Immigration Defence Lawyer Ottawa • Immigration Defence Lawyer Ontario • Immigration Defence Lawyer Toronto

What are Immigration Offences?

Not all immigration rule infractions lead to charges. Much like being a bit late on filing your taxes, much of the immigration world is based on civil penalties to encourage future compliance, rather than to punish. But sometimes the degree or type of infraction is thought to so seriously threaten the underpinnings of the Canadian immigration system that the Canada Border Services Agency (CBSA) elects to lay charges. 

Back in the day, immigration offences were a bit of a joke in Canada. There were small fines or probation and not very punitive outcomes. Time changes. Prosecutors may now seek years of jail against you just for driving someone to or from Toronto, who you didn't even know was illegally in Canada. 

Why Fight Immigration Charges?

Canadians now face years in jail for engaging in immigration offences. Non-Canadians face being locked up in Canadian jails for years awaiting trial and deportation. But because these are "regulatory" and not criminal offences, there are lots of grey areas involved as to what exactly constitutes illegal conduct which can be a focus of a strong defence to charges.

How to Fight Immigration Charges: 3 Top Trial Defences

1. I didn't know I was contravening the law

While ignorance of the law is no excuse, immigration regulations are complex. It's a lot different to argue that I didn't know hitting someone was illegal, compared to not knowing that your particular kind of visa had been cancelled. 

Immigration offences may either be mens rea or strict liability, but in any case showing you were "duly diligent" will be a defence. So if someone pays you $200 to drive someone to Toronto, and you have no reason to suspect that person has no status in Canada, you're not guilty of an offence. 

2. No offence was committed

Sometimes even those within government can't agree on exactly what constitutes a violation of the "law" because a lot of immigration amounts to "policy" created by government bureaucrats, rather than law created by Parliament. Laws tend to go through a multi-year vetting process of careful drafting and review before they see the light of day. Whereas policy might be created on an executive's desk one day, and implemented in the field the next day. 

So what you're told is a violation of the "law" (upon which you can be prosecuted), might in fact be a contravention of "policy" (for which you can't be punished, because Parliament never authorized a penalty for that). 

3. My role in the offence was not itself an offence

Because it's impossible to get to Canada under your own steam from anywhere except the United States, there are likely going to be a few people involved in anyone else's arrival in Canada. If a person's entry into Canada turns out to have been irregular, or if he has no status in Canada, did the people who provided aid commit an offence? Unfortunately because these aren't mens rea criminal offences, the government doesn't need to prove intent on your part, so you might need a lawyer to demonstrate you were duly diligent. 

4. My Charter rights were violated

Protections of the Charter apply to immigration investigations. Even though at border checkpoints CBSA officers have greater latitude in the kinds of questions that can be asked and searches that can be conducted than would be the case inside Canada, you still have protections against self-incrimination and unreasonable search and seizure.

There are limits to government actions, and remedies for you should your rights have been violated, which could include throwing out all the charges you are facing.