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Provincial Nominee Programs, mobility rights: what should change?

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Natalia Bialkowska

In Part 1 of this two-part series, I described current Provincial Nomination Programs (PNP) law and Charter mobility rights. I recognized the importance and mutual benefits that PNPs provide both to Canada and to immigrants, as well as to its permanent residents and future citizens. Now I turn my attention to the problems of the current PNP system and the urgent need for its change.

Beware of your “friends”

It should be noted that the nominating provinces/territories offer their respective “hot lines” to report immigrants who have made a false statement about their intention to settle and reside in the given part of Canada. Of course, the noble idea is that we want legal residents and future citizens among us. However, taking a closer look at some of the enforcement mechanics behind this idea might make your hair stand on end.

For example, Prince Edward Island has dedicated a section of its official website to “reporting abuse of the Prince Edward Island Provincial Nominee Program”. In addition to choosing your preferred reporting method (regular mail, phone, email or fax), you are advised that you, as the reporting party, are do not required to provide your name or other contact information. You are also asked to provide as much detail as possible about your allegations, while being assured that everything you submit will remain strictly confidential. Once your report is received, P.E.I. will begin its investigation.

Let’s deal with it together. For example, a “friendly neighbor”, regardless of their status in Canada, or even better, a foreign stalker, stalker or abuser can block their phone number and call about their victim, a now Canadian resident protected by the Charter, to say what he wants “facts” of misrepresentation. Does the attacker still live in the 1950s and does he not know how to block his number? No problem! They can fax a sheet of paper, using any UPS or similar store, completely 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, for me, means abolishing it completely and inculcating a new one consistent with Charter rights. For example, require all reporting parties to provide at least their identifying information. Further honoring the Canadian “rule of law”, let us establish and impose a minimum threshold of evidence required (i.e. the burden of proof) on the reporting party in order for the competent provincial/territorial body to undertake a any investigation. I would suggest that such a threshold is “reasonable grounds to believe” and therefore falls between “mere suspicion” and “balance of probabilities”. Why? Because “reasonable grounds to believe” would require actual evidence of reliable information, not mere speculation or unsubstantiated claims, which a prudent person could rely on to make it more likely than not that the “misrepresentation” happened.

By comparison, the “balance of probabilities” is the current threshold required in decision-making by immigration officers regarding, among other things, citizenship revocations or cases of inadmissibility of residents due to criminal activity. Choosing a level slightly lower than the suggested “reasonable grounds to believe” would still allow the provincial/territorial agency to begin the investigation without infringing on the rights of the suspect (i.e. Canadian resident) guaranteed by the chart.

What COVID-19 has taught us about PCPs

What COVID-19 has taught us, or at least made it clear to us, is that more and more people are working remotely. Even when given the option to return to the office these days, many more people are opting for a balanced or work-from-home option. In light of the above, how can a nominating province or territory enforce the “intent to settle” and work in a particular region of Canada? Does it really matter if a new permanent resident works remotely for an employer outside the province or territory of nomination, but lives, pays taxes, spends money, buys property and educates their children in said province?

The philosophy behind PCPs is that the potential immigrant can and will settle economically in the given region and will bring tangible and significant economic benefit to the region. If so, I understand that for the province or territory of nomination, it matters more where you leave your money than where you earn it. In fact, except to fill in the gaps of the labor shortage, it doesn’t matter where you earn your money as long as you leave it in the applicant’s pocket. From this pocket, a proponent can then offer higher wages to potential future workers who will fill labor shortages. Therefore, as long as you pay your taxes and contribute financially to the province/territory where you intended to settle as part of your PNP-Express Entry application, the overall economic health of said province/territory is improved. and the idea behind the PCPs is realized.

Simultaneously, an immigrant will obtain and, from personal experience, certainly enjoy the benefit of being allowed to work for whomever he chooses and at the salary level to his satisfaction. In short, it may be high time to replace the enigmatic “intention to settle” in the current PNP system with “intention to pay taxes and provide financial support” to the province or territory in question.

This is part two of a two part series. Read Part One: Provincial Nominee Programs, Mobility Rights: Can You Move or Are You Stuck?

Natalia Bialkowska is a Polish-Canadian lawyer trained 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 English, Polish and Spanish speaking clients.

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