Criminal Convictions and Consequences to Foreign Nationals
October 22, 2017
As a lawyer practicing both criminal and immigration law, I often receive requests from colleagues for professional advice on issues they are facing when the two branches of law intersect.
Recently, I was consulted by a client on behalf of a fellow criminal defence lawyer to provide an opinion letter for a judicial pretrial on the effect of a discharge for a domestic assault an accused was facing. The client was accused of assaulting his wife. He, and his wife, were also facing potential deportation.
By way of background, the accused is a temporary resident of Canada, in Canada on a valid work permit. His wife entered Canada on a valid visitor visa. Both have applied for Canadian Permanent Residence. The Permanent Resident application is being processed out of the visa office of the Canadian High Commission in New Delhi, India.
After I provided the opinion letter, the accused’s lawyer was able to successfully negotiate an agreement for a conditional discharge to avoid the effect of subsection 36(1)(a) of the Immigration and Refugee Protection Act. That section would have rendered him inadmissible to Canada and subject to deportation.
So, now it gets interesting. The spouse received a letter from the visa office requesting submissions within 30 days as to why she is not inadmissible as the accompanying spouse of an inadmissible applicant for Permanent Residence. Needless to say, the panicked client immediately contacted me to respond to the visa office. Fortunately, I was able to quickly obtain a copy of the court information and probation order, both of which confirm the imposition of a conditional discharge. Once I responded to the visa office, the Permanent Residence application was back on track for successful processing.
In November 2002, shortly after the Immigration and Refugee Protection Act became law by replacing the Immigration Act, I gave a presentation to the Peel Criminal Lawyers Association. I predicted that the Canadian government would use the (at that time new) provision in subsection 42(1)(a) to penalize victims of domestic violence. I wonder how long it will take to implement the next step and deport offenders along with their entire family post-conviction?
Hans John Kalina is a Criminal Defence and Immigration lawyer based in Mississauga, Ontario. He can be reached at (416) 900-6999 or [email protected]