Often, many Permanent Residents and Temporary Residents in Canada who are charged with a crime, are not aware of the consequences of pleading guilty or accepting a sentence on their immigration status. This information is critical as your criminal conviction and sentence can have a tremendous impact on your options for avoiding deportation from Canada.
The focus of this blog post is on those who have been charged and convicted of a crime inside Canada.
1. YOU HAVE BEEN CHARGED WITH A CRIME, NOW WHAT?
Primarily, one can lose their status as a permanent resident or temporary resident in Canada if they are found to be criminally inadmissible to Canada. This is outlined in section 36 of the Immigration and Refugee Protection Act:
Serious criminality
36 (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for
(a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed;
Criminality
36 (2) A foreign national is inadmissible on grounds of criminality for
(a) having been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment, or of two offences under any Act of Parliament not arising out of a single occurrence;
It is important to understand whether or not your charges qualify for one of these provisions of the law. If, for example, you are charged with assault (Criminal Code section 265), you may not be inadmissible to Canada if you are a permanent resident. If you are on a work permit or study permit, then you might face removal for Canada because assault is considered a “hybrid” offence (meaning this is an offence that the Crown chooses whether to treat as an indictable (more serious) or summary conviction (less serious)).
Another example is for theft over $5,000 (Criminal Code section 344). Here, even if the Crown decides to proceed summarily, you will nonetheless face immigration and removal proceedings at some point because the conviction is for a hybrid offence which holds a sentence of at most 10 years if found guilty.
2. ENTERING A PLEA
Your criminal lawyer will often approach you with multiple options on how to resolve your criminal matter. This can include a “plea deal” where the Crown is offering to consent to a certain sentence, or simply taking the matter to trial. A number of factors go into the reason someone chooses to act one way or another, but what is important to understand is that in the Supreme Court of Canada case of R v. Wong, 2018 SCC 25 the following was determined:
[76] A guilty plea will therefore be uninformed if the accused establishes on a balance of probabilities that he or she was unaware of a collateral consequence that is legally relevant. Legally relevant collateral consequences are not limited to the immigration context. Possible collateral consequences are so varied that what is legally relevant defies simple classification. The characteristics enumerated above are not meant to be prerequisites for legal relevance, but are simply factors a court should consider when an accused seeks to set aside a guilty plea on the basis of a claim that he or she was unaware of a collateral consequence.
It was determined that among other things, a guilty plea by someone who does not understand the immigration consequences of that plea may render that plea void. In sum, understanding the immigration consequences of your plea are imperative.
3. FUTURE REMOVAL FROM CANADA?
Before you are found inadmissible to Canada, the Canada Border Service Agency (CBSA) typically provides you an opportunity to respond to their concerns. It is the CBSA that makes the referral to the Immigration Division if they suspect they have grounds to find you inadmissible to Canada for reasons of criminality. This is done through what is commonly referred to as the Section 44 Report.
For Permanent Residents, if you are convicted of a crime that renders you inadmissible to Canada for reasons of section 36(1)(a) of the Immigration and Refugee Protection Act, and the CBSA refers your matter to the Immigration Division for an Admissibility Hearing through a Section 44 Report, you will likely be issued a Deportation Order eventually. The only way you can appeal the Deportation Order is by appealing to the Immigration Appeal Division. However, your access to the Immigration Appeal Division is limited:
Right to appeal removal order
63 (3) A permanent resident or a protected person may appeal to the Immigration Appeal Division against a decision to make a removal order against them made under subsection 44(2) or made at an admissibility hearing.
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, serious criminality or organized criminality.
Serious criminality
64 (2) For the purpose of subsection (1), serious criminality must be with respect to a crime that was punished in Canada by a term of imprisonment of at least six months or that is described in paragraph 36(1)(b) or (c).
If you are in Canada as a visitor, study permit holder, or work permit holder, you do not have access to the Immigration Appeal Division.
When you are approached with a “plea deal,” it is very important to avoid 6 months (or more) incarceration to save your right of appeal to the Immigration Appeal Division. The Immigration Appeal Division is important because it is a venue where you can make a case to the decision-maker on humanitarian and compassionate grounds; in other words, you can ask that the decision-maker stop your removal from Canada by taking into consideration your establishment in Canada, your personal circumstances in Canada in comparison to your home country, any children in your life, and other factors that you believe are important for you to stay in Canada.
4. WHAT HAPPENS IF I CAN NOT ACCESS THE IMMIGRATION APPEAL DIVISION?
Eventually, you should be invited to submit a pre-removal risk assessment. Ultimately, you are left with making an application for permanent residency in Canada on humanitarian and compassionate grounds pursuant to section 25 of the Immigration and Refugee Protection Act. These applications are often one’s last hope at trying to convince Immigration, Refugees and Citizenship Canada to allow the individual to stay in Canada as a permanent resident.
*Disclaimer: The blog sets out a variety of materials relating to the law to be used for educational and non-commercial purposes only; the author(s) of the blog do not intend the blog to be a source of legal advice. Please retain and seek the advice of a lawyer and use your own good judgement before choosing to act on any information included in the blog. If you choose to rely on the materials, you do so entirely at your own risk.
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