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)

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==Security==

; Security

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

===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.

{{LegHistory00s|2001, c. 27}}, s. 36; 2008, c. 3, s. 3; 2010, c. 8, s. 7; {{LegHistory10s|2012, c. 1}}, s. 149.

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

* 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>  

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

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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>

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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)

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):

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

; 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.

{{supra1|McKenzie}}{{atL|gxhj1|25}} - cited as a "creat[ing] difficulties" and was not endorsed<br>

</ref>

; No Separate Sentencing Range

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; "Term of Imprisonment"

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>

==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>

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

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; 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