Mr. B who immigrated to Canada in 1998 was recently deemed inadmissible to Canada by Canada Border Services Agency (CBSA) under section 36(1)(b), section 36(1)(b), and section 37(1)(a) of Immigration and Refugee Protection Act (IRPA) (section 36 refers to serious criminality and criminality; section 37 refers to organized crime).
In 2015, The American police caught Mr. B with 15 kilograms cocaine in his bag in an entrapment when he met with a drug dealer in a motel in California. He was later convicted in the States by the US District Court. If any of the three is established, he would be found inadmissible by Immigration Division and issued a deportation order, and deprived of his permanent resident status in the meantime. Yet for some of the breaches, such as under section 36(1)(b), a permanent resident has the right of appeal, which means the appellant could appeal to the Immigration Appeal Division after receiving the decision of the Immigration Division. The lawyer for appellant conceded s.36 (1)(b) and focused on s.37 for defense directly, because if found inadmissible under s. 37 (organized crime), the permanent resident does not have the right of appeal.
The Minister’s Counsel (similar to the prosecutor in criminal cases) was prudent and careful. He started with “intention” and constituting elements of the organized crime in the Criminal Code, then he discussed constituting elements of section 37 (1)(b) in the Immigration and Refugee Protection Act, which includes the following: 1) it must be at least three participants to constitute an organized crime with, regardless of the appellant being a principal or accessory criminal. In this case, Mr. B was accessory as he was only responsible for renting and delivering the car to his partner in the US who would drove and returned the car back to Canada with cocaine. 2) The crime must be a transnational one from, one country to another. 3) There must be material benefits. Mr. B in the case got 2000 dollars as reward. With the case clearly fitting the three elements, there was no need to repeat or defend the long and tedious process. The evidence from the US District Court was all well recorded.
After Minister’s Counsel’s submission, the appellant’s counsel had no submission at all because the breach of section 37 (1) (b) is well established. There is no point to make any more arguments. The Member (similar to Judge in other tribunals) concluded that Mr. B is inadmissible to Canada.
As far as I can see the only possible way to get around it is to prove that the crime is not transnational as required under 37 (1) (b). My suggestion to the new counsels is to be reasonable like the counsel of that day. Some of the counsels would make the case no matter how hopeless the case is. This will not facilitate one’s career. People talk. The Members work together in the same building, and so do the Minister’s counsels from CBSA. There is a balance between being reasonable and making the best interests of your clients.
(The name of the appellant is de-identified)
1998年移民加拿大的B被最近被CBSA判定inadmissibility，三个charge，一个36(1)(b)，37 (1)(b)，还有37(1)(a)（移民法第36条都是关于Serious Criminality的，37条都是Organized Crime）。
2015年的时候，他在加州的某一个motel里跟另一个毒贩子接头，被美国警察钓鱼执法抓了个现行，包里有15公斤可卡因，B先生最终被US District Court定了罪。CBSA的三个指控任意一个成立都可以由Immmigraiton Division判定inadmissible并且签发deportation order，并剥夺移民身份。但是有一些charge成立之后也有上诉权的，比如36(1)(b)，也就是说被告不服Immigration Division的判决可以上诉到Immigration Appeal Division，但有的就没有上诉权，比如section 37 organized crime。所以辩护律师上来就concede s.36(1)(b)，直接打讲37条即可。
Minister’s Counsel (近似于刑事案件里的prosecutor)很细致地先讲了Criminal Code刑法里的犯罪意图(intention)，然后讲Organized Crime的犯罪要素，然后讲移民法37 (1)(b)的要素构成，要素如下：1)必须是organized crime，也就是至少要3个人参与，至于是主犯还是从犯这不重要，这个案子是他是从犯只是负责租个车开到美国把车提给同伙即可，同伙会负责用车运可卡因回加拿大然后还车。2). 必须是transnational，也就是从一个国家到另一个国家。3) 要有material benefits，这哥们儿拿了2000刀的报酬。三个都满足了，至于犯罪过程，美国判决书内容，还有过一遍evidence我就不重复了，很长也没什么意思，证据都记录在案的没什么可辩护的。
接下来辩护律师没的说，直接说No Submission，没什么可讲的了，都是板上钉钉的。然后Member（近似于其他法庭的法官）宣判结果，37 (1)(b)成立，无上诉权。
在我看来这个案子的唯一解法就是辩护B先生是单程去的美国，没有回来所以不满足section37里transnational条件。另外对年轻从业人员的建议是，上庭一定要reasonable，有的辩护律师无论是多么hopeless的案子都坚持辩护，显得很desperate。你当然可以这么做，而且法庭必须听你陈述，但这对你的职业生涯毫无帮助，法官和cbsa的counsel都在一个楼里办公，抬头不见低头见的，People talk，你的名声早晚传遍这个行业。在最大限度为客人争取利益和reasonable之间需要有一个平衡。
（本案当事人名字为化名）