Criminal defense lawyers should inquire about their clients’ immigration status prior to client accepting plea arrangements and prior to sentencing. There are numerous reasons for this, including that:
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- a permanent resident will be found to be 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. Furthermore, 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; and
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- a foreign national who is convicted of an indictable or hybrid offence will be inadmissible to Canada.
It has become apparent over years of practice that foreign workers and students are occasionally advised by criminal defence counsel that pleading guilty to a hybrid or indictable offence is not “that” big a deal so long as the sentence is minimal. The result, however, is that they are criminally 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. While this may be true in the criminal law context, the result was that the Canada Border Services Agency commenced deportation proceedings against him because the maximum possible sentence for criminal harassment is more than common assault.
Conversely, immigration counsel often work with criminal counsel during the course of criminal proceedings to explain the immigration consequences of certain sentences and dispositions, including by providing expert opinions in court.
There are certain principles about criminal convictions and immigration that both immigration and criminal counsel should know about.
1. Judges may take immigration consequences into consideration during sentencing.
As noted above, a permanent resident will be criminally inadmissible if he/she is sentenced for a crime to at least six months imprisonment, and will be unable to appeal the inadmissibility finding. As well, if the maximum sentence for an offence is ten years or more, and the person receives a term of imprisonment of six months or more, they will be inadmissible to Canada and unable to appeal.
As a result of this serious consequence, judges will occasionally refrain from sentencing individuals to a term of imprisonment for six months or more if they know that the person is a permanent resident who will be deprived of the ability to appeal a deportation order.
On January 18, 2013, the Supreme Court of Canada (the “SCC“) in R v. Pham unanimously confirmed that it is appropriate for sentencing judges to take immigration consequences into consideration when determining the appropriateness of a sentence. The SCC stated 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, the SCC 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, as the court stated, “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 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 . . . . [Citations omitted.]
Finally, the SCC noted two additional principles 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 nonetheless 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.
2. It is the maximum sentence that matters
In determining whether a crime is serious for immigration purposes it is the maximum sentence that matters.
In the Supreme Court of Canada case R v. Sharma, 2022 SCC 39, an issue that the majority and dissent disagreed on was whether a maximum punishment for an offence was the best way of determining whether a crime is serious. Although it is not an immigration decision, it does provide some philosophical context for the rule in Canadian immigration law that the maximum possible penalty determines whether an offence is serious. The majority wrote:
First, this Court has repeatedly accepted that the maximum sentence for an offence is a reflection of, and a proxy for, its seriousness (R. v. M. (C.A.), [1996] 1 S.C.R. 500, at paras. 36 and 56; R. v. Friesen, 2020 SCC 9, at paras. 95‑96; R. v. Parranto, 2021 SCC 46, at para. 60; R. v. St‑Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at para. 60; Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711, at p. 734). In many areas, Parliament has structured policies using maximum sentence as the measure for seriousness — e.g., the availability of absolute and conditional discharges (Criminal Code, s. 730(1)); record suspensions (Criminal Records Act, R.S.C. 1985, c. C-47, s. 4(2)(b)); and inadmissibility to Canada in the immigration context (Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 36(1)(a)). In the present case, Parliament’s primary aim was to enhance consistency in sentencing. It determined that bright‑line rules, drawn by reference to the maximum sentence, are the best way to achieve this goal. Deference towards Parliament is particularly apt given that the concept of “serious offences” is not subject to precise definition.
3. Conditional sentences are not “terms of imprisonment” for the purpose of determining inadmissibility to Canada and appeal rights.
Section 36(1)(a) of Canada’s Immigration and Refugee Protection Act 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.
In R v. Tran, the Supreme Court of Canada 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. 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.
4. The maximum term of imprisonment is to be determined as of the time of the commission of an offence.
The maximum sentences for criminal offences are constantly changing. It is impossible, however, to retrospectively increase someone’s sentence. This is because s. 11(i) of the Charter provides that any person charged with an offence has the right if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.
In R v. Tran, the SCC noted that:
The fundamental duty of justice requires the state to recognise certain rights of individuals in its dealings with them; notably, in the sphere of criminal law, the state should respect the rule of law and the principle of legality, so that citizens as rational agents may plan their lives so as to avoid criminal conviction.
This description is apposite in the immigration law context. Permanent residents too must be able to “plan their lives”. Their obligations must be communicated to them in advance.
5 Time in pre-Sentence custody forms part of the term if imprisonment.
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).
6. Appeals Don’t Set Aside the Inadmissibility
In Canada (Citizenship and Immigration) v. Asphall, 2023 FC 1090 the Federal Court ruled that if a permanent resident or foreign national has been determined to be inadmissible by the Immigration Division for a conviction inside Canada, and the conviction is set aside on appeal, then any removal order based on the inadmissibility cannot be enforced, or otherwise acted on or relied on.