Volume 14, No. 2
April 2013
Recent Developments at the Crossroads of Immigration and Criminal Law
By Elizabeth Long* and Zahra Kaderali**
In recent times there have and will be significant changes in the
intersection between Immigration and Criminal law. Bill C-43, The
Faster Removal of Foreign Criminals Act, is, at the writing of this
article, being debated in the Senate and is expected to pass in the next
few weeks. As well, the omnibus Safe Streets and Community Act
passed last summer and now has been implemented. In the wake of
these changes, it is incumbent for immigration lawyers to properly advise on the immigration
consequences of criminal pleas and sentencing of non-citizens. The following are a few points to keep in
mind:
1. Upon the implementation of C-43, permanent residents who have received a conviction of 6
months for an offence with a maximum penalty of 10 years imprisonment or more (or received a
sentence of over 6 months for those offences with less than 10 years imprisonment) would be
inadmissible without the ability to appeal the removal order at the Immigration Appeal Division
(see s.36 and changes to s.64(2) of Immigration and Refugee Protection Act). In order to
preserve this appeal right, criminal counsel must be cognisant of these new provisions when
recommending sentencing as well as the offences that the individual may plea to. These changes
will be retroactive to anyone who has not yet been subject to a A44 report based on their
conviction(s). One recommendation is to advise non-citizen clients to seek independent legal
advice on immigration consequences prior to be a plea being entered. It is advisable that this
advice be included in criminal counsel’s written guilty plea instructions.
2. Currently individuals who are sentenced prior to the implementation of C-43 and who have not
been the subject of a s.44 report in relation to that offence will be caught under the new changes.
In R. v. Hoang Anh Pham, 2013 SCC 15, the Supreme Court recently found that immigration
consequences, if they were not contemplated by the sentencing judge, could be a factor in
reducing a criminal sentence upon appeal if the reduced sentence would be within the range of
appropriate sentences. The retroactivity of C-43 could mean that there may be many cases where
the consequences of the bill would not have been considered by the judge in the criminal case.
As such, these sentences may be able to be appealed and reduced.
3. The crime bill enacted last year brought about sweeping changes to the pardon regime (now
called record suspension). A person who is a foreign national or permanent resident would now
be ineligible to apply for a record suspension if he/she has been convicted of certain offences or
an accumulation of offences - see s.4(2) and 4(3) of the Criminal Records Act. Furthermore,
permanent residents and foreign nationals will now be inadmissible to Canada for a longer period
of time. Amendments to the Criminal Records Act included increasing the eligibility or waiting
periods for a record suspension. Now, those convicted of summary conviction offences must wait
a period of 5 years after the completion of a sentence, while those convicted of indictable
offences must wait a period of 10 years after the completion of their sentence to be eligible to
apply for a record suspension. Record suspensions are not automatic and require an assessment of
“good conduct” and “measurable benefit” for which the onus rests on the applicant to prove.
Without the ability to obtain a record suspension, a foreign national would likely be ineligible for
permanent residence due to inadmissibility. This must also be taken into consideration when
advising on the offences in a plea.
Deportation, family separation, and the inability to obtain permanent residence often outweigh even
sanctions in criminal law for individuals. As immigration experts we must work together with our
colleagues in the criminal bar so that our clients can make informed decisions in these critical moments of
their lives.
*Elizabeth Long practices Immigration Law with the firm of Long Mangalji LLP in Toronto. She may be
reached at [email protected].
**Zahra Kaderali practices Immigration Law with the firm of Bellissimo Law Group in Toronto. She
may be reached at [email protected].