Conditional sentences no longer affect immigration admissibility

Being convicted of serious crimes while a permanent resident in Canada can have potentially irreversible consequences when it comes to immigration admissibility. The laws in Canada state that anyone convicted of a serious crime that has a maximum prison sentence of 10 years or more will be “inadmissible” to Canada. In other words, permanent residents, applicants, or refugees with a serious criminal conviction will be deported.

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Immigration Canada, however, made a significant mistake when they decided that a six-month conditional sentence order (CSO) which is served in the community met the requirements for ‘serious criminality’ and would affect immigration admissibility, resulting in deportation. Clearly, conditional sentence orders are less severe than actual jail sentences. CSOs are hardly ever used for dangerous offences. That is to say, that when a court determines that someone is safe to serve their sentence in the community that means they are not dangerous, and can serve the sentence outside of a correctional facility.

The position taken by Immigration was baffling to many Canadian immigration lawyers. It was as if the government was saying that permanent residents, applicants, and refugees who have committed lessor crimes, such as a conviction for drugs, will be treated the exact same way as a person who committed a violent offence when immigration admissibility is considered.

Fortunately, we have the Supreme Court of Canada (SCC), which is above the Federal Court (usually deals with Immigration matters) and on Oct. 19, 2017 the SCC told Immigration officials that not only their expanded version of “serious criminality” is overreaching, but also it cannot be applied to a time after the alleged offence the person committed. For instance, if the maximum sentence for the crime committed was 7 years when the offence was committed, and after that the penalty was increased to 10 years, nobody can now assess the offender based on the more recent sentence. The person must be assessed taking into consideration the penalty available by law when the offence was committed.


What S. 36(1) of the Immigration and Refugee Protection Act says:

A permanent resident or a foreign national is inadmissible on grounds of serious criminality for

(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;

(b) having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; or

(c) committing an act outside Canada that is an offence in the place where it is committed and that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years.


Conditional sentence orders are more lenient than imprisonment

The Supreme Court of Canada decision involved a Canadian permanent resident convicted of a drug production offence relating to a marijuana grow operation. The man was given a 12-month conditional sentence, which meant he didn’t have to serve jail time, but nevertheless immigration officials initiated a process to have him labelled inadmissible.

Frankly, because the Government is the one that put in place Conditional Sentence Orders, we would have expected them to know that although CSOs are known as “jail in the community,” there is a huge distinction from “real imprisonment.” The person in the case decided today, served 12 months in the community – not in an actual jail.

In the reasons for its unanimous decision, the Supreme Court of Canada determined that the Canadian government had improperly decided to use the length of time in a sentence as a benchmark to determine how serious a crime is, without considering the type of sentence being used.

For example: a 5-month custodial jail sentence to be served behind bars, to most people, would be considered far more serious than a 6-month sentence to be served in the community.

Here’s what the Supreme Court of Canada said:

“…it would be an absurd outcome if less serious and non-dangerous offenders who received conditional sentences were deported, while more serious offenders receiving jail terms shorter than those conditional sentences were permitted to remain in Canada. Public safety, as an objective of the IRPA, is not enhanced by deporting less culpable offenders while allowing more culpable persons to remain in Canada.”


Immigration Canada tried to apply sentence created AFTER the offence

There was another blunder committed by the authorities that lacked fairness and was unreasonable. When the man was charged with the drug offence in 2011, the crime only had a maximum sentence of 7 years (three short of the 10-year requirement in s. 36(1) of the Immigration and Refugee Protection Act). But less than a year after he was charged, in November 2012, new legislation came into effect bumping up the maximum penalty for drug production to 14 years.

Since the man was convicted and sentenced after the new legislation came in, the Canadian government felt he was fair game for deportation. Fortunately, the Supreme Court of Canada disagreed, determining that when new laws increase penalties for crimes, that those penalties should only apply to people who committed the crimes after the new laws were put in place.


Criminal offences risk your permanent residency in Canada

Rightfully so, those who have been convicted of the most serious crimes while a permanent resident in Canada should be found inadmissible. That’s a safety issue. However, Canadian immigration officials have demonstrated their willingness to pursue not just those convicted of serious crimes, but also those who were given community sentences.

A single mistake can result in a criminal investigation. That criminal investigation could turn into a conviction, which could subsequently be used against you in immigration admissibility matters. If you are a visitor or permanent resident in Canada, and have been charged with a crime – even if you think it’s not serious – contact a lawyer immediately.

Failing to do so may result in you being deemed inadmissible in Canada. Often, the earlier you challenge any criminal allegations, the better the chances of success. Give us a call. We not only have solid experience in defending people accused of crimes, but we also deal with these Immigration matters, including persons deemed inadmissible to Canada. Call us at 250-384-0100.

Click here for more information about the immigration process in Canada.

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