The Immigration Consequences of Criminality

Transcription

1 The Immigration Consequences of Criminality 2013 Criminal Law Conference County of Carleton Law Association Fairmont Le Chateau Montebello 5-6 October 2013 Warren Creates & Jacqueline Bonisteel Perley-Robertson, Hill & McDougall LLP/s.r.l Albert Street Ottawa, ON K1R0A5

2 2 CONTENTS Page Criminal Inadmissibility : An Overview a. Categories of Criminal Inadmissibility b. Key Considerations 3 Consequences of Criminal Inadmissibility 6 Overcoming Criminal Inadmissibility a. Rehabilitation b. Record Suspension or Discharge c. Temporary Resident Permit d. Application for Permanent Residence on Humanitarian & Compassionate Grounds A Word on Inadmissibility to the U.S. a. Effect of Canadian Criminal Convictions on U.S. Entry 7 9 b. Applications for Advance Permission to Enter Temporarily c. Applications for Waiver of Grounds of Inadmissibility (for those seeking to immigrate) d. Canadian Pardons Conclusion: Consideration for Criminal Law Practitioners 11 Appendix 12

3 3 The Immigration Consequences of Criminality Warren Creates 1 & Jacqueline Bonisteel 2 Where a person facing criminal proceedings is a foreign national or permanent resident, criminal law practitioners must keep potential immigration consequences at the forefront of their minds. A mere one-day variance in a criminal sentence could be the difference between remaining in Canada and deportation. This paper outlines the circumstances in which a person will be considered criminally inadmissible to Canada, the consequences of criminal sentencing on admissibility and immigration appeal rights, and the options available for overcoming a finding of criminal inadmissibility. We also briefly address criminal inadmissibility to the U.S. Criminal Inadmissibility to Canada: An Overview Under the Immigration and Refugee Protection Act, SC 2011, c. 27 ( IRPA ), a non-citizen of Canada may be considered inadmissible due to criminal convictions or the commission of certain criminal acts outside Canada. Anyone planning to enter Canada to seek permanent residency, to study, to work, or to simply visit may be denied entry if he/she has been charged or convicted of a criminal offence. Anyone residing in Canada as a permanent resident or foreign national may be forced to leave due to criminality. Minor offences, or even a finding that there are reasonable grounds suggesting commission of a criminal offence, may render a person inadmissible to Canada. A) Categories of Criminal Inadmissibility The types of criminality that can lead to inadmissibility can be grouped into the following four categories: 1) Convicted in Canada; 2) Convicted outside Canada; 3) Committed an act outside Canada; and, 4) Committed an act upon entering Canada. We will briefly review each category in turn. A chart summarizing the criminal inadmissibility provisions and their consequences is found at the Appendix. 1 Warren Creates is Head of the Immigration Law Group at Perley-Robertson, Hill & McDougall LLP/s.r.l. in Ottawa. He can be reached at wcreates@perlaw.ca or Jacqueline Bonisteel is an associate lawyer with the Immigration Law Group at Perley-Robertson, Hill & McDougall LLP/s.r.l. She can be reached at jbonisteel@perlaw.ca or

4 4 1. Convicted In Canada Under s. 36(1)(a) of the IRPA, a permanent resident or a foreign national will be considered inadmissible if he or she has been convicted (in Canada) of an offence: carrying a maximum term of imprisonment of at least 10 years; OR for which a term of imprisonment of more than six months has been imposed. S. 36(2)(a) renders foreign nationals inadmissible for less serious offences. Permanent residents are not affected by this section. Under this section, a foreign national is inadmissible if convicted (in Canada) of: An offence punishable by way of indictment; OR Any two offences not arising out of a single occurrence. 2. Convicted Outside Canada A conviction for a crime committed outside of Canada triggers ss. 36(1)(b) and 36(2)(b) of the IRPA. A permanent resident or foreign national may be found inadmissible if an officer has reasonable grounds to believe that he or she was convicted of one or more offences outside Canada. In order for the foreign conviction to render a person inadmissible, the activity must be a crime both in the place where it was committed and in Canada. An offence committed abroad that is considered serious in a foreign country may be considered a summary offence in Canada or may not be considered a crime at all. It does not matter how the crime is viewed in the country where it was committed; what matters is how the crime is classified under Canadian law. To determine this, a careful study of the crime in the context of Canadian criminal law must be undertaken. Even if the offence is a crime in Canada, a foreign pardon may be recognized where it is similar to the record suspension (i.e. pardon) process in Canada. To summarize, in order to be considered inadmissible under these provisions, the offence committed abroad must be equivalent to an offence in Canada, and: For both permanent residents and foreign nationals, o The offence must be punishable by a maximum term of imprisonment of at least 10 years (in Canadian law); For foreign nationals only, o The offence must constitute an indictable offence (in Canadian law); OR o The offence must constitute two offences not arising out of a single occurrence (in Canadian law).

5 5 3. Committed an Act Outside Canada The intent of sections 36(1)(c) and 36(2)(c) of the IRPA is to deny entry to Canada to those fleeing a criminal proceeding in a foreign jurisdiction. However, it is only applicable if that criminal activity could result in a conviction under Canadian law. These provisions may also be used where an offence was committed but no conviction was registered. They cannot be used where the person has been acquitted. In order to be considered inadmissible under these provisions, the act committed outside Canada must be an offence under the law in the jurisdiction where it occurred, and: For both permanent residents and foreign nationals, o The offence must be punishable by a maximum term of imprisonment of at least 10 years (in Canadian law); For foreign nationals only, o The offence must constitute an indictable offence (in Canadian law); OR o The offence must constitute two offences not arising out of a single occurrence (in Canadian law). 4. Committed an Act Upon Entering Canada Where a foreign national commits an offence at a port of entry (airport or border crossing) but charges are not laid, Canadian officials maintain the authority to find a person inadmissible pursuant to section 36(2)(d) of IRPA. In order to be considered inadmissible under this provision, there must be reasonable grounds to believe that an offence was committed upon entry to Canada, and the offence must be indictable. B) Key Considerations The following key points on criminal inadmissibility should be kept in mind: 1. For the purposes of Canadian immigration law, a hybrid offence is always treated as an indictable offence (IRPA s. 36(3)(a)). 2. A foreign national can be considered criminally inadmissible even for minor convictions in Canada, whereas the conviction(s) must be more serious for a permanent resident of Canada to be found inadmissible. A permanent resident of Canada is only be rendered inadmissible on the grounds of serious criminality under the provisions of s. 36(1) of IRPA, whereas a foreign national (i.e. a person with no permanent status in Canada) can be rendered inadmissible on the grounds of serious criminality under s. 36(1) or criminality alone under s. 36(2).

6 6 3. Those charged as young offenders (under 18 years) generally will not be rendered criminally inadmissible, pursuant to s. 36(3)(e). However, if a matter is transferred from youth court to normal court and a non-youth sentence is imposed, inadmissibility can result The offence must be an offence under an Act of Parliament to lead to inadmissibility. Municipal offences, provincial offences or a finding of contempt of court will not render a person inadmissible to Canada. 5. For an offence committed in Canada, inadmissibility will only arise from a conviction. A discharge (conditional or absolute), stay of proceedings, or a finding of not criminally responsible will not result in inadmissibility. However, a conditional sentence order is treated as a conviction and therefore can carry inadmissibility consequences If pre-sentence custody is expressly credited towards a sentence, it counts in determining the length of sentence for immigration law purposes Consecutive sentences for multiple counts are not added together. 6 This means that, if it possible to impose multiple sentences of less than six (6) months, inadmissibility pursuant to s. 36(1)(a) may be avoidable. 8. As of December 15, 2012, anyone found inadmissible for serious criminality is inadmissible to make a refugee claim. 7 Consequences of Criminal Inadmissibility A foreign national or permanent resident found inadmissible pursuant to s. 36 will be denied entry to Canada or, if already in Canada, issued a removal order. For a foreign national, there is no opportunity to appeal this order. Return to Canada will require overcoming the conviction in some way. The various options are covered in the next section. However, if the person is a protected person or permanent resident in Canada, they may have a right to appeal the order to the Immigration Appeal Division (IAD). The IAD has the jurisdiction to consider humanitarian and compassionate factors in determining whether to affirm, stay or 3 See Tessma v. Canada (Minister of Citizenship & Immigration), 2003 FC 1126 and M Bosso v. Canada (Citizenship and Immigration), 2011 FC S of the Criminal Code defines a conditional sentence as a sentence of imprisonment. 5 Minister of Citizenship and Immigration v. Atwal, [2004] FC 7, 245 F.T.R R. v. Hennessy, [2007] ONCA IRPA s. 101(1)(f))

7 7 quash the removal order. The factors to be considered are set out in Ribic v. Canada (Minister of Employment and Immigration), 8 and include: The seriousness of the offence The possibility of rehabilitation The length of time in Canada Establishment in Canada Impact of removal on family (including best interests of the child) Hardship in the country of origin It is common for the IAD to quash or stay a deportation order based on the best interests of affected children, a person s long-term establishment of a life in Canada, or the hardships that would result from a return to the country of origin. Where a deportation order is stayed, the IAD will typically impose terms and conditions. At the end of the stay period, if a person has complied with all terms and conditions, it is common for the IAD to quash the removal order. Under previous legislation, an appeal was available to permanent residents or protected persons who received a sentence of less than two (2) years. However, with the introduction of new legislation this year, an appeal is only available to those who receive a sentence of less than six (6) months. 9 This change has significantly limited the availability of an appeal, and therefore the ability of humanitarian factors to be considered before a person is deported. As such, the situation can now arise where a long-term permanent resident of Canada will be deported due to a relatively minor criminal conviction. As noted above, pre-sentence custody can count in assessing the length of sentence under IRPA. Multiple sentences for different counts, each of which is less than six months, will not trigger the appeal bar. Overcoming Criminal Inadmissibility Criminal inadmissibility is not necessarily an absolute or permanent bar to entering and/or remaining in Canada. In certain cases, there are means of overcoming inadmissibility. (A) Rehabilitation The IRPA s rehabilitation provisions are the primary means by which inadmissibility can be overcome. There are two available types of rehabilitation: 1) deemed rehabilitation; and, 2) rehabilitation by way of a formal application process. 8 [1985] I.A.B.D. No IRPA s. 64(2).

8 8 In certain cases, an inadmissible person will automatically be considered absolved of a crime or crimes after a certain amount of time has passed. In other words, they are deemed rehabilitated. Deemed rehabilitation applies in the following situations, pursuant to IRPA s. 36(3)(v) and sections 17 and 18 of the Immigration and Refugee Protection Regulations, SOR/ : - after five (5) years have elapsed for a person who has committed two or more summary offences; or - after ten (10) years have elapsed for a person who has committed only one indictable offence carrying a maximum penalty of less than 10 years The deemed rehabilitation provisions do not apply if the prescribed time periods have not elapsed, or if the person committed subsequent indictable offences. Further offences committed after the date of any deemed rehabilitation would void the effect of the deemed rehabilitation. Where deemed rehabilitation does not apply, a person may apply for individual rehabilitation. At least five (5) years must have passed since the completion of all sentences (including the payment of any fine, restitution, and/or probation), and an application must be submitted to the responsible Canadian visa office. Processing times can be lengthy (up to one year). (B) Record Suspension or Discharge Where a record suspension (formerly a pardon) or discharge is obtained for a conviction in Canada, that conviction will no longer lead to inadmissibility. New legislation has made the application process for a record suspension more onerous than it was in the past. A foreign pardon may have the same effect on eliminating inadmissibility, but it must be recognized in Canada. Case law has provided that, to be recognized, the foreign pardon should be made pursuant to legislation similar to that existing in Canada. The Federal Court of Appeal in Saini summarized the applicable test as follows: (1) the foreign legal system as a whole must be similar to that of Canada, (2) the aim, content and effect of the specific foreign law must be similar to Canadian law, and (3) there must be no valid reason not to recognize the effect of the foreign law. 10 Given that the pardon system in Canada has recently been made more stringent, it is possible that it will now become more difficult to have a foreign pardon recognized in Canada. (C) Temporary Resident Permit Those not eligible for rehabilitation, a pardon or a discharge may still be permitted to enter on a Temporary Resident Permit (TRP). This document does not void the inadmissibility, but it 10 Saini v. Canada (Minister of Citizenship and Immigration), 2001 FCA 311 at para. 24.

9 9 allows an applicant to enter or remain in Canada in spite of that inadmissibility. Pursuant to s. 24 of the IRPA, a TRP allows an inadmissible person to enter or remain in Canada for a limited period of time where justified in the circumstances. Exceptional circumstances justifying the issuance of a TRP might include attendance of a family event like a birth or funeral, the need to spend time with immediate family in Canada, participation in a sporting or cultural event, or an important business visit. A TRP can be issued for a period of one day to three years. In high-profile cases where Canada is likely to benefit from the presence of an inadmissible person, the prospects of success are much higher. For example, where a well-known musician is planning to tour Canada but is inadmissible due to an impaired driving conviction, a TRP is likely to be issued for the duration of the tour to allow the musician to play, and to allow Canada to reap the economic and cultural benefits of the performances. Where a case is not so highprofile, obtaining a TRP tends to be more difficult. Officers will be cautious in granting a TRP not only because of the potential risk to Canadians posed by inadmissible persons, but also because members of the permit holder class have access to significant privileges, such as the ability to apply for a work or study permit inland, and access to health and social services. As well, when a TRP holder is in Canada and was not inadmissible on the grounds of serious criminality, organized crime, security, or the violation of human or international rights, that person will automatically become entitled to permanent residence after a prescribed period. These are significant rights that Canada will be very guarded in granting to persons previously found ineligible to enter the country. (D) Application for Permanent Residence on Humanitarian & Compassionate Grounds If a person is seeking permanent entry despite inadmissibility, an application for an exemption on humanitarian and compassionate (H&C) grounds, pursuant to s. 25 of the IRPA, can be made. If the exemption is granted, inadmissibility will no longer act as a barrier to achieving permanent status in Canada. There must be exceptional circumstances to justify the exemption, such as the best interests of affected children, establishment in Canada, or hardship in the country of origin. 11 Succeeding in these applications is very difficult, but they do provide a last-resort option for those who are established in Canada and lack other means of overcoming their criminal inadmissibility. Recent amendments to the IPRA now bar H&C relief to those inadmissible on the grounds of security, human or international rights violations, or organized criminality. A Word on Inadmissibility to the U.S. A) Effect of Canadian Criminal Convictions on U.S. Entry Canadian immigration lawyers are frequently asked to advise on how a Canadian criminal conviction will affect entry to the U.S. A foreign national who has committed a crime of moral 11 The seminal case in this area is Baker v. Minister of Citizenship and Immigration, [1999] 2 SCR 817.

10 10 turpitude under U.S. law, or who has multiple minor criminal convictions, may be found inadmissible. Driving under the influence will not lead to inadmissibility unless aggravating factors were present. Outlining the various circumstances that will result in inadmissibility to the U.S. is beyond the scope of this paper. Suffice to say that there is the potential for criminal convictions to bar entry to the U.S., and that if travel to the U.S. is an important concern for a person facing criminal convictions in Canada, counsel with expertise in this area ought to be consulted to determine whether such consequences can be avoided. B) Applications for Advance Permission to Enter Temporarily Individuals facing criminal inadmissibility to the U.S. may never have a problem entering, or may go years before any questions arise. However, with rapidly developing data systems and expanded cross-border information-sharing, the likelihood of being denied entry for criminality continues to rise. If a past criminal record is discovered and has not been declared, the consequences could be as serious as permanent ineligibility or detention. Where denial of entry an issue, certain criminally inadmissible persons will be eligible to apply in advance for temporary permission to enter the U.S. using Form I-192. The application process can be lengthy (up to one year) and the fee to apply is significant (US $585.00). Application can be made either at a Port of Entry or at a Preclearance office in Canada. C) Applications for Waiver of Grounds of Inadmissibility (for those seeking to immigrate) Those seeking to immigrate to the U.S. can apply to overcome certain forms of criminal inadmissibility with a waiver application. The relevant form is I-601. If granted, the waiver is valid indefinitely. As with temporary applications, the application process can be lengthy (up to one year) and the fee to apply is significant (US $585.00). Applicants must show rehabilitation, lack of negative impact to the U.S. posed by their entry, or extreme hardship to an affected U.S. citizen or permanent resident relative. In most cases, at least 15 years must have passed since the activity leading to the inadmissibility. D) Canadian Pardons A pardon issued by Canadian authorities is not recognized for the purposes of U.S. entry. If a pardon has been obtained, the relevant documentation should be submitted; however there is no guarantee that U.S. authorities will give weight to a Canadian pardon, so it will not guarantee entry.

11 11 Conclusion: Considerations for Criminal Law Practitioners When dealing with a foreign national or permanent resident, criminal law practitioners must be aware of the immigration consequences of the convictions and sentences imposed. Clients facing charges must understand the immigration implications of pleading guilty to certain offences. In plea bargaining, defence counsel should ensure that they are seeking an arrangement that avoids criminal inadmissibility if at all possible. If a plea to a strictly summary offence is a viable alternative to a hybrid or indictable offence, for instance, this should be pursued. In R. v. Pham 12, the Supreme Court considered whether immigration consequences can be taken into account in sentencing decisions. The Court confirmed that immigration consequences, particularly the loss of appeal rights, can be considered so long as they are not used as a basis to take the sentence outside the range normally appropriate for the offence and offender. The length of time a person has been in Canada and the impact of removal on family members have also been factors considered in sentencing. 13 Where there is uncertainty, criminal law practitioners are well-advised to contact an immigration law specialist for assistance SCC R. v. Curry, [2005] O.J. No (Q.L.) (Ont. C.A.) at para. 35; R. v. Q.A.M., 2005 BCCA 615 at paras

12 12 Appendix Convicted in Canada Convicted Outside Canada Committed an Act Outside Canada Committed an Act Upon Entering Canada Conviction/Act Foreign National Permanent Resident Convicted of offence with maximum sentence of at least 10 years Term of imprisonment of more than 6 months imposed Convicted of offence punishable by indictment (includes hybrid offences) Convicted of any two summary offences not arising out of a single occurrence Convicted, and equivalent offence in Canada punishable by maximum term of imprisonment of at least 10 years Convicted, and equivalent offence in Canada punishable by indictment in Canada (includes hybrid offences) Convicted, and and equivalent offences in Canada constitute two offences not arising out of a single occurrence Committed an act punishable under Canada law by a maximum term of imprisonment of at least 10 years Committed an act punishable by indictment in Canada (includes hybrid offences) Committed an act constituting two offences not arising out of a single occurrence (in Canadian law). Offence at a port of entry where charges have not been laid Not inadmissible Not Not Not Not Not Not