Last Updated on May 3, 2016 by Steven Meurrens
In Chung v. Canada (Citizenship and Immigration), 2015 FC 1329, the Federal Court certified the following rather interesting question of general importance:
Does the Immigration Appeal Division of the Immigration and Refugee Board, in the exercise of its humanitarian jurisdiction, err in law in considering adverse to an appellant lack of remorse for an offence for which the appellant has pled not guilty but was convicted?
The issue of whether one should express remorse for a crime that they are adamant they did not commit frequently arises in the rehabilitation and humanitarian & compassionate context. Applicants who have criminal records frequently deny guilt, even when convicted, and even including when they entered into a plea bargain (which is perhaps not surprising given the leverage that the state has during plea bargaining).
In Chung v. Canada (Citizenship and Immigration), 2015 FC 1329, the applicant argued that when an accused pleads not guilty, it is an error of law to consider lack of remorse as an aggravating factor for the purpose of sentencing, and that this principle should be extended to the immigration context.
Justice Russell disagreed, stating that in the immigration context, the lack of remorse and failure to take responsibility for past crimes goes to rehabilitation and the likelihood of reoffending, and that adjudicators can assume that where a court issues a “beyond a reasonable doubt” conviction that the events arose.
This was not completely satisfactory answer, especially in light of recently, well publicized incidents of how plea bargaining and biased systems work in certain jurisdiction.
It found that while a criminal court may not treat a plea of not guilty and lack of remorse as an aggravating factor during sentencing as this would undercut the presumption of innocence, the presumption of innocence does not exist in immigration proceedings. Indeed, the Court added that where the civil inquiry is conducted after the criminal proceedings are completed, it is difficult to see how the inquiry could have any bearing whatsoever on the presumption of innocence.
As such, and as frustrating as it may be for people who maintain their innocence, it will be open to visa officers to determine that a person maintaining their innocence for a crime that they were convicted of lacks remorse, which would be a very negative factor to showing that they were rehabilitated and admissible to Canada.