KEY TAKEAWAY: Preparing MILES Ahead and understand the BRIDGES AND GAPS Between Practice and Policy
In recent days, a Charlotte Hornets NBA basketball player was denied entry to Canada at the Port of Entry and missed a game against the Toronto Raptors. As well-documented, this player had pled no contest to a domestic violence charge in 2022 and was sentenced to three-years probation. There were also apparently criminal sanctions outstanding from October 2022 for violation of a protection order, which based on what I am reading sounds like being similiar to a breach of recognizance in Canada.
While most articles did not weigh too heavily into the actual immigration issues, I found the USA Today article quite interesting as it delved into Canadian immigration law stating:
“According to Canadian immigration law, people may be deemed “inadmissible” based on their being arrested or accused of a felony crime, even if there hasn’t been a conviction.”
One potential workaround the Hornets may seek to use is a temporary resident permit. According to the Canadian government, eligibility for a temporary resident permit is determined by an immigration or border services officer, and the person applying must show that their “need to enter or stay in Canada must outweigh the health or safety risks to Canadian society.”
As I will show below, there is more nuance to this and I do want to focus on the second paragraph of the USA Today article which provides some key takeaways on what to do when you have someone who potentially could bring significant economic potential to Canada (Athlete, Musician, Artist, Business Executive) has potential inadmissibility issues that require a temporary resident permit (“TRP”).
As discussed, I will not focus on the ‘no contest’ and charges themselves as I do not have enough information to do so. Without access to the Border Service Officer’s (“BSO”) decisions and U.S. court documents, it would be presumptious to try and run an equivalency analysis. It is uncertain if the denial of entry was based on the domestic violence ‘no contest’ being treated in Canada as equivalent to a conviction (this continues to be a legal grey area, as my colleagues at Bellissimo Law Group write in this 2020 blog) or if the denial of entry was instead for the breach of recognizance giving rise to an outstanding charge . For a foreign national, one deemed indictable offense conviction is enough for denial of entry (let alone a ‘conviction’ for an assault charge carrying a maximum punishment of 10 years). Furthermore, if someone is facing an outstanding charge, there are also committing offences which is what the USA Today article was getting at. Depending on how the equivalency analysis was performed, inadmissibility could have been determined on the basis of s.36(1)(a), s.36(1)(c), and/or s.36(2)(c) of the Immigration and Refugee Protection Act.
So what should one do when there is a potential inadmissibility issue? In this case (and in what we will assume is in most cases) the outstanding charge or conviction is recent. If a conviction and the sentence was complete more than five years ago, there may be rehabilitation options. Depending on eligiblity, one might be deemed rehabilitated (subject to passage of time since completion of sentence and severity of crime), an application which can made and approved at the Port of Entry. For others, it requires an application for rehabilitation submitted at an overseas visa office.
What Athletes, Musicians, Artists and Business Executives Should Do
In my experience handling these types of cases, there are several steps that are worth noting here. First, is to look at the possibility of expungement. This is less applicable to the case I discuss, but often times we hear of denials of entry for criminal convictions that occured several years ago. These cases not only open up the opportunity for a finding of deemed rehabilitation, but in many cases had a criminal attorney in the United States been consulted with, the charges could have been expunged. However, note that there is also legal nuance to the discussion of expungement versus sealing pf recprds and often times Canadian immigration counsel and criminal attorneys in the United States need to collaborate to clarify the relevant laws, their meaning, and equivalency.
Second, if it is a case like the one above, see if you can try and first submit a TRP application to a Visa Office. In this current case, it has been over a year since the no contest plea. Assuming this (rather than the more recent breach of recognizance) was the issue and even if not, this should have been flagged earlier to try and get the player a multiple-entry TRP. I have assisted on cases where professional sports players, musicians, and executives have done this. There is also must read guidance from Immigration, Refugees and Citizenship Canada on how to frame the factors in submitting this application. A pending TRP application to IRCC may also be a possible argument used at the POE for efforts to take steps to address the risk of the applicant.
Third, try and get some leverage some connections. Justice Grammond recently set out in Dagumbal v. Canada (Citizenship and Immigration), 2023 FC 1639 (CanLII), <https://canlii.ca/t/k1kd9>:
[3] Subsection 24(1) of the Immigration and Refugee Protection Act, SC 2001, c 27, provides that an officer may grant a TRP if
“it is justified in the circumstances.”It is generally accepted that a TRP may only be granted if the applicant has shown“compelling reasons”for entering or remaining in Canada: Farhat v Canada (Minister of Citizenship and Immigration), 2006 FC 1275 at paragraph 22. In other words, a TRP is an exceptional remedy.
One of the major factors in the legal test is a ‘risk versus benefits’ type analysis. Assuming the major “risk” posed by a serious criminal issue or outstanding charge, the benefits need to be demonstrated in strength – particularly in terms of economic benefits of entry.
In this case, an NBA team has a million resources at their disposal (folks that are being paid millions, no less). The League, Player’s Association, should have (and again, may have) leveraged the ability to connect with key decision-makers or politicians in advance to advocate for this TRP to be approved. Doing this first at a visa office, allows for significant documentary evidence to be considered in advance. For example, the player could provide a personal statement and as well some submission as the player’s impact on the game could be raised with supporting evidence from the NBA and Player’s Association.
If you apply at the POE (and especially without adequate notice), you can chance the case not being flagged as significant until too late.
It is to be noted that processing times for TRPs appear to have risen world wide and at different visa offices. I would imagine that there would be ways to triage an NBA player’s application faster just by the details in the application and any leverage provided.
Fourth, give the Border Services Officer a heads up. CBSA has processes to deal with these types of special (significant) cases. It is unclear from what I have read if anybody called Pearson (assuming they flew in) to speak to a Superintendent and to prep the Port of Entry for arrival. At the very least, this ensures a Supervisor steps in and documents can be transmitted in advance and an Officer who may not appreciate the importance of entry.
Fifth, prepare a strong Port of Entry package. It is too easy to assume that one’s star status or arriving on a team plane or chartered bus will be enough, but this is not the case. Paperwork has to represent the type of fulsome application that would have been mailed out. It may even be beneficial to draft the forms and letters that would have been included in a paper-based mailed application. Have someone on call (such as competent counsel) who could jump on the phone with a supervisor to explain and clarify any information. If refused entry, try and ask for detailed written reasons and know the remedies of possible litigation. Know also, options to withdraw entry and ensure that more serious consequences such as being compelled to an inadmissibility hearing or further examination for purposes of determining inadmissibility are mitigated or acknowledged in advance.
Could the player have been allowed into Canada? This is difficult to say. It is, as Justice Grammond states, an exception and very discretionary. Indeed, in the In-Canada context as I will write about in the future, it appears certain categories of individuals are not being offered the opportunity to apply for TRPs and given template refusal letters with no reasons. As the negative sentiments towards temporary residents continue to rise, I do see TRPs as being one type of application that will get increasingly difficult to obtain without exceptional circumstances being present.
This brings me to my concluding point of bridges and gaps. I have written in the past that I see major policy gaps within the TRP process. The wording of TRPs may give rise to this idea that this is easy to obtain, a kind of legal bandaid. However, more and more, Canada rather not roll the dice on potential inadmissibility and apply the bandaid. TRPs do often look much better and easier on paper and if they are not granted to an NBA star player, you can imagine how much harder it arguably is for the rest of us.
