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Two strikes, you’re out!

Two strikes, you’re out!

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TWO STRIKES, YOU’RE TWO STRIKES, YOU’RE OUT !OUT !

Geraldine SadowayGeraldine Sadoway Staff Lawyer, Parkdale Community Legal Staff Lawyer, Parkdale Community Legal

ServicesServices&&

Keyshawn Hyacinth,Danielle Leon Foun Lin Keyshawn Hyacinth,Danielle Leon Foun Lin &&

Tiffany WarkentinTiffany Warkentin Law Students, Osgoode Hall Law SchoolLaw Students, Osgoode Hall Law School

20072007

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The current The current Immigration and Immigration and Refugee Protection Act (IRPA) Refugee Protection Act (IRPA) became law in June 2002.became law in June 2002.

Section 36(1) of Section 36(1) of IRPA IRPA provides thatprovides that permanent residentspermanent residents and and foreign foreign nationalsnationals who have been convicted, who have been convicted, either in Canada or abroad, of certain either in Canada or abroad, of certain offences, may be offences, may be denied admissiondenied admission to to Canada or Canada or deported from Canadadeported from Canada if if they are they are “criminally inadmissible”.“criminally inadmissible”.

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What are Permanent What are Permanent Residents & Foreign Residents & Foreign

Nationals?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 NationalsForeign 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 Criminal inadmissibility is either inadmissibility is either ““serious criminality” serious criminality”

or or ““criminality”.criminality”.

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What What is is

“serious “serious criminality”?criminality”?

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Under s. 36(1) of Under s. 36(1) of IRPA IRPA a person a person convicted of an offence convicted of an offence punishablepunishable by a maximum term by a maximum term of 10 years, of 10 years,

or or

an offence for which an offence for which 6 months 6 months imprisonmentimprisonment or more has been or more has been

imposed is inadmissible for imposed is inadmissible for

““serious criminality”.serious criminality”.

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For example:For example:

A permanent resident or a A permanent resident or a foreign national is convicted of foreign national is convicted of assault with a weapon for assault with a weapon for throwing a box of nails at his throwing a box of nails at his landlord during an argument: landlord during an argument: The sentence was one day in jail The sentence was one day in jail but this man is now inadmissible but this man is now inadmissible for for “serious criminality”.“serious criminality”.

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What is What is “criminality”?“criminality”?

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Under 36(2) of Under 36(2) of IRPA, IRPA, “criminality” means:“criminality” means:• conviction for an offence conviction for an offence punishablepunishable by indictment, by indictment,

oror• conviction for conviction for two two summary offencessummary offences not not arising out of a single arising out of a single occurrenceoccurrence

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Indictable OffencesIndictable 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 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 OffencesHybrid 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 CodeCriminal Code

Most offences in Canada’s Most offences in Canada’s Criminal Code are Hybrid Criminal Code are Hybrid Offences.Offences.

The Crown Attorney or The Crown Attorney or Prosecutor decides whether to Prosecutor decides whether to prosecute a hybrid offence prosecute a hybrid offence summarilysummarily or or by indictmentby indictment..

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What happens to hybrid What happens to hybrid offences under the offences under the

Immigration and Refugee Immigration and Refugee Protection ActProtection Act??

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““Uttering threats” is a hybrid offence:Uttering threats” is a hybrid offence:

• If prosecuted by If prosecuted by indictmentindictment, there is , there is a possible maximum 5 year jail a possible maximum 5 year jail sentencesentence

• If prosecuted If prosecuted summarilysummarily, there is a , there is a possible maximum of 18 months in jail possible maximum of 18 months in jail or a fineor a fine

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For example:For example:

A foreign national is charged with A foreign national is charged with uttering threats.uttering threats.

She is prosecuted summarily and pleads She is prosecuted summarily and pleads guilty to this charge.guilty to this charge.

She is convicted but given a suspended She is convicted but given a suspended sentence.sentence.

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What is a suspended What is a suspended sentence?sentence?

The passing of a sentence is being The passing of a sentence is being suspendedsuspended. But if the person is convicted . But if the person is convicted of another offence during the period of of another offence during the period of suspension, then the person may be suspension, then the person may be sentenced for the original offence. sentenced for the original offence.

This still results in a conviction and a This still results in a conviction and a criminal recordcriminal record even though it is even though it is possible that no time is served or other possible that no time is served or other penalty incurred.penalty incurred.

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However, in our example, However, in our example, since “uttering threats” could since “uttering threats” could have been prosecuted by have been prosecuted by indictment, this foreign indictment, this foreign national is now inadmissible national is now inadmissible to Canada for to Canada for “criminality”.“criminality”.

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Section 36(3) of IRPA Section 36(3) of IRPA provides that an offence provides that an offence that that maymay be prosecuted be prosecuted either summarily or by way either summarily or by way of indictment is of indictment is deemed to deemed to be an indictable offencebe an indictable offence,, even if it has been even if it has been prosecuted summarily.prosecuted summarily.

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This is to say, This is to say, IRPAIRPA deems deems ALLALL HYBRID HYBRID OFFENCESOFFENCES to be to be indictable even if the indictable even if the Crown elects to proceed Crown elects to proceed summarily.summarily.

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In effect, In effect, IRPAIRPA ignores ignores the Crown’s prosecutorial the Crown’s prosecutorial discretion and discretion and deemsdeems even minor offences to be even minor offences to be serious serious for immigration for immigration law purposes.law purposes.

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What are the implications of What are the implications of thethe

deeming provision for deeming provision for permanentpermanent

residents and foreign residents and foreign nationals?nationals?

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Permanent ResidentPermanent Resident

If an Immigration Board Member If an Immigration Board Member determines that a permanent determines that a permanent

resident resident (also known as a landed (also known as a landed

immigrant)immigrant) is criminally inadmissible for is criminally inadmissible for

“serious criminality” he or she is “serious criminality” he or she is ordered ordered deporteddeported..

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Foreign NationalForeign National

If a foreign national is convicted If a foreign national is convicted of an offence which is deemed to of an offence which is deemed to be either “serious criminality” or be either “serious criminality” or “criminality” the foreign national “criminality” the foreign national is is inadmissible to Canada as inadmissible to Canada as

an immigrantan immigrant, until , until rehabilitated or pardoned. rehabilitated or pardoned.

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What is Rehabilitation?What is Rehabilitation?

A person convicted of an offence outsideCanada can be considered rehabilitated

if: 5 years has passed since completion of any

sentence for the offenceand; 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?What is a pardon?A pardon may be issued by the National Parole Board

of Canadafor 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 What are the implications for family implications for family members of criminally members of criminally inadmissible foreign inadmissible foreign

nationals?nationals?

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Who is a “family Who is a “family member”?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 If one family member is criminally is criminally

inadmissible, the inadmissible, the other family members other family members

are subject to…are subject to…

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““vicarious criminality”vicarious criminality”

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What is vicarious What is vicarious criminality?criminality?

Under section 42 of Under section 42 of IRPAIRPA, if , if one member of a family is one member of a family is criminally inadmissible, criminally inadmissible, all all the other family members the other family members are also inadmissible.are also inadmissible.

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For example, if her 21 year For example, if her 21 year old son is convicted of theft old son is convicted of theft under $5000, his mother is under $5000, his mother is inadmissibleinadmissible under under section 42 of section 42 of IRPAIRPA due to due to her son’s criminality.her son’s criminality.

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To avoid this “vicarious To avoid this “vicarious criminality” it is criminality” it is necessary to seek a necessary to seek a special exemption from special exemption from section 42 of section 42 of IRPAIRPA..

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Does a permanent Does a permanent resident who has been resident who has been

ordered deported have a ordered deported have a right to appeal the right to appeal the deportation order?deportation order?

Appeal RightsAppeal Rights

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Pursuant to S.64(2) of Pursuant to S.64(2) of IRPAIRPA, , only those permanent residents only those permanent residents sentenced to sentenced to less than 2 years less than 2 years in jailin jail have a right to appeal a have a right to appeal a deportation order to the deportation order to the Immigration Appeal Division Immigration Appeal Division (IAD) of the Immigration and (IAD) of the Immigration and Refugee Board (IRB).Refugee Board (IRB).

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For example:For example:

PR pleads guilty and is convicted PR pleads guilty and is convicted of of Possession of property obtained Possession of property obtained by crimeby crime. If he is sentenced to 2. If he is sentenced to 2 years or years or more (more (including time served or including time served or “dead time”) then he does NOT “dead time”) then he does NOT have have

an appeal to the IAD.an appeal to the IAD.

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He would be subject He would be subject to immediate to immediate deportation from deportation from Canada.Canada.

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But if this permanent But if this permanent resident received a resident received a sentence of sentence of less than 2 less than 2 yearsyears, he would have an , he would have an appeal to the Immigration appeal to the Immigration Appeal Division of the IRB.Appeal Division of the IRB.

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……..and the deportation ..and the deportation order might be quashed, order might be quashed, or (more likely) a or (more likely) a staystay of of removal might be removal might be granted for a period of granted for a period of three to five years.three to five years.

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What’s a Stay? Quashed?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 However if the PR is convicted of another convicted of another hybrid offence during the hybrid offence during the stay, the stay is cancelled stay, the stay is cancelled and he is subject to and he is subject to immediate deportation immediate deportation from Canada.from Canada.

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Two strikes, you’re out!

Two strikes, you’re out!

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What happens in What happens in situations of situations of

domestic violence? domestic violence?

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Scenario:Scenario:

Permanent resident is Permanent resident is convicted of assaulting his convicted of assaulting his spouse, causing bodily spouse, causing bodily harm, and sentenced to 3 harm, and sentenced to 3 months imprisonment.months imprisonment.This is deemed This is deemed “serious “serious criminality”.criminality”.

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An “inadmissibility report” An “inadmissibility report” under section 44 of IRPA is under section 44 of IRPA is written by an immigration written by an immigration enforcement officer. enforcement officer.

The case is referred to the The case is referred to the Immigration Division of the IRB Immigration Division of the IRB where the permanent resident where the permanent resident is ordered is ordered deported.deported.

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Since PR had been Since PR had been sentenced to less than 2 sentenced to less than 2 years, he has a right of years, he has a right of appeal to the Immigration appeal to the Immigration Appeal Division where his Appeal Division where his deportation order is stayed deportation order is stayed for five years.for five years.

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However, during the 5-year However, during the 5-year stay, PR is convicted of stay, PR is convicted of another hybrid offence for another hybrid offence for which a term of 10 years which a term of 10 years could have been imposed… could have been imposed… Under section 68(4) of IRPA, Under section 68(4) of IRPA, the stay is cancelledthe stay is cancelled and the and the deportation is carried out with deportation is carried out with no further appeal to the IAD.no further appeal to the IAD.

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Two strikes, you’re out!

Two strikes, you’re out!

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Unintended result for Unintended result for the immigrant the immigrant

communitycommunity

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Contacting police in domestic Contacting police in domestic violence situations has the violence situations has the very real possibility for one’s very real possibility for one’s spouse (who could also be spouse (who could also be one’s potential or actual one’s potential or actual sponsor, the father of one’s sponsor, the father of one’s children or one’s provider) children or one’s provider) being being deported.deported.

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Immigrant women want Immigrant women want abuse to stop and want to be abuse to stop and want to be able to call the police and able to call the police and use the court system.use the court system.

However they do not However they do not necessarily want their necessarily want their abusive partner to be abusive partner to be deported.deported.

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There is also concern that There is also concern that police sometimes police sometimes counterchargecountercharge the other the other spouse when investigating spouse when investigating an incident of domestic an incident of domestic violence, partly to ensure violence, partly to ensure that the complainant that the complainant appears in Court to testify. appears in Court to testify.

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Countercharge: In the context of spousal assault, this means charging the complainant (usually with the same or a similar offence) as the accused.

What is What is “countercharging”?“countercharging”?

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So a victim of spousal So a victim of spousal assault, who is herself assault, who is herself an immigrant, may find an immigrant, may find herself facing charges herself facing charges that could lead to a that could lead to a deportation order. deportation order.

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As a result, permanent As a result, permanent residents and foreign residents and foreign nationals may be less nationals may be less likely to report likely to report domestic violence.domestic violence.

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Alternative approaches Alternative approaches to laying chargesto laying charges

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Since the consequences of Since the consequences of criminal proceedings may criminal proceedings may result in deportation of the result in deportation of the permanent resident or foreign permanent resident or foreign national, creative resolutions national, creative resolutions should be considered wherever should be considered wherever possible.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

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• 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” Where prosecution “must” proceed, negotiation proceed, negotiation respecting the respecting the classification of the offence classification of the offence to which a plea is made to which a plea is made could make a difference.could make a difference.

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For example:For example:

Conviction for the provincial Conviction for the provincial offence of “trespass to offence of “trespass to property” is preferable to property” is preferable to conviction for the criminal conviction for the criminal offence of “trespass at night”. offence of “trespass at night”.

A provincial offence will not A provincial offence will not trigger the inadmissibility trigger the inadmissibility provisions.provisions.

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The The summary offencesummary offence of of “trespass at night” is “trespass at night” is preferable to the preferable to the hybrid hybrid offenceoffence of “being unlawfully of “being unlawfully in a dwelling house” in a dwelling house” because, under because, under IRPAIRPA, all , all offences which may be offences which may be prosecuted by indictment prosecuted by indictment will be deemed indictable.will be deemed indictable.

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Alternative Alternative approaches to approaches to

sentencingsentencing

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Risk of deportation of the Risk of deportation of the permanent resident without permanent resident without an appeal, or of the an appeal, or of the inadmissibility of a foreign inadmissibility of a foreign national (and their family national (and their family members), should be a factor members), should be a factor taken into consideration in taken into consideration in imposing a sentence.imposing a sentence.

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The difference between a The difference between a sentence of sentence of 6 months6 months or or 6 6 months less a daymonths less a day, seems , seems insignificant.insignificant.However, from an immigration However, from an immigration perspective the former sentence perspective the former sentence constitutes “serious criminality” constitutes “serious criminality” so as to render the PR so as to render the PR inadmissible, where the latter inadmissible, where the latter does not. does not.

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In In R. v. AbouabdellahR. v. Abouabdellah (1996) the (1996) the Quebec Court of Appeal reduced Quebec Court of Appeal reduced a sentence of a fine for shoplifting a sentence of a fine for shoplifting to a to a conditional dischargeconditional discharge, so that , so that a foreign student would not be a foreign student would not be deported, as that would be a deported, as that would be a “disproportionate” response to “disproportionate” response to his transgression.his transgression.

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In the Ontario Court of Appeal In the Ontario Court of Appeal decision of decision of R v. Melo R v. Melo (1975) (1975) the Court recognized that the Court recognized that immigration consequences are immigration consequences are one of the factors to be taken one of the factors to be taken into account in considering into account in considering whether to grant a discharge.whether to grant a discharge.

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Recent sentencing appeals Recent sentencing appeals based on unintended based on unintended immigration consequences:immigration consequences:

R. v. Lacroix, 2003 OCAR. v. Lacroix, 2003 OCAR. v. Leung, 2004 ABCAR. v. Leung, 2004 ABCAR. v. Curry, 2005 OCAR. v. Curry, 2005 OCAR. v. Mai, 2005 BCCAR. v. Mai, 2005 BCCAR. v. Tigse, 2006 OCAR. v. Tigse, 2006 OCAR. v. To, 2004 ABCAR. v. To, 2004 ABCA

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CONCLUSIONCONCLUSION

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Judges, Crown attorneys, Judges, Crown attorneys, duty counsel and defence duty counsel and defence lawyers must be informed lawyers must be informed

of the consequences of of the consequences of criminal court proceedings criminal court proceedings for immigrants and foreign for immigrants and foreign

nationals who are nationals who are before the courts. before the courts.

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Race, poverty, mental Race, poverty, mental health issues and health issues and addictions can be addictions can be

factors in factors in criminalization…criminalization…

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……and for permanent and for permanent residents and foreign residents and foreign

nationals: nationals: criminalization criminalization = inadmissibility & = inadmissibility &

deportation.deportation.

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The disproportionate results The disproportionate results of criminal prosecutions for of criminal prosecutions for

permanent residents and permanent residents and foreign nationals should be foreign nationals should be

challenged by all those challenged by all those concerned about the equal concerned about the equal

application of the law.application of the law.

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Parkdale Community Parkdale Community Legal Services, Winter 2007Legal Services, Winter 2007

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……and Fall 2007and Fall 2007

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With special thanks to With special thanks to

Leslie H. MorleyLeslie H. MorleyImmigration and Criminal LawyerImmigration and Criminal Lawyer

Kingston, OntarioKingston, Ontario

““Criminality & IRPA”Criminality & IRPA”

OBA OBA Citizenship and ImmigrationCitizenship and Immigration, , Volume 10, No. 1 November 2006Volume 10, No. 1 November 2006