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u EDITORIAL OBITER By Glenn Kauth
Program discriminates against low-skilled workers
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the immigration system to prospective immigrants' employability. Under it, those who have worked in Canada for at least two years
hen the federal government launched the Canadian ex- perience class a few years ago as an additional way for people to obtain permanent residence in Canada, it her- alded it as a key part of reforms aiming to better match
can apply for permanent residence. As such, it off ers an alternative to the skilled-worker program that focuses on points and applicant'
qualifi cations for a number of designated jobs and professions. Th e Canadian experience class was a welcome option as it shiſt ed
s
the focus to employability. If people have worked here for two years, presumably they could continue to do so with less of a transition pe- riod than those who obtain permanent residence from abroad under other immigration classes. But as a new report points out, the Cana- dian experience class discriminates against lower-skilled workers. Th e report, "Made in Canada: How the law constructs migrant workers' insecurity," documents many of the concerns raised over
the years with the temporary foreign worker program. Th ey include low wages, mistreatment, and vulnerability due to workers' tempo- rary status tied to designated employers. But as author Fay Faraday points out in the report, the government further limits opportunities for foreign workers in lower-skilled jobs in areas such as the food in- dustry, cleaning, construction, and tourism by barring them from the Canadian experience class. It turns out that the class applies only to people in managerial positions, professional occupations requiring a
which the courts typically used to calcu- late on a two-for-one basis, to a one-for- one basis in most cases. Section 719(3) of the Criminal Code
T dy. Th e law reduced dead time, pretrial custo-
COMMENT
September 24, 2012 • Law timeS
university degree, and jobs requiring two or more years of education or training. Th is is problematic for a couple of reasons. First,
as Faraday, a professor at Osgoode Hall Law School, points out, the jobs lower-skilled workers are doing aren't temporary. Th e so-called pilot project bringing in temporary foreign workers has grown signifi cantly and accepts many more people since its launch a de- cade ago. It'
in many of the areas it covers aren't going away. s obvious, then, that the labour shortages
walks of life. We still need those people, so why not allow them to stay permanently, particularly given the well-documented aging of our population? Fara- day makes a good case when she says: "Th e workers who are being brought in are people who were, two generations ago, people who immigrated and did these jobs with status. If the people are good enough to work here, why not good enough to stay?" — Glenn Kauth
In the past, Canada accepted immigrants from all Tips for navigating the Truth in Sentencing Act
wo years ago, the Truth in Sen- tencing Act changed the law dealing with
v. Mullins in Saskatchewan. But in the other line of
ferent approaches when it comes to de- ciding how they will customarily credit presentence custody. Because of the loss of earned remission, some judges grant credit on a 1.5-to-one basis and follow the decision in R. v. Johnson, in which Justice Melvyn Green found that the word "cir- cumstances" includes loss of remission and delayed parole eligibility. A number of cases have followed Johnson. Th ey in- clude R. v. J.B. in British Columbia and R.
permits the court to take into account any time spent in custody on a one-for- one basis. Section 719(3.1) states that if the circumstances justify it, the court can increase credit to 1.5 to one unless the ac- cused was detained because of a previous record or because of allegations concern- ing bail compliance or a new indictable charge. Section 719(3.2) requires the judge to give reasons for granting any credit. Th e trial courts have followed two dif-
Law Times
cases, credit on a one-for- one basis is the norm. In R. v. Morris, Ontario Superior Court Justice Alison Har- vison Young held that the government draſt ed the leg- islation so that the general rule is articulated fi rst and the exception follows. Several cases have followed Morris: R. v. Dingwell in Prince Edward Island, R. v. McLellan in British Colum- bia, R. v. Sharkey, also in British Colum- bia, and R. v. Haly in Ontario. Some factors that the court can con-
A Criminal Mind
look out for. If the case pre- dates the Truth in Sentenc- ing Act,
Rosalind Conway
sider when determining whether the circumstances justify enhanced credit arise in R. v. Velez-Lau and R. v. Saba- tine. Th ey include totality, not seeking bail, waiting for drug treatment, con- ditions of custody, limited educational and rehabilitative programs, and loss of remission or parole eligibility. Th e burden on the defence isn't so great as to require "exceptional circumstances" (see Sabatine). Th at would be reading something extra into the legislation. Th ere are some tips and things to
tested detention. Check the information to see if it's endorsed with the reason for the accused's detention. Put something on the record if you
want credit for pretrial custody. In R. v. Curto, the issue hadn't been clearly raised before the trial judge and the On- tario Court of Appeal commented that there was consequently no information about the impact of the presentence cus- tody on the appellant. Will counsel's submissions suffi ce?
(see R. v. Serdyuk, R. v. LeB- lanc in Nova Scotia, and R. v. Harun). Post-trial custody, over which the accused has no control, is diff erent and can be subject to enhanced credit on a 1.5-to-one ba- sis. Why was the accused de- tained? Consent detention is treated diff erently from con-
it does not apply
the court to rely upon counsel's submis- sions, hearsay, and agreed facts. Yet local practices may diff er and the
Crown or the court may not be satisfi ed with mere submissions. Consider prepar- ing affi davit evidence, fi ling letters or get- ting evidence from the detention facility. Where sentencing guidelines already
exist, the principle of proportionality should be given consideration. Th e leg- islative changes imposed by the new s. 719(3) and its counterpart 719(3.1) can af- fect the appropriate penalty (see R. v. Lee from the Alberta Court of Appeal). Remember that the judge's discretion
Th e British Columbia Court of Appeal dealt with this issue in R. v. Joseph, in which Justice David Harris noted that the Truth in Sentencing Act doesn't amend sentencing principles that allow
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in coming to an appropriate sentence is restricted by the decision of the justice of the peace at the bail hearing. In R. v. Safarzadeh-Markhali, Ontario Court Justice Michael Block struck down the restrictive portion of s. 719(3.1) as a vio- lation of s. 7 of the Charter of Rights and Freedoms that protects the liberty rights of the off ender. So are the new provi- sions constitutional? Th ey quite possibly are not.
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Rosalind Conway is a certifi ed spe- cialist in criminal litigation. She can be reached at rosalind.conway@gmail.com.
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