What criminal lawyers should know and do
In the criminal law context, the phrase “collateral immigration consequences” refers to ramifications under the Immigration and Refugee Protection Act, S.C. 2001 c. 27 (“IRPA”), which relate to an accused’s immigration status and arise from conviction and sentence. These include: (i) a potential declaration of inadmissibility; (ii) the issuance of a removal order; and, (iii) a ban on the right to appeal a removal order. The criminal justice system recognizes the seriousness of these consequences by requiring an accused to have an understanding of the immigration consequences associated with a guilty plea before entering such a plea, and requiring a sentencing judge to consider these consequences when imposing sentence. This article provides a brief overview of these consequences and identifies a few best practices for criminal lawyers.
The IRPA declares permanent residents and foreign nationals inadmissible to Canada on grounds of serious criminality. The definition of serious criminality is threefold, but the first (s. 36(1)(a)) is the most relevant to the criminal bar. It defines serious criminality as a conviction in Canada of: (i) an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; or (ii) an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed. A conditional sentence order is not a “term of imprisonment”: Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50. In addition, foreign nationals are inadmissible on “grounds of criminality” (s. 36(2)(a)-(d)), which include a conviction in Canada for an offence under an Act of Parliament (excluding youth offences) punishable by way of indictment or any two offences not arising from a single transaction. Permanent residents and foreign nationals are also inadmissible on “grounds of organized criminality”: s. 37(1)(a) and (b).
An immigration officer who opines that a permanent resident or foreign national is inadmissible may send a report to the Minister of Public Safety and Emergency Preparedness, who, in turn, may refer the report to the Immigration Division (“Division”) for an admissibility hearing. If the Division is satisfied the person is inadmissible, the Division must issue a removal order. Inadmissibility findings on grounds of serious or organized criminality cannot be appealed to the Immigration Appeal Division (s. 64(1)). The definition of serious criminality in this context is also threefold, but again, the first definition is the most relevant. It defines serious criminality as a crime that was punished in Canada by a term of imprisonment of at least six months (s. 64(2)).
Counsel need to inquire into their clients’ immigration status as early as possible and investigate further where necessary.
Counsel should also consider consulting an immigration lawyer to ensure they appropriately advise their clients as to the effect of a guilty plea or sentence on their immigration status. With the correct information, counsel may be able to negotiate a resolution that will mitigate the immigration consequences, or sidestep them altogether.
On sentencing, counsel should consider obtaining an opinion letter from an immigration lawyer that sets out how sentencing could impact the accused to put before the court.
Post-conviction relief may be pursued in appellate courts where an accused was not aware of the immigration consequences when he or she pleaded guilty or the sentencing judge was unaware of the consequences on sentencing.
Megan Street is Crown Counsel for BC Prosecution Service, Ministry of the Attorney General, Criminal Appeals, in Vancouver, BC. Any opinions expressed within this article are solely those of the author.