Criminal Justice and the Immigration and Refugee Protection Act

Facts for Criminal Proceedings

INTRODUCTION

People who are convicted of an offence in Canada may be subject to deportation depending on their status in Canada, the nature of the offence and the length of their sentence. Parties in criminal prosecutions may want to be aware of the potential consequences of decisions made during the criminal trial and sentencing. On June 28, 2002, the Immigration and Refugee Protection Act (IRPA) introduced changes to the criteria that may lead to a deportation order and new restrictions on appeal rights to the Immigration Appeal Division (IAD) of the Immigration and Refugee Board (IRB).

THE LAW

Under IRPA, people who are not Canadian citizens may be subject to removal from Canada if they are convicted of an offence in Canada.

Permanent Residents

A permanent resident of Canada may become the subject of a deportation order if convicted of an offence in Canada that is punishable under an act of Parliament by a potential penalty of at least 10 years of imprisonment (regardless of the actual sentence), or if sentenced to more than six months of imprisonment for any federal offence (section 36(1) of IRPA). It is important to note that no one is subject to automatic deportation as a result of a conviction in Canada. A delegate of the Minister of Public Safety and Emergency Preparedness reviews the circumstances of each case and in many cases may allow the person to remain in Canada. However, the delegate may refer some cases to the Immigration Division of the IRB to have a removal order issued under section 44(2) of IRPA.

An important change introduced in IRPA is that permanent residents lose their right to appeal the deportation order to the IAD of the IRB if they are sentenced to a term of imprisonment of at least two years (section 64(2) of IRPA). Permanent residents may still seek leave for Federal Court judicial review of the deportation. Judicial review is limited to matters of legal or procedural error.

This measure streamlines the removal of permanent residents who receive sentences of at least two years and eliminates the possibility of their deportation order being set aside by the IAD on humanitarian and compassionate grounds after the government decides that the circumstances of the case warrant the deportation of the person at the end of the sentence. However, permanent residents receiving sentences of less than two years of imprisonment retain the right to appeal their removal order to IAD on issues of law as well as humanitarian and compassionate considerations.

Another important change is that a permanent resident or a protected person who is under a stayed removal order by the IAD for reasons of criminality who is then convicted of a serious criminality offence (section 36(1) of IRPA: a potential sentence of at least 10 years or an actual sentence of over six months) will have their stay of removal cancelled by operation of law, and their appeal will be terminated (section 68(4) of IRPA).

Foreign Nationals

Foreign nationals are people other than Canadian citizens or permanent residents. The threshold for the possible deportation of foreign nationals is lower than that for permanent residents. A foreign national who is convicted in Canada of an indictable offence or of a hybrid offence (which is an offence that may be punishable by way of indictment or summarily) regardless of the length of the sentence, may become the subject of a deportation order (sections 36(2)(a) and 36(3)(a) of IRPA). A foreign national who is convicted of two or more summary offences, not arising out of the same incident, may also be subject to a deportation order (section 36(2)(a) of IRPA). Foreign nationals have the right to appeal a deportation order to the IAD only if they hold a permanent resident visa, or if they have the status of protected persons (which include refugees) (section 63(3) of IRPA).

Refugee Claimants

Permanent residents and foreign nationals who have been convicted of an offence in Canada for which they have been sentenced to at least two years of imprisonment are no longer eligible to have their claim for refugee protection referred to the IRB for a hearing (section 101(2)(a) of IRPA).

POTENTIAL IMPACT OF PLEA BARGAINING AND SENTENCING

As a result of these provisions, certain decisions in the criminal justice system may have an impact on the possibility of deportation.

In most cases, a guilty plea to a lesser offence that is not indictable will remove the possibility of deportation of a permanent resident. However, IRPA deems hybrid offences to be indictable offences, even if prosecuted summarily (section 36(3)(a)), and this may result in a deportation order being made against a foreign national. It may also affect foreign nationals who may otherwise have a right of appeal to the IAD.

A sentence of six months or less will end the possibility of deportation of a permanent resident if the maximum penalty for the offence is less than 10 years of imprisonment. A sentence of two years or more will take away a permanent resident’s right to appeal a deportation order to the IAD. A sentence of more than two years will prohibit a person, whether a permanent resident or a foreign national, from having their claim for refugee protection referred to the IRB for a hearing.

If the person is already under a stay of removal ordered by the IAD, a conviction for a serious criminality offence (a potential sentence of at least 10 years or an actual sentence of over six months) will mean automatic cancellation of the stay of removal granted by the IAD.

PRE-TRIAL CUSTODY

When determining the length of a person’s term of imprisonment, a person’s time spent in pre-sentence custody, which is expressly factored into the person’s criminal sentence following conviction, is considered to form part of the term of imprisonment.

REFERENCES

The complete text of the Immigration and Refugee Protection Act and Manuals may be found at:
laws.justice.gc.ca/en/I-2.5/index.html and
www.cic.gc.ca/manuals-guides/english/enf/index.html.

To order copies of this pamphlet, fax:
(613) 954-2221

This is not a legal document. For legal information, consult the Immigration and Refugee Protection Act and its regulations.

© Minister of Public Works and Government Services Canada, 2004
Cat. No.: PS38-1/2004
ISBN 0-662-67940-7
C&I-591-03-04