Published On: Jul 31,2017
Sentenced overturned from twelve months of jail to six months less a day to avoid severe immigration consequences.
The collateral immigration consequences should be considered in a sentencing hearing for a criminal matter. Since this case involves an on-going publication ban, the names of the parties involved (inclusive of the witnesses) will be stated in this post. The case will be referred to as Regina v. A.I., 2017 ONCA 597 (RD).For another Blog post that describes a case dealing with counsel’s obligations, under the common-law, to be aware of the immigration consequences, please consult the post of June 13, 2017 titled: 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.
An appeal was allowed against a sentence that was imposed on an accused person who had plead guilty to arson; and received a jail term of twelve months and three (3) years of probation. The indexed property damage was minimal. During the sentencing hearing, the offender, was not aware of the collateral immigration consequences as he was not aware that he was no a Canadian Citizen. Thus, no one, including the Court was aware of the offenders standing under the Immigration and Refugee Protection Act (the “IRPA”). An offender in similar circumstances will likely be issued a removal order by the Immigration Division due to his inadmissibility to Canada under Section 36 of the IRPA, which addresses the term “serious criminality” for permanent residents in these prescribed terms:
“(a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed”
The question then becomes whether Arson, under the Criminal Code of Canada, carries a maximum term of imprisonment of at least ten (10) years. The penalty for Arson under certain sections of the Code can be fourteen (14) years.
Accordingly, this offender could be caught by the Immigration Section that will likely result in a removal order against them. The consideration that follows is whether a person, in similar circumstances, can appeal a removal order to the Immigration Appeal Division (the “IAD”), and raise equitable and humanitarian consideration, in order to remain in Canada, albeit conditionally. What adds to this difficulty for this particular offender, is that theIRPA denies access to an appeal to the Immigration Appeal Division against any removal orders (deportation orders) when an offender has served six (6) or more months of jail. This is effectively a bright line test that ousts the jurisdiction of the Immigration Appeal Division to hear such appeals; and a sentence of twelve (12) months ought remove the jurisdiction of the IAD to hear an appeal against a removal order. Parenthetically, the only remedy that remains is an application to persuade the Canada Border Service Agency to not issue a report that starts that process of a removal order (which is beyond the scope of this post and a complicated legal assessment that must be rendered on a case by case basis.
The Ontario Court of Appeal allowed this offender’s appeal against his effective sentence of 12 months plus three (3) years’ probation for arson. While the OCA does not cite any of the above, such legal considerations are live realities that this offender faced. Removal was likely to occur, by operation of law, with little to no legal remedy available to this offender. Ultimately, the OCA found that the sentence was unfit. Such a sentence would lead to youthful accused with special needs deported to a refugee camp in a country where he had no connection and no supports. The court reduced the accused’s sentence to six months less a day.
*** The opinions expressed in this Blog are not a substitute for full and through legal advice. It is not meant to be used a fulsome account of entire decision and area of law discussed.