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Sometimes Do-Overs Are Not Allowed

By: Robert W. Young, Robert William Young Law & Associate

It is hard to be an Immigration lawyer when international travel has shut down.

A constant headache in Immigration Law is that the government applies new law to old situations. Common sense tells us that if a person files an application, they have a reasonable expectation that it will be considered using the law in place at the time of filing. Not so in an Immigration context. The received wisdom is that when the application is finally looked at, sometimes years later, since the applicant does not have any "vested" rights until the application is granted, Immigration need only consider the application using the law in place at the time of review. The most fundamental principle of Immigration Law is that non-citizens do not have an unqualified right to enter or remain in Canada (see Chiarelli v Canada[1992] 1 S.C.R. 711).

But then along came Tran v Canada (Public Safety and Emergency Preparedness), 2017 SCC 50. Tran was a permanent resident who was charged with a crime in March 2011. In November 2012 he was convicted, and in January 2013 he received a 12-month conditional sentence. Just before Tran was convicted, legislation came into effect increasing the maximum sentence for the offence from seven years to fourteen years. This brought the offence into the Immigration and Refugee Protection Act definition of "serious criminality" and potentially took away his right to appeal his removal order to the Immigration Appeal Division.

The Supreme Court of Canada said there was an obligation on permanent residents to behave lawfully but the obligations must be communicated to them in advance (paragraphs 40 to 41). The Court said:

"While Parliament is entitled to change its views on the seriousness of a crime, it is not entitled to alter the mutual obligations between permanent residents and Canadian society without doing so clearly and unambiguously. In this case, it has failed to do so. As such, section 36(1)(a) must be interpreted in a way that respects these mutual obligations. The right to remain in Canada is conditional, but it is conditional on complying with knowable obligations. Accordingly, the relevant date for assessing serious criminality under section 36(1)(a) is the date of the commission of the offence, not the date of the admissibility decision" (paragraph 42)

The Supreme Court of Canada also pointed out in Tran that introducing a new collateral consequence after sentencing that would have been relevant before sentencing, undermines the decision of the sentencing Judge who decades ago crafted an appropriate sentence without knowledge of additional deportation consequences (paragraph 45).

The Federal Court is not comfortable following this reasoning. In Paulo Cesar Cano Granados v Canada (Minister of Citizenship and Immigration)2018 FC 302, for example, the Court held that the reasoning in Tran did not apply despite that the case dealt with the right to appeal to the IAD of someone who had been convicted years prior. In this case, the right to appeal to the IAD was changed by an amendment to the Immigration and Refugee Protection Act, not the Criminal Code. Further, Mr. Cano Granados stupidly re-offended, committing a minor crime after the change in the law, giving Immigration a second kick at the cat. Both cases though looked at how past events would be considered in present time under section 36(1)(a) of IRPA after a change in law.

It is therefore a joy to read a case like Zeng v Canada (Minister of Citizenship and Immigration), 2019 FC 1586. Mr. Zeng had been deported and lost permanent resident status due to misrepresentation. He had originally come to Canada through a marriage of convenience. When he was deported, the rule was that after a finding of misrepresentation a person was inadmissible for two years. The inadmissibility period starts when the person is deported. Mr. Zeng then married another Canadian, who tried to sponsor him. More than two years had gone by since the deportation. The law, though, had changed raising the period of inadmissibility to five years. This change barred the sponsorship. At question was whether at the time of the current sponsorship, was the period of inadmissibility two years or five? A note on terminology is needed here. The Honourable Mr. Justice McHaffie in Zeng gives a good description of how retrospective and retroactive rules are different. He says: "A retroactive statute is one that operates as of a time prior to its enactment. A retrospective statute is one that operates for the future only. It is prospective, but it imposes new results in respect of a past event. A retroactive statute operates backwards" (paragraph 25). Zeng concerns itself only with retrospectivity.

I find Mr. Justice McHaffie's decision in Zeng helpful because it incorporates the spirit of the Supreme Court of Canada's reasoning in Tran against retrospectivity. Mr. Justice McHaffie agrees with the Supreme Court of Canada that there is a presumption against retrospectivity as a rule of statutory interpretation unless Parliament rebuts the presumption such as through a transitional provision (paragraph 31). Some of the language in Tran suggests that Mr. Tran had a higher expectation, because he was a permanent resident, against the law being used against him in a retrospective fashion. The decision in Zeng though extends the presumption against retrospectivity even to non-permanent residents. Unfortunately, as Mr. Justice McHaffie expressly points out, his ruling does not help people who have applied to come to Canada but have not yet received a decision. These people are still subject to the law in place when the application is finally decided. His reasoning though provides an argument to follow if a statutory change attaches new consequences to an event that has already occurred.

I do not know if the decision in Zeng is the first of many cases coming from the Federal Court reinvigorating the reasoning against retrospectivity in Immigration Law. It is a case, though, that I am going to follow if given the opportunity.

Robert W. Young practices Immigration Law at Robert William Young Law & Associate. He is certified by the Law Society of Ontario as a Specialist in Citizenship and Immigration Law.

He can be reached at:
Robert William Young & Associate
203 – 180 James Street South
Hamilton, ON  L8P 4V1
Phone: (289) 799-6400
Email: [email protected]