Marriage Immigration Fraud and ‘Until Death We Do Part’…Really??

In my last post, I touched on some of the significant changes currently taking place in Canadian immigration. Today I would like to discuss some newer modifications which have been implemented to address the issue of marriage immigration fraud and which could potentially have ramifications for many Canadians.

Every country selects its determining factors for allowing new persons to enter into its borders and assume ‘permanent residence’ there. For some countries, the criteria may be based upon one’s ethnicity and/or religion, such that those bearing the fore-mentioned common qualities are accepted ‘home’ with open arms, no questions asked. For another state, it may be whether one has an offer of employment in the host country. And so it goes with each distinct jurisdiction.

The most conventional route to immigrate to Canada is traditionally based on merit i.e. demonstrating to the immigration authorities that one possesses the necessary merits to join our Canadian community. Thus, a would-be immigrant would complete the requisite immigration applications and provide enough information, in order to ‘convince’ the government that s/he has the ‘right’ education; work-experience; age; language; familial situation and so on. If s/he has enough points to pass the basic threshold, the government could then conclude that this person is sufficiently meritorious and s/he would then be invited to live in our glorious nation.

As the rules go, the prospective applicant must apply for immigration from his/her own home country (once again — but of course! — subject to exclusions). As you all know by now, immigration may take a long long time and during that period, immigration-hopefuls are not permitted to study or work in Canada (unless they get authorization, which I can assure you, is no walk in the park).

Basically, Canada’s attitude here can be summed-up as follows: ‘Stay at home and complete your immigration application in your home country. In the meantime, continue with your life, have children, plant vegetables in your garden if you want to and go ahead, re-decorate that guest-room which you have always put off from completing. But please please, don’t hang around our country getting nervous and anxious and antsy waiting for our answer, which when you are hanging-on, sitting on shpilkes [needles], makes you feel like the kettle will never ever boil! No, no, no, we would much rather prefer — and actually, really, we quite insist, really — that you stay put at home. In due time, when we’ve figured out what to do with you and we are in a better position to provide you with a definitive answer, we’ll call you! And if it’s a go, welcome to Canada!’ That’s more-or-less their attitude with a bit of dramatization on my part, without actually putting those words in their mouth.

Empirically speaking and truth be told, I submit that this is a reasonable approach. During my years of practice, I have met people who have mistakenly put the immigration cart before the horse, so to speak — they have effectively left their lives, homes and jobs in their native countries and have moved here — without properly taking into consideration a small, itsy-bitsy minor trivial detail, namely: their LEGAL STATUS IN CANADA! Simply stated: one cannot merely move here as a ‘visitor’ and expect to complete an immigration process while ‘visiting’.

I disclose to you that it can be especially heartbreaking to meet with such people. These are almost always good good people who have received bad bad advice! Canadian employment is not and would not be forthcoming because they very often do not have the necessary authorization to work and frankly, for many, it would be near-impossible to receive it legitimately. As it is, authentic new immigrants to Canada have enough of a challenge finding employment in Canada due to the often-touted mantra of ‘sorry, no Canadian experience!’ — imagine what it must be like for a not-yet-immigrant with no papers at all!

And with regard to studying in Canada, depending on the anticipated place and field of study, fees for foreign students can easily be double or triple what it would cost a Canadian permanent resident or citizen, all but excluding that option for many.

This immigration methodology is particularly compelling in view of the news which we recently heard from Immigration Canada about the clearing-out of thousands of backlogged files. Imagine if all of those applicants had already been established in Canada for years and years, only to be told that they would not be permitted to stay and would be required to return to their home countries.

Ultimately, it may just be for the best when these immigration candidates wait for the resolution of their Canadian immigration files in the comfort of their own territories.

One major exception to the rules of a) not requiring to prove any ‘merit’ in order to immigrate to Canada; and b) being authorized to proceed with an immigration application while still in Canada is the case of spousal sponsorship.

Basically, the government’s policy is that if a Canadian permanent resident or citizen marries someone who is neither, then the former has the right (subject to conditions) to ‘sponsor’ the latter. Yes, while s/he is in Canada and again, bingo, without having to show any merit on their part.

I believe that this approach is one generally assumed by almost all  countries. It’s just seems pretty normal and pretty obvious. Could you ever imagine it being otherwise?! Would you dare to somehow envision a situation where the government says ‘sorry, but your intended spouse does not have enough education / work experience / language skills / and so on and is thus precluded from entering Canada? There would be an uproar (and not many people looking for spouses outside Canada)!

And conversely, just to stretch this a bit, what would happen if the Canadian permanent resident or citizen would then also not have enough points to get into his/her future intended’s native country. Would we subsequently end up with married couples living in different countries, unable to move to each other’s country to live a common life??! Definitely, an untenable and unimaginable state of affairs.

Consequently, if the sponsor has basically been a good boy or girl — again subject to conditions and exceptions — and there is sufficient evidence to demonstrate that the marriage bond is sincere and genuine, then s/he is permitted to bring his/her spouse (also subject to certain rules) back to Canada and start the spousal sponsorship application in Canada.

We all know what a great and friendly country Canada is. Yes, accommodating but hardly foolish! Indeed, even though Canada’s spousal sponsorship does not rely on a merit-system, allowing in fact, spouses to join our team just by virtue of the fact that they have married one of our team members, this does give the participants a free ride!

This is where the ‘sponsorship’ of ‘spousal  sponsorship’ kicks in   —  in order to be processed accordingly, the sponsor must agree that s/he will be responsible for the basic needs of the sponsoree, as well as agreeing to being on the hook to reimburse the government for any sums received by the sponsoree, should s/he ever receive social assistance or ‘welfare’ from the government. This ensures that the Canadian public at large will not be left holding the bag and footing the bill for expenses which the sponsor should have been responsible for and should have rightly assumed.

This obligation extends for three years from the date of receiving permanent residence.

Sponsor: you have to take care of your own.

With spousal sponsorship, if all of the conditions are met, it is really one of the smoothest and best opportunities to gain entry into Canada. It’s almost a slam-dunk — a foreigner marries a Canadian and s/he is allowed to participate in the wealth and opportunities that this great country offers.

Sadly, the draw of this process also bears its drawback.

Ah…the motivations for which people marry, there are many! Not for us to judge, most marry for emotional attachment; to build a family and companionship; but there are also those who do so for physical, financial and personal security. People marry at all stages of the life-cycle and each age-zone brings with it its own particular needs and concerns, which the bonds of marriage idyllically address, soothe and remedy.

And in the eyes of the Canadian government, as long as the marriage is genuine and binding, there apparently is not much of an interest in the underlying explanation and incentive for the marriage. Whatever or why ever — you’re married, it’s for real, mazel-tov and have a great life.

Where the hairs do get raised real tall on the government’s bureaucratic back is when foreign persons marry Canadian permanent residents or citizens solely for the purpose of gaining a facilitated entry into Canada. This is where Canada draws the line.

There have been more than a few stories of dishonest and criminal foreigners who have taken advantage of Canada’s benevolence and of their spouse’s affections, by marrying exclusively for the reason of easy entry into Canada. 

As just one example, there was recently a story in the news of an elderly gentlemanly BC man, who met a European woman through an internet dating service. After a positive communication stream for several months, they finally married and she came to Canada to live a life of wedded bliss with her new-found Canadian husband.

At least that is what he mistakenly desperately wanted to believe. Truthfully however, the minute that she received her permanent resident status, she left her husband. Lacking any viable language or life skills, or perhaps not caring either way, she went on welfare as her preferred form of sustenance and that is where she remained.

The saddened and humiliated husband appealed to the government to repeal her permanent residence status, as her true motives surfaced and became crystal clear. However, working within the framework of the then-law, and as per the sponsorship agreement with the government, she was able to continue to live off the hog and Mr BC was held liable for nearly 100 000$.

Alas, without being cocky, this story-line is unfortunately a dime-a-dozen. There may be many permutations and variations of the finer details, but they always lead down the same road to a tale of a wily unscrupulous foreigner taking advantage of an obliging Canadian and our generous government policies.

To address this inconsistency, the Canadian government recently introduced legislation to tackle this area of Canadian vulnerability. 

Effective 25 October 2012, sponsored spouses or partners in a relationship of two years or less and who have no children in common at the time that they submit their sponsorship application, must now live together in a legitimate relationship with their sponsor for two years from the day which they receive permanent residence status in Canada. Until that time, the permanent residence is considered to be only ‘conditional’. If they do not remain in the relationship for two years, then the ‘conditional’ permanent resident status may be revoked.

After the two-year trial period, the conditional status evaporates though one year of the sponsorship obligation remains still in effect. 

The Minister of Immigration has also confirmed that spouses would not be required to stay in a relationship where there was evidence of abuse and/or neglect and that a subsequent severance of the marriage would not necessarily entail a removal from Canada.

Furthermore, in March 2012, Immigration Canada introduced a new measure that would disallow new permanent residents from sponsoring a spouse for five years from the date which they become permanent residents. Thus, even if a divorce were to ensue after two years, the new immigrant would be held back from sponsoring a different person.

Will these measures bring about the desired effects? Only time will tell. Certainly, at the very least, these new regulations bring us Canadians more in line with the United Kingdom, US and Australia, who all use some form of ‘conditional’ status as a deterrent to marriage fraud.

As an aside, I’ve often wondered how CIC immigration officers view the arranged-marriages or 'controlled-dating'. Some couples meet for several times before becoming ‘official’ and then marry in a fairly short period thereafter. Others get engaged after meeting one or two times and have a lengthy engagement period. How do these different models of courtship and marriage appear to those officials whose job it is to verify and validate these relationships? I believe that ultimately it is very important when submitting a spousal sponsorship application, that it be a perfectly crafted, tight and exact application to avoid later complications and disappointment.

Law is dynamic. It modifies, it evolves and hopefully improves. We can only anticipate that these new rules will relieve any victims and potential victims of any wrongdoing.

If you have any questions regarding this article and or spousal sponsorship applications, or if you believe that you or someone you know may have been a victim of immigration marriage fraud, kindly do not hesitate to communicate with me at the provided coordinates.

Wishing you and yours Happy Holidays!

Oh, Canada!

A great misconception for many would-be immigrants, who are seeking to move to Canada, is that it should be possible to do so in a relatively short amount of time, say 3 - 4 months.
 

Every so often, I encounter someone who just doesn’t believe that it takes much longer than that. ‘What’s the big deal?’ they exclaim with disbelief. ‘You just fill out the forms, send them off and you get your answer!’

I inform them that to begin with, starting from their own end, it usually takes a fair amount of time to gather all the requested documentation and to then properly and painstakingly complete the application forms. (Remember: measure twice, cut once?) After being mailed, patience is the rule, as we uncomplainingly endure while the immigration bureaucracy meticulously surveys the application and carries out its investigations. “What takes so long?” Good question, but it does.

What made me think of this recently, was a NY Times article, published on 02 November ’12, (“At a Loss? There’s Always Canada”) forwarded to me by an American friend. The article highlights and discusses the reactions of some Americans (particularly the left-leaning ones) to the possible outcome of the US election. Each political side possesses its cronies, with some proudly boasting that if [you put in the candidate’s name] wins the election, they will pick themselves up and move on up to Canada.

Ah, but of course! It makes such perfect sense! Just move to Canada. Come on up! Not a problem at all. Good ol’ Canada. Reliable, dependable, rugged. A refuge, no less!  Canada — the pure glistening, summer cottage and resort area, a place to relocate to when things don’t look and feel so fuzzy good at home. We — the morning-room to their kitchen, the cozy spot to saunter over to in bathrobe and slippers, while reading the morning news and nursing a piping hot cuppa joe. You don’t fancy the US (this minute)? Fret not — just park yourselves in welcoming, accepting, adoring Canada. We will be waiting for you with flowers at the borders.

NOT!

First of all, before anything, (as the article also makes a point of mentioning) Canada, ironically, has a somewhat right-wing political agenda of its own as of now, albeit our distinct Canadian-style conservatism. US left-wingers seeking to escape from Republican Romney-politics, would be sorely disappointed if they were expecting in Canada a free-thinking and ‘liberal’ utopian society.

I should also draw attention to another very serious irritant and sore point for many left-wing ideologues, by taking this opportunity to trumpet quite loudly our Prime Minister Mr Stephen Harper and his government’s principled, committed, unflinching and unwavering support for Israel, never heretofore witnessed by the Canadian public and oft-times much to the chagrin of the majority of the international community. 

But frankly, it’s really the immigration component that I’m thinking of here. Dear American cousins of the above-mentioned article, how exactly do you suppose you can ‘come to Canada’?! On which legal principles do you believe that you would be given entry to Canada to study or work? Sorry to be the one to burst your bubble, but it just ain’t that easy! We love you as our neighbours and friends — we really, really do, but when it comes to immigration, you stand in line mostly like everybody else!

Forgive me, but you just don’t get to ‘come over’ to Canada at your whim.

Indeed, Canada is a phenomenal country — political stability; healthy economy; cultured; broad and generous social-care system; and great weather (okay, four out of five isn’t too bad!). Our country receives an incredible amount of immigration applications each year from persons wishing to migrate here and share in our precious resources.

And, precisely because of this never-ending flood of applications, the Canadian immigration system had, of recent, become seriously inflated and backlogged with immigration applications. However, new changes to the Canadian immigration system have attempted to relieve this condition, and they have also tightened the rules and narrowed the passage-way for immigration-candidates wanting to achieve Canadian permanent residence.

Backlogs in immigration file-processing is not a new issue and has been a problem in the past as well. However, under the old immigration system prior to recent changes (discussed below), the build-up of unprocessed applications had reached an unmanageable and unfathomable 640,000

The reason for the incredible growth of this backlog monster is that while international Canadian visa offices had quotas for the amount of permanent resident visas which they could issue, there was no such similar limit on the amount of applications that they could receive. As a result, the amount of submitted applications outstripped the amount of available visas. Demand had simply overburdened the supply.

Seeing this imbalance, feeling the need to ease the incredible backlog which had resulted, and also to address the issue of attracting and selecting better candidates to become permanent residents, the Canadian government enacted significant changes to the Immigration and Refugee Protection Act in February of 2008.

Under these amendments, the Minister of Immigration could make changes to the Federal Skilled Worker program (the most conventional and routine way to enter Canada, other than through Quebec), by limiting the amount of applications which it would consider for processing, and slapping on new immigration requirements and categories which applicants would have to fit into before consideration by the government. It was determined that these changes would be applicable only to files submitted on or after 28 February 2008.

Indeed, the Minister did eventually issue ‘instructions’, effectively narrowing the funnel of the intake of applicants to the Federal Skilled Worker program. It really was quite a change from the previous system!

However…the unexpected by-product of all this was that the newer files were being processed before the older files  (i.e. those submitted before 28 February 2008), and the older files continued to stack up in the back rooms. In 2011, only 34% of permanent residence visas were issued from the pre-2008 era; the rest remained untouched and untreated by immigration officials.

Back to the drawing-board again, and still seeking to eliminate the burdensome build-up of files, a new law was introduced on 30 March 2012. It effectively eliminated any applications which had been submitted prior to 28 February ’08, and which had not yet received a positive response by 29 March 2012. This resulted in a return of a whopping 280,000 immigration applications (along with their processing fees worth $130 million), amounting to about 95% of all the pre-2008 applications! This clearing-out process was expected to continue until about 2017.

Needless to say, there was a public outcry, both at home and abroad, in reaction to this momentous decision by the government. People who had pinned their hopes of a better future on Canada were saddened and befuddled to be so turned away, years after they had applied. And of course…that anger and resentment has turned into the undertaking of legal action against the federal government.

In a case to be presented before the Federal Court, the first issue for determination will be whether all rejected immigration applicants could be included in a class-action lawsuit. If they could, then only one case would have to be tried and decided, with the result applicable to all affected participants.

The second matter to be adjudicated rests on the merits of the case, and subsequently the legality or illegality of the new law and backlog-clearance. The case is expected to start in November 2012.

More recently, on 02 November last, Minister of Citizenship and Immigration Mr Jason Kenney, announced that only(!) 100,000 files remain in the system, (from a high of 640,000) and that he expects these to be cleared by the end of 2013. He further stated that by the end of next year, immigration files will be able to be processed within a year as opposed to the eight-year delay which had become the standard.

Not to be the odd man out, Quebec has also toughened up its own immigration process. As you may be aware, even though the domain of Canadian immigration is legally under federal jurisdiction, by agreement, Quebec has been given the right to select its own immigrants (while applicants’ final acceptance still remains in federal hands).

By a Quebec government decision, published in the Gazette officielle du Québec on 29 June, 2012, the Ministère de l’Immigration et des Communautés culturelles has also placed limits on the intake of applications corresponding to designated immigration classes. It is now necessary to meet new criteria established by these recently enacted rules.

Thus, it is clearly evident that whether immigrating through Quebec or the rest of Canada — from any country of origin — the process is hardly a walk in the park. Americans-from-the-article, beware!

Notwithstanding all of the above, and to be fair and perhaps present a more balanced picture, I think that it might be possible to argue that US citizens still do have a bit of an advantage in coming to Canada.

On a very elementary and common level, Canadians and Americans enjoy mutual, relaxed and restriction-free ‘visitation rights’ to each other’s countries: a) there are no visitor-visa requirements from either country imposed on their respective citizens, when travelling from one country to the other; and b) unless someone’s got a fishy story or they’re acting like they’ve got something to hide, a visitor to either country will not normally be prevented from entering. Generally speaking, it is only when an immigration officer suspects that the ‘visitor’ may actually be entering to work or study without authorization (or other matters at play), that he/she may be refused entry.

As for employment opportunities, if Canadians want to work in the US or vice-versa, there is this handy law known as NAFTA or the North American Free Trade Agreement. It is actually quite a vast law; however, as it pertains to our discussion, let it be said that it greatly facilitates the exchange of professional workers between the two countries. It alleviates much of the standard paperwork, and when possible, really provides a great opportunity for certain classes of workers to find employment in each other’s countries.

And even with the new immigration rules in place for those seeking Canadian permanent residence, US nationals might also be favoured.

For one, Canadians and Americans share cultural, political and societal norms. Moving from one country to the other would not necessarily entail an upheaval in one’s life. Generally speaking, Americans are easily transportable from their society to ours, as we are to theirs.

A common complaint heard from recent or prospective immigrants to Canada when searching for a job opportunity, is that prospective employers want them to have ‘Canadian experience’. Of course, this is not such a comical catch-22: the immigrant can’t have Canadian experience if no one is willing to hire him, and then conversely, no one is willing to hire him because he has no ‘Canadian experience’.

US nationals would face no such discrimination and would be more readily able to garner Canadian employment opportunities. Both Canada and US workers have their respective particular work habits and traits, and each country’s employees could wisely learn from each other. Canadian employers would welcome US workers’ know-how and forward-thinking attitudes. No issue of lack of ‘Canadian experience’ with this segment of immigrants.

This is buttressed by the fact that schooling; teaching and educational methods; and certificates, diplomas and degrees of higher education of both Canada and the US are usually accepted at face value by either country. Whereas foreign educational credentials need to be assessed for their Canadian equivalency in any immigration application, this is usually not the case with degrees issued in the US.

Finally, the new legislation coming into effect in January 2013 will place greater emphasis on English language skills, which Citizenship and Immigration Canada has recognized is “a key factor in the success of new residents in Canada.” As (most) Americans share English with us as their mother tongue, they could reasonably expect to improve their chances for immigration based on this fact alone.

So as not to alarm some readers, none of the above has anything to do with spousal sponsorships! That is its own kettle of fish and, although it has also recently undergone significant changes, is beyond the purview of this article.

In summation, behold you have witnessed the under-belly of the immigration process, fraught with personal, time and legal challenges! Migration from one country to another, though greatly valued by some, is truly not for the faint-of-heart. Immigrants to this country have often expended great efforts on their immigration projects.

So, to those Americans who are unhappy with the election results: you’re always welcome to come here, but…it just ain’t as easy as you think!

Lawyer-up...or not?

I hope that you all have had a nice and peaceful summer.

Before we get to the main course of this article, I wish to preface with the following disclaimer.

When a law student is ‘called to the Bar’ to become a Bar-accredited lawyer, he/she initiates his/her career by committing, in a ‘swearing-in’ or ‘affirmation’ ceremony, to never disclose or divulge any information transmitted to him/her by a client. Predictably, there are certain (extraordinary) exceptions to this rule, such as when a lawyer is bound by statute to release particular information under specific, extreme circumstances. And of course, this rule has generated much case-law about what is and isn’t included in this blanket coverage. Still, suffice it to say, that as a rule, whatever is revealed and shared in a lawyer’s office always remains in the lawyer’s office. Under pain of severe penalty, no gossiping about clients is tolerated by the Barreau du Québec!

In my own practice, this has been so much the case, that when friends or acquaintances, of both my wife and I, have consulted me on legal matters, even regarding those which would eventually become public and open to all, I have nonetheless never, ever shared any of these details (both before and after) with my wife and/or anyone else. So much so, that some of these persons have later quizzed my wife, ‘You mean to tell me that your husband never told you that I/we…?? It wouldn’t have bothered me!’ Well it’s the client’s  right to say and feel so, but that doesn’t release any lawyer from his/her obligation. Confidentiality and privacy are the assurances which every lawyer must deliver, and quite frankly, anything less would be disastrous for business! 

I tell you all this only to state that I will now be sharing a story with you about a case in which I was recently involved. Before preparing this article, I consulted with the main characters of the following events, to seek their approval in letting everybody in on their tale.  Furthermore, they reviewed this article before it was submitted to this newspaper. I have their absolute permission to go public with the following story.

Below is an account of a woman who received a moving-violations  ticket for allegedly talking on a cellphone while driving her vehicle. Indeed, an occurrence that could happen to anybody (hopefully not). From the description of events I believe that there are significant lessons to be learned from it.

On a hot, breezy Sunday afternoon in May 2010, more than two years ago, a woman whom we shall call Ms C, was driving her mini-van home, along with   her children.

She stopped at the stop sign of the northeast corner of Avenue A and  Avenue B. Montreal Police Constable L was waiting in her police vehicle on the southeast corner of the same two streets. As Ms C proceeded to cross Avenue A, Officer L put her cruiser’s lights on and signalled for Ms C to pull over.

Not seeing her flashing lights, Ms C proceeded to her home’s driveway, which is about a 3-second drive from the above-mentioned stop sign. When she exited the car, she was surprised to see the officer and asked her if there was any problem.

Ms C’s second statement to the officer was that she had been obeying the previous block’s posted ‘school zone’ 30-kilometer-per-hour speed limit. Indeed, the officer agreed that there was no issue with that. Instead, she accused Ms C of having used a cellphone while driving.

Ms C was stunned! She protested that she had done no such thing, that she didn’t even have a cellphone with her, and that her cellphone was actually inside her home with a dead, non-functional battery! (Tell me about it, who hasn’t been there?!) The police officer’s response was that Ms C had allowed the phone to drop to the floor of the van when she saw the former coming up behind her.

Ms C’s husband, who was home at the time and heard the commotion in the front of the house, came outside and attempted to reason with the constable. To discount the allegation that Ms C had dropped the cellphone upon seeing the flashing lights, he invited the officer to search the van, to find and retrieve the phone which had allegedly been so hastily disposed of.

To the uninitiated, big deal, so the husband offered that the van be searched! NOT! There is an incredible amount of law regarding searches and they are normally permitted only with a warrant and/or under certain rigid conditions. Cases lost or won have often hinged on improper and/or invalid searches.

Ms C’s husband believed his wife and had confidence in her innocence. He knew foremost that she cared about her children and that she would never, ever endanger them by chatting on a cellphone while driving, with them  in tow. Furthermore, he trusted that when she declared that she was not speaking on a cellphone, she was in fact, not speaking on a cellphone.

He was also fully aware that by welcoming the police officer into the van, he was waiving his legal rights against an illegal search. Section 8 of the Canadian Charter of Rights and Freedoms states that “Everyone has the right to be secure against unreasonable search or seizure.”  This section ensures that everybody has a right to privacy, and the state has no right to intrude on that privilege, unless explicitly granted the permission through various means. This rule is so strong, that Section 24(2) of the same Charter states that any property found or seized in violation of Section 8, could be excluded as evidence at a trial.

Thus, an actual invitation to ‘go-ahead-take-a-look-around’ is no small potatoes! Ms C’s husband knew it and the police officer had to have known it. Dare I say that this situation could count high on every police officer’s wish-list or day-dream, i.e. to go snooping around for evidence on someone’s private property, without having to be concerned about its legality?! Could this be the sweet dream that every police officer dreams of?? Officer L was being handed a carte-blanche to investigate the vehicle to recover the alleged incriminating evidence, an opportunity to confirm her allegations and clinch the case.

However…the officer refused to do so.

Then Ms C’s husband offered to showcase to the officer where the cellphone was actually resting — inside their house, positioned on a shelf in their kitchen, as dead as, and frankly, less useful than a block of wood. Again, the officer declined this invitation.

Finally, Ms C’s husband offered to dial the cellphone number with their family’s cordless landline phone, to catch any kind of ringing which would have turned-up in the van, but this proposal was also rejected by the police officer.

By this time, Ms C’s children were all anxious, upset, and also pleading that their mother had not been conversing on any phone. Tensions were running high and there was a concerted effort to stay calm and rational. Simply put, the officer just refused to listen to any attempts which would have substantiated that Ms C was innocent of any wrongdoing.

Officer L went back to her car (she didn’t even have a roll of paper to print the ticket and made everybody wait until another police cruiser came to deliver it to her) and then returned with the printed ticket. On it, Ms C was accused of and charged with “having operated a road vehicle while making use of a hand held device which is equipped with a telephone function”, an offence and in contravention of the Highway Safety Code, s. 439.1.

Ms C knew that she was innocent and turned to me for advice and direction. Yes, she was concerned about the dollar amount of the fine for this alleged infraction, however, she was ultimately more worried about how the penalty points could possibly impact her overall driving record and ensuing car-insurance premiums.

Thus, at her behest, I drafted a plea of ‘not guilty’ for her. Basically, her plea came to three issues:

1) She declared that she was very conscientious about driving safety, particularly when children were involved. More so as a parent, she would never engage in any activity which could endanger the lives of others and herself.  She would certainly never natter on a cellphone while driving, as she believes that this is dangerous and irresponsible behaviour, as well as against the law.

2) The cell phone in question was not present with her at the time of the alleged infraction, but was resting peacefully inside her home.  As proof that she had not been using the cellphone as claimed by the officer, I was able to obtain an extract of her cellphone bill covering that time frame. The phone’s call history, displaying the activity of incoming and outgoing calls, showed that the cellphone had not been used for several days preceding and after the date listed on the ticket, and certainly not on the actual date of the alleged violation.

3) Finally, even if she had been holding a cellphone, it would have been practically impossible for her to conceal it from the officer, as had been claimed. When Ms C got out of the car, if there would have indeed been a phone there, the officer would have noticed it on the floor or on her person. Alternatively, the officer could have accepted the husband’s offer to dial the number and Ms C would have been trapped. Ultimately, she did not see the phone, of course, because there was no phone.

In the end, Ms C’s ‘not-guilty’ plea was not accepted. The matter would have to be referred to a judge for judgement.

Soon, many demand letters for payment of the fine arrived for Ms C, from the administration offices of the city of Montreal. I was handed all of these, and only after reading the fine print (thank-you Bill 101 [the Quebec law requiring that any English on public signs be much smaller than the French] for the conditioning!), was I informed that payment was required only if the party did not intend on going to court to fight the ticket; for contesters, the payment was not necessary at this point. However, receiving these letters proved intimidating for Ms C and only after reading the fine print, was she put at ease.

Finally, almost two full years later, a notice of the date of the hearing appeared to Ms C, set for a spring Friday afternoon at 3 PM! Normally not a bad time for anyone else, but impossible for a Jewish Saturday-Sabbath observer!

Again, Ms C turned to me and asked me to draft a request for a postponement of the date, with a suggestion of some other, more suitable times. This is what I wrote for her:

I am an Orthodox Jewish woman. As part of my religious observances, I celebrate my Sabbath from Friday dusk till Saturday night. During that time, I am not permitted to participate in any non-religious matters nor am I able to travel in any kind of vehicle.

The hearing for my case is currently set for Friday afternoon at 15h00. The Sabbath begins on Friday at 17h36.

Every single Friday, beginning from the morning and continuing into the afternoon, I am always at home preparing for the Sabbath, ensuring that all of our Sabbath needs are completed before the dusk deadline. It is therefore simply impossible for me to be involved in any other matters during that time.

Furthermore, I am concerned that because of possible delays at the courthouse, there could be a real possibility that I would not even be able to have my hearing before the Sabbath begins. I certainly could not and would not proceed (nor continue) after the commencement of the Sabbath.

Finally, even should the trial finish before the Sabbath comes in, I fear that I would not have enough time to travel and reach my home destination before the commencement of the Sabbath.

It is for these reasons that I respectfully request a re-scheduling of my trial date.

I also supplied some more suitable dates and thankfully, her hearing was assigned to a more fitting date.

Finally, the issue of the language of the hearing had to be addressed.  As an anglophone, Ms C wanted to be sure that the hearing would proceed in English and again, she entrusted me with this task.

Normally, both English and French may be used in the courts of Québec. This right is guaranteed in section 133 of the Constitution Act, 1867. La charte de la langue française, better known as Bill 101 attempted to change this, to make French the only language of the courts. However, this was challenged in the Supreme Court of Canada and section 133 mentioned above was upheld, while those provisions of Bill 101 restricting the usage of English in courts were struck down.

Notwithstanding, I have heard of a case where the defendant was an anglophone and the hearing was starting — all in French. She protested, saying that she wanted to proceed in English instead. According to her account, the judge told her that she should have requested an English translator if she did not understand French and that the trial would nonetheless proceed in French.

Obviously, I wanted to avoid such a scenario. Consequently I ensured that at the least, a French-English translator would be present at Ms C’s audition.

Finally, the date of the trial loomed very near. I carefully reviewed the evidence which Ms C would present to the court, namely the map of where the whole transaction took place and copies of the cellphone bill. Just for certainty, she also had a fax-transmission-receipt for the translator request. Her husband was also prepared to testify, if necessary.

We arrived at the courthouse on that fateful day and I turned to my wife — the defendant, Ms C — and wished her the best of luck! She went into the hearing room while I waited outside. She presented her evidence and lo and behold, she was acquitted! My testimony would not be necessary. So ended our two-year saga (and may I add — our big headache)!

Well, there are many things I would like to say about our story, but I will state one:

No doubt there are some of you out there rolling your eyes and smirking, “Heh, smarty, her husband is a lawyer so of course she bothered with this all!”

Well, not really. This whole mess was a pain for me too, one that I wish we could have avoided. Still, I think that it is important to remember that when it comes to legal (and really, most everyday) issues, it is necessary to know when to pick your battles and when not.

Business-people will tell you, matter-of-factly, that bad debts and losses are part-and-parcel of conducting a business. It’s not a secret, it’s a reality. You have a business? Then you’ll also have lost monies. Doesn’t mean that it doesn’t hurt each time, but it just happens and you have to get over it and move on.

Same with being a car owner. Tickets, along with maintenance and other matters, have to be factored-in as part of the cost of owning a vehicle. Of course, nobody wants or invites these seemingly avoidable costs. But as the earth spins, so too will they occur. Sometimes because of forgetfulness; sometimes because of legitimate reasons and sometimes because of circumstances beyond our control. Anybody who gets (overly) aggravated when gifted with a ticket under their wiper or receiving it via personal hand-delivery is not being realistic about car-ownership costs. It’s okay — be upset for a minute or two, and then just give it up. And yes, I am talking from personal experience!

On many occasions, I have been asked about how to handle certain driving-related tickets. Notwithstanding what I have expressed in the previous paragraph, I am not suggesting that we always have to just roll-over and allow ourselves to be punished and fined for no good reason! Certainly, in exceptional situations, if you feel strongly that you were wronged for no valid cause AND (and this is a big ‘and’) you are prepared and willing to spend the time, money, effort and aggravation to prove it — with absolutely no guarantee or assurance whatsoever of success — then yes, it would be wholly acceptable that the ‘principle’ of the matter should be taken into account in the decision-making of whether or not to contest a ticket  and/or whether to have legal representation.

And at other times I have replied: enlisting the quotients above and  weighing all of the factors, putting each on a scale of ‘pros’ and ‘cons’ and aiming for a stark, honest and realistic evaluation, would it still be worthwhile, tenable and feasible to contest the ticket? Most times it really is not. And once again, I speak from personal experience!

However, when there could be (amongst others) a concern for a tarnished driving record, (a significant) ‘points’ penalty and/or a possibility of future, hefty car-insurance premiums, the legal landscape may take on a changed and uncertain hue. In such an instance, there really may not be that luxury to not challenge and not disprove the basis of the ticket. A well-founded defence, in law and in fact, ought to be mounted in order to fend off later potential undesirable and consequential results. Ultimately, the implicated will be the final arbiter regarding whether to engage the services of a seasoned legal professional or not.

For example, I was once consulted by someone who stood to lose 9 points for an offence that s/he claimed s/he was innocent of. The dollar amount of the fine was not momentous, but what an impact and blemish this 9-point deduction would have on his/her driving record! There really was no choice but to dispute the charge. (We fought it and won).

So…in Ms C’s situation, there was anxiety for the above-mentioned reasons, in addition to the feeling of having been ill-treated and badly manhandled. (And admittedly, readily-available and free legal advice didn’t hurt either!). Luckily, Ms C had a good case, came well-prepared, and she was thus fortunate to have been acquitted.

Nobody invites and wishes to be involved in any kind of contentious legal matters and/or conflict. Unfortunately, our hands are sometimes tied and we may have no choice in the matter. In these and all legal affairs, whether litigious or non-litigious, each person has to take into account all factors and available resources, before making a decision on how to best proceed and/or whether or not to enlist the aid of a trained legal professional.

A ‘Top’ Immigrant

Hello and welcome!

I would like to share with you an interesting article which recently caught my attention. It was posted on Market Watch [29 May last, linked on The Wall Street Journal online], entitled ‘Canada Has Spoken: Top 25 Immigrants of 2012’. In the ensuing piece, the journalist describes the award presented by Canadian Immigrant Magazine and sponsored by rbc, to people whom they consider to be Canada’s ‘top’ 25 immigrants of 2012. This honour was bestowed in recognition of “the untold and inspiring stories and achievements of newcomers to Canada”.

A review of the list of honourees indicates that all have indeed seemingly accomplished great goals. Among the listed is an “avid” volunteer; a university professor; a realtor; a lawyer; a Member of Parliament; an architect and a physician, just to mention a few. What all of them have in common is that each one is deemed to have made great personal strides, as well as significant contributions to his/her community and to society at large.

Certainly, these immigrants ought to be acknowledged for their shining accomplishments! For starters and at a very elementary level, it isn’t exactly a stroll-in-the-park to pick yourself up from your familiar native surroundings and relocate to a new, foreign setting and environment, often to a destination which is unknown, untested and unsure. Stepping outside-of and beyond your regular comfort zone, a zone which we all normally spend a lifetime building-up and perfecting, can be a very challenging and daunting undertaking!

Furthermore, many immigrants come to this country speaking neither English nor French, with few social and/or financial resources to have their back. It is only with an incredible amount of fortitude, courage and determination, usually with the implicit hope of securing a better future primarily for their children, that they work tirelessly towards forging a new life here in Canada.

Thus, if these 25 immigrants have achieved any level of success on the accepted ‘scales’ of success, then they truly ought to be acknowledged and commended for having advanced so far in their newly-adopted country.

I must tell you, that throughout my life, I have met and befriended many many immigrants. Indeed, our own illustrious city of Montreal is very multi-ethnic. Growing-up, the older generation, relatives, their friends and acquaintances, my teachers at school, the counter-people at the bakery and vegetable store and all other community stores — was there anyone who wasn’t a newcomer to Canada?!

As an aside: This was so much the case, that I recall a light-bulb moment which I had as a teenager, at a time when my small world revolved mainly around the Jewish-immigrant population which I knew in Montreal and New York.

On one occasion, I travelled to a relative’s house somewhere in the United States. On the Sabbath, we went to a synagogue for the morning services. At the front of the chapel, I saw an elderly Hasidic rabbi sitting, with a long flowing white beard. Okay, so far very nice but respectfully, as a Montrealer I was very accustomed to seeing Hasidic rabbis with long flowing beards, so there was seemingly nothing out of the ordinary or unusual for me.

However, when he started speaking to give his sermon, that’s when I nearly fell off my seat! The rabbi addressed the congregants in impeccable non-accented English! Here before me was a true bona fide American-born boy, something which I had heretofore never witnessed! Frankly, I was too flustered and confused to be able concentrate on what he was saying. It was way too incredulous to me and I was really trying to assimilate this seemingly contradictory and unintelligible scenario. An American-born Hasidic rabbi?? With a long white flowing beard?? And he speaks English so incredibly perfectly and fluently, with not the slightest trace of any European accent?? Couldn’t be!

Back to what I was discussing, also in my practice as an immigration lawyer, have I met many immigrants and prospective immigrants. People who have yearned to immigrate to our shores for whatever the reason — to escape an oppressive regime; to give their children a better life than would have been possible in their country of origin or simply because they have married a Canadian and look forward to establishing a new life on a new soil.

And herein lies my bone of contention: Sorry and I don’t mean to rain on the ‘top 25’s’ parade, but to me the question screams: how does one actually define ‘success’? What exactly does it mean to be a top immigrant’? What is the basis for the expressed admiration for these who have allegedly excelled so? Who makes this determination and by which legitimate standards are these triumphs measured?

I ask these questions, because frankly, I believe that almost all of the immigrants whom I have met and whom I have befriended over the years, they should be considered as ‘top’ (and even more so), though perhaps using a different measuring stick. They all deserve to be credited for the nothing-less-than astonishing progress and stellar achievements which they have accomplished in Canada.

We all know that we each have a limited amount of time each day to do all of our affairs. We may plan the day in advance in our minds the night before or we may set it down to paper in a planner. Whichever, fact is that no matter how you choose to slice it, participating in any particular activity, whether by choice or not, whether cheerfully or not, will by force, take away potential time from a different activity. Respectfully, this is just a plain simple fact of life. One cannot be involved in any two activities at any one given time, or to paraphrase a well-known Yiddish expression: 'you can't dance at two weddings at the same time'! There is only so much one can do in any 24-hour period. Being engrossed in one action automatically comes at the expense of a different one. Something just has to give.

So-called ‘successful’ people and/or businesses are not born, but rather (self-) created. And not created in a vacuum, but in the laboratory of real-life. The individuals behind these successes often devote a very great deal of hard work and sweat to realize their sought-after dreams and goals. Long hours of work; toiling late into the night; rarely if ever taking days-off and/or vacation days; a heavy and constant work schedule; immense pressure and/or stress; absence from family and friends; extended periods of diminished financial remunerations; ignoring one’s physical, mental and spiritual health — these are but a few of the serious and heavy sacrifices which may result from striving to achieve any anticipated and worthy goal.

Thus, (and please, 100% not to cast any kind of aspersions of any sort on the ‘top’ 25 and other such immigrants, but) the entrepreneur who has gained financial and social status through her relentless devotion to her work, but was so absorbed and driven that she ignored her health and now has serious, critical health issues — is she considered a ‘success’? A volunteer who constantly thinks of others and so willingly comes to the aid of needy persons, while his own family sorely pines for some quality and yes, quantity time with him  — is he a ‘success’? Or the business-person / professional who thinks nothing of staying late at work on a daily basis, while ignoring his own physical, emotional, mental and spiritual needs — is he/she worthy of being called a ‘success’?

The immigrants with whom I am familiar, by and large, have worked vigorously to strike a delicate balance between all the powerful and competing ‘pulls’ of their hectic lives. The post-WWll generation who was cast ashore onto Canada, was composed mostly of financially-impoverished refugees. When they landed here in Montreal, not only did they encounter abject financial poverty, they also faced a lack of proper resources to assist them with their cultural and communal needs.  And they set themselves into action, taking on painstaking hard work.

We living today in our fat-cat society may take for granted the luxurious lifestyle which we have. Most of us have advantage of incredibly developed and sophisticated infrastructures, which service our needs in our daily lives. By and large, this has also been a period of great prosperity for us all.  Yet, much of this is not the progeny of our own attempts and struggles, but rather has come about only through the incredible foresight and labour of our generous predecessors.

In addition and more importantly, that same generation also made sure to invest even greater amounts of energy into the pursuit of building and providing secure families and homes and communities for us all to live in. They ensured us with spiritual, emotional and physical stability as best as they could, especially after the adversities which they had endured. Our communities have matured and have been strengthened and consolidated in great part to their selfless exertions.

So this is the stuff of mundane, ho-hum, boring, uneventful, unglamorous, everyday immigrant life. No spotlights and runways, no climbing Mt Everest, no discovery of a cure for any ravaging disease or illness, no multi-lingual, multi-billion, multi-national corporations and definitely nobody handing out any trophies, flowers or awards. Just plain ol’ steady and secure meat-and-potatoes stuff. But in full honesty, any less deserving of credit and our immense and unwavering gratitude? I humbly submit not.

The previous generation that went about preparing ‘normal’ lives for us, they are the true ‘top’ immigrants! They are the ones who deserve the greatest accolades, acknowledgement and recognition. Perhaps the ‘top’ 25 do too, but certainly the thousands and thousands of immigrants who, time over and over, in city after city and country after country, have quietly and unassumingly gone about their daily grind and lives, paving a more hopeful and glorious path for their descendants, in order to endow them with the best possibilities ever.

Okay, so you tell me now please, who are the true and real ‘top’ heroes here??

Thanks for listening.