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Thought Leaders

Thought Leaders

Jacqueline R Bart

Jacqueline R Bart

BARTLAW LLP | Canadian Immigration8 Wellington Street EastSuite 200TorontoCanadaM5E 1C5

Thought Leader

WWL Ranking: Thought Leader

WWL says

Jacqueline Bart is one of the most prominent immigration lawyers in the country. She is renowned for her vast experience in the corporate immigration field and draws praise for her leading knowledge of the market.

Questions & Answers

Jacqueline Bart is a Law Society-certified immigration specialist, with over 25 years of experience in Canadian immigration law. She is the author, co-author and editor-in-chief of over 20 immigration law books, including the 3,000-plus-page quarterly updated Canada/US Relocation Manual: Immigration, Employment, Customs and Taxation (co-edited and co-authored with Austin Fragomen), in addition to over 150 other immigration law publications. Jacqueline has held numerous prestigious executive positions at national and international bar associations and has moderated, chaired or presented at over 100 law conferences worldwide.

How has the increasing provision of IT work permits positively impacted the Canadian IT sector?

Canada’s information and communications technology (ICT) sector is one of the fastest growing parts of the national labour market, but it has consistently suffered from labour shortages due largely to brain drain to the United States. To keep up with an insatiable demand for skilled technology workers, the Canadian government established the Global Talent Stream in 2017 to allow Canada’s technology companies to obtain work permits for top international talent in a matter of weeks rather than months. For these companies, speed of innovation is paramount, so being able to hire foreign talent quickly and reliably has allowed them to keep pace and maintain international competitiveness. The Canadian ICT sector has been projected to face a national labour shortage of over 200,000 workers by 2020, so the increasing provision of work permits to skilled foreign technology talent has been a lifeline for Canada’s most innovative companies.

In your opinion, how have the Trudeau government immigration rules benefitted low-skilled workers and, in turn, large employers?

Tens of thousands of foreign workers in low-skilled occupations call Canada home, but until recently there have not been any federal avenues for them to permanently settle in Canada. The Trudeau government in the last two years has launched a series of pilot programmes in an effort to change this and offer a pathway to permanent residence to low-skilled foreign workers in several high-demand occupations and underserved work locations. These include caregivers, workers in the agri-food sector, and workers in Atlantic Canada and northern or rural communities. Through these pilot programmes, low-skilled foreign workers may finally be able to settle permanently in Canada, the country in service to which they have given their most productive years. Employers can also expect the promise of a pathway to permanent residence to be a significant asset to both the recruitment and retention of foreign labour.

What Canadian policies are in place to protect vulnerable workers?

Under Canadian immigration law, various measures exist to protect foreign workers who may be vulnerable to abuse due to their temporary status and dependence on their employers. The primary legislative mechanisms for protecting vulnerable immigrant workers include the following.

The employer compliance regime (ECR): the ECR protects temporary foreign workers from abuse and exploitation by ensuring that employers adhere to the terms and conditions set out in an offer of employment or the Labour Market Impact Assessment through inspections and the administration of fines and penalties for non-compliance.

Conditions on work permit issuance: under the regulations, an employer who has made an offer of employment is automatically subject to a number of conditions upon issuance of the work permit. Specifically, an employer must comply with federal and provincial laws regulating employment; provide foreign workers with the same occupation, and with wages and working conditions that are substantially the same as, but not less favourable than, those set out in the offer of employment; and the employer must make reasonable efforts to provide a workplace that is free from abuse.

Open work permits for vulnerable workers: as of June 2019, migrant workers on employer-specific work permits who can prove that they are experiencing or at risk of abuse may be eligible for an open work permit. Abuse is defined as physical abuse, sexual abuse, psychological abuse, and financial abuse. The migrant worker must hold an employer-specific work permit or be on implied status in order to be eligible.

Can you tell us how the Province of Quebec’s Bill 21 is problematic from an immigration perspective?

The government of Quebec recently passed Bill 21, an Act respecting the laicity of the state. The intention of Bill 21 is to affirm the laicity, or secularity, of the state. The Act prohibits various public-sector employees (including new immigrants) from wearing religious symbols and amends Quebec’s Charter of Human Rights and Freedoms to place greater emphasis on the principle of state laicity over individual rights and freedoms.

Effective from 1 January 2020, applicants for a Quebec Selection Certificate under Quebec’s permanent economic immigration programmes will be required to obtain “an attestation of learning about democratic values and the Québec values expressed by the Québec Charter of Human Rights and Freedoms”. This condition will apply to applicants under the Quebec Experience Program; the Regular Skilled Worker Program; the Self-Employed Worker Program; and the Entrepreneur and Investor programmes. This requirement will apply to principal applicants, accompanying spouses and dependent children over the age of 18 years old. Foreign nationals with a medical condition that prevents them from obtaining the attestation are exempt.

Obtaining a Quebec Selection Certificate is a mandatory step towards obtaining permanent residence for applicants who intend to live in Quebec. As such, any economic immigrant who wishes to stay permanently in Quebec must complete the attestation of learning.

The Quebec government indicates that this attestation will take the form of a test, with sample questions including the following: “In Québec, women and men have the same rights and this is inscribed in law (true or false)”, and “Since March 29, 2019, by virtue of the law respecting the laicity of the state, all new police officers may not wear religious symbols such as turbans, kippah’s etc (true or false)”. The stated legislative intention of introducing this requirement into the immigration system is to promote better integration into Quebec society.

New immigrants will be required to attest to learning about democratic values and the values expressed by the Quebec Charter of Human Rights and Freedoms. The Quebec Charter enshrines fundamental rights and freedoms, including freedom of conscience, religion, opinion and expression, into Quebec law. However, the Quebec Charter was modified significantly in two important ways following the passage of Bill 21.

Among the public-sector employees prohibited from wearing religious symbols are court officials, such as clerks and sheriffs; public school principals, vice principals and teachers; Quebec peace officers; members of public commissions and administrative tribunals; labour arbitrators; and public sector lawyers and notaries, including criminal prosecutors and Ministry of Justice officials.

The broad nature of the Act effectively prohibits a wide variety of persons, particularly those from religious minority groups, from working in the public sector in the province. The Act makes it incumbent on the person exercising the highest administrative authority in the relevant organisation to enforce the prohibition on religious symbols, and that person is subject to disciplinary measures in the event of a failure to comply.

Among other things, the Act is troubling in that it prohibits members of minority religious groups who wear religious symbols from holding significant positions of power in the Quebec government, such as Minister of Justice and attorney general; director of criminal and penal prosecutions; government lawyers, such as criminal and penal prosecuting attorneys; peace officers; and members of administrative tribunals and commissions, such as the Public Service Commission, the Parole Commission, the Quebec Transportation Commission, and many others. It is problematic that members of religious minority communities who have historically been underrepresented in these positions of power are now excluded.

The aim of laicity is to prevent state power from being unduly wielded by a religious group in order to enforce that group’s belief on all citizens. However, the government of Quebec is positing that the act of wearing a religious symbol alone amounts to an attempt by that public servant to enforce their personal beliefs and values on members of the public they interact with in the course of their duties. That assumption has no scientific basis and disregards the rule of law.

The government of Quebec has not introduced any evidence pointing to a problem of public-sector employees unduly imposing their personal religious beliefs in the course of their duties or made the case that public-sector employees who wear religious symbols are performing their duties differently from their non-religious co-workers.

The stated intention of the immigration attestation of learning is to promote integration into Quebec society for new immigrants. However, by prohibiting members of multiple religious minority groups from finding work in the public sector or holding positions of power in Quebec society, the Act and the attestation in fact do the opposite.

The prohibition of the wearing of religious symbols under the Act, if challenged, would almost certainly be found to be unconstitutional as it is a clear violation of section 2 of the Canadian Charter of Rights and Freedoms. Indeed, federal Charter case law has consistently emphasised the need for reasonable accommodation of religious practices and the wearing of religious symbols. (For example, see R v NS 2012 SCC 72 or Alberta v Hutterian Brethren of Wilson Colony 2009 SCC 37.)

In passing Bill 21, the government of Quebec anticipated future federal Charter challenges and pre-emptively declared the Act to have effect notwithstanding the Charter: “34. The Act and the amendments made by Chapter V of this Act have effect notwithstanding sections 2 and 7 to 15 of the Constitution Act, 1982”.

The inclusion of this language in the Act reflects the fact that the government of Quebec is clearly aware that the broad prohibition on the wearing of religious symbols is discriminatory and extremely likely to be found unconstitutional under the Canadian federal Charter.

Economic immigrants who intend to settle in Quebec must complete the attestation of learning of Quebec values in order to obtain their Quebec Selection Certificate, the first step towards permanent residence and, eventually, Canadian citizenship. In introducing the mandatory attestation of learning for new immigrants, the province is effectively requiring new immigrants to confirm that they understand and will abide by a law that is discriminatory and unconstitutional under the Canadian Charter of Rights and Freedoms.

Canada is a multireligious society. There is no need for a laicity law in Quebec, unless it has been determined that the religious majority is discriminating against religious minorities. If the latter had been the problem, then the law should specifically apply to the religious majority. There is no scientific evidence that religious wear results in the obstruction of the rule of law.

Bill 21 restricts religious freedoms and rights and weakens participation in government or in positions of government by religious minorities. Bill 21 effectively violates the fundamental Canadian Charter right to freedom of religion. Rather than protecting the secular nature of the state from a powerful and unified religious organisation, in a multireligious society, strict laicity and the refusal to accommodate religious wear instead has the effect of further oppressing and excluding religious minorities and is not conducive to the successful integration of new immigrants into Quebec society, particularly Sikhs, Jews and Muslims, inter alia.

Global Leader

Corporate Immigration 2020

Professional Biography

WWL Ranking: Recommended

WWL says

Leading lawyer Jacqueline Bart is “the queen of Canadian immigration law” and “wonderful to work with” according to impressed peers. She offers full-service corporate immigration expertise.​

Biography

Jacqueline is a Law Society-certified immigration specialist, with over 25 years of experience in Canadian immigration law. She is the author, co-author and/or editor-in-chief of 18 immigration law books, including the 3,000-plus-page quarterly updated Canada/US Relocation Treatise, in addition to over 110 other immigration law publications. Jacqueline has held numerous prestigious executive positions at national and international bar associations and has moderated, chaired or spoken at over 90 law conferences worldwide.

Jacqueline began her career at Canada's largest law firm, after completing contracts at the High Court of Justice in London, UK; and the United Nations High Commissioner for Refugees (UNHRC) in Geneva. She founded BARTLAW – a top tier Canadian immigration firm that has received many national and international awards – in 1994.

Jacqueline is the vice-chair of the American Bar Association (ABA) international law section's immigration and naturalisation committee and a member of the ABA steering group for the international law practice management forum. She is the immediate past president of the immigration and nationality commission of the International Association of Lawyers (UIA) and of the UIA Annual Congress, Toronto (2017).

Jacqueline has chaired and/or presented on Canadian immigration law, inter alia, at the World Trade Organization (WTO), International Bar Association (IBA), UIA, Inter-Pacific Bar Association (IPBA), Canadian Bar Association (CBA), Ontario Bar Association (OBA), American Immigration Lawyers Association (AILA), ABA, Council of Canadian Administrative Tribunals (CCAT), International Association of Young Lawyers (AIJA) and the Worldwide Relocation Council (WRC).

She is a retired member of the diplomatic corps in Toronto, as an ex officio honorary Consul of Ecuador. In her spare time, Jacqueline volunteers for various children's charities and provides pro bono immigration assistance at the Sick Children's Hospital in Toronto.

National Leader

WWL Ranking: Recommended

WWL says

Jacqueline Bart is a dedicated corporate immigration lawyer who offers clients her standout knowledge in complex disputes and regulatory frameworks.

Biography

Jacqueline is a Law Society-certified immigration specialist, with over 25 years of experience in Canadian immigration law. She is the author, co-author and/or editor-in-chief of over 20 immigration law books, including the 3,000-plus-page quarterly updated Canada/US Relocation Manual: Immigration, Employment, Customs and Taxation (co-edited and co-authored with Austin Fragomen), in addition to over 150 other immigration law publications. Jacqueline has held numerous prestigious executive positions at national and international bar associations and has moderated, chaired or presented at over 100 law conferences worldwide. She has served as an expert witness on immigration matters arising in litigation.

Jacqueline began her career at Canada's largest law firm, after completing contracts at the High Court of Justice in London, UK; and the legal protection division of the United Nations High Commissioner for Refugees (UNHRC) in Geneva.

Jacqueline is the managing partner of BARTLAW LLP, Canadian Immigration, Barristers and Solicitors, a prestigious award-winning full-service immigration law firm, specialising in Canadian immigration and citizenship law. Established in 1994, it is consistently ranked top tier in legal directories both nationally and internationally. BARTLAW’s legal team of highly trained, exceptionally educated and specialised lawyers provide expertise in every area of Canadian citizenship and immigration law. The firm is regularly published in news, books and articles and interviewed for television and radio.

The firm provides expert advice on all aspects of immigration to Canada and assists SME’s and corporate clients including, but not limited to, consulting, finance, arts, IT, hospitality, retail, fashion, pharmaceutical, chemical, manufacturing, education, entertainment industries, in addition to assisting individuals and families.

Members of the firm are involved in many organisations including the Canadian Bar Association (CBA), the Ontario Bar Association (OBA), American Bar Association (ABA), American Immigration Lawyers Association (AILA), International Bar Association (IBA), Union Internationale des Avocats (UIA) and Inter-Pacific Bar Association (IPBA) and the Law Society of Ontario (LSO).

Jacqueline is the vice-chair of the American Bar Association (ABA) international law section's immigration and naturalisation committee and has held several other executive positions at the ABA. She is the immediate past president of the immigration and nationality commission of the International Association of Lawyers (UIA) and served as president of the UIA Annual Congress, Toronto (2017) and has served in various capacities on the Canadian Bar Association and Ontario Bar Association immigration committee executives.

Jacqueline has chaired and/or presented on Canadian immigration law, inter alia, at the World Trade Organization (WTO), International Bar Association (IBA), Union International des Avocats (UIA), Inter-Pacific Bar Association (IPBA), Canadian Bar Association (CBA), Ontario Bar Association (OBA), American Immigration Lawyers Association (AILA), ABA, Council of Canadian Administrative Tribunals (CCAT), International Association of Young Lawyers (AIJA) and the Worldwide Relocation Council (WRC), Canadian Employment Relocation Council (CERC); Toronto Consular Corps Association (TCCA); Law Society of Ontario (LSO).

She is a retired member of the diplomatic corps in Toronto, as an ex officio honorary Consul of Ecuador. In her spare time, Jacqueline volunteers for various children's charities and provides pro bono immigration assistance at the Sick Children's Hospital in Toronto.

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