Criminal defence lawyers must be aware of the immigration consequences

Published On: Jun 13,2017

Criminal defence lawyers must be aware of the immigration consequences at a sentencing on any guilty pleas under the Criminal Code of Canada that may result in a removal order being issued against a client.

The Ontario Court of Appeal recently allowed an appeal against a suspended sentencing at the request a Toronto Criminal Appeal lawyer on behalf of his client in Regina v. Tmenov, 2017 ONCA 454 (RD), the Ontario Court of Appeal allowed the accused’s appeal against his suspended sentence.  Mr. Tmenov pleaded guilty to counts of break and enter to commit theft and break and enter with intent. After a joint submission between his Criminal Defence lawyer and the Crown Prosecutor, he was sentenced to a suspended sentence with two years’ probation. The sentencing judge credited the appellant’s pre-sentence custody of 132 days at a rate of 1.5:1 resulting in a credit of 198 days. The result was that the appellant, who is a convention refugee, was ordered deported and, because he had received a custodial sentence greater than 180 days (as interpreted by certain decisions of the Federal Court) he is barred from appealing the deportation order. His criminal lawyer brough an “fresh evidence application” on appear with the consent of the Crown arguing that “…trial counsel did not appreciate the immigration consequences of attributing enhanced credit to the period of pre-sentence custody. As these consequences were not brought to the attention of the sentencing judge or taken into consideration in the appellant’s sentence, this court is entitled to intervene: Regina v. Pham, 2013 SCC 15 (CanLII)R. v. Nassri2015 ONCA 316 (CanLII)..  This case illustrates the importance of ensuring that your criminal defence lawyer is completely aware of all the collateral consequences that might unfold especially when your criminal matters may negatively impact your immigration status in Canada and result in deportation.  In our view, it is critical to provide a Criminal Court judge with all the information necessary and in some cases an informed opinion from an immigration practitioner to ensure that the Court has the exercise it’s limited jurisdiction under Pham, as cited above. For a free initial thirty minute consultation during office hours, please contact J.S. Patel at 403-585-1960.