Like Oil and Water: The Uneasy Mixture of Criminal and Immigration Law

Former Immigration Minister Jason Kenney decided enough was enough. No longer would Canadians tolerate foreign criminals darkening our doorstep, terrorizing our neighbourhoods and abusing our kind nature. With this in mind the Faster Removal of Foreign Criminals Act (Faster Removal of Foreign Criminals Act, SC 2013, c 16. [Faster Removal]) passed into law in 2013. The title of legislation told the short story version of the fable that he had been spinning to the press. No more would the spectre of immigrants who abused the deportation appeal system haunt Canadian citizens. By relying on the notorious cases of outliers such as Clinton Gayle and Singh Khosa the government favored inflammatory rhetoric rather than objective reality.

In 2017 Ahmed Hussen, the new Minister for Immigration, Refugees and Citizenship, announced that over the next three years Canada would strive to add over a million newcomers. However, the legislation left behind by the ghosts of Ministers past has left an uncertain landscape for non-citizens and newcomers who run afoul of the criminal law. In the years since it has been left up to the courts and lawyers to sort out the mess that has been left behind. It is on this basis that the Trudeau government must consider amending the Criminal Code and the Immigration and Refugee Protection Act.

The Immigration and Refugee Protection Act (Immigration and Refugee Protection Act, SC 2001, c 27. [IRPA]) governs the granting of status to newcomers. Non-citizens are classified as either permanent residents or foreign nationals. Inadmissibility provisions relate to the removal of status which may result in a deportation order. Faster Removal made several modifications to these inadmissibility provisions. Chief amongst them was the removal of appeal provisions for those found inadmissible due to serious criminality.

The definition of serious criminality was changed to include any conviction which resulted in a term of imprisonment of six months or more. Prior to the passage of Faster Removal a sentence of two years or more was required to invalidate the appeal provisions. This type of legislation represents the troubling trend of migration control through criminal sanctions.

The merger of criminal and immigration law has been dubbed crimmigration. According to César Cuauhtémoc García Hernández, the two areas of law have become so blended that they are nearly indistinguishable (Cesar Cuauhtemoc Garcia Hernandez, “Creating Crimmigration” (2013) 6 BYU L Rev 1457).

In Canada this is borne out in the way criminal process ties the hands of the inadmissibility process. With little legislative guidance the burden has been shifted onto lawyers.

Since 2008 appellate courts have held that there is a responsibility upon lawyers to broach the subject before a sentencing judge. In Manitoba this responsibility now also falls to a judge where they suspect an accused may be a non-citizen. In R v Pham (R v Pham, 2013 SCC 15, [2013] 1 SCR 739. [Pham]) a 2013 decision of the Supreme Court, it was found that a sentencing judge must consider immigration concerns as a consequence of sentencing. Pham stopped short of suggesting that these concerns should reduce what would otherwise be an appropriate sentence. However, Pham was decided before the passing of Faster Removal. The intent of this piece is not to advocate for automatic sentence reductions for non-citizens. It is a call that it is time for criminal courts to recognize the unique vulnerability of non-citizens. Decisions made in the criminal sphere can have catastrophic consequences in the immigration sphere. On this basis it is reasonable to consider it within the constellation of factors that MAY reduce a criminal sentence. Since Pham there have been other landmark cases that reveal the duplicity of the relationship between criminal and immigration law.

The Supreme Court case of R v Tran (Tran v Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, 414 DLR (4th) 389) from 2017 is another example worth exploring. No definition for term of imprisonment was provided in IRPA. This lack of guidance resulted in the Immigration and Refugee Board as well as the Federal Courts defining a conditional sentence order, aka house arrest, as a term of imprisonment (Canada (Minister of Public Safety and Emergency Preparedness) v Tran, 2015 FCA 237, 392 DLR (4th) 351). Criminal courts have consistently held that house arrest is not equivalent to imprisonment. This created absurd outcomes where non-citizens were asking for six months in prison rather than the equivalent twelve-month term of house arrest (R v Abude, 2016 BCSC 543, 129 WCB (2d) 280).

With Canada seeking to increase the number of newcomers now is the time for the government to respond. It is no longer acceptable to allow these issues to get sorted out in a piecemeal fashion by the courts. A top-down legislative solution is the best way to adequately address these problems. Restoration of two-year pre-Faster Removal term of imprisonment threshold is a first step. Amending the sentencing provisions of the Criminal Code (Criminal Code, RSC 1985, c C-45) to acknowledge the unique risks faced by non-citizens is another reasonable goal. These problems were passed on by the fearmongering and populist scare tactics of the Harper administration. Now is the time for corrective action by the Trudeau government. It is time for the Trudeau government to put action ahead of catchy hashtags.