1. 1 Two strikes, you’re out!

2. 2 TWO STRIKES, YOU’RE OUT ! Geraldine Sadoway Geraldine Sadoway Staff Lawyer, Parkdale Community Legal Services Staff Lawyer, Parkdale Community Legal Services& Keyshawn Hyacinth,Danielle Leon Foun Lin & Tiffany Warkentin Law Students, Osgoode Hall Law School Law Students, Osgoode Hall Law School2007

3. 3 The current Immigration and Refugee Protection Act (IRPA) became law in June 2002. Section 36(1) of IRPA provides that permanent residents and foreign nationals who have been convicted, either in Canada or abroad, of certain offences, may be denied admission to Canada or deported from Canada if they are “criminally inadmissible”.

4. 4 What are Permanent Residents & Foreign 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.

5. 5 Foreign 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.

6. 6 Criminal inadmissibility is either “serious criminality” or“criminality”.

7. 7 What is “serious criminality”?

8. 8

9. 9

10. 10 Under s. 36(1) of IRPA a person convicted of an offence punishable by a maximum term of 10 years, or an offence for which 6 months imprisonment or more has been imposed is inadmissible for “serious criminality”.

11. 11 For example: A permanent resident or a foreign national is convicted of assault with a weapon for throwing a box of nails at his landlord during an argument: The sentence was one day in jail but this man is now inadmissible for “serious criminality”.

12. 12 What is “criminality”?

13. 13 Under 36(2) of IRPA, “criminality” means: conviction for an offence punishable by indictment, conviction for an offence punishable by indictment,or conviction for two summary offences not arising out of a single occurrence conviction for two summary offences not arising out of a single occurrence

14. 14 Indictable Offences Indictable offence: In Canada, indictable offences are considered more serious (like a “felony” in the US if you watch those crime shows!)

15. 15 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.

16. 16 Hybrid 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”.

17. 17 Criminal Code Most offences in Canada’s Criminal Code are Hybrid Offences. The Crown Attorney or Prosecutor decides whether to prosecute a hybrid offence summarily or by indictment.

18. 18 What happens to hybrid offences under the Immigration and Refugee Protection Act?

19. 19 “Uttering threats” is a hybrid offence: If prosecuted by indictment, there is a possible maximum 5 year jail sentence If prosecuted by indictment, there is a possible maximum 5 year jail sentence If prosecuted summarily, there is a possible maximum of 18 months in jail or a fine If prosecuted summarily, there is a possible maximum of 18 months in jail or a fine

20. 20 For example: A foreign national is charged with uttering threats. She is prosecuted summarily and pleads guilty to this charge. She is convicted but given a suspended sentence.

21. 21 What is a suspended sentence? The passing of a sentence is being suspended. But if the person is convicted of another offence during the period of suspension, then the person may be sentenced for the original offence. This still results in a conviction and a criminal record even though it is possible that no time is served or other penalty incurred.

22. 22 However, in our example, since “uttering threats” could have been prosecuted by indictment, this foreign national is now inadmissible to Canada for “criminality”.

23. 23 Section 36(3) of IRPA provides that an offence that may be prosecuted either summarily or by way of indictment is deemed to be an indictable offence, even if it has been prosecuted summarily.

24. 24 This is to say, IRPA deems ALL HYBRID OFFENCES to be indictable even if the Crown elects to proceed summarily.

25. 25 In effect, IRPA ignores the Crown’s prosecutorial discretion and deems even minor offences to be serious for immigration law purposes.

26. 26 What are the implications of the deeming provision for permanent residents and foreign nationals?

27. 27

28. 28 Permanent Resident If an Immigration Board Member determines that a permanent resident (also known as a landed immigrant) is criminally inadmissible for “serious criminality” he or she is ordered deported.

29. 29 Foreign National If a foreign national is convicted of an offence which is deemed to be either “serious criminality” or “criminality” the foreign national is inadmissible to Canada as an immigrant, until rehabilitated or pardoned.

30. 30 What is Rehabilitation? A person convicted of an offence outside Canada can be considered rehabilitated if: 5 years has passed since completion of any sentence for the offence and; The person has demonstrated that they have rehabilitated by not committing any other offences, having a stable lifestyle, being remorseful for the offence, etc.

31. 31 What is a pardon? A pardon may be issued by the National Parole Board of Canada for 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.

32. 32 What are the implications for family members of criminally inadmissible foreign nationals?

33. 33 Who is a “family 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

34. 34 If one family member is criminally inadmissible, the other family members are subject to…

35. 35 “vicarious criminality”

36. 36 What is vicarious criminality? Under section 42 of IRPA, if one member of a family is criminally inadmissible, all the other family members are also inadmissible.

37. 37 For example, if her 21 year old son is convicted of theft under $5000, his mother is inadmissible under section 42 of IRPA due to her son’s criminality. For example, if her 21 year old son is convicted of theft under $5000, his mother is inadmissible under section 42 of IRPA due to her son’s criminality.

38. 38

39. 39 To avoid this “vicarious criminality” it is necessary to seek a special exemption from section 42 of IRPA.

40. 40 Does a permanent resident who has been ordered deported have a right to appeal the deportation order? Appeal Rights

41. 41

42. 42 Pursuant to S.64(2) of IRPA, only those permanent residents sentenced to less than 2 years in jail have a right to appeal a deportation order to the Immigration Appeal Division (IAD) of the Immigration and Refugee Board (IRB).

43. 43 For example: PR pleads guilty and is convicted of Possession of property obtained by crime. If he is sentenced to 2 years or more (including time served or “dead time”) then he does NOT have Possession of property obtained by crime Possession of property obtained by crime an appeal to the IAD.

44. 44 He would be subject to immediate deportation from Canada.

45. 45 But if this permanent resident received a sentence of less than 2 years, he would have an appeal to the Immigration Appeal Division of the IRB.

46. 46 …..and the deportation order might be quashed, or (more likely) a stay of removal might be granted for a period of three to five years.

47. 47 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.

48. 48 However if the PR is convicted of another hybrid offence during the stay, the stay is cancelled and he is subject to immediate deportation from Canada.

49. 49 Two strikes, you’re out!

50. 50 What happens in situations of domestic violence?

51. 51

52. 52 Scenario: Permanent resident is convicted of assaulting his spouse, causing bodily harm, and sentenced to 3 months imprisonment. This is deemed “serious criminality”.

53. 53 An “inadmissibility report” under section 44 of IRPA is written by an immigration enforcement officer. The case is referred to the Immigration Division of the IRB where the permanent resident is ordered deported.

54. 54 Since PR had been sentenced to less than 2 years, he has a right of appeal to the Immigration Appeal Division where his deportation order is stayed for five years.

55. 55 However, during the 5-year stay, PR is convicted of another hybrid offence for which a term of 10 years could have been imposed… Under section 68(4) of IRPA, the stay is cancelled and the deportation is carried out with no further appeal to the IAD.

56. 56 Two strikes, you’re out!

57. 57 Unintended result for the immigrant community

58. 58 Contacting police in domestic violence situations has the very real possibility for one’s spouse (who could also be one’s potential or actual sponsor, the father of one’s children or one’s provider) being deported.

59. 59 Immigrant women want abuse to stop and want to be able to call the police and use the court system. However they do not necessarily want their abusive partner to be deported.

60. 60 There is also concern that police sometimes countercharge the other spouse when investigating an incident of domestic violence, partly to ensure that the complainant appears in Court to testify.

61. 61 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 “countercharging”?

62. 62 So a victim of spousal assault, who is herself an immigrant, may find herself facing charges that could lead to a deportation order.

63. 63

64. 64 As a result, permanent residents and foreign nationals may be less likely to report domestic violence.

65. 65 Alternative approaches to laying charges

66. 66 Since the consequences of criminal proceedings may result in deportation of the permanent resident or foreign national, creative resolutions should be considered wherever possible.

67. 67 If charges are laid, prosecutors may consider: diversion restitution victim-offender reconciliation programs discharges peace bonds or Family Court restraining orders

68. 68 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

69. 69 Where prosecution “must” proceed, negotiation respecting the classification of the offence to which a plea is made could make a difference.

70. 70 For example: Conviction for the provincial offence of “trespass to property” is preferable to conviction for the criminal offence of “trespass at night”. A provincial offence will not trigger the inadmissibility provisions.

71. 71 The summary offence of “trespass at night” is preferable to the hybrid offence of “being unlawfully in a dwelling house” because, under IRPA, all offences which may be prosecuted by indictment will be deemed indictable.

72. 72 Alternative approaches to sentencing

73. 73 Risk of deportation of the permanent resident without an appeal, or of the inadmissibility of a foreign national (and their family members), should be a factor taken into consideration in imposing a sentence.

74. 74 The difference between a sentence of 6 months or 6 months less a day, seems insignificant. However, from an immigration perspective the former sentence constitutes “serious criminality” so as to render the PR inadmissible, where the latter does not.

75. 75 In R. v. Abouabdellah (1996) the Quebec Court of Appeal reduced a sentence of a fine for shoplifting to a conditional discharge, so that a foreign student would not be deported, as that would be a “disproportionate” response to his transgression.

76. 76 In the Ontario Court of Appeal decision of R v. Melo (1975) the Court recognized that immigration consequences are one of the factors to be taken into account in considering whether to grant a discharge.

77. 77 Recent sentencing appeals based on unintended immigration consequences: R. v. Lacroix, 2003 OCA R. v. Leung, 2004 ABCA R. v. Curry, 2005 OCA R. v. Mai, 2005 BCCA R. v. Tigse, 2006 OCA R. v. To, 2004 ABCA

78. 78

79. 79 CONCLUSION

80. 80 Judges, Crown attorneys, duty counsel and defence lawyers must be informed of the consequences of criminal court proceedings for immigrants and foreign nationals who are before the courts.

81. 81 Race, poverty, mental health issues and addictions can be factors in criminalization…

82. 82 …and for permanent residents and foreign nationals: criminalization = inadmissibility & deportation.

83. 83 The disproportionate results of criminal prosecutions for permanent residents and foreign nationals should be challenged by all those concerned about the equal application of the law.

84. 84 Parkdale Community Legal Services, Winter 2007

85. 85 …and Fall 2007

86. 86 With special thanks to Leslie H. Morley Immigration and Criminal Lawyer Kingston, Ontario “Criminality & IRPA” OBA Citizenship and Immigration, Volume 10, No. 1 November 2006