Criminal defense lawyers should inquire about their client’s immigration status prior to client accepting a plea arrangement and prior to sentencing. There are numerous reasons for this, including:A permanent resident who has been found to be inadmissible to Canada on the grounds of serious criminality and who has received a sentence of six months or more may not appeal their removal order to the Immigration Appeal Division.
- A permanent resident will be found inadmissible to Canada on the grounds of serious criminality if they are convicted of an offence whose maximum term of imprisonment is ten years or more.
- A permanent resident who has been found to be inadmissible to Canada on the grounds of serious criminality and who has received a sentence of six months or more may not appeal their removal order to the Immigration Appeal Division.
- A foreign national who is convicted of an indictable or hybrid offense will be inadmissible to Canada.
We often encounter foreign nationals and students who were advised by criminal counsel that pleading guilty to a hybrid or indictable offense is not “that” big a deal. Imagine their clients’ surprise when the Canada Border Services Agency (“CBSA“) later informs them that they are inadmissible to Canada. In one case we acted for a permanent resident who was charged with assault. His lawyer recommended that he accept a plea bargain that resulted in him being convicted of what he thought was the less serious offence of criminal harassment. The result was that the CBSA commenced deportation proceedings against him.
Conversely, we often work with criminal counsel during the course of criminal proceedings to explain the immigration consequences of certain sentences and dispositions. This is especially relevant in the sentencing context, as a sentencing judge may consider immigration consequences to the limited extent of ensuring that a sentence does not create serious and unintended immigration consequences that would result in a disproportionate sentence.
The Good News – Judges May Take Immigration Consequences into Consideration During Sentencing
An individual will be criminally inadmissible if he/she is sentenced for a crime to at least two years imprisonment. As a result of this serious consequence, judges will occasionally refrain from sentencing an individual to a term of imprisonment for two years or more if the person is a permanent resident who will be deprived of the ability to appeal a deportation order.
In B.C., the defendant plead guilty to sexual exploitation of his partner’s child. He was sentenced to 30 months imprisonment. He was shortly thereafter informed that he would be deported upon his release from prison. The Ontario Court of Appeal adjusted his sentence so that he would only face a term of imprisonment of two years less a day, plus six months probation, thus preserving his deportation appeal rights. The Court reached this decision in part because no one at the sentencing proceeding was aware of BC’s immigration status and the resulting deportation issue.
In Doradea, the defendant plead guilty to charges of robbery and carrying a knife. He was sentenced to two years. Because this sentence would have resulted in him losing his deportation appeal right, the Court reduced his sentence. Once again, the issue arose because no one was aware of the defendant’s immigration status during sentencing.
These cases make it clear that criminal defense lawyers should always inquire into their clients’ immigration status and any resulting issues of their client not being a citizen.
Principles as Articulated in R v. Pham
On January 18, 2013, the Supreme Court of Canada (the “SCC“) unanimously confirmed that it is appropriate for sentencing judges to take immigration consequences into consideration when determining the appropriateness of a sentence. It reiterated the principle that in determining what a fit sentence is, the sentencing judge should take into account any relevant aggravating or mitigating circumstances, as well as objective and subjective factors related to the offender’s personal circumstances. As such, it held that the collateral consequences related to immigration may be relevant in tailoring the sentence, but that their significance depends on and has to be determined in accordance with the facts of the case. In other words, “a sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, provided that the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender. The flexibility of [Canada’s] sentencing process should not be misused by imposing inappropriate and artificial sentences in order to avoid collateral consequences which may flow from a statutory scheme or from other legislation, thus circumventing Parliament’s will.” The SCC also warned about the need to avoid creating a separate sentencing scheme with a de jure special range of sentencing options where deportation is a risk.
The court 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 . . . . [Citations omitted.]
Finally, the SCC noted that the following two principles for appellate courts:
- Where the issue of immigration consequences is brought to the trial judge’s attention and the trial judge applies the proper sentencing principles but nonetheless decides on a two-year sentence, then, absent fresh evidence, deference is owed to that decision.
- 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.
An Exception for Those without Status
Immigration considerations are not, however, an appropriate consideration in crafting a fit sentence for an offender who is without legal status in the country and subject to a removal order.
Case: R. v. Daskalov, 2011 BCCA 169
Pursuant 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).
It is unclear whether conditional sentences are sentences for the purpose of determining a right of appeal to the Immigration Appeal Division. Indeed, the Federal Court of Appeal has ensured that it is deliberately so. In Tran v. Canada (Public Safety and Emergency Preparedness), 2014 FC 1040 the Federal Court certified the following two questions of general importance:
Is a conditional sentence of imprisonment imposed pursuant to the regime set out in ss 742 to 742.7 of the Criminal Code a “term of imprisonment” under s 36(1)(a) of the IRPA?
Does the phrase “punishable by a maximum term of imprisonment of at least ten years” in s 36(1)(a) of the IRPA refer to the maximum term of imprisonment available at the time the person was sentenced or to the maximum term of imprisonment under the law in force at the time admissibility is determined?
In Canada (Public Safety and Emergency Preparedness) v. Tran, 2015 FCA 237, the Federal Court of Appeal answered:
A conditional sentence of imprisonment imposed pursuant to the regime set out in ss. 742 to 742.7 of the Criminal Code may reasonably be construed as a term of imprisonment under paragraph 36(1)(a) of the IRPA.
The phrase “punishable by a maximum term of imprisonment of at least 10 years”in paragraph 36(1)(a) of the IRPA can reasonably be interpreted as the maximum term of imprisonment under the law in force at the time admissibility is determined.
Justice Gauthier wrote:
I will thus first consider the purpose of the [Immigration and Refugee Protection Act “IRPA”] and of section 36. The Supreme Court of Canada in Medovarski, at paragraph 10, described them as follows:
The objectives as expressed in the IRPA indicate an intent to prioritize security. This objective is given effect by preventing the entry of applicants with criminal records, by removing applicants with such records from Canada, and by emphasizing the obligation of permanent residents to behave lawfully while in Canada. […] Viewed collectively, the objectives of the IRPA and its provisions concerning permanent residents, communicate a strong desire to treat criminals and security threats less leniently than under the former Act.
When the IRPA was adopted in 2002, the expression term of “imprisonment” (emprisonnement) was used in three specific provisions – sections 36, 50 and subsection 64(2).
Although for a lay person a term of imprisonment is generally understood as time spent in prison or in incarceration, it has a wider meaning when used in the context of determining what sentence may be imposed for a criminal offence under an Act of Parliament.
It is clear that pursuant to section 742.1 of the Criminal Code (see Appendix A), and subject to various exceptions added in 2007 and 2012, a term of imprisonment of less than two years can be served in the community rather than in jail. It is understood that should the conditions imposed by the sentencing judge be breached, the offender may end up serving the rest of his term in jail.
In a series of decisions (Proulx, above; R. v. Wu, 2003 SCC 73,  3 S.C.R. 530; R. v. Fice, 2005 SCC 32,  1 S.C.R. 742; Middleton, above) the Supreme Court of Canada also made it clear that although generally a sentence of “imprisonment” will be understood to include conditional terms of imprisonment when referring to a sentence under the Criminal Code, there may be cases where the Driedger modern rule of interpretation will require that the expression be limited to a carceral term of imprisonment.
However, as noted by the Minister, in Middleton, both Justice Fish, writing for the majority (paragraphs 10-11), and Justice Binnie, in his concurring reasons (paragraph 57), acknowledged that the general rule applies unless Parliament clearly indicates to the contrary. In that case, Justice Fish in fact stated that the textual consideration of the provision itself, which expressly referred to “confinement” and “prison”, was sufficient and made it plain that conditional sentences of imprisonment could not come within the meaning of “sentence of imprisonment” in section 732(1) of the Criminal Code.
. . .
… section 64 was amended to reduce the term of imprisonment provided for therein to six months or more in 2013. The fact that it would apply to offenders sentenced to serve their term of imprisonment in the community was expressly raised by the National Immigration Law Section of the Canadian Bar Association who recommended that any amendment to subsection 64(2) should include some language to clarify that a term of imprisonment did not include conditional terms of imprisonment of the duration set out in this provision.
. . .
Various participants noted that conditional terms of imprisonment fell within the provision as drafted, as well as the potential unfairness of precluding appeals for those on whom a conditional sentence of imprisonment of more than six months had been imposed, whereas those on whom jail terms of lesser lengths were imposed were not so precluded, even though these punitive measures are considered equivalent or harsher: see, for example, House of Commons. Standing Committee on Citizenship and Immigration, Evidence, 1st Sess., 41st Parl., Meeting No. 62, 21 November 2012 at p. 2 (Ahmed Hussen (National President, Canadian Somali Congress)) (Joint Book of Authorities, Vol. 4, Tab 121); Proceedings of the Standing Senate Committee on Social Affairs, Science and Technology, Meeting No. 38 (1-2 May 2013) 38:44 (Gordon Maynard (Past Chair, National Immigration Law Section, Canadian Bar Association)) (Joint Book of Authorities, Vol. 4, Tab 126); Meeting No. 39 (8-9 May 2013) at 39:20 (Senator Art Eggleton) (Joint Book of Authorities, Vol. 4, Tab 127). Several discussions prompted the proposal of three distinct motions to expressly exclude conditional sentences from the provision, each of which was defeated: House of Commons. Standing Committee on Citizenship and Immigration, Evidence, 1st Sess., 41st Parl., Meeting No. 64, 28 November 2012 at 2, 4 (Jinny Jogindera Sims (Newton-North Delta, NDP)), 4, 7 (Kevin Lamoureux (Winnipeg North, Lib.)) (Joint Book of Authorities, Vol. 4, Tab 122); Debates of the Senate, 41st Parl., 1st Sess., No.168 (30 May 2013) at 4081-4082 (Senator Art Eggleton) (Joint Book of Authorities, Vol. 4, Tab 128).
The opinion that Parliament still views terms of imprisonment of more than six months served in the community as serious enough to warrant losing one’s right of appeal of a finding of inadmissibility is certainly supported by the legislative history when subsection 64(2) was amended in 2013 allegedly to put it in line with paragraph 36(1)(a). Although such interpretative tools are typically given less weight than others, I simply cannot conclude that the interpretation of the Minister’s delegate, which the legislative history appears to support, should be found unreasonable on the basis that it produces inconsistent consequences which might be regarded as absurd. These inconsistencies were clearly spelled out and considered before the adoption of subsection 64(2) and no change was made to exclude those inconsistent consequences.
Justice Gauthier concluded:
In the circumstances, considering the current teachings of the Supreme Court of Canada and although there may clearly be other defensible interpretations, I cannot conclude that the interpretation adopted by the Minister’s delegate in this case is unreasonable. Obviously the deference granted to administrative decision makers is in part meant to give them flexibility to adjust to new arguments and circumstances. It is thus obviously open to the ID and the IAD to adopt another interpretation should they believe that it is warranted by the inconsistent consequences described above. But this would likely have to be applied to the three provisions in the IRPA where the expression “term of imprisonment” is used.
Accordingly, each immigration officer can decide that conditional sentences are terms of imprisonment under IRPA, or that they are not.