Immigration Consequences from a Conviction: Difference between revisions

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==General Principles==

{{seealso|Consequences of Criminal Records After Sentencing|Sentencing Factors Relating to the Offender#Effect on Immigration}}

The Immigration and Refugee Protection Act, SC 2001, c 27 renders foreign nationals and permanent residents inadmissible and subject to a removal order by virtue of certain types of criminal convictions depending on the circumstances.  

There are four ground classes for which a person is inadmissible under the IRPA:

* organized criminality.

Immigration and Refugee Protection Regulations (SOR/2002-227) at s. 230(3)(c)

</ref>

==Security==

; Security

34 (1) A permanent resident or a foreign national is inadmissible on security grounds for

:(f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b), (b.1) or (c).

<br>

|[http://canlii.ca/t/52hdn#sec34 IRPA]

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===Criminality===

Section 36(2) defines the class of offenders who are inadmissible on the basis of "criminality":

; Criminality

(2) A foreign national is inadmissible on grounds of criminality for

:(c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an indictable offence under an Act of Parliament; or

:(d) committing, on entering Canada, an offence under an Act of Parliament prescribed by regulations.

|[http://canlii.ca/t/52hdn#sec36 IRPA]

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* offences where a "record suspension" has been granted (s. 36(3)(b) IRPA)

* offences where there was an acquittal (s. 36(3)(b) IRPA)

{{reflist|2}}

===Serious Criminality===

Section 36(1) defines the class of offenders who are inadmissible on the basis of "serious criminality":

; Serious criminality

36 (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for

:(c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years.

|[http://canlii.ca/t/52hdn#sec36 IRPA]

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; Maximum Penalty

The maximum penalty refers to the maximum penalty at the time the offence was committed.<ref>

</ref>  

The requirement of a sentence of 6 months or more must be a jail or prison sentence. It does not include conditional sentence orders.<ref>

</ref>

In calculating the amount of time served, pre-trial custody will be included.<ref>

</ref>

The set period of imprisonment is calculated on a per-charge basis. A global sentence in excess of the limit will not trigger inadmissibility unless one or more of the individual charges has a sentence in excess of the set period of imprisonment.<ref>

</ref>

* offences where a "record suspension" has been granted (s. 36(3)(b) IRPA)

* offences where there was an acquittal (s. 36(3)(b) IRPA)

An offender who receives a discharge as a sentence are not "convicted" within the meaning of s. 36 IRPA.<ref>

</ref>

===Application===

; Application

(3) The following provisions govern subsections (1) and (2):

:(a) 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;

:(c) the matters referred to in paragraphs (1)(b) and (c) and (2)(b) and (c) do not constitute inadmissibility in respect of a permanent resident or foreign national who, after the prescribed period, satisfies the Minister that they have been rehabilitated or who is a member of a prescribed class that is deemed to have been rehabilitated;

:(d) a determination of whether a permanent resident has committed an act described in paragraph (1)(c) must be based on a balance of probabilities; and

:(e) inadmissibility under subsections (1) and (2) may not be based on an offence

::(ii) for which the permanent resident or foreign national is found guilty under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, or

::(iii) for which the permanent resident or foreign national received a youth sentence under the Youth Criminal Justice Act.

|[http://canlii.ca/t/52hdn#sec36 IRPA]

}}

Section 37(1) defines the class of offenders who are inadmissible on the basis of "organized criminality":

; Organized criminality

37 (1) A permanent resident or a foreign national is inadmissible on grounds of organized criminality for

(2) Paragraph (1)(a) does not lead to a determination of inadmissibility by reason only of the fact that the permanent resident or foreign national entered Canada with the assistance of a person who is involved in organized criminal activity.

<br>

|[http://canlii.ca/t/52hdn#sec37 IRPA]

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; Two Approaches to Sentencing

There are two considered approaches to sentencing where deportation is at issue.<ref>

</ref>

One approach is to take a two step process:<ref>

{{ibid1|McKenzie}}<br>

</ref>

# determine an appropriate sentence should be without factoring the immigration consequences;

# determine whether it would be appropriate to reduce the sentence to avoid impact of the immigration consequences.

</ref>

; No Separate Sentencing Range

</ref>

The phrase "term of imprisonment" found in s. 36 of the IRPA has a different meaning than in the Criminal Code. Under IRPA it ''does not'' refer conditional sentence orders.<ref>

</ref>

==Appealing Serious Criminality Violation==

; No appeal for inadmissibility

64 (1) No appeal may be made to the Immigration Appeal Division by a foreign national or their sponsor or by a permanent resident if the foreign national or permanent resident has been found to be inadmissible on grounds of security, violating human or international rights, <u>serious criminality or organized criminality.</u>

(3) No appeal may be made under subsection 63(1) in respect of a decision that was based on a finding of inadmissibility on the ground of misrepresentation, unless the foreign national in question is the sponsor’s spouse, common-law partner or child.

<br>

|[http://canlii.ca/t/7vwq#sec64 IRPA]

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==Staying a Removal Order==

; Removal order stayed

68 (1) To stay a removal order, the Immigration Appeal Division must be satisfied, taking into account the best interests of a child directly affected by the decision, that sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case.

Under s. 50 IRPA, the imposition of a term of imprisonment will have the effect of staying any removal orders. But a probation order stay removal.<ref>

</ref>

Section 50 IRPA also has the effect of staying removal while the accused has pending charges in Canada.

</ref>

; History

In 2013, s. 68 was amended under the ''Faster Removal of Foreign Criminals Act'', SC 2013, c 16. This Act, among other things, removed the right to appeal for offences punished by a penalty of 6 months or more.<ref>

</ref>

; Citizenship

A person applying for citizenship must satisfy, among other requirements, the requirement of physical presence in Canada for a fixed duration. Time spent physically in Canada but under the following orders does not count towards the presence requirement:<ref>

</ref>

* probation order