ANALYSIS: The Federal Court has upheld an order deporting a woman who has been a Canadian permanent resident since she was a child.
The case of Adina Harms-Barbour illustrates the enormous consequences criminal conduct can have on a permanent resident’s status in Canada, even if they have lived here for most of their lives.
Harms-Barbour is a German citizen, who came to Canada as a permanent resident in 1975 at the age of seven. For whatever reason, she never obtained Canadian citizenship. On a day-to-day level, this difference is of limited significance to most people. However, there are serious differences between the rights of permanent residents and citizens. Among them is that citizens are not subject to deportation.
Harms-Barbour, however, was found guilty of serious crimes in recent years. In 2015, she was convicted of fraud over $5,000. In 2016, Harms-Barbour received a five-year jail sentence for this offence. In 2017, meanwhile, she was convicted of two crimes relating to forged documents and sentenced to two years in prison, which was to be served concurrently with that for her fraud conviction.
Canadian immigration law identifies several grounds on which a permanent resident or foreign national may be inadmissible to Canada. One of these grounds is serious criminality. Included in this definition is a situation where a person is convicted of a crime in Canada, for which the maximum term of imprisonment is ten years or longer, or where the person receives a prison sentence of six months or more, irrespective of the minimum sentence. Following her convictions and sentencing, Harms-Barbour fit this category.
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Accordingly, in 2017, Harms-Barbour received a note from a Canadian Border Services Agency (CBSA) officer informing her that a report may be prepared indicating that Harms-Barbour was inadmissible to Canada due to serious criminality. This document invited Harms-Barbour to make submissions as to why she should be allowed to remain in Canada.
Harms-Barbour indeed replied, and made mention of her establishment in Canada, such as her employment and her relationship with her daughter and other family.
In January 2018, a CBSA officer, different from the one who had dispatched the note, recommended an admissibility hearing.
In the interim, Harms-Barbour’s lawyers raised the possibility of resolving the matter by issuing a warning letter. The warning letter serves as a discretionary alternative to convening a hearing and ruling someone inadmissible.
However, the attempt to let Harms-Barbour off with a warning failed. A subsequent hearing resulted in the tribunal indeed finding Harms-Barbour inadmissible to Canada, and issuing a deportation order against her.
Harms-Barbour appealed the referral and the deportation order to the Federal Court. She contended that the referral to the admissibility hearing was unreasonable and that both the second CBSA officer and Minister’s delegate, who ordered her deportation, had breached her procedural fairness rights.
She also asserted that the reviewing officer had failed to consider various evidence and factors, such as the role of Harms-Barbour’s ex-husband in her crimes. The Court dismissed this claim, noting that it is accepted law that the decision-maker is presumed to have reviewed all the evidence before him or her and that even if Harms-Barbour’s claim about the involvement of her ex-husband in her crimes were true, it did not negate the finding of guilt or presumptive inadmissibility against her.
With regards to procedural fairness, Harris-Barbour noted, among other assertions, that the enforcement manual states the best documentation is a transcript of the trial judge’s remarks on conviction or sentencing, commonly known as the Judge’s Reasons for Sentence. The reviewing officer, in his narrative, had failed to check the box for this element in his report. Harris-Barbour contended that this hole meant the officer had failed to consider an important element of her convictions.
The Court also rejected this argument. It noted other evidence that the officer had indeed considered the judge’s remarks at Harms-Barbour’s conviction. Moreover, observed the Court, at any rate, the enforcement manual was just that— a manual, and it was not necessary for the officer to adhere perfectly to its provisions: they were not strictly necessary, they were not binding as were laws and regulations.
Accordingly, the Court rejected her application for judicial review, upholding the deportation order. Harms-Barbour now has limited resources, such as a pre-removal risk assessment to challenge this order. The consequences of deportation from Canada are severe. A person on whom a deportation order has been effected is presumptively banned for life from Canada. The only way that person can return to Canada is by receiving an Authorization to return to Canada, known as an ARC. The granting of ARCs is contextual and discretionary, and there is no guarantee Harms-Barbour would receive one.
Harms-Barbour’s case is of value in highlighting and clarifying several legal concepts: that even very long permanent residence in Canada is no bar to deportation; that Courts do not tread lightly with the decisions of administrative tribunals; and that the difference between a process between not complying with laws and regulation and between guidelines is significant indeed.