Foreign nationals and permanent residents in Canada facing criminal charges need to consult and an experienced immigration lawyer and obtain an immigration opinion as to the consequences of a potential criminal conviction. They must ensure that this opinion is filed with the Court and presented to the trial judge upon sentencing. This is the best way to allow the Court to make an informed decision, taking into consideration the serious impact of a conviction on the accused, and in particular the likelihood that it can result in the individual’s permanent removal from the country.
It is a reality that without an immigration opinion the Court may not be aware of and turn its mind to the relevant immigration regulations and legislation that apply and the particular impact on the foreign national, if convicted of the criminal offence in question. Criminal charges can lead to Canada Border Service Agency (‘CBSA’) preparing an admissibility report, and the referral of the accused to an admissibility hearing before the Immigration and Refugee Board. The Immigration Division does not have jurisdiction to consider humanitarian and compassionate grounds or to look beyond the fact of the criminal conviction(s). Nor does a foreign national have a right to appeal the deportation order (other than to the Federal Court if there has been a reviewable error). Permanent residents being convicted of a sentence that is longer than 6 months also lose their right to appeal a finding of inadmissibility before the Immigration Appeal Division.
Once the individual has been found inadmissible for criminality or serious criminality, a deportation order will be issued and removal proceedings will be initiated by CBSA. At that point it is only in exceptional situations that a removal may be put on hold, such a successful pre-removal risk assessment (in less than 5% of cases).
The Supreme Court of Canada in R v. Pham (2013 SCC 15) recently held that immigration consequences are one factor that must be considered in the sentencing process. This is in line with the individualization of sentencing, and relevant along with all the other sentencing principles such as parity and proportionality. While the Courts are hesitant to allow a different sentencing regime to develop based on immigration consequences, they recognize they have the discretion to consider the adverse consequences of a particular sentence on the particular accused. And this is in line with both the principles of procedural fairness and the requirement of a balanced approach in the sentencing process. An effective immigration opinion can highlight all of this for the Court and allow the judge to draw on the relevant provisions and reasoning in coming to its conclusion.
If possible, it is always in the accused’s best interest to argue for a conditional or absolute discharge. A discharge is not a conviction and under subsection and under 730(1) of the Criminal Code, the court can (if it considers it to be in the best interest of the accused and not contrary to the public interest), grant a discharge to the accused. The courts needs the necessary justification to consider a discharge and defence counsel will highlight the information that is detailed and explained in the immigration opinion to the Court at the sentencing hearing.
Thus, it is essential that the accused understands the importance of consulting the an immigration lawyer before either pleading guilty to criminal charge or being convicted and receiving a sentence that could have serious consequences for his or her immigration status.
*Please note that this the information in this blog does not constitute legal advice. Please consult an immigration lawyer at Gerami Law PC if you are a permanent resident or foreign national facing criminal charges.