Advice for people who wish to cross the border to take part in
peaceful protest.

This information is general and offered as a starting point for persons who want information about coming in to Canada. It is not legal advice and should not be taken as such. The law regarding immigration to Canada can be very fact specific and may change depending on individual circumstances. There are also significant statutory changes that will come in to effect in the near future that are not dealt with here. It is hoped that this information will answer some very general questions and provide the user with some insight into the issues involved and the questions that should be asked prior to attempting to come in to the country to take part in protest. This is not intended to replace the necessity for obtaining legal advice but may be helpful in determining when obtaining such advice is warranted.

Like it or not, non-citizens do not have an absolute right to enter Canada. What follows is not what I believe in. It's the way things are.

When appearing at a Canadian port of entry you are assumed to be an immigrant unless you establish you are a visitor.

People who wish to enter Canada to attend a protest and leave afterwards are therefore requesting to be admitted as visitors.

You must be able to identify yourself personally and with respect to your nationality. Generally a valid passport is the best and easiest method and will subject you to less scrutiny. If you have any doubt bring your passport. Citizens of some countries such as the United States can get by with original birth certificates. Obviously it can be a serious offence to present false or forged documentation.

American and Mexican citizens do not generally need actual visitors visas to enter Canada. There are several other countries that are also visa exempt.

If you are a citizen of a country that requires a visitor's visa you must apply for and receive that visa at a Canadian embassy or consulate prior to appearing at a Canadian port of entry.

A list of visa exempt countries as well as application kits for obtaining visitor status are available at immigration's website at www.cic.gc.ca.

Whether you require a visa or not, at the border an immigration officer has to make a determination as to whether you are admissible or inadmissible to Canada. Simply holding the paper visa does not give you the right to enter Canada.

If an immigration officer has doubts about your admissibility she can turn you away.

The burden is on you to establish your admissibility. The immigration officer must act fairly but is not obligated to assume anything in your favour. Therefore you must provide everything that you wish to be taken into account in support of your entry.

With regard to the officer's duty to act fairly, it is possible to have a court review her conduct. However, you can take it as a given that a Court reviewing the officer's conduct will assume the officer acted fairly unless it can be proven otherwise.

You can be determined to be inadmissible to Canada if the officer determines:

- you have been previously deported from Canada.

- you are unable to support yourself while in Canada. You should therefore provide proof of your ability to support yourself. Cash, accessible bank accounts or traveler's cheques seem to be acceptable.

- you have misrepresented yourself or lied about anything in the course of
your application to be admitted. You have a basically unqualified obligation to provide truthful and accurate information to an officer. Failure to do so is grounds to turn you away and may be used against you if you wish to come to Canada in the future. In extreme cases it could lead to your detention and prosecution. Anyone who advises you to fudge or provide false information including advising you to enter the country as far away from the protest site as possible in hopes of misleading or misdirecting immigration officers from your true intent is putting you at risk. Entering Canada to attend a peaceful protest is a legitimate purpose despite whatever an immigration officer may say. If you are truthful and are turned away you may have a
case that could call attention to abuses by immigration. If you do something stupid like attempting to enter at a distant port of entry in hopes of hiding your real purpose or lying about why you are coming in to Canada you are on your own.

- you are unlikely to leave Canada . You may wish to consider bringing some evidence that you have significant ties to your home country such as evidence of employment or attendance at school, ownership of property, family/marital ties, etc. that would tend to show that it is unlikely that
you will remain in Canada illegally. If you have overstayed a visa previously, that can be held against you.

- you are medically inadmissible. That is, you pose a threat to the health of Canadians or a burden to the Canadian health care system. If you think this may apply to you, you should speak to a Canadian immigration lawyer.

- you pose a danger to the public, are likely to engage in acts of espionage or terrorism or are a threat to national security. Actually these are all dealt with separately under Canadian immigration legislation. For purposes here, however, my point is that people who show up at the border with weapons, gas masks, propaganda advocating violent protest, etc., or persons who have been convicted of offences involving serious violence at protests or elsewhere are likely to be determined inadmissible for these reasons.

Post September 11 has seen Canada enact legislation that is very vague as to what constitutes a terrorist or terrorism but very specific about what happens once an allegation is made against you. You do not want to get caught in this process. If an officer thinks you may be inadmissible for one of these reasons you can be detained and perhaps prosecuted.

- you have been convicted of a criminal offence. This is a very complicated area of the law which I don't intend to discuss in detail. These cases are very fact specific and you should consult a lawyer if you have a concern. Most offences render you inadmissible including driving while under the influence and the majority of drug offences. However, it is just as important to know that parking and traffic violations, charges for which you have not been convicted, offences for which you have been discharged or pardoned and many minor offences relating to protests do not render you criminally inadmissible. If you have some convictions that you believe are minor and may not render you inadmissible you should again consult a lawyer prior to trying to enter. If you have been charged but found not guilty, had charges against you dropped or have received a discharge or pardon you should bring original documentation from the Court to support this. This is important as often the question asked by an immigration officer is whether you have ever been charged with an offence as opposed to whether you have been convicted. If you say you have been charged but don't have the documentation to show you were not convicted or that the conviction does not render you inadmissible an officer is free to assume you are inadmissible and turn you away.

YOU CANNOT BE DENIED ENTRY SIMPLY BECAUSE YOU WISH TO TAKE PART IN A PROTEST.

Last fall there were some people who were told they could not come in because they wished to attend the protest here in Ottawa. If this happens you should politely tell them that you have discussed this with counsel and are aware that this is not a legitimate reason for being denied entry. If the officer maintains her stance ask for her decision in writing including the provision of the legislation she is relying on. This may be helpful in having the decision reviewed.

If you try to enter Canada illegally, that is you try to sneak in, or if it is determined you pose a threat to security, etc. you can be detained. If you are detained you have a right to periodic review of your detention. You will need a lawyer.

You can be deported (the government removes you) or asked to depart on your own if you are found to be in violation of the Immigration Act. Deportation means you cannot return to Canada without special permission from the Minister. Guess how likely that is.

All decisions made under the Immigration Act are reviewable by the Federal Court.

If you are denied entry you should politely ask for clear reasons why. You should make a note of everything that went on immediately after the event. The notes should be accurate and truthful. If you attempt to fudge or exaggerate you will invariably wind up looking like a liar, a crank or both. Stick to exactly what happened and let a lawyer do his job.

You do not have a right to counsel when you are examined by an officer at a port of entry. You are obligated to answer all reasonable questions truthfully. If you are detained you do have a right to counsel, at least in my opinion. When an examination stops and detention begins is often difficult to tell from a legal point of view and officers sometimes try to use this to their advantage. Even after you have been detained immigration officers may try to tell you that you do not have a right to counsel and may also try to intimidate you. They may say things like if you agree to leave the country we will let you out of jail. If you do not agree to leave they may threaten you with continued detention. This is not legitimate. The only reason you can be detained is if you are a
danger to the public or if you are unlikely to appear or comply as required by the legislation or you have broken the law. Applying for a visa or entry to Canada is not breaking the law. Lying about your intentions or background is.

If you are arrested or detained olitely insist on counsel and do not make any statements after you are arrested. Tell them you are unsure of your rights but that you are happy to comply with their lawful requests after you have consulted counsel. However, if you are offered the opportunity to leave Canada you should seriously consider taking the offer it if you don't want to stay in jail. You must have a detention hearing within 48 hours.

I have said at many points that a competent Canadian lawyer should be consulted. As I am a lawyer and make a good living from providing this type of advice you may wish to take into consideration my vested interest. However, very few of these issues are simple. Negative impacts can be significant. Further we have an interest in bringing forward legitimate cases where people have been wrongfully denied entry. Consider carefully whether your circumstances warrant obtaining legal advice. The Legal Collective offers free summary advice and in some cases representation for those who cannot afford their own counsel.

Finally, remember that you can be searched upon entry and that documents, disks, computers, etc. may be seized. There have been cases where people who were coming to Canada to engage in peaceful protest had in their possession documents advocating more violent activities. Whatever your intentions this is just going to cause you trouble. In another instance a person brought in a computer with correspondence from other protestors, address lists, etc. on it (to say nothing of your email inboxes and address books). It was clear when the computer was returned that it had been tampered with and I am sure that immigration authorities, the RCMP and CSIS perhaps even US authorities now have all the names and addresses that appeared on these lists. Consider carefully which documents you are going to bring across the border with you.

Remember that your primary goal is to attend the protest. The Legal Collective is monitoring the situation to determine whether there are cases that should be reviewed by the courts.

David Morris

Bell, Unger, Morris
Barristers and Solicitors
Immigration and Refugee Law
114 Argyle Avenue
Ottawa, Ontario
K2P 1B4

(613) 235-1266 (Tel.)
(613) 230-2727 (Fax)

davidmorris@bellungermorris.com