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| Natalia Bialkowska |
Beware of your ‘friends’
It is noteworthy that the nominating provinces/territories offer their respective “hotlines” to report immigrants who allegedly misrepresented their intent to settle and reside in the given part of Canada. Of course, the noble idea is that we want lawful residents and future citizens among us. However, looking closer at some of the enforcement mechanisms behind this idea might raise the hair on your neck.
For instance, Prince Edward Island has dedicated a part of its official website to “Reporting Misuse of the PEI Provincial Nominee Program.” In addition to choosing your favourite reporting method (regular mail, call, e-mail, or fax), you are advised that you, as the reporting party, are not required to provide your name or any contact information. You are also asked to provide as much detail on your allegations as possible, all while being assured that anything you submit will remain strictly confidential. Once your report is in, P.E.I. will begin its investigation.
Let’s process it together. For instance, a “friendly neighbour” of whatever status in Canada, or even better, a foreign stalker, harasser, or abuser can block their phone number and call about their victim, a now-Canadian resident protected by the Charter, to state whatever “facts” of misrepresentation. Does the abuser still live in the 1950s and does not know how to block their number? No problem! They can fax a sheet of paper over, using any UPS or similar store, fully hiding their location or identity.
Personally, as a lawyer born and raised in freshly post-communist Poland, I shake my head at the concept of “due process” when I hear of such an investigative mechanism in Canada. Rethinking it, to me, means abolishing it completely and instilling a new one in line with Charter rights. For instance, let’s require all the reporting parties to, at the very least, provide their identifying information. Honouring the Canadian “rule of law” even further, let’s establish and impose a minimum threshold of required evidence (i.e. burden of proof) on the reporting party for the proper provincial/territorial agency to start any investigation whatsoever. I would propose that such a threshold should be “reasonable grounds to believe” and therefore, fall between “mere suspicion” and “balance of probabilities.” Why? Because “reasonable grounds to believe” would require actual evidence of reliable information, and not mere speculations or baseless allegations, that a prudent person could rely on as making it more likely than not that the “misrepresentation” occurred.
Comparatively, “balance of probabilities” is the current threshold required in immigration officials’ decision-making over, among others, revocations of citizenship or resident’s inadmissibility cases due to criminal activity. Picking a slightly lower level such as the suggested “reasonable grounds to believe” would still allow the provincial/territorial agency to start the investigation without trampling on the suspect’s (i.e. the Canadian resident’s) Charter rights.
What COVID-19 taught us with regards to PNPs
What COVID-19 taught us, or at least made clearer for us to see, is that more and more people work remotely. Even when given an opportunity to go back to the office nowadays, a lot more people opt out for either a balanced or work-from-home option. In light thereof, how can a nominating province/territory enforce “intent to settle” and work in a given area in Canada? Does it actually matter that a new permanent resident works remotely for an employer outside the nominating province/territory but lives, pays taxes, spends money, buys property and educates their children in said province?
The underlying philosophy behind PNPs is that the potential immigrant can and will become economically settled in the given area and will provide a tangible, significant, economic benefit to the area. If so, I understand that to the nominating province/territory, it matters more where you leave your money rather than where you make it. In fact, other than for the purposes of filling the gaps in the labour shortage, where you make your money does not matter at all as long as you leave it in the nominator’s pocket. From that pocket, a nominator can then offer higher salaries for potential future workers who will fill labour shortages. Therefore, as long as you pay your taxes and contribute financially to the province/territory where you intended to settle within your PNP-Express Entry application, the overall economic health of said province/territory is improved and the idea behind the PNPs is fulfilled.
Simultaneously, an immigrant will secure and, from personal experience, certainly, appreciate the benefit of being allowed to work for anyone of their choice and at the salary level to their satisfaction. In short, it might be high time to replace the enigmatic “intent to settle” in the current PNP system with “intent to pay taxes and support financially” the given province or territory.
This is part two of a two-part series. Read part one: Provincial Nominee Programs, mobility rights: Can you move out or are you stuck?
Natalia Bialkowska is a Canadian lawyer of Polish origin, educated in the United States. She is the founder of NB Law Firm, specializing in Canadian immigration and personal injury law. Based in Toronto, she serves clients speaking English, Polish and Spanish.
Photo credit / logolis ISTOCKPHOTO.COM
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