I wrote this article as a self-help guide to whether your criminal issue might affect your immigration status. It's written for lawyers, but should be understandable to lay persons as well.
Beyond Pham: Collateral Immigration Consequences in Criminal Law
A Short Guide for Legal Professionals
Recent comments made by the Supreme Court in Pham, coupled with changes in the Immigration and Refugee Protection Act necessitate criminal counsel to have a passing knowledge of a client’s immigration status. The passage of Bill C-43 (“The Faster Removal of Foreign Criminals Act”) has made it increasingly easy for criminal matters to have “collateral immigration consequences” that are only apparent when the client faces a deportation order several years later. At that point in time, it can be far too late for Immigration counsel to have any meaningful recourse to stop the person’s departure. Preventive strategies should therefore be employed at the Criminal stage in order for our clients’ interests to be best protected.
I. Initial Intake
When advising a client, criminal practitioners should firstly be familiar with the various immigration statuses that a client can have. At the forefront, a client can either be a Canadian citizen or not. If your client is a Canadian Citizen (be it by birth or through naturalization) then the inquiry is short and involve only whether it is within the clients’ future ambition to sponsor a spouse or family member. Certain convictions enumerated in IRPR 113(1)(e)(ii) would the aspiring sponsor ineligible for a period of five years. Where the victim can be found in the list below, the client will be caught under the provision.
(a) a current or former family member of the sponsor,
(b) a relative of the sponsor, as well as a current or former family member of that relative,
(c) a relative of the family member of the sponsor, or a current or former family member of that relative,
(d) a current or former conjugal partner of the sponsor,
(e) a current or former family member of a family member or conjugal partner of the sponsor,
(f) a relative of the conjugal partner of the sponsor, or a current or former family member of that relative,
(g) a child under the current or former care and control of the sponsor, their current or former family member or conjugal partner,
(h) a child under the current or former care and control of a relative of the sponsor or a current or former family member of that relative, or
(i) someone the sponsor is dating or has dated, whether or not they have lived together, or a family member of that person;
If, however, your client is not a Canadian Citizen, then they are either a Permanent Resident or a Foreign National. In addition to the above consideration, both statuses carry with them different sets of immigration consequences on a criminal conviction.
A permanent resident will find their residency status at risk if they are convicted of a limited set of offences. Section 36(1)(a) of IRPA finds a person inadmissible to Canada for “serious criminality” if the offences they were convicted of meets certain criteria. The section states:
36. (1) 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.
Essentially, an offence is caught under 36(1)(a) if the offender is eligible of a sentence of more than 10 years imprisonment or where the client is sentenced to a term of more than 6 months. This includes hybrid offences that were proceeded summarily as long as the indictable version of the offence carries with it a potential imprisonment of 10 years. For example, this provision would catch a permanent resident found guilty of Uttering a Forged Document (contrary to the Criminal Code s 368(1)(a)). Those caught under 36(1) are inadmissible due to “serious criminality”.
The eligibility criteria for inadmissibility are broader for Foreign Nationals, who may be deemed inadmissible for “regular” criminality. Section 36(2) of IRPA states:
(2) A foreign national is inadmissible on grounds of criminality for
(a) having been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment, or of two offences under any Act of Parliament not arising out of a single occurrence;.
Unlike Permanent Residents, Foreign Nationals who are convicted of a hybrid offence – regardless of sentencing – can be deemed inadmissible. Further, if they have been convicted of any two offences (from different incidents), inadmissibility would attach. Those caught under 36(2) are inadmissible due to simply “criminality”.
While a foreign national can be inadmissible under both 36(1) and (2), a permanent resident can only be found inadmissible for serious criminality (i.e. 36(1)).
With the difference in mind, the optimal pre-sentencing strategy that Criminal counsel should employ for Foreign Nationals is to avoid a conviction if possible, as it is more than likely that a conviction would trigger the deportation process (given the abundance of hybrid offence). However, if the client is a Permanent Resident, then counsel is afforded a wider degree of latitude in terms of permissible outcomes for the case without much consideration for Immigration consequences.
II. Immigration Consequences at Sentencing
Unfortunately, it is often impossible to avoid a conviction that would not trigger immigration consequences, be it for a permanent resident or a foreign national. In such cases, it becomes important for Criminal counsel to informing the sentencing judge and Crown counsel of the immigration consequences facing their client in order for a fair sentence.
Equally unfortunate is that collateral immigration consequences are not as limited or simple as whether a client will be deported or not. Depending on the severity of an offence, a finding of inadmissibility “marks” a person with the possibility of deportation, which may present opportunities for remedies at various stages of the removal process.
The Inadmissibility Report
The first stage of any inadmissibility removal is the preparation of a “report” by an Immigration Officer. Through section 44(1) of IRPA, an Officer technically has discretion to prepare an inadmissibility report in cases of criminality. In practice, any permanent resident convicted of an eligible crime under section 36(1) will have a report issued against them. Foreign nationals who are inadmissible for normal criminality may have a chance to convince the officer that a report should not be issued. A decision will be made based on several factors:
· Is a decision on rehabilitation imminent and likely to be favourable?
· Has the permanent resident been convicted of any prior criminal offence? Based on reliable information, is the permanent resident involved in criminal or organized criminal activities?
· What is the maximum sentence that could have been imposed?
· What was the sentence imposed?
· What are the circumstances of the particular incident under consideration?
· Did the conviction involve violence or drugs?
The Fast Removal
The most clear-cut of collateral immigration consequences are for permanent residence and foreign nationals who face “fast deportations”. This is where because of the severity of the non-citizen’s offence they are denied access to the Immigration Appeal Division (“IAD”). Since June 2013, offences that were punished by a sentence of at least six months are deemed of sufficient seriousness to withhold access to the IAD.
The IAD, consequently, is the only body that has equitable jurisdiction. In practical terms, lack of access to the appeal body means that the permanent resident/foreign national will not have their equitable arguments heard before a removal order is issued. The Immigration Division (“ID”) is not a body with equitable jurisdiction, and therefore will examine only the legal eligibility for deportation. Before the ID, where a person fits within the definition of inadmissibility a removal order will be issued.
In reality, this does not completely close the door on a person to make equitable arguments. What changes is the form of the argument. Instead of an oral hearing at the IAD, a written application for exemption from inadmissibility based on Humanitarian and Compassionate factors is submitted to the Director of Case Review at National HQ. However, what Counsel should appreciate is that the H&C application process does not impede the issuance nor the effectiveness of a removal order. Hence, a client facing removal is in the same amount of jeopardy with or without an H&C application; the application only creates a future opportunity for the offender to be permitted to return/stay in Canada.
Eligible for IAD
Foreign nationals and permanent residents who are not caught by section 64(2) of IRPA are given access to the IAD. It should be clear to the sentencing judge that IAD access does not beget permission to remain in Canada. Rather, the IAD will undertake an examination of the offenders’ conviction and balance it with relevant humanitarian and compassionate factors to see if it would be more equitable to stay the removal order or to go ahead with its enforcement. The factors, colloquially called Ribic (as affirmed in Chieu) examine inter alia the likelihood of rehabilitation, the circumstances of the offence, family in Canada, the effect of deportation effects, and attachment in Canada. These factors are non-exhaustive.
At the end of the IAD hearing, the panel member can either enforce the removal order or stay the enforcement. If the removal order is stayed, it is conditional and requires the offender to abide by probation-like conditions with immigration. Individuals are often required to submit to counseling, to keep the peace and be of good behaviour and to report to Immigration should their address changes. In addition, the IAD will hold several review hearings over the next several months to examine if a person has abided by their conditions. If a person abides, the removal order is dismissed at the end of a 2 or 3 year term.
Previously Stayed Removal Order
A common scenario is the permanent resident client (though theoretically a foreign national) with a pre-existing stayed removal order who commits another offence not the subject of their first inadmissibility. It is with these clients that Criminal counsel must be careful: a conviction for offences that carries with it a possibility of at least 10 year imprisonment will remove an offenders’ ability to have their stay considered by the immigration.
 R v Pham, 2013 SCC 15,  1 SCR 739.
 Immigration and Refugee Protection Act, SC 2001, c 27 [“IRPA”].
 A term used by the decision in R v Pham 2013 SCC 15.
 There are, however, considerations that should be undertaken for conviction: the ability sponsor family members.
 IRPR 133(2)(b).
 To be clear, a Foreign National is any person in Canada that is not a permanent resident or a Canadian citizen. This includes illegal aliens and stateless individuals: IRPA, s 2(1).
 See IRPA s 36(3)(a).
 Enforcement Manual 05 at page 9
 IRPA section 64(2)
 Equitable arguments that are routinely brought forth to stay removal are, for example, establishment in Canada, the best interest of any children directly affected, lack of familial support in the ‘home’ country, etc. i
 Different from the IAD
 Inland Processing 3 at 20.
 IRPA s 68