December 23, 2014

Serious Criminality & Access to the Immigration Appeal Division

Posted by admin - Bellissimo Law Group PC

A permanent resident, with criminal convictions, often faces the loss of his or her permanent residence status if found to be inadmissible to Canada for serious criminality. Serious criminality is distinguished by crimes for which the maximum penalty would be a sentence of at least ten years. The permanent resident is able to challenge this admissibility finding to the Immigration Appeal Division (IAD). Previously, the only restriction on appealing this decision to the IAD was that the conviction, having been punished in Canada, did not attract a sentence of two years of more.

In 2013 appeal rights became narrower. A permanent resident, inadmissible for serious criminality, who received a criminal sentence of six months of more in Canada became barred from appealing the decision. Furthermore, a permanent resident with a foreign conviction (or who is thought to have committed a criminal offence), which was seen as equivalent to crime attracting the ‘serious criminality’ label in Canada, also lost all appeal rights. Having lost appeal rights, these permanent residents will lose their permanent residence status and will, in most circumstances, be removed from Canada.

The changes to appeal rights in 2013 have had significant consequences that intersect with the criminal justice system. The old two year limit was a natural sentencing consideration for the criminal courts, as a sentence of two years moved a defendant from provincial detention centres to federal penitentiaries. The criminal court, although not meant to overtly consider immigration consequences, may now look at the implications of any sentence over six months. In circumstances of minimum mandatory sentencing of six months or more, a finding of guilt will be commensurate with loss of status in Canada and removal.

The use of conditional sentencing has also come under scrutiny in this new system. Conditional sentencing was used by the criminal courts to punish a convicted person, but to also allow them to continue living within the community. Conditional sentences were used on individuals seen to be less of a risk to the community, but the trade-off was a longer sentence than would be received in detention. For some time this longer sentence, when it was six months or more, was thought to bar access to the IAD – despite that the alternative term of imprisonment would have been under six months. Recently, Justice O’Reilly considered conditional sentencing in Tran v. M.C.I., 2014 FC 1040 and conclusively stated that a conditional sentence of twelve months did not amount to a term of imprisonment of at least six months.

Criminal convictions are a very serious matter for permanent residents of Canada. Clearly, the sentence received for these convictions in Canada has tremendous implications on the person’s status in Canada. This intersection of criminal and immigration law is important and needs to be carefully addressed in a collaborative manner.