Immigration Consequences of the Omnibus Crime Bill

On December 5, the House of Commons passed Bill C-10, also known as the Safe Streets and Communities Act, or the Omnibus Crime Bill.

Bill C-10 can be found here:

Bill C-10 introduces numerous changes which will affect Canada’s immigration system:

Changes to Sentencing Provisions

The following table details changes to sentencing provisions which will impact admissibility to Canada.

Crime Sentence Immigration Consequence
Sexual Interference (touching an individual who is under the age of 16) Remains a hybrid offense with a maximum term of imprisonment of not more than 10 years.

If Crown proceeds by way of indictment mandatory minimum penalty of 1 year.

Conviction results in inadmissibility for serious criminality.

Mandatory minimum would result in lack of appeal rights to the IAD

Invitation to Sexual Touching (for an individual who is under the age of 16) Remains a hybrid offense with a maximum term of imprisonment of not more than 10 years.

If Crown proceeds by way of indictment mandatory minimum penalty of 1 year.

Conviction results in inadmissibility for serious criminality.

Mandatory minimum would result in lack of appeal rights to the IAD

Sexual Exploitation (of a young person) Remains a hybrid offense with a maximum term of imprisonment of not more than 10 years.

If Crown proceeds by way of indictment mandatory minimum penalty of 1 year.

Conviction results in inadmissibility for serious criminality.

Mandatory minimum would result in lack of appeal rights to the IAD

Incest against a Minor Remains a hybrid offense with a maximum term of imprisonment of not more than 14 years.

If the Crown proceeds by way of indictment there is a mandatory minimum sentence of 5 years.

Conviction results in inadmissibility for serious criminality.

Mandatory minimum would result in lack of appeal rights to the IAD.

Bestiality Remains a hybrid offense with a maximum term of imprisonment of not more than 10 years.

There is now a mandatory minimum sentence of 6 months.

Conviction results in inadmissibility for serious criminality.

Mandatory minimum would result in lack of appeal rights to the IAD.

Making Child Pornography Remains a hybrid offense with a maximum term of imprisonment of not more than 10 years.

Mandatory minimum increased to 6 months.

Conviction results in inadmissibility for serious criminality.

Mandatory minimum would result in lack of appeal rights to the IAD

Distributing Child Pornography Remains a hybrid offense with a maximum term of imprisonment of not more than 10 years.

Mandatory minimum increased to 6 months.

Conviction results in inadmissibility for serious criminality.

Mandatory minimum would result in lack of appeal rights to the IAD

Possession of Child Pornography Remains a hybrid offense with a maximum term of imprisonment of not more than 5 years. Convictions results in inadmissibility for criminality.
Accessing Child Pornography Remains a hybrid offense with a maximum term of imprisonment of not more than 5 years. Conviction results in inadmissibility for criminality.
Parent or Guardian Procuring Sexual Activity where the Victim is Under the Age of 16 An indictable offense whose maximum penalty rises from not exceeding 5 years to 10 years. Conviction now results in inadmissibility for serious criminality rather than general.
Parent or Guardian Procuring Sexual Activity where the Victim is Over the Age of 16 but under 18 Remains a indictable offense with a new maximum term of imprisonment of not more than 5 years. Conviction results in inadmissibility for criminality.
Householder Permitting Sexual Activity where the Victim is Over the Age of 16 but under 18 Remains a indictable offense with a new maximum term of imprisonment of not more than 2 years. Conviction results in inadmissibility for criminality.
Making Sexually Explicit Material Available to Child New crime. 

Hybrid offense with a maximum term of imprisonment of not more than 2 years.

Conviction results in inadmissibility for criminality.

Mandatory minimum would result in lack of appeal rights to the IAD.

Luring a Child Remains a hybrid offense with a maximum term of imprisonment of not more than 10 years.

If crown proceeds by way of indictment mandatory minimum of one year.

Conviction results in inadmissibility for serious criminality.
Agreement or Arrangement to Commit a Sexual Offense Against a Child Remains a hybrid offense with a maximum term of imprisonment of not more than 10 years. Conviction results in inadmissibility for serious criminality.
Indecent Acts Goes from being a summary offense to a hybrid offense with a maximum term of imprisonment of not more than 2 years. Conviction results in inadmissibility for criminality.
Exposing Oneself to a Minor Remains a hybrid offense with a maximum term of imprisonment of not more than 2 years. Conviction results in inadmissibility for criminality.
Sexual Assault Remains a hybrid offense with a maximum term of imprisonment of not more than 10 years. Conviction results in inadmissibility for serious criminality.
Sexual Assault Causing Bodily Harm Remains a hybrid offense with a maximum term of imprisonment of not more than 14 years. Conviction results in inadmissibility for serious criminality.
Trafficking or Possessing for the Purpose of Trafficking a Schedule I or II substance Remains an indictable offense with a maximum term of imprisonment of life. Conviction results in inadmissibility for serious criminality.
Trafficking or Possessing for the Purpose of Trafficking a Schedule II in less than a prescribed amount Becomes an indictable offense with a maximum term of imprisonment of not more than 5 years. Conviction results in inadmissibility for criminality.
Importing and Exporting a Schedule I, II substance Remains an indictable offense with a maximum term of imprisonment of life. Conviction results in inadmissibility for serious criminality.
Producing a Schedule I substance Remains an indictable offense with a maximum term of imprisonment of life. Conviction results in inadmissibility for serious criminality.
Producing a Schedule II substance, other than marijuana Indictable offense with a maximum sentence of imprisonment to life. Conviction results in inadmissibility for serious criminality.
Production of Cannabis Maximum sentence increases from not more than 7 years to not more than 14 Conviction now results in inadmissibility for serious criminality.

In noting the above, it is important to note that Flunitrazepam and Gamma-Hydroxybutyric acid (both common date rape drugs) have been added to Schedule I.

Changes to IRPA

The Omnibus Crime Bill also introduced the following amendments to the Immigration and Refugee Protection Act:

  • enabling the Minister of Citizenship and Immigration Canada to issue written instructions to immigration officers, giving them the authority to deny work permits to applicants who are vulnerable to abuse or exploitation; 
  • ensure the instructions will be based on clear public policy objectives and evidence that outlines the risk of exploitation the applicants could face; and
  • ensure that a decision by an immigration officer to refuse a work permit in Canada could require approval by a second officer.

The Minister’s Instructions would not identify individual work permit applicants.  Rather, they would apply to applicants of a particular group of applicants or occupation who, in some way, could be identified as vulnerable to abuse or exploitation or at risk of becoming a victim of human trafficking.

The specific change to IRPA is to s. 30, which will now read:

Work and study in Canada

30. (1) A foreign national may not work or study in Canada unless authorized to do so under this Act.

Authorization

(1.1) An officer may, on application, authorize a foreign national to work or study in Canada if the foreign national meets the conditions set out in the regulations.

Instructions

(1.2) Despite subsection (1.1), the officer shall refuse to authorize the foreign national to work in Canada if, in the officer’s opinion, public policy considerations that are specified in the instructions given by the Minister justify such a refusal.

Concurrence of second officer

(1.3) In applying subsection (1.2), any refusal to give authorization to work in Canada requires the concurrence of a second officer.

Purpose

(1.4) The instructions shall prescribe public policy considerations that aim to protect foreign nationals who are at risk of being subjected to humiliating or degrading treatment, including sexual exploitation.

Publication

(1.5) The instructions shall be published in the Canada Gazette.

Application

(1.6) The instructions take effect on the day on which they are published, or on any later day specified in the instructions, and apply in respect of all applications for authorization to work in Canada, including those that were filed before that day and for which a final decision has not been made.

Revocation

(1.7) The instructions cease to have effect on the day on which a notice of revocation is published in the Canada Gazette.

Minor children

(2) Every minor child in Canada, other than a child of a temporary resident not authorized to work or study, is authorized to study at the pre-school, primary or secondary level.

As well, the Omnibus Crime Bill changes one of the objectives of Canadian immigration policy from protecting the “health and safety of Canadians” to protecting “public health and safety.”  The reason for the change was apparently to clarify that the objectives of immigration policy are also protect the health and safety of visitors, students, and foreign workers in Canada as well.

 


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