immigration
Immigration Consequences of Criminal Convictions Revisted
23 March, 2016
In the many years since I first wrote about the immigration consequences of criminal convictions, much has changed, yet a lot has remained the same.
The most significant development in recent years is that courts have recognized the seriousness of deportation consequences for permanent residents convicted of criminal offences. The culmination of this issue occurred In Regina vs Pham, [2013] 1 S.C.R. 739 where the Supreme Court of Canada instructed sentencing courts to include immigration consequences as a factor in determining appropriate sentences for offenders.
The two major components that attract immigration scrutiny are seriousness of offence and the length of the sentence.
The seriousness of the offence (for any federal offence such as the Criminal Code or Controlled Drugs and Substances Act) is determined by the maximum possible sentence that can be imposed for the offence. In general, Parliament has grouped offences so that the maximum sentence is either 6 months, 18 months, 2 years, 5 years, 10 years, 14 years, or life imprisonment. Only the last 3 groups of offences for which the maximum punishment is 10 years or more come within the ambit of section 36 of the Immigration and Refugee Protection Act. Any disposition with the exception of a discharge, may result in deportation proceedings being instituted against the permanent resident offender.
The length of the sentence regardless of the seriousness offence is important in determining appeal rights to the Immigration and Refugee Board, Immigration Appeal Division. A sentence greater than six months for any one offence will result in a deportation order against a permanent resident for which there is no right of appeal to the Immigration and Refugee Board, Immigration Appeal Division. The Board has the jurisdiction in section 67 of the Immigration and Refugee Protection Act to issue a stay of the deportation based on humanitarian and compassionate considerations.
Importantly, a foreign national (a non-citizen and non-Permanent Resident) has no appeal rights to the Immigration and Refugee Board under any circumstances. They can be removed from Canada at any time either by cancelling or not renewing their temporary status (work, study or visit) if convicted for any offence.
Ultimately, it is the lawyer’s duty to advise the offender of the immigration consequences of a criminal conviction and ensure that the offender understands the full collateral consequences of a conviction.
Strong and effective advocacy is necessary at both the criminal court and Immigration and Refugee Board to ensure that a Permanent Resident is not deported from Canada without a full and fair hearing.
Tags: information, legal advice
