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October 22, 2020

Mario Bellissimo’s Canadian Citizenship and Immigration Inadmissibility, 2nd Edition Cited in Leading Supreme Court of Canada Decision

Posted by Jessica Templeman - Bellissimo Law Group PC

As Manager of Legal Research and Writing at the Bellissimo Law Group PC, my role requires that I oversee the production of, and updates to, our firms eight separate publications (for further information see: https://www.bellissimolawgroup.com/about/our-publications/). This includes the Canadian Citizenship and Immigration Inadmissibility loose-leaf, which provides a comprehensive treatment of citizenship, immigration and protected persons in Canada. This publication is updated quarterly, thereby providing current reviews and analyses of relevant legislative amendments, jurisprudence and policy updates.

This work in the area of inadmissibility has further informed my academic pursuits. I am in the process of completing my doctoral dissertation, which examines discretionary decision making in the criminal courts on matters involving permanent residents and foreign nationals. As part of my doctoral research, I have focused on reviewing relevant legislation and case law that exists at the intersection of the domains of immigration and criminal justice in Canada. This includes the leading Supreme Court of Canada case on criminal inadmissibility under the Immigration and Refugee Protection Act (IRPA), namely R v. Pham (2013 SCC 15). Interestingly, the Canadian Citizenship and Immigration Inadmissibility loose-leaf is cited in Pham’s Factum to the Supreme Court for this matter, in support of a discussion of the limited rights of appeal under the IRPA and considerations of the collateral consequences of deportation resulting from this lack of access to appeal. Specifically, solicitors for Pham (Erika Chozik and Alias Sanders) wrote:

In Immigration, Criminality and Inadmissibility, Mario Bellissimo … note that:

Although at first blush the proposition that a country should be less tolerant of criminality is laudable and of key importance to society building, the immigration scheme to be effective in promoting many of its core objectives (facilitation, commerce, family reunification, humanitarian and Charter principles) must be responsive to the complex web of nuances applicants with criminality present upon seeking to remain or enter Canada. Thus it is the shades of grey amidst these two ends that defines much of this area of law. 26 [Emphasis added]

The authors note that under the current IRPA (which has been law for the past decade), as compared to the former Immigration Act (1976-2002), appeal rights are far more limited and there is less tolerance for criminality.[1]

The Supreme Court ultimately determined that collateral consequences may be considered by a sentencing judge provided that the sentence imposed remains fit, having regard to the particular offence and the degree of responsibility of the offender.[2]

The potential impact of collateral consequences on sentencing was of course severely limited with the passage of Bill C-43 on 19 June 2013 – only three months after the decision in Pham. This Bill introduced amendments to the IRPA that limited access to appeal a removal order to permanent residents sentenced to a term of imprisonment of less than six months. Previously, permanent residents sentenced to a term of imprisonment of less than two years retained the right of appeal.

As part of my doctoral research I have been reviewing the Parliamentary debates for this legislation. Through this work, I found that during the second reading of Bill C-43 before the House of Commons on 24 September 2012, Mr. Bellissimo’s work was again cited. Former Member of Parliament Jamie Nicholls specifically stated:

Mario Bellissimo, lawyer and executive member of the Canadian Bar Association, is one of the nation’s top lawyers and part of an immigrant community that has often been tarred with the criminal epithet. He said referring to permanent residents as foreigners is misleading.

They are casting the net too wide… People make one mistake—even if it’s a non-violent crime—they will be removed.

Furthermore, he thinks the bill reflects the government’s lack of confidence in the immigration tribunal and the Canadian judiciary. We believe in the power of the Canadian judiciary and the tribunals to take care of these cases and to offer fair judgment. We do not believe that the minister necessarily needs discretionary powers.[3]

These warnings on the impact of the changes being introduced were echoed by several other leaders in the field of immigration. They went unheeded.

My doctoral work now seeks to understand how judges use their discretion to consider collateral consequences, having regard to the very limited rights of appeal available to permanent residents found to be criminally inadmissible. At the same time, the Legal Research and Writing team is working to ensure that the Canadian Citizenship and Immigration Inadmissibility loose-leaf continues to be updated to reflect current decisions released from the criminal courts on matters involving migrants and to provide helpful tips on how to advocate for clients facing removal for criminal inadmissibility. We hope that this work will continue to be used in a way that supports (potentially) criminally inadmissible migrants in their efforts to access to rights of appeal, either before the criminal courts or in the immigration system.

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