Transcript Slide 1

Two strikes,
you’re out!
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TWO STRIKES, YOU’RE OUT !
Geraldine Sadoway
Staff Lawyer, Parkdale Community Legal Services
&
Keyshawn Hyacinth,Danielle Leon Foun Lin &
Tiffany Warkentin
Law Students, Osgoode Hall Law School
2007
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The current Immigration and Refugee Protection
Act (IRPA) became law in June 2002.
Section 36(1) of IRPA provides that permanent
residents and foreign nationals who have been
convicted, either in Canada or abroad, of certain
offences, may be denied admission to Canada
or deported from Canada if they are
“criminally inadmissible”.
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What are Permanent Residents &
Foreign Nationals?

A permanent resident (PR), also known
as a “landed immigrant”, is someone who
is not a Canadian citizen but has the right
to enter or remain in Canada. After three
years residing in Canada a permanent
resident is eligible to become a Canadian
citizen.
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Foreign Nationals

A foreign national (FN) is someone who
is neither a Canadian citizen nor a
permanent resident: for example, visitors,
tourists, temporary workers, foreign
students, and persons in Canada who are
applying for permanent resident status.
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Criminal inadmissibility is
either
“serious criminality”
or
“criminality”.
6
What
is
“serious criminality”?
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8
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Under s. 36(1) of IRPA a person convicted
of an offence punishable by a maximum
term of 10 years,
or
an offence for which 6 months
imprisonment or more has been
imposed is inadmissible for
“serious criminality”.
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For example:
A permanent resident or a foreign
national is convicted of assault with a
weapon for throwing a box of nails at
his landlord during an argument:
The sentence was one day in jail but
this man is now inadmissible for
“serious criminality”.
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What is “criminality”?
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Under 36(2) of IRPA, “criminality”
means:
• conviction for an offence
punishable by indictment,
or
•
conviction for two summary
offences not arising out of a single
occurrence
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Indictable Offences

Indictable offence:
In Canada, indictable offences are
considered more serious (like a “felony” in
the US if you watch those crime shows!)
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Summary Offences

Summary offence:
In Canada, summary conviction offences
are considered less serious than indictable
offences because they are punishable by
shorter prison sentences (usually under 2
years) and smaller fines.
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Hybrid Offences
Hybrid Offences can be prosecuted
•
by indictment – resulting in a conviction for
an indictable offence, and more serious
punishment,
or
•
summarily - resulting in a conviction for a
summary offence, and less serious
punishment including the possibility of a
“discharge”.
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Criminal Code
Most offences in Canada’s Criminal Code
are Hybrid Offences.
The Crown Attorney or Prosecutor
decides whether to prosecute a hybrid
offence summarily or by indictment.
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What happens to hybrid offences
under the Immigration and Refugee
Protection Act?
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“Uttering threats” is a hybrid offence:
•
If prosecuted by indictment, there is a
possible maximum 5 year jail sentence
•
If prosecuted summarily, there is a possible
maximum of 18 months in jail or a fine
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For example:
A foreign national is charged with uttering
threats.
She is prosecuted summarily and pleads
guilty to this charge.
She is convicted but given a suspended
sentence.
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What is a suspended sentence?
The passing of a sentence is being suspended.
But if the person is convicted of another
offence during the period of suspension, then
the person may be sentenced for the original
offence.
This still results in a conviction and a
criminal record even though it is possible that
no time is served or other penalty incurred.
21
However, in our example, since
“uttering threats” could have been
prosecuted by indictment, this foreign
national is now inadmissible to Canada
for “criminality”.
22
Section 36(3) of IRPA provides
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.
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This is to say, IRPA deems ALL
HYBRID OFFENCES to be
indictable even if the Crown
elects to proceed summarily.
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In effect, IRPA ignores the
Crown’s prosecutorial discretion
and deems even minor offences
to be serious for immigration
law purposes.
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What are the implications of the
deeming provision for permanent
residents and foreign nationals?
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Permanent Resident
If an Immigration Board Member
determines that a permanent resident
(also known as a landed immigrant)
is criminally inadmissible for “serious
criminality” he or she is ordered
deported.
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Foreign National
If a foreign national is convicted of an
offence which is deemed to be either
“serious criminality” or “criminality”
the foreign national is inadmissible to
Canada as an immigrant, until
rehabilitated or pardoned.
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What is Rehabilitation?
A person convicted of an offence outside
Canada can be considered rehabilitated if:
5 years has passed since completion of any sentence
for the offence
and;
 The person has demonstrated that they have
rehabilitated by not committing any other offences,
having a stable lifestyle, being remorseful for the
offence, etc.

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What is a pardon?
A pardon may be issued by the National Parole Board of Canada
for an offence committed in Canada. You are eligible for a
pardon if:
•
•
•
3 years have passed since completing a sentence for a
summary offence,
or
5 years have passed since completing a sentence for an
indictable offence,
and;
you have not been charged or convicted of any other
offences in that 3 or 5 year period.
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What are the implications for
family members of criminally
inadmissible foreign nationals?
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Who is a “family member”?
Under Canada’s immigration law, a “family
member” is:
• a “dependent son or daughter” – under
age 22, or older if still in school
• a spouse, including common law spouse
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If one family member is
criminally inadmissible,
the other family members
are subject to…
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“vicarious criminality”
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What is vicarious criminality?
Under section 42 of IRPA, if one
member of a family is criminally
inadmissible, all the other family
members are also inadmissible.
36
For example, if her 21 year old son
is convicted of theft under $5000,
his mother is inadmissible under
section 42 of IRPA due to her
son’s criminality.
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To avoid this “vicarious
criminality” it is necessary to
seek a special exemption from
section 42 of IRPA.
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Appeal Rights
Does a permanent resident who
has been ordered deported have
a right to appeal the deportation
order?
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Pursuant to S.64(2) of IRPA, only
those permanent residents sentenced
to less than 2 years in jail have a
right to appeal a deportation order to
the Immigration Appeal Division
(IAD) of the Immigration and
Refugee Board (IRB).
42
For example:
PR pleads guilty and is convicted of
Possession of property obtained by
crime. If he is sentenced to 2 years or
more (including time served or “dead
time”) then he does NOT have
an appeal to the IAD.
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He would be subject to
immediate deportation from
Canada.
44
But if this permanent resident
received a sentence of less than
2 years, he would have an
appeal to the Immigration
Appeal Division of the IRB.
45
…..and the deportation order
might be quashed, or (more
likely) a stay of removal might
be granted for a period of three
to five years.
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What’s a Stay? Quashed?

Stay: The order still exists, but no action
can be taken to enforce it until the stay is
cancelled.

Quashed: When the order is quashed, it
ceases to exist, and has no force or effect.
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However if the PR is convicted
of another hybrid offence
during the stay, the stay is
cancelled and he is subject to
immediate deportation from
Canada.
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Two strikes,
you’re out!
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What happens in situations
of domestic violence?
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Scenario:
Permanent resident is convicted
of assaulting his spouse, causing
bodily harm, and sentenced to 3
months imprisonment.
This is deemed “serious
criminality”.
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An “inadmissibility report” under
section 44 of IRPA is written by an
immigration enforcement officer.
The case is referred to the
Immigration Division of the IRB
where the permanent resident is
ordered deported.
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Since PR had been sentenced to
less than 2 years, he has a right
of appeal to the Immigration
Appeal Division where his
deportation order is stayed for
five years.
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However, during the 5-year stay,
PR is convicted of another hybrid
offence for which a term of 10
years could have been imposed…
Under section 68(4) of IRPA, the
stay is cancelled and the
deportation is carried out with no
further appeal to the IAD.
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Two strikes,
you’re out!
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Unintended result for the
immigrant community
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Contacting police in domestic
violence situations has the very real
possibility for one’s spouse (who
could also be one’s potential or
actual sponsor, the father of one’s
children or one’s provider) being
deported.
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Immigrant women want abuse to
stop and want to be able to call the
police and use the court system.
However they do not necessarily
want their abusive partner to be
deported.
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There is also concern that police
sometimes countercharge the
other spouse when investigating
an incident of domestic
violence, partly to ensure that
the complainant appears in
Court to testify.
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What is “countercharging”?

Countercharge: In the context of
spousal assault, this means charging the
complainant (usually with the same or a
similar offence) as the accused.
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So a victim of spousal assault,
who is herself an immigrant,
may find herself facing charges
that could lead to a deportation
order.
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As a result, permanent
residents and foreign
nationals may be less likely
to report domestic violence.
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Alternative approaches to
laying charges
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Since the consequences of criminal
proceedings may result in
deportation of the permanent
resident or foreign national,
creative resolutions should be
considered wherever possible.
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If charges are laid, prosecutors may consider:
• diversion
• restitution
• victim-offender reconciliation programs
• discharges
• peace bonds or Family Court restraining
orders
67
•
diversion - the offender accepts responsibility and makes
amends, diverting him/her out of the traditional criminal system.
•
restitution – offender makes compensation for financial losses or
personal injuries caused by the crime.
•
victim-offender reconciliation programs
•
discharges - a defendant is found guilty by the judge, but instead
of convicting him/her, the judge discharges him/her sometimes
on conditions
•
peace bonds or Family Court restraining orders
Result: no conviction and
no deportation proceedings
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Where prosecution “must”
proceed, negotiation respecting the
classification of the offence to
which a plea is made could make a
difference.
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For example:
Conviction for the provincial offence
of “trespass to property” is preferable
to conviction for the criminal offence
of “trespass at night”.
A provincial offence will not trigger
the inadmissibility provisions.
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The summary offence of
“trespass at night” is preferable to
the hybrid offence of “being
unlawfully in a dwelling house”
because, under IRPA, all offences
which may be prosecuted by
indictment will be deemed
indictable.
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Alternative approaches to
sentencing
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Risk of deportation of the
permanent resident without an
appeal, or of the inadmissibility of
a foreign national (and their family
members), should be a factor taken
into consideration in imposing a
sentence.
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The difference between a sentence
of 6 months or 6 months less a
day, seems insignificant.
However, from an immigration
perspective the former sentence
constitutes “serious criminality” so
as to render the PR inadmissible,
where the latter does not.
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In R. v. Abouabdellah (1996) the Quebec
Court of Appeal reduced a sentence
of a fine for shoplifting to a
conditional discharge, so that a foreign
student would not be deported, as that
would be a “disproportionate”
response to his transgression.
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In the Ontario Court of Appeal
decision of R v. Melo (1975) the Court
recognized that immigration
consequences are one of the factors to
be taken into account in considering
whether to grant a discharge.
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Recent sentencing appeals based on
unintended immigration
consequences:
R. v. Lacroix, 2003 OCA
R. v. Leung, 2004 ABCA
R. v. Curry, 2005 OCA
R. v. Mai, 2005 BCCA
R. v. Tigse, 2006 OCA
R. v. To, 2004 ABCA
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CONCLUSION
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Judges, Crown attorneys, duty
counsel and defence lawyers
must be informed of the
consequences of criminal court
proceedings for immigrants and
foreign nationals who are
before the courts.
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Race, poverty, mental health
issues and addictions can be
factors in criminalization…
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…and for permanent residents
and foreign nationals:
criminalization =
inadmissibility &
deportation.
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The disproportionate results of
criminal prosecutions for
permanent residents and foreign
nationals should be challenged by
all those concerned about the equal
application of the law.
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Parkdale Community
Legal Services, Winter 2007
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…and Fall 2007
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With special thanks to
Leslie H. Morley
Immigration and Criminal Lawyer
Kingston, Ontario
“Criminality & IRPA”
OBA Citizenship and Immigration, Volume 10, No. 1
November 2006
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