Transcript TWO STRIKES, YOUR’E OUT

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
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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Criminal inadmissibility is
either
“serious criminality”
or
“criminality”.
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What
is
“serious criminality”?
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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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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.
Since this is an offence punishable by
indictment, she is inadmissible to Canada
for “criminality”.
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What is the “deeming” provision?
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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 are the implications for
family members of criminally
inadmissible foreign nationals?
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“vicarious criminality”
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What is
“vicarious criminality”?
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Under section 42 of IRPA, if one
member of a family is criminally
inadmissible, all the other family
members are also inadmissible.
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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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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 PRs 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).
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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.
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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.
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…..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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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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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 PR or FN,
creative resolutions should be
considered wherever possible.
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If charges are laid, prosecutors may
consider:
diversion
restitution
participation in victim-offender
reconciliation programs
discharges
peace bonds or
Family Court restraining orders
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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 PR
without an appeal, or of the
inadmissibility of a FN, 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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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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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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