Emerging Issues - Crimmigration in Canada: Are We Inducing False Guilty Pleas?

“The Supreme Court of Canada has emphasized that preventing the conviction of the innocent is one of the primary goals of the criminal justice system.”[1] For governments, preventing wrongful convictions is not an easy task, particularly when the values of our society change, and new political agendas emerge. One such area of the law that has evolved quickly in Canada since the events of 9/11, is immigration reform policy. Immigration policy is in an important undertaking for Parliament because “in a democratic state such as Canada, immigration policy tends to reflect the racial attitudes or national security concerns of the time.” In Canada, the Immigration and Refugee Protection Act (IRPA) [2], governs immigration policy which specifies who can enter or remain in Canada. “Historically, criminal law and immigration law have operated as separate spheres.”[3] However, over the last few decades. “the stark separation between criminal law and immigration law shifted quickly and… the gap between these areas of law began to blur.”[4] This phenomenon has become known as Crimmigration, which in the broadest sense, is defined as the intersection of criminal law and immigration law.[5]

“Canada responded to the post 9/11 era with comprehensive immigration legislation to strengthen security of its refugee and immigration systems.”[6]

“Immigration measures resembling criminal sanctions, such as detention and deportation, are being used more frequently to deal with suspected criminal activity.”[7]

Under Canada’s Immigration and Refugee Protection Act, “a permanent resident or foreign national may be refused entry to or removed from Canada based on security concerns, human or international rights violations, criminality, financial reasons, health grounds, and misrepresentation.”[8] Upon initial review of the Act, the purpose of the law seems to regulate the movement of immigrants coming in and out of Canada. In addition, IRPA has also been expanded to establish “broad security-related grounds for inadmissibility for permanent residents and foreign nationals who […] constitute a danger to Canada's security and engage in violence that might endanger the lives or safety of persons in Canada.”[9]

The pivotal point in the legislation where both criminal law and immigration law intersects, is at section 36(1) of the Immigration and Refugee Protection Act. Section 36(1) of the IRPA specifies several grounds upon which a permanent resident or a foreign national will be rendered inadmissible (deportable) to Canada for “serious criminality.”

Section 36(1)(a) states:

A permanent resident or a foreign national is inadmissible on grounds of serious criminality for

(a) 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 [10]

A finding of inadmissibility has important consequences for any non-citizen in Canada since it is the basis for a removal order. [11] For example, in R v Wong, the accused pleaded guilty to trafficking cocaine. “A conviction for trafficking in cocaine carries a maximum penalty of life imprisonment under s. 5(3) of the Controlled Drugs Substances Act. Mr. Wong was sentenced to nine months’ imprisonment. Thus, he was rendered inadmissible for serious criminality on both grounds.”[12] In R v Wong, the Court explains that a threat of deportation such as the one attached to section 36(1) of IRPA is considered a collateral consequence. This type of sanction is “secondary or collateral to the criminal process and that have an impact on the offender […] that flow from conviction or sentence, and impact serious interests of the accused.” [13]

On first impression, IRPA seems to have a goal in mind of protecting Canadians from the harms of serious criminality at the hands of permanent residents and foreign nationals. Unfortunately, the drafting of the legislation is flawed because the Act also makes it possible for a permanent resident and foreign national to be inadmissible even if their criminal behaviour isn’t serious. Section 36(3)(a) of the Immigration and Refugee Protection Act states that “an offence that may be prosecuted either summarily or by way of indictment is deemed to be an indictable offence, even if it has been prosecuted summarily.”[14] This section seems to be a stark contrast from the goal and purpose of the legislation which is to protect Canadians from ‘serious criminality.’ Unfortunately, whether a charge is serious or not, if an accused meets the criteria outlined in section 36(1) of IRPA, the added jeopardy of inadmissibility can have serious and devastating consequences for an accused. Perhaps even greater then the punishment for the charge(s) itself. Therefore, it is “increasingly important for immigration attorneys and criminal defense attorneys to understand the immigration consequences of criminal convictions.”[15]

A fundamental principle of our justice system is that criminal law promises proportionate punishment.

“This is an important restraint that is not made in immigration law.” [16]

“Criminal law is preferable to immigration law because of its emphasis on fair trial rights and the presumption of innocence”[17]

Although immigration law seems to have evolved over the past few decades to include punishments that flow from criminal convictions, Parliament does not have to consider the principles of fundamental justice in mind when creating immigration law. Immigration law is a separate sphere which is administrated under an administrative tribunal and does not always consider the proportionality of the punishment. In my opinion, the drafting of the Act is concerning because an accused can still be deported even if the Crown proceeds summarily. Thus, the drafting of the law casts a wide net beyond the scope of ‘serious criminality’ and I would argue that it is overbroad.

The emerging trend of Crimmigration in Canada must not be overlooked. Rather it is worthy of re-examination. Another great concern with the drafting of the Act, is that an accused who is in jeopardy of deportation maybe induced to accept a plea bargain when they are innocent of the charge. For example, what if you are innocent and the Crown offered you a plea bargain to a reduction of the charge to a lesser included offence? If you accepted the offer you would have to plea guilty, but in exchange, you would not be deportable upon conviction. If you were innocent, you would be faced with a terrible dilemma. The risk of deportation adds an extra layer of jeopardy that can complicate an accused decision to go to trial, even if the accused is innocent. There is no question that there are benefits for an accused to accept a plea bargain. These types of negotiations can eliminate uncertainty for the accused. The Achilles heal of the Act seems to trigger an ‘unconscionable pressure’ faced by the defendant, that if found guilty after trial will received a harsher penalty such as deportation. To avoid this risk, an innocent person may accept a deal. Ask yourself, if you were faced with this terrible dilemma, what would you do? Would you be inclined to accept the offer even if you were innocent?

Endnotes

[1] Jerome Kennedy, “Plea – Plea Bargain and Wrongful Convictions” (2016) Crim LQ at 556.

[2] Immigration and Refugee Protection Act RS 2001, c. 27.

[3] César Hernández, “What is Crimmigration Law?” (Spring 2017) University of Denver, crimmigration.com blog, online: <http://www.antoniocasella.eu/nume/Crimmigration.law_spring17.pdf>.

[4] Ibid.

[5] Philip Torrey, “Crimmigration: The Intersection of Criminal Law and Immigration Law” (16 December 2016), Harvard Law School, online: <https://hls.harvard.edu/academics/curriculum/catalog/default.aspx?o=68161>.

[6] Jonathan Stoel, Michael Turansick and Gabrielle Buckley, “Special ABA Committee Report, The Canada-US Border: Balancing Trade, Security and Migrant Rights in the Post-9/11 Era” (2004) 19 Geo Immigr LJ 199 at 221.

[7] Azzi Law Professional Corporation, “Crimmigration” (2018) online: <https://www.azzilawcorp.com/crimmigration/>.

[8] Ibid.

[9] Supra note 6 at 221

[10] Supra note 2 at s. 36(1)(a).

[11] Tran v Canada, 2017 SCC 50 at para 7.

[12] R v Wong 2018 SCC 25 at para 50.

[13] Ibid at 9 & 68.

[14] Supra note 2 at 36(3)(a).

[15] Supra note 5.

[16] Kent Roach, “Be Careful What You Wish For? Terrorism Prosecutions in Post-9/11 Canada” (2014) 40:1 Queen’s LJ 99 at 103.

[17] Ibid at 104.

[18] “15 Serious Advantages and Disadvantages of Plea Bargaining,” (2018), ConnectUS The Global Issues Blog, online: <https://connectusfund.org/15-serious-advantages-and-disadvantages-of-plea-bargaining>. “In a plea-bargaining agreement, the prosecution can present the accused with unconscionable pressure. And even though the process is controlled, there is still a chance of it being coerced.”