Last updated on August 22nd, 2021
Last Updated on August 22, 2021 by Steven Meurrens
People who immigrate to Canada are typically aware that if they are convicted of certain criminal offences that they could lose their permanent resident status. When immigrants are charged with criminal offences, immigration lawyers and criminal defense counsel will accordingly often work together to do their best to ensure that those charged do not lead to deportations. It is therefore important to note that the Canada Border Services Agency has recently taken an exceptionally strict approach to interpreting Canadian immigration legislation which could fundamentally change the immigration consequences of violent actions in Canada. The issue is now before the Federal Court of Canada.
The Consequences of Criminal Records
Canadian immigration legislation provides that a permanent resident is inadmissible to Canada on grounds of serious criminality if they have been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least ten years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed.
The first thing to note about the above is that a conviction is required. A conviction is a finding by a Canadian court that a person is guilty of an offence. A charge or a confession is not a conviction. A conviction that is set aside on appeal is also not a conviction for immigration purposes, nor is an absolute or conditional discharge, which is where a finding of guilt is made, but no conviction against the individual is registered.
The second thing to note about the above is that only convictions for certain offences will result in a permanent resident being inadmissible to Canada. The offence must either be one whose maximum penalty is a term of imprisonment of ten years or more, or where a term of imprisonment of more than six months is imposed. Conditional sentences are not included.
A permanent resident who is inadmissible to Canada for serious criminality can appeal to the Immigration Appeal Division. The Immigration Appeal Division will either set aside any removal order based on humanitarian & compassionate grounds, allow the deportation to proceed or impose pause the deportation for a certain period to allow the immigrant to show that they will refrain from further criminal activity. This is known as a stay.
Section 34 Inadmissibility
The Federal Court of Appeal will soon hear the appeal of two cases involving individuals who the Canada Border Services Agency is trying to deport for violent behavior despite them not being inadmissible for serious criminality.
In the first case, Mason v. Canada (Citizenship and Immigration), a permanent resident discharged a firearm eight times and injured two persons. As a result, two charges of attempted murder were laid against him. However, the charges were stayed (and essentially dropped). Mr. Mason was not inadmissible to Canada for serious criminality because he was never convicted of an offence.
In the second case, Dleiow v. Canada (Citizenship and Immigration), a permanent resident broke into his former domestic partner’s house, damaged a door and uttered threats. He plead guilty to several charges, none of which had a maximum sentence of ten months or more, and received a conditional discharge. Mr. Dleiow was also suspected of having assaulted a woman, although she denied it, and he was never convicted of any offences. Mr. Dleiow was not inadmissible to Canada for serious criminality because none of the offences had a maximum sentence of ten years or more.
In both cases, the Canada Border Services Agency pursued deportation through what is called a “section 34” inadmissibility. Section 34 of Canada’s Immigration and Refugee Protection Act provides that an permanent resident is inadmissible to Canada on security grounds for (a) engaging in espionage against Canada, (b) engaging in the subversion by force of a government, (c) engaging in terrorism, (d) being a danger to the security of Canada, (e) engaging in acts of violence that would or might endanger the lives or safety of persons in Canada, or (f) being a member of an organization that engages in any of the above acts.
An immigrant who is inadmissible to Canada under s. 34 cannot appeal their deportation to the Immigration Appeal Division. Immigration officials are prohibited from considering any humanitarian & compassionate factors. They are not eligible to apply for rehabilitation or a Record Suspension (formerly known as a pardon). Perhaps most importantly, while a person will be inadmissible for serious criminality only after the authorities have determined that the individual committed an offence “beyond a reasonable doubt,” section 34 Inadmissibility, only requires that there be “reasonable grounds to believe” that an action has occurred.
In Mason, Justice Manson said that s. 34(e) encompasses “acts of violence” that “endanger the lives or safety of persons in Canada.” However, because it is grouped with offences such as terrorism, espionage and subversion it could only have meant that Parliament intended for it to apply in the most serious of cases. In Dleiow, Justice Barnes said that he would follow what Justice Manson said, but noted that the Federal Court of Appeal would ultimately decide the issue.
If the Federal Court of Appeal determines that the Canada Border Services Agency is correct in its arguments that s. 34(e) applies to criminal actions such as assault then it will significantly diminish the legal protections available to permanent residents who commit violent actions. Permanent residents would no longer need to be charged and convicted of criminal offences to be deported from Canada for such offences, so long as there was “reasonable grounds to believe” that they had committed acts of violence. This would be a fundamental shift in the consequences to permanent residents of criminal activity in Canada, and it will be interesting to see what the Federal Court of Appeal decides.
[UPDATE] – August 22, 2021
On July 29, 2021 the Federal Court of Appeal released its decision in The Minister of Citizenship and Immigration v. Mason, 2021 FCA 156.
The Federal Court of Appeal determined that it is reasonable to interpret s. 34(1)(e) of the IRPA in a manner that does not require proof of conduct that has a nexus with “national security” or the “security of Canada.”
It determined that an approach which considers “security of Canada” as applying to the “lives and safety” of persons in Canada is reasonable where “safety” is something approaching the level of a threat to lfie, not just minor harm.
The Federal Court of Appeal recognized, however, that there could be dueling interpretations, and that in order to avoid inconsistent opinions a future Immigration and Refugee Board tribunal might want to refer this question of law to the Federal Court for a definitive pronouncement on the correct state of the law.