Immigration Consequences from a Conviction: Difference between revisions
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[[Fr:Conséquences_d%27une_condamnation_en_matière_d%27immigration]] | |||
{{Currency2|April|2023}} | |||
{{LevelZero}} | {{LevelZero}} | ||
{{HeaderSentencing}} | {{HeaderSentencing}} | ||
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==General Principles== | ==General Principles== | ||
{{seealso|Consequences of Criminal Records After Sentencing|Sentencing Factors Relating to the Offender#Effect on Immigration}} | {{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. | 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. | ||
A non-citizen person does not have an unqualified right to enter or remain in Canada.<ref> | |||
{{CanLIIRPC|Canada (Minister of Employment and Immigration) v Chiarelli|1fsf6|1992 CanLII 87 (SCC)|[1992] 1 SCR 711}}{{perSCC-H|Sopinka J}} | |||
</ref> | |||
There are four ground classes for which a person is inadmissible under the IRPA: | There are four ground classes for which a person is inadmissible under the IRPA: | ||
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* organized criminality. | * organized criminality. | ||
Persons who fall under any one of these categories may be deported, even to "moratorium countries" | Persons who fall under any one of these categories may be deported, even to "moratorium countries."<ref> | ||
Immigration and Refugee Protection Regulations (SOR/2002-227) at s. 230(3)(c) | Immigration and Refugee Protection Regulations (SOR/2002-227) at s. 230(3)(c) | ||
</ref> | |||
; Recommendation at Sentence | |||
A sentencing judge may make a recommendation on the disposition of whether to deport an offender.<ref> | |||
{{CanLIIR|Okito|jw27p|2023 ONSC 1514 (CanLII)}}{{perONSC|Forestall J}}{{atL|jw27p|34}} | |||
</ref> | </ref> | ||
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* offences where a "record suspension" has been granted (s. 36(3)(b) 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) | * offences where there was an acquittal (s. 36(3)(b) IRPA) | ||
* offences where convictions were under the Youth Criminal Justice Act (s. 36(3)(e)(iii)). | * offences where convictions were under the ''Youth Criminal Justice Act'' (s. 36(3)(e)(iii)). | ||
{{reflist|2}} | {{reflist|2}} | ||
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; Maximum Penalty | ; Maximum Penalty | ||
The maximum penalty refers to the maximum penalty at the time the offence was committed.<ref> | The maximum penalty refers to the maximum penalty at the time the offence was committed.<ref> | ||
{{CanLIIRPC|Tran v Canada (Public Safety and Emergency Preparedness)|h6pmh|2017 SCC 50 (CanLII)| | {{CanLIIRPC|Tran v Canada (Public Safety and Emergency Preparedness)|h6pmh|2017 SCC 50 (CanLII)|[2017] 2 SCR 289}}{{perSCC|Côté J}}<br> | ||
</ref> | </ref> | ||
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In calculating the amount of time served, pre-trial custody will be included.<ref> | In calculating the amount of time served, pre-trial custody will be included.<ref> | ||
{{ | {{CanLIIRP|Freckleton|gnbw2|2016 ONCA 130 (CanLII)|128 WCB (2d) 434}}{{TheCourtONCA}}{{atL|gnbw2|6}}<br> | ||
</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> | 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> | ||
{{ | {{CanLIIRP|Hennessey|1sn6w|2007 ONCA 581 (CanLII)|228 OAC 29}}{{TheCourtONCA}} | ||
</ref> | </ref> | ||
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* offences where a "record suspension" has been granted (s. 36(3)(b) 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) | * offences where there was an acquittal (s. 36(3)(b) IRPA) | ||
* offences where convictions were under the Youth Criminal Justice Act (s. 36(3)(e)(iii)). | * offences where convictions were under the ''Youth Criminal Justice Act'' (s. 36(3)(e)(iii)). | ||
An offender who receives a discharge as a sentence are not "convicted" within the meaning of s. 36 IRPA.<ref> | An offender who receives a discharge as a sentence are not "convicted" within the meaning of s. 36 IRPA.<ref> | ||
{{ | {{CanLIIRP|Lu|fxg12|2013 ONCA 324 (CanLII)|307 OAC 40}}{{perONCA|Gillese JA}}<br> | ||
</ref> | </ref> | ||
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; Two Approaches to Sentencing | ; Two Approaches to Sentencing | ||
There are two considered approaches to sentencing where deportation is at issue.<ref> | There are two considered approaches to sentencing where deportation is at issue.<ref> | ||
{{ | {{CanLIIRP|McKenzie|gxhj1|2017 ONCA 128 (CanLII)|346 CCC (3d) 477}}{{perONCA|Trotter JA}}{{atsL|gxhj1|28| to 34}}<br> | ||
</ref> | </ref> | ||
One approach is to take a two step process:<ref> | One approach is to take a two step process:<ref> | ||
{{ibid1|McKenzie}}<br> | {{ibid1|McKenzie}}<br> | ||
{{ | {{CanLIIRx|Kljajic|h6k33|2017 PECA 19 (CanLII)}}{{perPEICA|Mitchell JA}}<br> | ||
</ref> | </ref> | ||
# determine an appropriate sentence should be without factoring the immigration consequences; | # 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. | # determine whether it would be appropriate to reduce the sentence to avoid impact of the immigration consequences. | ||
Another approach is to consider the immigration consequences "along with along with all of the other personal factors in determining the appropriate sentence" | Another approach is to consider the immigration consequences "along with along with all of the other personal factors in determining the appropriate sentence."<ref> | ||
{{supra1|McKenzie}}{{atL|gxhj1|25}} - cited as a "creat[ing] difficulties" and was not endorsed<br> | {{supra1|McKenzie}}{{atL|gxhj1|25}} - cited as a "creat[ing] difficulties" and was not endorsed<br> | ||
</ref> | </ref> | ||
; No Separate Sentencing Range | ; No Separate Sentencing Range | ||
Despite immigration consequences being a consideration on sentence, it should not have the effect of creating a "separate sentencing scheme" with a "special range of sentencing options where deportation is at risk" | Despite immigration consequences being a consideration on sentence, it should not have the effect of creating a "separate sentencing scheme" with a "special range of sentencing options where deportation is at risk."<ref> | ||
{{ | {{CanLIIRP|Pham|fwhz1|2013 SCC 15 (CanLII)|293 CCC (3d) 530}}{{perSCC|Wagner J}}{{atL|fwhz1|16}}<br> | ||
</ref> | </ref> | ||
; "Term of Imprisonment" | ; "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> | 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> | ||
{{ | {{CanLIIRPC|Tran v Canada (Public Safety and Emergency Preparedness)|h6pmh|2017 SCC 50 (CanLII)|[2017] 2 SCR 289}}{{perSCC|Côté J}}<br> | ||
</ref> | </ref> | ||
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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> | 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> | ||
{{ | {{CanLIIRPC|Cuskic c. Canada (Ministre de la Citoyenneté et de l'Immigration)|4kq3|2000 CanLII 16271 (CAF)|[2001] 2 RCF 3}}, ''per'' Létourneau JA | ||
</ref> | </ref> | ||
Section 50 IRPA also has the effect of staying removal while the accused has pending charges in Canada. | Section 50 IRPA also has the effect of staying removal while the accused has pending charges in Canada. | ||
{{ | {{CanLIIRPC|Collins v Canada (Attorney General)|fqf07|2012 FC 268 (CanLII)|406 FTR 87}}, ''per'' Near J<br> | ||
</ref> | </ref> | ||
; History | ; 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> | 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> | ||
{{ | {{CanLIIRP|McKenzie|gxhj1|2017 ONCA 128 (CanLII)|346 CCC (3d) 477}}{{perONCA|Trotter JA}}{{atL|gxhj1|24}}<br> | ||
</ref> | </ref> | ||