The Deportation Sentence - Tales of Crimmigration
The Deportation Sentence
There are many people in Canada who are not Canadian citizens who are impacted by the criminal justice system. Someone may be visiting or working in Canada on a temporary basis, seeking refugee status, or be a permanent resident. Some of them may find themselves charged or convicted of a crime. The problem is that for many of these individuals who are convicted of a crime, they face the possibility of a sentence that is far worse than jail. They face the possibility of being deemed inadmissible and thus deportable.
Why is this an issue?
For many people, citizenship is assumed. Status is not a badge that people wear and it can only be identified if it is asked. Individuals from the United States or the United Kingdom fall into these categories as well; this is not an issue that racism can identify. There are many individuals who come here as children and spend their lives never obtaining citizenship, for example by choice or for a lack of convenience/finances. Practically speaking there are not a lot of day-to-day differences between citizens and non-citizens. It is clear however, that a criminal lawyer not having a firm grasp on the status of the individual they are representing can result in an unintended consequence should their client go on to be deported.
This issue is pronounced when a lawyer represents two individuals separately (one happens to be a citizen, the other is not) for which the clients receive similar sentences on similar facts. The citizen will just have to serve their sentence; the non-citizen will serve their sentence and be subject to the possibility of deportation. This is not meant to trivialize a criminal conviction for the citizen, as there are still consequences that follow as a result, however the vast differences in true punishment make this an essential issue for criminal lawyers to understand.
It is also necessary to understand that on the other side, there are valid policy reasons for having legislation that controls the admissibility of individuals. It is not in the best interests of any nation to allow an individual who is not a citizen to enter, commit a crime, and then for that country to have no available recourse to prevent the individual from staying to (potentially) commit further crimes. This is emphasized by two of the Immigration and Refugee Protection Act’s objectives being to “protect public health and safety and to maintain the security of Canadian society” as well as “to promote international justice and security by fostering respect for human rights and by denying access to Canadian territory to persons who are criminals or security risks.” These sides must be balanced against each other.
One can quickly begin to see how this issue is prevalent within our current sentencing regime. We are currently relying on case law to fill the void that legislation has neglected to provide clarity on. The reason, in part, that there is such a division between criminal and immigration law is that there is no meaningful overlap between the two largest governing Acts for these areas: the Immigration and Refugee Protection Act (IRPA) and the Criminal Code of Canada (CCC). More specifically, the current principles of sentencing do not adequately account for the disproportionate response that a criminal conviction for a non-citizen presents.
What are the triggers for criminal inadmissibility?
It is important for criminal lawyers to understand what the triggers for inadmissibility would be for their clients. IRPA is the legislation that dictates what type of crime is enough to trigger inadmissibility. For both permanent residents and foreign nationals, the trigger for inadmissibility is serious criminality, which is any crime that could be sentenced to 10 years of jail or more or for a term of imprisonment that is given which results is 6 months of jail or more.
For foreign nationals specifically, the trigger is criminality, which is any crime that can be punishable by way of indictment or for two summary offences that did not arise out of the same event. A foreign national could be anyone who is not a Canadian citizen or permanent resident including but not limited to: refugee claimants, temporary foreign workers/students, and people who are stateless.
The important thing to understand from all of this, is that the reality for most people, especially foreign nationals, is that deportation is a rubber stamp process.
The CBSA gets flagged that someone has been convicted of a crime, and they see whether it meets their threshold. Data gathered confirms that in the majority of cases at this stage, an order for removal will be granted. This means that a foreign national (regardless of sentence length) or a permanent resident with a sentence of more than 6 months will be streamlined for removal.
The Supreme Court of Canada (SCC) in R v Pham 2013 gave a unanimous decision with clear instructions that judges need to consider these issues when sentencing an individual who is not a citizen. For sentencing judges to be alive to these issues it must be communicated in submissions and the sentence that would ultimately be imposed must be reasonable. Pham continued to say that collateral consequences are not mitigating, but may warrant a reduction in sentence so long as it does not stray from what would be accepted otherwise. More specifically they are applicable to our current sentencing principles of individualization and parity and in the objective of rehabilitating offenders. (9) When communicating the immigration concerns, it is necessary to inform the judge of the high probability (if not certainty) that a permanent resident who is sentenced to more than 6 months of jail (calculated properly) will result in deportation.
There are many nuances to the issue of handling a criminal file involving an individual who is not a citizen. It is no longer acceptable that criminal lawyers are not well versed in the collateral consequences that arise for their clients. It is hoped this information will jump start lawyers into looking into these overlaps further.