Introduction

On February 24, 2015, the media reported that singer Chris Brown had abruptly cancelled his Tuesday-night concert in Montreal and another show in Toronto, after being denied entry to Canada.  He tweeted that he had been refused entry just hours before he was to take to the stage in Montreal.  Live Nation, the promoter, confirmed in a statement that, due to immigration issues, the shows had been cancelled and ticket refunds would be available.

According to media reports, Mr. Brown pled guilty to felony assault in 2009, arising from his assault of his then-girlfriend Rihanna shortly before the Grammy Awards. The plea deal included five years of supervised probation and six months of community service.  The media further reported that Mr. Brown was later charged with a misdemeanor (presumably also assault) in 2013 when he and his bodyguard were involved in a brawl outside the W Hotel in Washington D.C.  His trial for the 2013 incident apparently has not occurred yet but he did admit to violating the terms of his earlier period of probation.

So why exactly was Chris Brown turned away?  Although I don’t have to his full criminal record, I can still offer a basic analysis of his case, based on what has been reported in the media.

Applicable Law

In Canada, there are two thresholds of criminal inadmissibility under the Immigration and Refugee Protection Act (S.C. 2001, c. 27) (“IRPA”).  The lower threshold is referred to as “criminality” and the higher threshold is referred to as “serious criminality.”

Criminality

According to IRPA  36(2), a foreign national is inadmissible on grounds of criminality for (among other things):

• Having been convicted outside Canada of an offence that, if committed in Canada, would be considered an indictable offence,  or of two offences not arising out of a single occurrence that, if committed in Canada, would be considered summary conviction offences; or
• Having committed an offence outside Canada (i.e. it is an offence where it occurred) that, if committed in Canada, would be considered an indictable offence.

Serious Criminality

According to IRPA 36(1), a  permanent resident or a foreign national is inadmissible on grounds of serious criminality for (among other things):

• Having been convicted of an offence outside Canada that, if committed in Canada, would be considered an offence punishable by a maximum term of imprisonment of at least 10 years; or
• Having committed an offence outside Canada (i.e. it is an offence where it occurred) that, if committed in Canada, would be considered an offence punishable by a maximum term of imprisonment of at least 10 years.

We will need to determine the Canadian equivalent of Mr. Brown’s offence(s) under the Canadian Criminal Code (R.S.C. 1985, c. C-46) (the “CCC”) and determine what the maximum penalty would be if it occurred in Canada.  The reference to someone who has “committed an offence” reflects the fact that the Canada Border Services Agency (“CBSA”) can also deny admission to an individual who they believe has committed the offense even if that person was never convicted of the charge.

Mr. Brown’s Offences

We don’t have all of the relevant facts but it looks like Mr. Brown probably has at least one conviction for assault arising from the 2009 incident involving Rihanna.  Based on the photos of Rihanna after the incident, we can probably assume that it was for assault causing bodily harm.

Even a simple assault would render Mr. Brown inadmissible to Canada due to criminality. However, a conviction for assault causing bodily would definitely render Mr. Brown inadmissible due to serious criminality.  This is because both types of assaults are considered indictable offenses; the maximum penalty for simple assault under CCC 266 would be 5 years of imprisonment while the maximum penalty for assault causing bodily harm would be 10 years.

The pending 2013 charge, which was likely for assault, is also a potential ground of inadmissibility. As mentioned above, simple assault is considered criminality and CBSA can find him inadmissible if they believe that he committed the offence, even if no conviction has occurred yet.

The conviction for violating his probation would also be a ground of inadmissibility. This is because under CCC 733.1(1), an offender who is bound by a probation order and who, without reasonable excuse, fails or refuses to comply with that order will be guilty of an indictable offence and subject to up to two years of imprisonment. It would therefore constitute criminality, but not serious criminality.

Conclusion

Based on the information available, it looks like Mr. Brown was probably found inadmissible for the 2009 assault against Rihanna, the probation violation, and possibly the 2013 pending assault charge as well.  In such cases, relief is available in the form of a Temporary Resident Permit (“TRP”), which is essentially a temporary waiver of inadmissibility.  However, it is a discretionary remedy and is much harder to obtain where serious criminality is involved. For the sake of his fans in Canada, I wish Mr. Brown the best of luck in seeking a TRP in the near future.

As previously discussed, Citizenship and Immigration Canada (“CIC”) implemented its Express Entry system on January 1, 2015.  Since that date, CIC has issued two rounds of Invitations to Apply (“ITAs”), which invite selected Express Entry applicants to submit applications for permanent residence under one of the following categories:

• The Federal Skilled Worker (“FSW”) Class;
• The Canadian Experience Class (“CEC”);
• The Federal Skilled Trades (“FST”) Class; or
• Members of the Provincial Nominee Class who fall within the Express Entry Stream of a Provincial Nominee Program (“PNP”).

On January 31, 2015, Minister of Citizenship and Immigration Chris Alexander (the “Immigration Minister”) issued Ministerial Instructions (“MIs”) regarding the first round of ITAs.  The MIs stated that the total number of ITAs issued during the period between January 31, 2015 and February 1, 2015 would be 779.  They also stated that only Express Entry applicants who had been assigned at least 886 points under the Comprehensive Ranking System (“CRS”) would receive an ITA during the first round.

On February 7, 2015, Minister of Citizenship and Immigration Chris Alexander issued additional MIs regarding its second round of ITAs.  These MIs stated that the total number of ITAs issued during the period between February 7, 2015 and February 8, 2015 would again be 779.  They also stated that only Express Entry applicants who had been assigned at least 818 points would receive an ITA during the second round.

By setting the minimum CRS ranking above 600, CIC ensured that only those applicants who received an additional 600 points, either for arranged employment or for a nomination under the PNP Express Entry stream, were considered for selection in these first two rounds.  This is a disappointment for many Express Entry applicants who believed that they might receive an ITA even without these additional 600 points.

The total number of applicants who received an ITA during each round was also disappointingly low.  Assuming that only 779 applicants receive an ITA under Express Entry each month during 2015, this means that CIC will only process 9,348 new applications under the FSW, CEC, FST, and PNP Express Entry Stream during the entire year.  This clearly cannot be CIC’s intention.

Despite these two disappointing rounds, it is still possible that applicants who have neither arranged employment nor a nomination under a PNP Express Entry Stream will still have an opportunity to receive an ITA sometime year.  The decision to issue ITAs only to applicants having more than 600 points during the first two rounds might have been a political decision, so that the Immigration Minister could initially claim that the Express Entry system was selecting only the best and brightest applicants.  In addition, the decision to issue only 779 ITAs during each round may have been made so that CIC could initially process these cases within the six-month time frame that it has been promising.

Hopefully, future rounds will involve a larger number of ITAs and a minimum CRS ranking that is low enough to include applicants who do not have arranged employment or a nomination under a PNP Express Entry Stream.