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The enacting of the Immigration and Refugee Protection Act, SC, 2001, C27 (“IRPA”)
and the Faster Removal of Foreign Criminals Act, SC 2013, c. 16 (“FRFCA”) brought in
many changes to the way non-citizens convicted of, or suspected of having
committed criminal offences are treated under immigration law.
The most significant change was to s. 36 which reduced the length of sentence which
can result in the removal of a non-citizen and can eliminate the right of as permanent
resident to a humanitarian compassionate appeal of removal.
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A client may not fully understand their immigration status. When dealing with noncitizens, it is best to seek clarification by checking the client’s documentation or
consulting an immigration lawyer.
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Convictions for certain offences can lead to a citizen being barred from acting as a
sponsor. Other than this, Canadian citizens are not subject to the IRPA. Under s. 6(1)
of the Charter, citizens have the right to leave and enter Canada. There is no
possibility of a citizen being removed for Canada due to a criminal conviction or
sentence. Citizenship can only be lost if the government establishes it was obtained
by misrepresentation or fraud.
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Many use the expression “landed immigrant” interchangeably with “permanent
resident”, the latter being the correct term under the IRPA. Various processes can
lead to becoming a permanent resident, some of the more common ones being an
application from abroad as an independent applicant (a professional, an
entrepreneur, etc.); and application from abroad as a sponsored relative; an
application by a protected person; a spousal sponsorship for a spouse who is already
in Canada; or a humanitarian application. A permanent resident can live permanently
in Canada and can work or study without any further authorization.
A protected person who has included her spouse and/or children in her own
permanent resident application will have them processed in a way that is similar to a
family class sponsorship, so people typically confuse this with sponsorship.
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A foreign national is any person who is not a Canadian citizen or a permanent
resident and includes:
- Temporary Resident: A temporary resident is any foreign national with shortterm legal status who is not a refugee claimant, “protected person” or
permanent resident. A visitor is a type of temporary resident. A person who
is in Canada on a student or work visa is also a temporary resident.
- Refugee Claimant: A refugee claimant is permitted to remain in Canada
pending refugee determination (including judicial review, should the Federal
Court grant leave) A refugee claimant can apply for temporary work and study
permits free of charge, pending determination of his claim.
- Protected person: This includes any person who has been determined a
Convention refugee or a “person in need of protection” under ss. 96 or 97 of
IRPA(which includes people at risk of specifically targeted persecution for
motives which do not fall under the refugee Convention). Protected person
status can be granted by the Refugee Protection Division of the Immigration
and Refugee Board or in a Pre-Removal (PRRA) determination.
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Pursuant to s.36 (1)(a) of the IRPA, a permanent resident will only be at risk of
removal if he or she has “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.”
In addition, s.36 provides: that a permanent resident can be inadmissible for criminal
acts that occur outside of Canada under (b) and (c) – we will not be covering these
grounds for removal in this presentation.
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With the introduction of the Faster Removal of Foreign Criminals Act (which amended
IRPA in 2013), permanent residents lost their right to appeal a removal order to the
IAD if convicted of an offence and sentenced to at least six months imprisonment.
Note, when looking at older cases, the threshold used to be 2 years.
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In those situations where a permanent resident can appeal a removal order to the
Immigration Appeal Division, the IAD has jurisdiction to stay the removal on
humanitarian grounds, or grounds that the decision was wrong in law or fact under
s.67 (1) of IRPA. If the appellant succeeds in obtaining a stay, the IAD will impose
terms and conditions on him. A subsequent breach could lead to his deportation.
The subsequent breach does not have to be a criminal offence.
If a permanent resident (or a foreign national who has been sponsored) is a subject to
an IAD stay order s. 68(4) of the IRPA provides that if he is convicted of another
offence with a ten-year or more maximum or having been sentenced to more than six
months, the stay is automatically cancelled and the appeal is terminated.
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It is important to be aware that, under s.36 (3) of IRPA, hybrid offences are to be
treated as indictable offences even if prosecuted summarily. Section 36(3) provides
that
(a)An offence that may be prosecuted either summarily or by way of indictment is
deemed to be an indictable offence, even if it has been prosecuted summarily. -> as
we’ll discuss next, this has significant consequences for foreign nationals.
There are a significant number of hybrid offences with a maximum sentence of 10
years or more, which could render a permanent resident removable under s.36 of the
IRPA.
Example: if a permanent resident is convicted of assault causing bodily harm and the
crown proceeded summarily, the PR would be subject to removal because it is a
hybrid offence, which carries a 10yr max sentence if prosecuted as an indictable
offence. If that same individual received a sentence of at least 6 months
imprisonment, he or she would have no right of appeal.
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A foreign national means a person who is not a Canadian citizen or a permanent
resident and includes a stateless person: (s.2(1) of IRPA).
A foreign national can be found inadmissible for either serious criminality or
criminality.
- One conviction for an indictable or hybrid offence under any Act of Parliament
makes a foreign national inadmissible for reasons of "criminality". This is because one
indictable conviction makes the foreign national inadmissible, and as noted earlier
"hybrid offences" are deemed indictable.
- Any two convictions not arising from a single occurrence under any Act of
Parliament (including summary offences, or other offences under any Act of
Parliament) renders a foreign national inadmissible for "criminality”
- Committing "on entering Canada, an offence under an Act of Parliament
prescribed by regulations" also renders a foreign national inadmissible for
"criminality".
- A six-month or longer sentence imposed on a foreign national makes it "serious
criminality” (whether proceeded with by summary conviction or indictment).
- Any conviction for an offence carrying a maximum sentence of ten years or more
is classed as "serious criminality”
- Basically, a foreign national can be deported upon receiving a conviction for most
criminal offences. A single criminal conviction, even for a relatively minor offence,
could render a foreign national inadmissible and lead to their removal from
Canada.
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Under s. 42 of the Act (IRPA) and ss. 23 and 72(1)(i) of the Regulations (IRPR) if a
foreign national is inadmissible, his family is also inadmissible. This means the family
cannot get permanent residence. This is the rule even if his family does not include
him in their permanent residence application. As long as he is a family member and
he is inadmissible, his family cannot get permanent residence. Accordingly a criminal
conviction does not necessarily have an impact only on the defendant. It can impact
his family, even if he is not included in their permanent residence application.
The only exception is that a protected person cannot be refused permanent
residence because he has a family member who is inadmissible. In that case, the
protected person is to be granted permanent residence while his inadmissible family
member is not.
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Pardon, Acquitted: An exception to inadmissibility under 36(1) and (2)
(inadmissibility of foreign nationals for criminality) applies to persons who have been
granted a pardon that has not ceased to have effect or been revoked under the
Criminal Records Act, or where there has been a final determination of acquittal: s.
36(3)(b) of the IRPA.
Rehabilitation: For permanent residents or foreign nationals who have committed
offences outside Canada or who are convicted of offences outside Canada, as
described under ss 36(1)(b) ,(c), or 36(2)(b), (c), an exception to inadmissibility
applies to those who, after the prescribed period, have satisfied the Minister of their
rehabilitation, or who are members of a prescribed class that is deemed to have been
rehabilitated: (s.36(3)(c)).Pursuant to s. 18 of the Regulations, a person is deemed to
be rehabilitated ten years after the end of the sentence in the case of a person
convicted of an indictable offence punishable by less than ten years, and after five
years in the case of a summary conviction offence.
Youth Sentences: Under s. 36(3)( e ) of IRPA inadmissiblity may not be based on an
offence for which the permanent resident or foreign national received a youth
sentence under the Youth Criminal Justice Act. Convictions in cases raised to adult
court can therefore lead to inadmissibility: Tessma 2003 FC 1126
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Sentencing courts can consider the immigration consequences of the sentence they
will impose and can modify a sentence accordingly, provided the sentence remains
proportional to the gravity of the offence and the circumstances of the offender.
Prior to the decision of the Supreme Court of Canada on Pham 2013 SCC 15 courts in
BC had held immigration consequences should be taken into consideration in
sentencing on R. v. Kanthasamy [2005] 195 C.C.C. (3d) 182 (BCCA).
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Discharge: Section 730(3) CC states that, except for certain defined purposes, when a
discharge is directed the offender shall be deemed not to have been convicted. There
is some case law decided under the Immigration Act in which the FC determined that
in cases where a person obtains a discharge, that person is not convicted of an
offence (Lew (1974), 20 C.C.C. (2d) 127 (Fed C.A.), Kalicharan, [1976] 2 F.C 123 (Fed.
T.D.). This jurisprudence is arguably applicable under IRPA.
Concurrent Sentences: As the definition of serious criminality refers to "an offence",
it is preferable to specify in concurrent sentences that the sentences are for each
"offence". Although in the criminal law context it may seem evident that a charge is
for an offence, in the immigration context officers have sought to argue that
sentences on multiple charges for one type of offence should be added together.
Consecutive Sentences: Consecutive sentences for more than one crime are not
added together. This is because s. 64(2) of the Act (IRPA) requires that the six-month
sentence be with respect to "a crime" (ie. one crime) "punished by a term of
imprisonment of at least six months".
Conditional Sentence Order: We will cover this in more detail in a few minutes.
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Term of imprisonment/pre-trial detention in the immigration context, presentence
custody forms part of a sentence of imprisonment if it can be inferred that the
sentencing judge took it into account when passing sentence, but it is not multiplied:
Brown v. Canada (Public Safety and Emergency Preparedness) 2009 FC 660.
Given that this may be inferred if the record is silent. Counsel may wish to ask the
sentence judge to “close the door” on such inference by directly addressing the issue
in sentencing reasons…ie, by directly stating credit for pre-trial detention is not
awarded, or alternatively, how much credit is being awarded.
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CSOs are not considered “terms of imprisonment” for the purposes of s 36(1)(a) IRPA.
“courts impose conditional sentences on persons who are not regarded as serious
criminals” [para. 10]
This decision is under appeal. Appeal is being heard on May 15. Watch for the appeal
decision.
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A refugee claimant is barred from having a refugee hearing if he has been convicted
for "serious criminality" -which is limited in this context to a conviction in Canada for
an offence with a maximum sentence of ten years or more.
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If the sentence is less than 2 years, the PRRA ought to be based on the full set of
grounds set out in ss.96-98.
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The IRPA introduced the new concept of a "person in need of protection“. Persons
within this category along with Convention refugees are classed as “protected
persons”.
A protected person cannot be granted permanent residence if a conviction is classed
as "serious criminality" (convicted of an offence with a maximum of ten years or
more, or to a sentence of more than six months.
A protected person deemed a "serious" criminal, but not a "danger to the public"
remains permitted to reside in Canada, but unable to proceed to the grant of
permanent residence.
Under IRPA s. 115(2), a protected person can also be deported to the country where
he fears persecution if he is inadmissible on grounds of serious criminality and "in the
opinion of the Minister" he is also a "danger to the public”.
A criminal conviction which could be related to security, human or international
human rights violations or organized criminality may also lead to deportation of a
protected person, if the Minister is also of the opinion that the protected person
should not be allowed to remain in Canada based on the "nature and severity of acts
committed" or "danger to the security of Canada."
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Convictions for specific offences will bar any citizen or non-citizen from being able to
sponsor people (offences of a sexual nature, bodily harm to a relative or conjugal
partner, as well as attempts or threats to commit such offences). This applies to both
classes of persons who can submit a sponsorship application: permanent residents
(including protected persons who have filed a sponsorship as permanent residents –
i.e., after becoming permanent residents), and citizens.
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