and prevent an unfair disadvantage to self-represented persons.

    1. Self-represented persons should not be denied relief on the basis of a minor or easily rectified deficiency in their case.

    2. Where appropriate, a judge should consider engaging in such case management activities as are required to protect the rights and interests of self-represented persons. Such case management should begin as early in the court process as possible.

    3. When one or both parties are proceeding without representation, non-prejudicial and engaged case and courtroom management may be needed to protect the litigants’ equal right to be heard. Depending on the circumstances and nature of the case, the presiding judge may:

    (a) explain the process;
    (b) inquire whether both parties understand the process and the procedure;
    (c) make referrals to agencies able to assist the litigant in the preparation of the case;
    (d) provide information about the law and evidentiary requirements;
    (e) modify the traditional order of taking evidence; and
    (f) question witnesses.

    This is great news, as Justices/Judges/Masters/JP are now obligated to go the extra mile in assuring fair process for those accused and self representing.

    Self representing is an intimidating process, but levelling the field should go a long way to ensure better access to justice.  It should not be only for those who can spend lots of money on a lawyer, or who are able to spend huge amounts of time learning the law.

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    Race Based Discounts In Criminal Courts

    Here is some information on how “Gladue Rights” work in Canada.
    Equality under the law should mean that all people are treated equally.

    However, that is not the case in Canada, with regards to sentencing in criminal justice.  To be specific, one group: Aboriginal, aka First Nations, aka Native have a section of the law specifically to give them a ”race-based discount”.

    Here is section 718.2(e) of the Canadian Criminal Code:

    all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

    Yes, one racial group is allowed to get what amounts to a race based discount.  The 1999 Gladue ruling essentially paved the way for this to be normalized across Canada, while the Ipeelee decision expanded the scope to include long term offenders.

    There have been complaints of recent in the media that despite these legal changes, the proportion and rates of Aboriginals in prison continues to rise.  (See questions below)

    Here are the links to the Court decisions of Gladue (1997, 1999) and Ipeelee (2012).

    R. v. Gladue, 1997 CanLII 3015 (BC CA)
    R. v. Gladue, [1999] 1 SCR 688, 1999 CanLII 679 (SCC)
    R. v. Ipeelee, [2012] 1 SCR 433, 2012 SCC 13 (CanLII)

    People should be treated equally under the law, and that no one group should receive any lesser or harsher punishment because of race, gender, religion, etc…

    Defenders of the law claim that this is necessary because of ”overrepresentation” in Canadian prisons.  However, a number of serious questions don’t get asked:

    (1) What are the actual crime rates by race?  Is it one group being unfairly targeted, or is it one group simply committing more crime, and they are actually being treated fairly under the law?  There is a huge difference.

    (2) Yes there was historical discrimination, but why should people who were born after this, and not subjected to it, be benefiting from it?

    (3) If there is ”systemic discrimination” against Aborginals, then how does handing down lighter sentences actually address this?  Doesn’t it avoid the underlying issue?

    (4) If reserves in particular are so bad (they are often referred to as 3rd world conditions), wouldn’t the humane thing be to shut them down entirely?

    (5) Should the Canadian government be allowing a policy that aims to create ”equality of outcome” in the prisons?  Should jails look like a random sample of society, rather than a reflection of who is actually committing crimes?

    (6) If ”Gladue Rights” lead to lower sentences, couldn’t smart criminals game the system by committing ”more” crime, but still getting lower sentences?

    Sadly, there seems to be little interest in the media, courts or politics for addressing these questions.

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