Rejected work, study or visitor visa – what next? If you have carefully filled in the forms, gathered the numerous supporting documents and tried to provide as thorough an explanation for your application for temporary residence to Canada, it can be deflating to receive a denial letter. While often an application may be rejected simply because the case was not strong enough, there may be things an applicant overlooked in the application process and could therefore “fix” in a subsequent application.While Immigration, Refugees and Citizenship Canada (IRCC) suggests here that you should not apply again if you were refused the first time, this does not preclude submitting an application that presents new or revised information that may make the case stronger. The IRCC also advises that hiring an immigration representative such as an immigration lawyer won’t increase your chances of success.While the mere submission of an application by a representative will not in itself increase your chances, an experienced immigration lawyer can review your initial application, reasons for refusal and assess whether there may be further information that can and should be included in a subsequent application. A lawyer can also assess the merits of a judicial review application, where you can argue that the officer reviewing your application was unreasonable in rendering a decision and ask a judge to send it back for review by a new officer.If you feel that your application was unreasonably denied despite a robust application, it is worthwhile to consider if and how to improve upon it and resubmit.For more information on immigration law, please contact Maya Krishnaratne, Immigration Lawyer at Devry Smith Frank LLP, 416-446-5841, Maya.krishnaratne@devrylaw.ca“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, ImmigrationOctober 28, 2020November 24, 2020
MOVING CANNABIS: The Canadian Perspective This blog is co-written by our former articling student, Janet Son. On October 17, 2018 Cannabis became legal in Canada. The federal Cannabis Act[1] sets out the terms and conditions, which are uniform across Canada. It deals with the production, sale, distribution and possession of cannabis. Provinces have power to deal with how it is distributed, sold and can add restrictions; hence there are variances in each province. In Canada there is a need for a federal license to grow and sell cannabis for medical and recreational purposes. Those with licenses are called Licensed Producers[2]. Those who wish to sell cannabis are required to be licensed as well. The provinces provide retail licenses. As with alcohol, in Ontario the Alcohol and Gaming Commission in Ontario is in charge of the retail licensing process and the sale of recreational marijuana in private stores. In the spring of 2019, 25 retail stores were opened in Ontario.[3] With the legalization of the cannabis industry and the establishment of stores comes the need to transport cannabis. The Cannabis Act set out a comprehensive scheme for the transportation and delivery of cannabis. There are many distribution prohibitions that are accompanied with heavy penalties; however there are exceptions. Is it Cannabis? The first question the transportation company needs to ask is what is it planning to move? Is it cannabis? The Cannabis Act, defines cannabis as a plant and those items listed in Schedule 1 of the Cannabis Act, but not those parts of the plant listed in Schedule 2 of the Act. Schedule 1 includes: Any part of a cannabis plant, including the phytocannabinoids produced by, or found in, such a plant, regardless of whether that part has been processed or not, other than a part of the plant referred to in Schedule 2 Any substance or mixture of substances that contains or has on it any part of such a plant Any substance that is identical to any phytocannabinoid produced by, or found in, such a plant, regardless of how the substance was obtained[4] Schedule 2 indicates that the following are NOT included in the definition of cannabis: A non-viable seed of a cannabis plant A mature stalk, without any leaf, flower, seed or branch, of such a plant Fibre derived from a stalk referred to in item 2 The root or any part of the root of such a plant[5] Is the Cannabis Legal? The Cannabis Act defines illicit cannabis as cannabis that is or was sold, produced or distributed by a person prohibited from doing so under Cannabis Act or any provincial act or that was imported by a person prohibited from doing so under this Act.[6] Legal advice will be needed as there are many nuances under the Cannabis Act and its regulations that will need to be considered. Below are some initial areas to consider. Restrictions on Possession and Distribution Sections 8 and 9 of the Cannabis Act sets out the restrictions on possession and distribution of cannabis. Among other things, unless authorized, it is illegal for a person or organization to possess or move more than 30g of dried cannabis[7] (as defined by Schedule 3 of the Act) in a public place, to distribute to an organization, or to distribute cannabis it knows is illicit.[8] We expect that there will be extensive litigation in this regard and particularly around what a court will deem a defence to distribute cannabis it “knows” is illicit. This will be an expensive proposition for those who need to defend such cases. It should also be pointed out that the Act’s definition of a public place includes a motor vehicle.[9] Punishments can include lengthy imprisonment and hefty fines. The Cannabis Act defines distribution as administering, giving, transferring, transporting, sending, delivering, providing or otherwise making available in any manner, whether directly or indirectly, and offering to distribute.[10] The Cannabis Act allows for the distribution of Cannabis in certain circumstances. It needs to be produced by a Licensed Producer. Everyone in the transportation industry must make sure that the cannabis they are transporting is legal. The Cannabis producer must be specifically licensed. Where two conditions are met, the Cannabis Act allows for transportation of cannabis. The requirements are that (1) parties are acting as agents or contractors on behalf of Licensed Producers[11] and (2) the activity is authorized by provincial legislation.[12] This allows for the transportation of cannabis on behalf of Licensed Producers in compliance with the Licensed Producers regulatory conditions. Legal advice is recommended to anyone planning to transport cannabis to make sure it is legal. Is the Producer a Licensed Producer In order to legally cultivate, process or sell cannabis for medical or recreational purposes, a company must have a federal license. Those players with licenses are referred to as Licensed Producers.[13] Retail Licenses It should be noted that the provincial governments regulate the process for making recreational cannabis available forCannabis Act sale.[14] Agent or Contractor on behalf of Licensed Producer The regime allows agents or contractors to transport cannabis on behalf of Licensed Producers so long as the distribution is in compliance with the Cannabis Act and its Regulations. This is an important exception to the limitations on possession and distribution. This allows the movement of legal cannabis products at its various stages across Canada. The transportation companies will need to make sure they are in compliance with the conditions that the Licensed Producers are required to adhere to. Compliance In agreeing to transport, a company should request a copy of the license and a warranty that the Licensed Producer is in compliance with its own obligations. The transport company should also make sure it is complying with the regime and therefore legal advice should be sought in this regard. Cannabis Tracking System An aspect of the regime that a transporter needs to consider is compliance with the Cannabis Tracking System.[15] This is required by the Cannabis Act. This system is intended to monitor the flow of cannabis and to ensure that only the designated amount of legal cannabis is flowing. The Cannabis Tracking System requires monthly reporting by Licensed Producers, inventory reporting and reporting from health care practitioners. The obligations of the transporters needs to be determined and needs to comply with this regime. Cannabis Transportation Issues Cannabis and its products can be very delicate. There can be light issues, heat issues and moisture issues that can damage the product. More importantly, it is a high value to weight product that has significant demand on the black market and therefore is a target for theft. Consideration therefore needs to be made to transporting the products with the necessary type of vehicle that can supply the necessary conditions and security needed to keep the product safe and viable. Damage to the product and theft will lead to significant expenses for companies and/or its insurers. From a theft perspective, transport companies should weigh the pros and cons of unmarked trucks, versus armoured trucks, versus security guard escorts, versus police escorts. They should also consider the number of drivers per truck, predetermined or blind routes and geo-tracking shipments. While there is little regulation in this regard, the costs associated with theft for companies and the risks prevention measures an insurer may impose will likely create a standard that exceeds any regulations. Importing and Exporting Cannabis Under the Controlled Drugs and Substances Act[16] importation and exportation are considered to be illegal unless otherwise authorized by regulation or an exemption. Cannabis is a controlled substance. In general, controlled substances or precursors may only be imported or exported into Canada by a licensed dealer, licensed producer or registered dealer and each shipment must be accompanied by a valid import or export permit.[17] All permits carry an issuance and expiry date and are only valid for a onetime specific shipment of a controlled substance, cannabis or a precursor. It may only be imported into or exported out of Canada at the port and to the place specified on the permit.[18] The import and export of cannabis may only be authorized for medical and scientific purposes and within the parameters set by the international drug conventions. The import and export provisions for cannabis implement Canada’s international drug treaty obligations. Canada is a Party to the Single Convention on Narcotic Drugs, 1961 as amended by the 1972 Protocol[19], the Convention on Psychotropic Substances, 1971[20], and the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988[21]. Health Canada has an obligation to maintain control over the movement of cannabis in a manner consistent with these international drug control conventions.[22] Accordingly, cannabis can only be imported or exported for medical and scientific purposes but not for recreational purposes. These rules apply whether Cannabidiol (“CBD”) or Tetrahydrocannabinol (“THC”) is being imported or exported. Some hemp products that meet certain criteria, may have different restrictions. Legal advice and consultation with Health Canada as well as other appropriate regulatory bodies is necessary to avoid the risk of penalties in the event the products do require permit.[23] The import or export of industrial hemp grain or seed also require an import or export permit issued under the Industrial Hemp Regulations.[24] Importing and Exporting Cannabis Only Licensed Producers with a valid Health Canada permit can import Cannabis products into Canada and only for commercial use.[25] The Cannabis Act bans cannabis imports for recreational use. A Licensed Producer requires a permit from the federal Ministry of Health to export Cannabis. It can only be transported to the designated source. At this time, only cannabis for medical and scientific purposes can be exported into countries that allow cannabis to be imported.[26] Transportation of Imported and Exported Cannabis The import and export is a large growth area and it requires transportation. Shipments of dried cannabis tripled to 1,460 kilograms (3,219 pounds) in 2018, compared with 500 kilograms in 2017 and only 44 kilograms in 2016.[27] Organizations are discussing declassifying cannabis but to date that has not taken place.[28] With less restrictions, there can be an increase in import and export. Canada is one of the first countries to legalize recreational marijuana. Other countries are starting to allow for the use of cannabis for medical purposes, so demand for transporting product will increase. As countries legalize recreational marijuana then the demand for transporting product will be even higher. There are significant issues about importing and exporting to the United States. At the federal level, cannabis remains a controlled substance, but more states are voting to legalize marijuana in one form or another.[29] The United States does not even allow for interstate transportation of hemp, hemp derived products and CBD.[30] This is unfortunate, given the United States is Canada’s closest neighbor and natural trading partner. That being said, some progress is being made. Two Canadian companies made some headway, legally shipping marijuana from Canada to the United States. Tilray received approval from the U.S. government to export a cannabinoid product to California for a clinical trial in September 2018. The DEA approved a shipment of legal medical cannabis from Canada’s Canopy Growth to a research partner in the U.S.[31] This is an industry with heavy regulation, but will hopefully get easier to navigate with time. In the interim, advice from insurance brokers, insurers and lawyers are strongly recommended to navigate the regime without any unpleasant expensive surprises. [1] The Cannabis Act, S.C. 2018, c. 16 [the “Cannabis Act”]. [2] Ibid at s 160.1(1). [3] “First allocation of stores – Expression of Interest Lottery” Alcohol and Gaming Commission of Ontario, online: <https://www.agco.ca/cannabis/cannabis-retail-lottery> [4] The Cannabis Act, supra note 1 at Schedule 1. [5] Ibid at Schedule 2. [6] Ibid at s 2(1). [7] Ibid at Schedule 3. [8] Ibid at s 9(1). [9] Ibid at s 2(1). [10] Ibid at s 2(1). [11] Ibid at s 71(2). [12] Ibid at s 72(2). [13] Ibid at s 160.1(1) [14] Cannabis Licence Act, 2018, SO 2018, c 12, Sched 2. [15] The Cannabis Act, supra note 1 at ss 81-83. [16] Controlled Drugs and Substances Act, SC 1996, c 19. [17] CBSA Memo D19-9-2, supra note 16. [18] Ibid. [19] Single Convention on Narcotic Drugs, 1961 as amended by the Protocol amending the Single Convention on Narcotic Drugs, 1961 (entered into force 8 Aug 1975). [20] 1971 Convention on Psychotropic Substances, 21 February 1971 (entered into force 16 Aug 1976). [21] United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 20 December 1988 (entered into force 11 Nov 1990). [22] “Import and export of cannabis by licence holders under the Cannabis Regulations”, Health Canada (last modified 12 August 2019), online: <https://www.canada.ca/en/health-canada/services/cannabis-regulations-licensed-producers/import-export.html> [Health Canada] [23] “Can CBD Oil Be Imported Into Canada?” BorderBee (21 May 2019), online: <https://borderbee.com/2019/05/21/cbd-oil/> [BorderBee] [24] Health Canada, supra note 23. [25] “What does the future hold for cannabis importing into Canada?” BorderBee (19 October 2018), online: <https://borderbee.com/2018/10/19/future-hold-cannabis-importing-canada/> [26] The Cannabis Act, supra note 1 at s 62(2). [27] Matt Lamers, “Canadian medical cannabis exports tripled last year, as race for European market position intensifies” (21 March 2019), online: <https://mjbizdaily.com/canadian-medical-cannabis-exports-tripled-in-2018/> [28] Subramaniam, supra note 24. [29] Nathan Reiff, “Marijuana Companies That Legally Export Cannabis to the U.S.” (15 Jan 2020), online: <https://www.investopedia.com/insights/marijuana-companies-legally-export-cannabis-us/> [Reiff]. [30] Ian Stewart “Federal Courts Are Split on the Legality of Transporting Hemp and CBD in Interstate Commerce” (19 Feb 2019), online: <https://www.cannabisbusinessexecutive.com/2019/02/federal-courts-are-split-on-the-legality-of-transporting-hemp-and-cbd-in-interstate-commerce/> [31] Reiff, supra note 31. By Fauzan SiddiquiBlog, Cannabis LawApril 8, 2020September 30, 2020
Canadian Immigration Status during COVID-19 pandemic This blog is co-written by our former articling student, Janet Son. Information regarding the status of flights, border closures and visas is changing by the hour during this pandemic. When it comes to immigration status, there are a few key things to be done to ensure that you are able to remain in Canada. IF YOU HAVE TEMPORARY RESIDENT STATUS AS A VISITOR If you are already in Canada with visitor status that is set to expire (either because you’re nearing the end of a six-month stay or you’re approaching the date stamped in your passport or indicated on a Visitor Record issued to you), you can remain in the country by applying online for an extension of your visitor status. As these applications typically take around 90 days to be processed, this will likely provide visitors with a window within which to wait out the various risks associated with travelling that they would face if they had to leave when their status expires. Applicants with pending applications to extend are considered to be on “implied status” and may legally remain in Canada pending the decision on the application. While the Canadian government recommends applying for an extension at least 30 days before expiry of your current status, an application can be made at anytime, even the day before the expiry. Note that, if you are outside of Canada but hold a valid visitor’s visa or electronic Travel Authorization (eTA), you may not enter Canada at this time unless you fall under this list of exemptions. If you realize too late that your visitor status expired, you can apply online for restoration of your visitor status as long as you do so within 90 days of the expiry. The application process is very similar to the application to extend. The difference is the applicant is technically without status during the period of time pending a decision on the restoration, and foreign nationals should keep a copy of the letter confirming their restoration application was submitted in case called upon by any authority to explain their status. Online, make sure to select “Restore my status” and include as much detail as possible explaining why you need to extend your stay along with paying the restoration fee. If it has been more than 90 days since your status expired, you may consider applying for a temporary resident permit. These are highly discretionary permits and an officer must be convinced that, despite your breach of immigration laws, you have made a case for a further temporary stay. For some who are unable to return to their home country due to increased travel restrictions and health risks, you might argue this as grounds for a temporary resident permit. There are many nuances to an application for a temporary resident permit. If considering this option, it is highly recommended you seek the advice of an experienced immigration lawyer. These considerations apply with modifications to foreign nationals in Canada on a work or study permit. For more information, Devry Smith Frank LLP invites questions by phone call and email. The Government of Canada has strongly advised people to apply online rather than submitting a paper application at this time due to the high volume of applications. This blog is a high-level overview of your options if you are in Canada as a visitor or on a study or work permit and is not a replacement for tailored legal advice according to your circumstances. Each category has a long list of exceptions and requirements that must be carefully followed and not fully captured by this blog post. If you require more advice on your temporary immigration status contact immigration lawyer Maya Krishnaratne at maya.krishnaratne@devrylaw.ca or 416-446-5841. By Fauzan SiddiquiBlog, COVID-19, ImmigrationApril 3, 2020September 30, 2020
Prince Harry and Meghan Markle as Canadian citizens? It’s harder than it sounds This blog is co-written by our former articling student, Linda Noorafkan. Prince Harry and Meghan Markle have decided that they will live in Canada on a part-time basis with their son, Archie. Social media is buzzing with Canadians delighted that the Prince and the Suits star could be moving to their neighbourhood. Others are critical about the supposed “easy” move, as hard-working people around the world struggle to enter Canada. But, is it really that easy for the Royals to move to Canada? It’s not as simple as it sounds. Foreign nationals seeking entry to Canada must have the authorization to do so. For most, this means having a temporary resident visa or an electronic travel authorization. British Royalty, however, is an exception to this rule – Her Majesty in right of Canada and any member of the Royal Family may enter Canada without any prior authorization. Visitor status is typically granted for a period of up to six months, though once in Canada, visitors may seek an extension of that status. But what about working, studying and living permanently in Canada? When it comes to more than a simple visit to Canada, there is no outright exception to the ordinary rules of immigration for Royals. If the Duke and Duchess of Sussex want to live here permanently, they must follow the same regulations governing anyone else. This means falling into a category, or “class,” eligible for permanent residence. “Classes” include but are not limited to the “family class” (for Canadians or permanent residents seeking to sponsor their spouses or other eligible family members), “economic classes” (for those who demonstrate the ability to “become economically established in Canada”), and the “self-employed class” (for those demonstrating the ability to be self-employed in certain cultural, athletic, or farming activities). For Harry and Meghan, one of the more likely pathways to permanent residency is an application under an “economic class”, meaning either or both could submit that they are likely to “become economically established in Canada.” Harry may face an uphill battle in that regard, having arguably insufficient formal post-secondary education and a minimal “skilled work” history. In Canada’s points-based system for the economic class, Harry is likely to come up short. More likely for success is the prospect of Meghan highlighting her university degree and several years of skilled work experience as an actress, and including Harry and Archie as accompanying family members in her application. If Meghan intends to continue acting or participating in cultural activities (perhaps leveraging her acting career toward other artistic endeavours), she might qualify for permanent residency under the self-employed person class. Every year that passes since she last participated in so-called cultural activities will tend to lessen her chances, as such activities must have taken place within the last five years prior to submitting the application for permanent residence. Self-employed persons are assessed on a points system and the fewer years’ experience included in the application, the fewer points Meghan would score. She would also need to be mindful of the minimum requirement of inclusion of two one-year periods of experience in her application. With her last year on Suits having been in 2017, the clock is running out for her in this category as far as her acting experience is concerned. What if Prince Harry applies as the principal applicant under the “self-employed class”? Prince Harry may be considered a “cultural icon”. He has served in countless international and public roles, including his launch of the Invictus Games alongside Michelle Obama. It would be interesting to see how an immigration officer would assess Harry’s case under this category. With their backgrounds and available funds, they may have good chances of making it work under one of several categories, but they will need to make their case, submit it and be assessed like any other applicant. While they weigh their options for and interest in permanent residency, there are a number of work permit options available to the Royals which will depend largely on the type of work in which they seek to engage. They may also choose to live so temporarily in Canada throughout the year that they seek only to gain entry to Canada as visitors from time to time. Each entry as a visitor will typically provide visitor status up to six months at a time. If there are compelling reasons, they may seek extensions of their visitor status as the need arises. If ultimately the Duke and Duchess obtain permanent residence in Canada, they will be subject to a number of rules governing the maintenance of that status as well as their eventual ability to seek citizenship. Permanent residents must reside a minimum number of days in Canada for every five year period in order to maintain their status to ultimately qualify for citizenship. The road is not quick or smooth and their plans to travel or live part-time in the UK may prove to be hindrances. If you would like more information or legal advice on visiting, working or studying in or moving to Canada, please contact Maya Krishnaratne at 416.446.5841 or maya.krishnaratne@devrylaw.ca. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, ImmigrationJanuary 31, 2020September 30, 2020
How Canada’s Privacy Legislation Affects the Use of Third Party Information and Payment Processors Businesses often use third party entities to process customer information or transactions and to then relay portions of that information back to the business. Businesses using third parties in this manner should be aware of the provisions of Canada’s privacy legislation in this regard. Overview of Canada’s Privacy Legislation Canada’s two predominant privacy statutes are the Privacy Act, RSC 1985 c P-21 and the Personal Information Protection and Electronic Documents Act, SC 2000, c5 [“PIPEDA”]. The former applies to actions of the federal government, while PIPEDA applies to every entity that collects, uses or discloses personal information in the course of commercial activities. Alberta, British Columbia and Quebec have provincial privacy legislation which is, for the most part, substantially similar to PIPEDA. Compliance with PIPEDA Any entity collecting personal information for the purpose of a commercial activity must first obtain the consent of the individuals whose information is being collected. It is important to note that personal information includes the names and contact details of individuals, as well as their credit card and other financial information. PIPEDA provides that “the consent of an individual is only valid if it is reasonable to expect that an individual to whom the organization’s activities are directed would understand the nature, purpose and consequences of the collection, use or disclosure of the personal information to which they are consenting.” Therefore, whenever personal information is collected in a commercial context, the individuals whose consent is sought must be informed of the manner in which their personal information will be used and disclosed. The transfer of information to third parties for processing is considered to be a disclosure of information. It therefore follows that when seeking someone’s consent for collection of his or her personal information, the entity collecting the information should outline that the information will be shared with third parties for processing. Furthermore, if the third party is in another country, specific risks such as the possibility of foreign officials obtaining the information, should be disclosed to the individuals whose consent is being sought. In summary, a business seeking to use third party processors of customer information or payments should so advise any individuals whose personal information will be collected and should outline for those individuals the potential risks of the collection and disclosure of the personal information by and to, the third party. The third party processor should ensure that the necessary consent has been obtained and that its contract with the business provides for indemnification by the business should issues arise as a result of the collection and processing of the personal information. For questions regarding compliance with Canada’s privacy legislation in a commercial context, please contact Elisabeth Colson of Devry Smith Frank LLP at 416-446-5048 or elisabeth.colson@devrylaw.ca. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Corporate LawAugust 15, 2019April 30, 2021
National Housing Strategy On Wednesday, November 23, Justin Trudeau announced the federal government’s 10 year national housing strategy. The federal housing strategy is aimed at ensuring that Canadians have access to affordable homes. The aim is to reduce poverty and homelessness. Trudeau deemed access to adequate housing as a “human right”. The federal government is hoping to make a systematic change that will have lasting effects. The federal government has made a $11.2 billion commitment to social and affordable housing over 10 years, and plans to do some of the following: Build 100,000 new affordable housing units; Repair 300,000 housing units; and Extending housing subsidies that are set to expire. Combined with investments from provincial governments, the total spending could reach as high as $40 billion. The plan relies on the provinces and territories matching funds. Some of the key measures include: A certain number of units will be reserved for Canadians in vulnerable populations, such as people with developmental disabilities, seniors and survivors of family violence; Support for Indigenous people who do not live on reserves and a separate Indigenous housing strategy, which is to be released at a later date; Funding provided directly to low-income families and individuals; Funding to expand and extend the homelessness partnering strategy; Creating new legislation that will require future federal governments to maintain a federal housing strategy; and Creating an advocate for federal housing to help seek solutions to these systemic issues, such as advising the government and the Canada Mortgage and Housing Corporation of possible solutions. The strategy includes a co-investment fund which will provide financial contributions and low interest loans to developers that meet certain criteria. The government will also be transferring federal land to housing providers on a number of conditions. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Real EstateDecember 12, 2017June 17, 2020
Gender Neutral Passports will be Available for Canadians Gender-neutral passports will soon be making their way into the hands of Canadians. Canadians who do not identify as male or female will soon be able to mark an “X” on their passports instead of “M” or “F”. Allowing this change addresses the current state of society and the changes in gender identity and expression, which falls in line with the government’s most recent efforts, and will make it easier for individuals to reflect their identity through government issued documents. Gender neutral passports have been something long awaited by the Canadian transgender community. Immigration Minister Ahmed Hussen said, “all Canadians should feel safe to be themselves, live according to their gender identity and express their gender as they choose.” Before this was introduced, Parliament passed Bill C-16 earlier this summer, which amended the Canadian Human Rights Act to add gender identity and gender expression to the list of prohibited grounds for discrimination. For more on Bill C-16, please read our previous blog post by lawyer Marc Kemerer. For more information on Bill C-16 or related issues, please contact Marc Kemerer today. More information on the government’s effort to better accommodate gender identity and expression through the modification of government issued documents through Immigration, Refugees and Citizenship Canada will be announced on August 31. At Devry Smith Frank LLP we have experienced lawyers in all areas of law. For any questions on immigration matters, please contact DSF’s immigration group. For any other questions or information, please call our office directly at 416-449-1400. By: Nicolas Di Nardo “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Human Rights LawAugust 25, 2017June 18, 2020
Oh Canada, Our Home and “Snow-washed” Tax Haven?? The release of a joint CBC / Toronto Star investigation has made headlines across the world and calls Canada’s tax system into question. Most Canadians would argue that Canada’s tax rates are among the highest in the world and that the Canadian tax system is designed to ensure that income earned in Canada is subject to Canadian income tax, whether that income is earned by an individual, a corporation, a partnership, joint venture, or any other form of organization. In the normal course, a Canadian entity earning income in Canada from a business or property is required to report, calculate, and remit income taxes on such income to the Canada Revenue Agency. The CBC and the Toronto Star used the term “snow washing” to refer to the use of Canadian corporations and limited partnerships as part of complex offshore money laundering and tax evasion schemes, due to the perception of the legitimacy of such Canadian entities and Canada’s reputation as a “whitelisted, respectable jurisdiction”. The Toronto Star / CBC investigation identifies the practice, advocated by some other offshore jurisdictions, of non-residents incorporating companies or setting up other entities (such as Canadian limited partnerships) and installing Canadian “nominee directors”. The Toronto Star article reports as follows: “Canada is a new player in the world of offshore companies,” claims the website of a Swiss firm. “Canada is the most preferable destination for compliant tax planning since it has no negative offshore reputation and no association with tax avoidance or evasion. It is by far one of the best neutral jurisdictions, providing offshore benefits without any of the traditional offshore drawbacks.” In another article in the series, the Toronto Star states the following: Nominee directors are not illegal in Canada, but the secrecy they provide facilitates abuse. The tax haven industry relies on nominee directors to put a legitimate face on companies, masking their real owners and allowing them to evade tax, launder ill-gotten money or bribe corrupt officials. Corporate statutes, both provincial and federal, impose duties and liabilities on directors of Canadian corporations. Directors are regarded as fiduciaries of their corporation, and as such, are required to exercise a duty of care, to act honestly and in good faith, and to ensure that they protect the corporation’s interests. Other statutes (such as the Income Tax Act), impose other responsibilities on corporate directors. The key premise of the Toronto Star / CBC joint investigation is that the opacity of our corporate registry system, whereby it is almost impossible to identify the real owners of companies, creates an environment of secrecy that encourages money laundering and tax evasion. The Toronto Star articles make the assertion that “[t]he use of nominee directors is a key channel of tax evasion”, and that “[s]ecrecy is at the heart of financial crime”. The conclusions reached in the series of Toronto Star and CBC investigative articles, are that, to curb abuse of the system, Canada needs to adopt a more transparent corporate registry system, such as one recently adopted in the U.K., which provides that individuals holding more than 25% of the shares or voting rights in a company are listed on a public database. In addition, the articles conclude that some structures, such as Canadian limited partnerships, help avoid tax because non-resident owners are not required to file a Canadian tax return. This is not entirely correct. Limited partnerships are required to file annual information returns setting out details of their income and the names of the partners who are entitled to such income. Tax evasion, avoidance and abuse of our financial, corporate, and legal system are deplorable and certainly have negative repercussions for all Canadian taxpayers. It is commendable that the CBC and the Toronto Star have undertaken this investigation, exposing the deficiencies in the system and the opportunities for exploitation that such deficiencies create. We can hope that as a consequence of these articles, the Federal and Provincial governments will act to close loopholes in reporting and accountability and minimize opportunities for abuse. That being said, it is a maxim of Canadian tax law that taxpayers are entitled to arrange their affairs to minimize tax. There are many valid and legal strategies that can be implemented by Canadian taxpayers through effective tax planning. If you have a tax question or concern, please contact one of our tax lawyers, for a consultation. If you have any other legal issues, please contact one of our lawyers at Devry Smith Frank LLP. By Fauzan SiddiquiBlog, TaxJanuary 16, 2017June 16, 2020
