Higher Burden Of Proof Needed In Deciding A “Marriage Of Convenience”

By Patrick Rocca | April 20, 2015

Immigration lawyer Karen Kwan Anderson: Marriages of convenience are back in the news, but I’m not sure about the angle that the government is taking on it in this instance:

More than a third of the applications to bring new spouses to Canada from India may involve bogus marriages, according to internal government documents made public on Tuesday.

“Marriages of convenience” in India “have become a threat to the integrity of Canada’s immigration program,” states the 2013 report from the Canada Border Services Agency’s enforcement and intelligence operations directorate.

Applications involving Indian nationals engaged in phoney marriages “are constantly evolving and creatively testing the bounds of the Canadian immigration system.”

The report, which cited statistics up to 2012, said it is “presumed” that there is a link between organized crime and the arrangement of phoney marriages.

The broader problem of marriage fraud primarily involves applicants from 10 to 15 countries. The report identifies China, India, Pakistan, Sri Lanka, Vietnam, Cambodia, Nigeria, Ghana, Ethiopia, Guyana and Haiti as the “high risk” countries involving Canadian permanent residents sponsoring bogus spouses under the immigration system’s family-class section, according to Border Services.

By presuming that there is a link between organized crime and the arrangement of phoney marriages, the CBSA report makes a presumption of guilt before innocence is proven. This concept is contrary to the presumption of innocence enshrined in the Canadian Charter of Rights and Freedoms.

Beyond A Reasonable Doubt

In criminal proceedings, an accused person has the right to defend themselves and has the right to remain silent. The onus is on the Crown to prove guilt beyond a reasonable doubt. If there is any doubt that the accused did not commit the offence, then they must be acquitted.

Perhaps this burden of proof should apply to immigration proceedings. Currently they involve a presumption that is based on a balance of probabilities. This means that if CBSA (which is virtually the Crown in immigration proceedings) believes that a person concerned was engaged in a phoney marriage to obtain immigration status in Canada, then CBSA must prove only 51% likelihood that the person concerned is guilty.

I believe the onus should be higher on CBSA to prove a marriage of convenience in spousal sponsorship cases. The consequence to a person concerned is deportation to his or her home country, much akin to removal of liberty that occurs when one is convicted under the Criminal Code of Canada. The stakes are too high for a balance of probabilities to decide someone’s fate.

Karen Kwan Anderson is an immigration lawyer with Pace Immigration, an immigration law firm in Toronto, Canada.