The relevant legislation that is applicable in the context of criminal conviction and immigration is the Immigration and Refugee Protection Act, often referred to as IRPA. Specifically, section 36(1)(a) of Canada’s IRPA states that:
a permanent resident is inadmissible to Canada for having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed. As well, a permanent resident will not have the right to appeal an inadmissibility determination if they were sentenced to a term of imprisonment of six months or more.
Of interesting note is that according to the Federal Court’s decision in Canada (Minister of Citizenship and Immigration) v. Atwal, 2004 FC 7, pre-sentence custody forms part of the “term of imprisonment” under IRPA s. 64(2). So, what all this means is that if a convicted person’s sentence meets any one of the aforesaid length of imprisonment, then he or she will likely face immigration consequences such as a permanent loss of status.
The Underlying Principles of the Canadian Justice System with Respect to Immigration Issues
Facing a potential criminal conviction can seriously impact your immigration status to the extent of a possible deportation from Canada. It is helpful to understand the Supreme Court of Canada’s (SCC) position on the issue of the relationship between a criminal conviction and one’s Canadian immigration status. The SCC adopted the decision of the Ontario Court of Appeal in R. v. Hamilton (2004), where Doherty JA noted that:
“…the risk of deportation cannot justify a sentence which is inconsistent with the fundamental purpose and the principles of sentencing identified in the Criminal Code. The sentencing process cannot be used to circumvent the provisions and policies of the Immigration and Refugee Act. As indicated above, however, there is seldom only one correct sentencing response. The risk of deportation can be a factor to be taken into consideration in choosing among the appropriate sentencing responses and tailoring the sentence to best fit the crime and the offender…If a trial judge were to decide that a sentence at or near two years was the appropriate sentence in all of the circumstances for [the offender], the trial judge could look at the deportation consequences for [the offender] of imposing a sentence of two years less a day as opposed to a sentence of two years. I see this as an example of the human face of the sentencing process. If the future prospects of an offender… can be assisted or improved by imposing a sentence of two years less a day rather than two years, it is entirely in keeping with the principles and objectives of sentencing to impose the shorter sentence. While the assistance afforded to [the offender] by the imposition of a sentence of two years less a day rather than two years may be relatively small, there is no countervailing negative impact on broader societal interests occasioned by the imposition of that sentence…”
The SCC noted two additional principles to the aforementioned to appellate level courts reviewing sentences. First, where the issue of immigration consequences is brought to a trial judge’s attention and the trial judge applies the proper sentencing principles but nevertheless decides on a two-year sentence, then, absent fresh evidence, deference is owed to that decision. Second, an appellate court has the authority to intervene where appropriate if the sentencing judge was not aware of the collateral immigration consequences of the sentence for the offender, or if counsel had failed to advise the judge on this issue.
What Impact does a Conditional Sentence have on Immigration?
In the SCC case of R. v. Tran, the SCC determined that conditional sentences are not terms of imprisonment for the purpose of determining admissibility and appeal rights. The SCC determined this for three reasons. These are as follows:
- First, it held that because conditional sentences generally indicate less “serious criminality” than jail terms, interpreting a “term of imprisonment of more than six months” as including both prison sentences and conditional sentences undermines the efficacy of using length alone to evaluate the length of criminality.
- Second, in response to a suggestion by the government that because stakeholders had proposed amendments raising in part the conditional sentence issue during the legislative drafting process, and because the government proceeded with the text as written without adopting the amendments anyway that this meant that Parliament intended that conditional sentences were terms of imprisonment, the SCC ruled that this was not persuasive because the recommended amendments addressed more than just conditional sentences.
- Third, the SCC held that public safety was not enhanced by deporting less culpable offenders who had received conditional sentences exceeding six months rather than possibly more dangerous offenders who had received sentences of five months (for example) simply because the criminal courts treat conditional sentences more leniently than jail terms. The SCC specifically noted that conditional sentences are designed as an alternative to incarceration in order to encourage rehabilitation, reduce the rate of incarceration, and improve the effectiveness of sentencing. It would be absurd if the consequence of going through a process to encourage rehabilitation simply led to deportation.
The Take Away
If you are concerned about your immigration status in relation to your criminal charge(s), contact our office and book a 30-minute free consultation to learn about the position you are in and how the lawyers at Aitken Robertson can assist your case.