Law Times

Law Times • march 7, 2011 Real cost of to roost. It's happening now. Th ey're going to be very expensive chickens. Prime Minister Stephen Harper W and his dauntless duo of Justice Minister Rob Nicholson and Public Safety Minister Vic Toews have 24 crime bills in the hopper. An idea of what this could cost us came out last week in the annual es- timates of where the Harper govern- ment will be spending our money this coming year. Th ere's bad news for those who believe it's better to prevent crime before it happens than put people in jail afterwards. Although the Harper govern- ment is boasting that it's cutting back spending, expenditures on cor- rections are going up more than at any other government department. Th e increase is $521.6 million. Th at's 21.2 per cent more than last year even though the crime rate in Canada has been going down. Don't ask where your money is going. Prisons don't come cheaply. We have to pay those prison guards. Of that $521.6 million, the esti- mates show that Harper's strict new sentencing laws will be taking up $458 million. Th at includes Harper's law that eliminated double credit for time spent in remand. Toews once said it would cost an extra $90 million. But he admitted he was only guessing. When in doubt, it's always best to guess as you're planning crime-and- punishment legislation. So what if Toews was so far off in his estimate? He's not paid to be a rocket scientist. Th e opposition Liberals, as ex- pected, are making a big stink out of the increased costs of putting more people in jail for longer per- iods of time. According to them, the Harper government would do better to spend our money on preventive programs and being nice to kids be- fore they commit crimes. Liberal public safety critic Mark Holland doesn't like the extra spend- ing on punishment. "Th is is just the beginning," he says. Wait until the other 23 crime bills start coming in. It's going to have "implications." Th at's putting it mildly, even for a Liberal. "In the end, we're going to be crushed by the enormity of the cost of all this," says Holland. Th at's only if judges do Harper's bidding. But what if they choose to acquit people rather than jail them? What if Crown prosecutors lessen the charges to compensate for Harp- er's harsher crime laws? To date, however, there's no indi- cation they'll stand up to Harper's laws. Th ey may well choose to apply them as they're written. If the judges do convict, they'll have to fi nd a place to put every- body until Harper's prisons become a reality. Th ey can't house them in fast-food restaurants. Th ose are for emergency-room patients. So they'll likely continue stacking them like wood, two people to a cell, in the jails. Canada signed a United new crime laws The e knew that sooner or later, the chickens would be coming home Hill By Richard Cleroux Nations convention obliging it to avoid putting prisoners in double bunks, but we know what Harper thinks of the United Nations and its agencies. Putting people in double bunks saves a lot of money. And it's a great learning experience for the younger fellows. What about rehabilitation? Are you kidding? Since the Harper government took offi ce more than fi ve years ago, it has slashed prison rehabilitation programs by 47 per cent. What do pointy-headed social workers know about criminals any- way? If there's anything you need to know, you can ask Julian Fantino. MP Don Davies of the New Democrats believes the government is cutting both crime prevention and rehabilitation. "Th ey're hacking pre- vention, they're hacking safe-com- munity initiatives and just loading it all up in the post-crime approach." Th ere's no sense in treating them lightly, says Toews. Police and jail guards say the real bump in the prison population will come with Harper's new marijuana law. Th ere's no cost for that yet. Th e bill would make getting caught with six marijuana plants in your mother's basement enough to get you a traffi cking charge. Con- victs will have to serve the minimum six-month sentence as there will be no more suspended sentences for drug pushers. It's a great way for a kid to start off life with a record as a drug pusher. Th e Liberals tried to change the wording to 20 plants so fewer kids would be charged with traffi cking but they didn't have the numbers in the House of Commons. At a news conference on Feb. 9, Nicholson was plain enough: "If you sell drugs around a school, you're not going to like this bill." Th ere are many Canadians who smoke marijuana. How many of them have six plants or more in their basement or out in the cornfi eld? In California, they passed harsher drugs laws as well as the famous three-strikes legislation. Th ey fi lled up their jails and then took over high school gyms before running out of money. Finally, they found a solution. Th ey let convicts out. As for prevention, the federal estimates tabled last Tuesday show a $7.4-million decrease in fund- ing for programs focusing on stop- ping youth gang activity and $13.1 million in cuts to eff orts at helping Canadians build safer communities. So that's how the government will spend your crime-fi ghting dollar this year. Aren't you glad the government is building safer communities for you? Richard Cleroux is a freelance repor- ter and columnist on Parliament Hill. His e-mail address is richardcleroux@ rogers.com. COMMENT PAGE 7 M&A implications of new foreign worker regulations BY JANET BOMZA For Law Times "Is this the start of another M&A bubble?" a recent Globe and Mail headline asked. Th e writer was referring to the last six months of mergers and acquisitions. With all the pent- up demand created by the recent recession and Canada's reputation riding high as a safe investment haven, Canadian compan- ies are prime targets in M&A activity. Th at's good news for corporate lawyers who've had to twiddle their thumbs since July 2008. But in the haste of making deals, they may overlook key factors. Corpor- ate lawyers are used to calling in their employment-law col- leagues to look at contracts and pensions experts to check the fi ne print. But what about the immigration implications of M&A deals? Immigration is the part of due diligence that often gets forgotten. While it has al- ways been signifi cant in mergers and acqui- sitions, it's especially important now given changes to the regulations for temporary foreign workers taking eff ect on April 1. Th e new regulations do a number of things. First, they limit the number of years a foreign national can hold a work permit in Canada. Second, they introduce a two- year ban for non-compliant employers plus publication of their names and addresses on a blacklist. In addition, they establish factors to assess the genuineness of an of- fer of employment. Finally, they establish expiry dates for labour market opinions. So how does that aff ect an acquisition? If the target company employs temporary foreign workers, their immigration status and its compliance with Canada's immi- gration laws and regulations will have to be checked with a magnifying glass. Th e sanctions for companies that aren't in com- pliance or are deemed to have made off ers of employment that weren't genuine have serious implications for acquirers. Depending on the type of Canadian work permits the foreign workers hold and on the structure of the deal, the acquiring company might have to apply to Service Canada for a new labour market opinion and to Citizenship and Immigration Cana- da for work permits refl ecting the comple- tion of the acquisition when it closes. Such reapplications take time, and the workers may not be authorized to continue to work in Canada without renewal of their immi- gration documents. If the target company has signifi cantly changed the foreign workers' salaries or working conditions since they obtained immigration status, the company could be in contravention of the temporary for- eign worker program. If this comes to light Letter to the Editor CROWN PAID HER DEBT Th e sad story in the Feb. 14 issue (see "Guilty Crown wants to keep job") has no doubt en- gendered much schadenfreude, but as lawyers, we should recognize there is genuine penalty and repentance. Th e Crown in this case suff ered from a series of tragic personal setbacks and is a well- www.lawtimesnews.com after the acquisition, the new owner's name will go on a blacklist published on Citizen- ship and Immigration Canada's external web site. It will also be unable to hire new foreign workers or renew work permits of existing foreign employees for two years. If any of the foreign workers have been Speaker's Corner working in Canada for four years or more, they may be ineligible for future renewals of their work permits. Th ey may also be prohibited from working in Canada for a full four-year term before they're once again able to get Canadian permits. Even the recruitment pro- cesses used to hire the foreign workers must be examined. Th e new regulations apply to both low- and high-skilled work- ers regardless of their rank or importance to a company's overall operations. It's not hard to imagine a situation where a foreign skilled worker has come to Canada to over- see the installation of specialized equip- ment or where the person who will initially run a newly acquired entity is from outside of the country. What if the worker's ability to work in Canada was temporarily or even permanently suspended? Th ere are diff erent consequences depend- ing on the classifi cation of the Canadian work permit issued to the foreign worker. Th ere are also diff erent consequences de- pending on the structure of the acquisition. If the deal is a simple purchase of shares, it likely won't trigger immigration conse- quences. If the acquisition is a purchase of assets, however, the consequences will be diff erent. In either case, if a new entity is the result or the company name changes, temporary foreign workers will need new work permits under the new name. Th e key action to take as part of the due- diligence process is to request an immigra- tion audit before structuring the acquisition in order to minimize the consequences. A fi rm that specializes in immigration should perform the audit because the status of ev- ery foreign worker employed by the target company must be checked and documents attached as schedules to the agreement. Th e time and expense will be well worth it. Lawyers wouldn't want their clients to discover they'd acquired a company where a key employee or a chunk of the workforce won't be eligible to work in Canada for sev- eral months, or worse, whose work permits won't be renewed next year. Th e question would arise as to why the lawyer didn't make them aware of the issue. Janet Bomza is managing partner of the Bomza Law Group. A certifi ed specialist in citizenship and immigration law, she advises corporate clients on the complete range of immigration matters. She can be reached at 416-598-8849 or jbomza@bomzalawgroup.com. respected member of the bar. She ac- knowledged the off ence and off ered an early plea. Absent some specifi c con- cern, there is no reason she ought not to continue in her position. Someone who has committed a crime and fulfi lled their sentence ought to be accepted as having paid their debt to society. Further punishment by way of being ostracized or losing a job is uncalled for. Th is is true for everyone convicted of a crime, in- cluding Crown attorneys. James Morton, Steinberg Morton Hope & Israel LLP, Toronto

• Cover
• Crown Uproar
• Dollars and Cents
• Focus On Immigration Law