Inadmissibility

• Author: Jamie Chai Yun Liew; Donald Galloway
• Pages: 471-531

471

CHAPTER 14

INADMISSIBILITY

A. INTRODUCTION

As outlined in previous chapters, the immigration system aims to at-

tract and facilitate the entry of various classes of people into Canada.

At the same time, it establi shes mechanisms to ensure that t hose whose

presence is unwelcome are denied entry or are removed. The idea that

some individuals are desired while others are not is ref‌lected in the

objectives listed in the Immigration and Refugee Protection Act (IRPA).1

On the one hand, there are provisions to facilitate family reunif‌ication2

and to “permit Canada to pursue the maximum social, cultural and

economic benef‌its of immigration.”3 On the other hand, there are pro-

visions to “protect the health and safety of Canadians and to maintain

the security of Canada.”4

Thus, while an applicant may be eligible to obtain status in Canada

in the sense that he meets the selection criteria, he may nevertheless

be inadmissible. Where a reason exists for barring entry or continued

residence, it will usually trump any reason for permitting the person

to stay.

1 Immigration and Ref ugee Protection Act, SC 2001, c 27, s 3 [IRPA].

2 Ibid, s 3(1)(d).

3 Ibid, s 3(1)(a).

4 Ibid, s 3(1)(h).

IMMIGRATION LAW472

Over the years, recurring warnings have been included in gov-

ernment publications that, as a society, we face severe and continuing

threats from organizations and individuals from beyond our borders.

Moreover, a dominant idea that has recently informed and shaped the

government’s agenda on immigration regulation is that these groups

and individuals will be able to perpetrate their mischief more easily

unless we police our borders more carefully and impose tougher sanc-

tions on those whom we have permitted to enter but who may have

spurned our generosity by engaging in wrongful or irregular conduct.

It has become a high priority to expose the possible threats posed by

non-citizens who seek to enter or who may have entered the country

for illegitimate reasons and to devise and develop effective remedies

that will address the risks effectively. As a consequence, we have wit-

nessed substantial modif‌ications to our immigration laws with a new

and stronger emphasis being placed on securitization and deterrence.

The fact that undeserv ing victims are also netted in thes e wide-ranging

efforts to diminish the risks appears to be regarded as merely unfortu-

nate and unavoidable collateral damage. This change in emphasis has

been noted by the Supreme Court of Canada. In Medovarski v Canada

(Minister of Citizenship and Immigration); Esteban v Canada (Minister of

Citizenship and Immigration), the Chief Justice observed:

The objectives as expressed in the IRPA indicate an intent to priori-

tize secur ity. This objective is given effect by preventing the entry of

applicants with criminal records, by removing applicants with such

records from Canada, and by emphasizing the obligation of perma-

nent residents to behave lawfully while in Canada. This marks a

change from the focus in the predecessor statute, which emph asized

the successful i ntegration of applicants more than security . . . .5

In addition, the government has introduced harsh measures to

counter what it identif‌ies as serious attacks on its sovereignty by those

who would seek to weaken the fabric of the immigration regime by

violating its norms. Expensive and controversial processes have been

developed to root out those who have misrepresented their status or

ignored the conditions placed upon their entry.

One can trace this development in immigration law in Canada to

the statement of Sopinka J in Canad a (Minister of Employment and Immi-

gration) v Chiarelli that, “[t]he most fundamental principle of immigra-

tion law is that non-citizens do not have an unqualif‌ied right to enter

or remain in the countr y.”6 This statement has been repeated f requently

5 2005 SCC 51 at para 10 [Medovarski].

6 [1992] 1 SCR 711 at 733.

Inadmissibility 473

in very different circumstances to justify the denial of entry or the

removal of both foreign nationals and permanent residents. Despite

the inf‌luence of Sopinka J’s statement, its pedig ree and the conclusions

to which it has led him are both of questionable merit.7 Neverthless, it

is undeniable that the idea that admission into Canada is “a privilege

determined by statute, regulation or otherwise, and not a matter of

right”8 is the normative approach that currently guides how Canada

determines inadmissibility and provides the underlying rationale for

the criteria of inadmissibility that are applied.

This chapter focuses on the criteria used to f‌ind a person inadmis-

sible, while also highlighting the signif‌icance of recent changes intro-

duced in Bill C-43, the Faster Removal of Foreign Criminals Act, which

came into force in June 2013.9

B. GROUNDS OF INADMISSIBILITY

The IRPA, sections 34 to 42, sets out ten general grounds of inadmis-

sibility: security (section 34); human or international rights violations

(section 35); serious criminality (section 36);10 organized criminality

(section 37); health (section 38); f‌inancial reasons (section 39); mis-

representation (section 40); cessation of refugee protection (section

40.1);11 non-compliance with the IRPA (section 41); and inadmissible

family member (section 42).12

7 See Chapter 1, which d iscusses how Sopink a J’s statement relies on a question-

able claim of Lord De nning, in R v Governor of Pentonville Pr ison , [1973] 2 All

ER 741 at 747 (CA), that “[a]t common law no alien has any r ight to enter this

country except b y leave of the Crown . . . . If he comes by leave, t he Crown can

impose such condit ions as it thinks f‌it” and how va rious scholars have cha l-

lenged the valid ity of this view in the com mon law.

8 Toronto Coalition to Stop the War v Canada (Minist er of Public Safety and Emer-

gency P reparednes s), 2009 FC 326 at para 23.

9 SC 2013, c 16.

10Crimin ality is included as a subcat egory that applies only to foreign n ationals.

Serious cr iminality applies to b oth permanent resident s and foreign nationals.

11This ground of in admissibility is con sidered in Chapter 11 dealing w ith inland

refugee determ inations.

12Bill S-7, An Act to amend the Immigration and Re fugee Protection Act, the Civil Mar-

riage Act and the Criminal Cod e and to make consequenti al amendments to othe r

Acts, 2nd Sess, 41st Parl, 2013–2014 (Second Reading in the Hou se of Commons

and Referral t o Committee 23 March 2015): New additions wil l be added to this

ground of inadmissibility.