Electronic Travel Authorizations (e-TAs) and HIV

Immigration, Refugees and Citizenship Canada has now confirmed that people who apply for e-TAs do not need to disclose their HIV status.

The e-TA was introduced in Canada in March, 2016.  An e-TA is meant to screen visitors to Canada prior to their arrival at the border and requires visitors to answer a number of questions regarding their admissibility to Canada, such as questions about their health and criminal history. Unlike the temporary resident visa process, the e-TA application process is meant to be quick and efficient. A person simply logs onto an online site ( www.Canada.ca/eTA),  enters their passport information, answers a few questions, and receives confirmation of an e-TA approval electronically usually within minutes. 

The questions for e-TA applicants are intended to be simple and easy to understand. However, the current health screening question on the e-TA is overly simple and confusing. It asks:

 “Do you have a serious health condition for which you are receiving regular and ongoing medical treatment?”

The supporting guide for e-TA applicants provides the following instructions:

“Select YES if you are receiving regular, ongoing medical treatment for any mental or physical condition.”

This has led to a great deal of confusion regarding whether HIV status must be disclosed.  For many years, it has been the official policy of Canada that HIV is not an impediment to visiting Canada and that HIV status does not need to be disclosed on applications for temporary entry. For example, the question on temporary resident visa applications is much more specific:

“a)      Within the past two years, have you or a family member ever had tuberculosis of the lungs or been in close contact with a person with tuberculosis?

b)      Do you have any physical or mental disorder that would require social and/or health services, other than medication, during a stay in Canada?”

By contrast, the e-TA question is broader and more ambiguous, leading to much concern and confusion for people with HIV.

Thankfully, in an email to the Canadian Bar Association’s Immigration Section, IRCC has confirmed that there is no intention to require HIV to be disclosed on e-TA applications, and that the overly broad e-TA question is being re-formulated to reflect this.  The new question will likely refer to specific health conditions.

In the meantime, it is reassuring to have clarity that HIV need not be disclosed in e-TA applications. While simplicity and user-friendly communication is a noble goal, there is always a risk that simplicity can lead to greater confusion.

Dear Americans: Welcome to Canada

http://www.theglobeandmail.com/opinion/dear-americans-welcome-to-canada/article29929270/

Irvin Studin is president of the Institute for 21st Century Questions, and editor-in-chief and publisher of Global Brief magazine.

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Americans of the world, unite! In Canada. We have space still, and we want you.

Like you, we already take the tired, the poor and huddled masses of the world. Now we want your industrialists, your scientists, your men and women of letters. Give us your philanthropists, your musicians and your most brilliant students. We want them all.

I confess to no schadenfreude about the absurdity of some of your current political theatre. Instead, I, like most Canadians, remain a deep admirer of American civilization, American achievement and American chutzpah.

But it is manifestly in the Canadian interest to exploit this opportunity – ruthlessly, in proper American style – to pick off some of the world’s best talent in the service of the Canadian project and a Canadian 21st century. After all, modern Canada was created precisely as the antithesis of some of the more extreme U.S. passions and tendencies.

And what an extreme time this is in the United States. Whatever the current opinion polls, there are plenty of scenarios that could see Donald Trump become your next president. A terrorist attack on U.S. soil before the November elections – no one would wish this, of course, but it is far from impossible – would almost certainly seal the deal. Pogroms would ensue, so disproportionate has been anti-Muslim rhetoric and hysteria in your country over the past 15 years and particularly over the past year.

Canada currently accepts fewer than 10,000 American permanent residents per year, slightly more than from the United Kingdom or France. This is unacceptably low, especially given that we are your closest neighbours and that you integrate almost seamlessly into Canadian society. Many of your forebears were critical in building this great country, including major cities such as Toronto.

So why have so few of you, in relative terms, made the permanent move up north in recent years? Alas, the fault is largely ours. We have been too passive in our pitches and insufficiently imaginative and decisive in seizing the moment when it arises. We have, in some ways, been insufficiently American in wooing you. This must change.

What’s to be done? Consider this letter a call for the Canadian government to begin immediate, explicit and active communications about our sincere interest in having you immigrate to Canada – in considerably larger numbers. Our federal and provincial ministers should make this plain during their frequent working visits to your cities.

Most importantly, and this is unfortunately not a very Canadian way of doing business, our public and private leaders should be personally contacting you, by phone and even in person, regularly and relentlessly – especially those of you who are the leading lights of U.S. enterprise, culture and science – to make the case for moving to the Great White North.

Our top companies and universities should be working hand-in-hand with our governments to prepare targeted packages that would make your move to Canada irresistible and smooth at a time when your country’s politics are (to put it lightly) increasingly uncivil, and the future of your social peace increasingly unhappy. After all, this is exactly how the United States landed multiple future Nobel laureates from struggling countries over the course of the past century.

Toronto may be approaching capacity population, but much of the rest of Canada, especially in the Prairies and in the Atlantic provinces, is still a huge growth proposition and will profit greatly from your talents. You will be welcomed wherever you go. Bring with you your incorrigible optimism, your dreams, your risk taking, your lack of complexes and your macro thinking. Leave your guns at the border.

You may, at the last moment, be tempted to stay put and fight the good fight for a brighter American future. This temptation should be resisted. In exchange, we can assure you that, by all comparative appearances, you will be coming to live in the world’s best country.

Gratitude

It’s always great to get positive feedback from clients. Today I received this message:

“I am feeling so great and would like to inform you that my parents got visa and they coming to Canada. I am very happy and excited to see my parents. I am really appreciate you and your team from my heart. Its all because of you and your team hard work. You and your team did really good job for me.

Michael, in future if I need any legal help I will straight come to you. I know so many people need a good lawyer like you but can’t find out and I promise any of my known need help I will recommend you.”

The accidental union of immigration law and family law

One of the most significant trends in the legal profession over the last few decades is the prominence of specialization within law firms. A focus on one practice area brings many advantages, such as establishing expertise and increasing efficiency. However one of the significant disadvantages is providing clients with a narrower range of services and needing to refer clients to other firms in order to ensure they obtain the assistance they require.

Jordan Battista LLP was formed through the friendship of its partners rather than the confluence of its main practice areas, immigration and family law. However it did not take long before the overlap between Canadian immigration and family law was recognized by the firm’s lawyers. Clients began seeking us out for our unique ability to provide them with answers to questions that spanned both areas of law. Exploring and expanding our expertise in the areas in which the practices overlapped became an accidental benefit of working together, creating a niche legal practice in itself.

Michael and Kelly are proud to be releasing Canada’s first legal text on the intersection between Canadian immigration and family law. The book answers questions related to how the best interest of children is interpreted and applied in both practice areas, the impact of family sponsorship arrangements on entitlement to support in family law, and international adoptions. We also made it a point to address constitutional and international law dimensions of the practice areas.

As stated in the introduction to our book, newcomers to Canada share the same interests in establishing, maintaining, amending and dissolving their family relationships. We hope that legal professionals with an interest in both areas of law will find the book useful.

http://www.carswell.com/product-detail/canadian-family-and-immigration-law-intersections-developments-and-conflicts/

Was the Ottawa gunman a terrorist?

Much controversy has erupted regarding whether Ottawa gunman Michael Zehaf Bibeau was a terrorist.

Whatever the outcome of the debate, the horrendous nature of Bibeau’s actions cannot be denied: killing a soldier guarding a war memorial then threatening the lives of others on Parliament Hill. However a proper classification of Bibeau and his actions is important because of the legal and social policy implications that could potentially flow from a misunderstanding of his acts. Using the term “terrorism” to describe all incidents that make us afraid is not good enough.

The day of the shooting, Prime Minister Harper was clear in his view that Bibeau was a terrorist, stating, “In the days to come, we will learn more about the terrorist and any accomplices he may have had, but this week’s events are a grim reminder that Canada is not immune to the types of terrorist attacks we have seen elsewhere in the world.”  Last week, the Harper government proposed new measures to allow Canadian security agencies to track suspected terror suspects and to charge and prosecute them.

Yesterday, Opposition Leader Thomas Muclair stated that while Bibeau’s acts were clearly criminal, there is not enough evidence to classify them as terrorist acts.  Liberal Leader Justin Trudeau seemed to take a middle ground, stating that because the RCMP classified them as terrorist acts, they should be considered as such.

Our political leaders seem to be unaware that the term “terrorism” was legally defined by the Supreme Court of Canada over a decade ago. In a case named Suresh – in which I represented an intervenor, Amnesty International – the Court examined the difficulty in defining terrorism but nevertheless was able to unanimously agree upon a definition after examining international authorities.  The Court defined terrorism as:

“any act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or abstain from doing any act.”

There is no doubt that the first part of the definition is present in Bibeau’s actions: he caused death to someone not taking part in hostilities. There is little evidence however that he intended to intimidate a population or compel any government or organization to do or refrain from doing any act. Much has been reported of Bibeau’s alleged extremist views, however we also know that he was a crack addict with a criminal record and mental health issues. We also know that he was acting alone.

All of this indicates that Mr. Muclair is likely most accurate in labeling Bibeau’s actions as criminal but not terrorist.  The debate should continue as new evidence appears, but we should not neglect the fact that our highest court has contributed to discussion.

 

“A legitimate family project”

The intersection and gaps between Canadian family and immigration law is highlighted by they treatment of children conceived by assisted human reproduction (AHR) in both areas of the law. A recent Federal Court of Appeal decision illustrates the need for consistency between the two areas of law where children born abroad through AHR are concerned.

The Federal Court of Appeal decision in Kandola concerns a situation in which a child was conceived in India through donated sperm and donated eggs. The child was carried and born to a mother married to a Canadian citizen.

Typically, children born abroad to Canadians have an automatic right to Canadian citizenship. However, Canadian law and policy have required a genetic link between the Canadian parent and the child born abroad, regardless of the Canadian’s intent to parent or recognition as a parent in the foreign jurisdiction.  The definition of parent in Canada’s Citizenship Act is silent on the need for a genetic link, which complicates matters.

Kandola was an appeal from a Federal Court Trial Division decision which determined that the Citizenship Act should recognize Canadian citizenship for a child conceived and born through AHR. Two judges of the Federal Court of Appeal disagreed, relying mainly on the French text to determine that a genetic link is required. In dissent, however, Justice Mainville of the Federal Court of Appeal found that the silence of the legislation on the need for a genetic link was determinative of the issue that no genetic link is required.  The intended parents had engaged in “a legitimate family project” in the words of the judge, and Canadian citizenship should follow. To do otherwise would place the family in a very difficult position given that adoption was not possible.

Justice Mainville’s decision takes Canadian law to a place of greater consistency between family law and immigration law. It recognizes the reality of new methods of creating families which does not penalize intended parents based upon infertility. Hopefully this important case will find its way to the Supreme Court for much needed clarification.

In the meantime, situations like the case we represented – referred to as the most famous case involving immigration and human reproduction – will continue to occur.

http://news.nationalpost.com/2014/04/08/na0409-baby/

Canada’s transitioning

It is tragically appropriate that the presence of transgender people comes last in the acronym LGBT. In the struggle for LGBT equality, the rights of the transgendered community is almost always left behind as an afterthought.

Almost one year ago, Canada passed its first law protecting the transgender community from discrimination at the federal level. While this was a welcome initiative, it came decades after similar protection was extended to the gay and lesbian community. It was also opposed by all but 18 of the Conservative party caucus, including the Prime Minister.

The presence of an anti-discrimination law does not guarantee freedom from discrimination, as illustrated by this week’s detention of a British transgender woman in a male detention facility.

Avery Edison arrived at Toronto’s Pearson airport Monday night and was detained based on a previous immigration violation. In addition to the extreme tactics used to deal with her previous immigration violation, Edison was ordered detained in a male detention facility, despite the fact that her identity documents all indicated her gender as female.

Reportedly, however, Edison’s legal identity didn’t matter; she was told that it was the state of her genitals that would determine the facility to which she would be sent.

After the intervention of the newest member of Jordan Battista’s immigration team, Adrienne Smith, Edison’s partner, and other activists, Edison was transferred to a female facility Tuesday night. Adrienne Smith is appearing at a detention review hearing on this morning to represent Edison.

Although of little consolation to Edison, her treatment illustrates the continuing need for training, policy and legislation designed to understand the discriminatory attitudes faced by the transgender community and to eradicate what is now illegal conduct in Canada.

 

Whither gay marriage Down Under?

It has not been a good week for LGBT rights. On Tuesday, India’s Supreme Court reinstated the country’s criminal sanctions against same sex relationships, effectively criminalizing the LGBT community. Today, Australia’s High Court decided unanimously that state legislation permitting same-sex marriage violates the Australian constitution.

The case arose when the Australian federal government took the Australian Capital Territory (ACT) to court over legislation permitting same sex marriage. The ACT passed a bill in October making the territory the first part of Australia to legalise same-sex weddings. The Australian government argued that the federal Marriage Act defines marriage as solely between a man and a woman, and that Australian states cannot override that definition.

In a unanimous decision, the High Court of Australia agreed.  It ruled that only Australia’s federal Parliament had the power to define marriage, and that it did so unequivocally through the Marriage Act. It is therefore only within the power of Australia’s federal Parliament to change that definition.

You can read the High Court’s decision here:

http://images.canberratimes.com.au/file/2013/12/12/5003201/hca55-2013-12-12.pdf

The decision is certainly a set back in the march toward same sex marriage in Australia. Despite the fact that more than two-thirds of Australians favour same-sex marriage, there seems to be little interest from Prime Minister Tony Abbott’s government to move forward with change.

At a personal level, the decision is devastating for the 27 same-sex couples who were married in the ACT since last October. “It sends a message that the love of a same-sex couple is a lesser kind of love, is second-rate.” said an email release from GetUp Australia. “As an Australian married, there is no way that I’ll return to Australia and not have my marriage recognized” said David Brown, a Canadian permanent resident who was married to his Canadian spouse in Toronto.

For the Canadian LGBT community, equality seems to have arrived swiftly and effortlessly in retrospect. In many parts of the world, this is clearly not the case. The struggle for equality requires a mix of strategies - legal, political, and above all personal. In Australia as in India and the United States, public support for gay marriage has been on a steady increase. The more that this trend continues, the more that success will be inevitable, eventually.

India’s body blow

Anyone who thinks that the path toward non-discrimination toward the LGBT community is smooth and inevitable should study the Supreme Court of India’s decision yesterday to uphold laws criminalizing same-sex relations. The Court overturned a historic 2009 ruling by the High Court of New Delhi which ruled that such laws are unconstitutional. The decision can be found here:

http://judis.nic.in/supremecourt/imgs1.aspx?filename=41070

“This decision is a body blow to people’s rights to equality, privacy and dignity,” said G Ananthapadmanabhan, Chief Executive, Amnesty International India.

In fact, at a time when increasing numbers of countries are recognizing the importance of protecting the LGBT community from discrimination and recognizing same-sex marriages, there are other countries in which the trend is heading in the opposite direction. India now joins Russia and Nigeria among countries which have set back LGBT rights to varying degrees in 2013.  While the Supreme Court noted that people were rarely prosecuted under the law – at least not publicly – it was widely acknowledged by all parties in the case that these laws provided an important foundation for the harassment of the LGBT community in India from law enforcement officials, members of the public, and their own families. It has led to many successful asylum claims from members of the Indian LGBT community in Canada and other countries.

There is irony in the fact that laws criminalizing homosexuality are holdovers from India’s British colonial past, and that Britain has not only moved past criminalization, but will begin recognizing same-sex marriages in 2014.

The Supreme Court stated that it is up to Parliament to repeal these laws, and the Indian government has expressed some support for doing so. However, with general elections scheduled to take place by next May and the socially conservative Hindu nationalist opposition gathering momentum, such moves are unlikely.

 

 

 

Health care restored for refugees

Since 1957, the federal government’s Interim Federal Health program has provided temporary coverage of medical costs for refugee claimants in Canada while they wait for coverage under provincial programs. The program is based on the recognition that refugees are forced to flee and should not be deprived of medical care while they await a decision on their application for protection. It offered basic coverage, mostly for assessment, diagnosis and treatment of serious conditions.

In June, 2012, the federal government implemented severe cuts to the IFH program, dividing refugee claimants into various categories with varying amounts of care. Prescription medication was completely cut for all refugee claimants, even for cancer patients, with the exception of diseases that could pose a danger to the public. Psychological support services were also completely cut for all refugee claimants, despite the fact that many refugees are deeply traumatized by their experiences.

The cuts were almost universally condemned by health care professional groups and religious communities. Litigation was commenced by the Canadian Association of Refugee Lawyers in an attempt to have the government’s cuts declared unconstitutional.

Yesterday, the Ontario government demonstrated its commitment to refugees by announcing that it would step in to reinstate access to health care for refugee claimants. Effective January 1st, 2014, the Ontario government will provide refugee claimants with primary care and urgent hospital services, as well as medication.

This decision is significant given that Ontario is home to more than half of Canada’s refugee claimants.  It is also smart government policy because it goes beyond compassion: studies have shown that cuts to refugee health care programs simply shift such costs to other provincial programs, such as social support services and community health care centres. Refugees with serious health conditions end up in hospital emergency departments which are more expensive than preventative measures. Ontario should be applauded for this move.