Presentation to Peel Law Association on November 27, 2002 The purpose of this presentation is to explore the impact of a criminal conviction on a person's immigration status in Canada.

On June 28, 2002, Canada repealed the Immigration Act, 1976 and replaced it with the Immigration and Refugee Protection Act, 2001 (IRPA). The Act itself is a skeleton structure upon which the Immigration and Refugee Protection Regulations, 2002 (IRPR) are grafted. Further, the rules, procedures, guidelines and other material are deemed to be incorporated into the legislation by virtue of section 92 of IRPA.

A Permanent Residence can be deported if they are convicted of any offence for which there is a possibility of at least ten years imprisonment. A Foreign National (defined in IRPA section 2 as anyone who is neither a Canadian Citizen nor Permanent Resident) may be deported along with their family upon conviction for any indictable offence.

The only way to ameliorate the harsh effects of a conviction on a Foreign National is by either the granting of a discharge pursuant to section 730 of the Criminal Code; or a conviction for one purely summary conviction offence of which there are presently thirty in the Criminal Code. [See sections 66, 83, 89, 130, 134, 173-179, 206(4), 210(2), 211, 213, 250, 335, 339(2), 264, 365, 372(2)&(3), 393(3), 423, 445, 446(2)&(6), 486(5).] This will likely provide defence counsel with an opportunity to be creative in persuading a Crown Attorney to accept a plea to a summary conviction offence (such as intimidation instead of assault or threatening) in order to avoid the harsh effects of IRPA. The Foreign National only gets one chance. A conviction arising out of more than one occurrence will make the Foreign National inadmissible.

A serious criminal Permanent Resident is someone convicted of an offence for which 10 or more years may be imposed; they are then inadmissible and subject to deportation. A quick analysis of the Criminal Code reveals that the 'base level' of our most popular hybrid offences such as Assault, Dangerous Driving, Impaired Driving are 5 year indictable offences; the property - Theft / Possession / Mischief Under $5000 are 2 year indictable offences. The next 'level' up or 'value added' offences: Theft / Possession / Mischief Over $5000, Assault / Dangerous Driving / Impaired with bodily harm are all 10 year indictable offences.

IRPA is retroactive in effect. A Permanent Resident or Foreign National with a conviction no matter how old is potentially inadmissible and subject to deportation.

A Permanent Resident found to be an inadmissible person may be arrested, detained, and removed from Canada without appeal if imprisoned for more than two years, otherwise an appeal is allowed to the Immigration and Refugee Board, Appeal Division. The Foreign National has no right of appeal to the Appeal Division. A further judicial review for Permanent Residents or Foreign Nationals is allowed - with leave - to the Federal Court of Canada. However the Federal Court must hear the application within 30-90 days of the granting leave. The Federal Court may only grant leave to those applications for which there are resources to hear the application within the allowed timeframes.

An interesting side effect of IRPA is that it now allows an alert Crown Attorney to request an Immigration Officer to convoke an admissibility hearing for an accused Permanent Resident with a history of serious criminality (no matter how long ago the conviction). For some offences (IRPR s.246), the person will be considered a 'danger to the public' and have difficulty obtaining their release from what the Supreme Court of Canada refers to as an 'administrative detention'.

For a criminal law practitioner, some unintended consequences quickly become readily apparent. If you take a fairly common GTA scenario, a recently immigrated family have their first encounter with the criminal justice system: the accused is charged with assault causing bodily harm on his wife after coming home drunk one evening and beating her severely. He advises his defence lawyer to fight the charge all the way to trial because he didn't do it and she won't show for trial anyway. A trial date is set, she shows up for trial, testifies, and he is convicted. In this scenario two dilemmas rear their ugly head. For defence counsel, the accused must be warned that if he is convicted there exists a very good possibility that he may be deported. From the Crown's perspective, securing a conviction in order to protect the victim may result in the victim being deported because the accused, a member of the family unit, has been found inadmissible. The same result occurs where the family are foreign nationals who have not yet secured permanent resident status and the charge is simple assault. Surely not the intended result and one that runs counter to our sense of fair play and justice.

Defence counsel may also wish to advice the accused person that if they are convicted of a crime of sexual assault or domestic violence that they will be barred from the ability to sponsor any family member in the future pursuant to IRPA section 133(1)(e).

The above article was current as of November 2002. Since that time, some noteworthy updates have occurred: For the Canadian Government's perspective please refer to Citizenship and Immigration Canada's fact sheet at www.cic.gc.ca For a judicial interpretation of the immigration consequences in a criminal context see R. v. Kanthasamy , [2005] B.C.J. No. 510 (C.A.) In Atwal v. Canada (MCI), [2004] F.C.J. No. 63, 2004 FC 293 (T.D.), the court ruled that pre-sentence custody time should be added to the length of a sentence when determining if the permanent resident has been "punished in Canada by a term of imprisonment of at least two years," as required by IRPA s.64(2). An excellent memorandum produced by Legal Aid Ontario can be accessed at www.research.legalaid.on.ca

The second most asked question relates to visiting the territory of Canada's largest trading partner. Effect of Criminal Convictions on Entry into the United States of America A Canadian citizen may be excluded from and inadmissible to the United States for criminal convictions. Sections 1182(a)(2)(A)(i)(I) and 1182(a)(2)(A)(i)(II) (formerly sections 212(a)(2)(A)(i)(I) and 212(a)(2)(A)(i)(II)) of the Immigration and Nationality Act (INA) set out the prohibitions on entrance to the United States on criminal grounds. An immigrant or non-immigrant is inadmissible to the United States if she or he has been convicted of, or has admitted to committing, the essential elements of a crime of "moral turpitude," or any drug offence. The U.S. Code of Federal Regulations (22 CFR 40.21(a)) defines moral turpitude as "the moral standard prevailing in the United States."

Moral turpitude has been defined as referring to conduct that is "inherently base, vile, or depraved, contrary to the accepted roles of morality and the duties owed between men and men, either one's fellowman or society in general." Examples of crimes of moral turpitude include assault with intent to commit serious bodily harm, theft, including attempts and conspiracy to commit such a crime, controlled substance violations and commercialized vice such as gambling, assault with a dangerous weapon, gross indecency, kidnapping, and prostitution.

A person convicted of only one crime of "moral turpitude" will not be excluded if the crime was committed when he or she was under 18 years of age and the crime was committed and the person's sentence completed more than five years before the application for admission to the U.S. If, however, the person under 18 was tried and convicted as an adult for a felony involving violence (as defined under Title 18 of the U.S. Code), he or she is excludable: 22CFR40.21(2)(B). If a person has been convicted of or admits to having committed, a single crime of "moral turpitude," and the crimes carries no more than a maximum penalty of one year and the person is actually sentenced to less than six months in prison, the person is not inadmissible and may enter the United States without permission: section1182(a)(2)(A)(ii)(I) and section1182(a)(2)(A)(ii)(II) of INS. Unlike crimes of moral turpitude, the commission of a drug crime without criminal intent or knowledge is grounds for exclusion: section1182(a)(2)(C) of INS. The same section renders inadmissible those individuals whom an officer has "reason to believe" is an "illicit trafficker."

A person convicted of two or more offences, when the aggregate sentence imposed was five years or more, is excludable, regardless of whether the offences arose out of single incident and regardless of whether the offences involved moral turpitude: section1182(a)(2)(B) of the INA. Discharges and Pardons At one time absolute discharges did not trigger ineligibility, however recent US Federal Court rulings have indicated that all absolute and conditional discharges are to be treated as convictions because a court has imposed findings of guilt. Canadian pardons or "expungements of a penal record" are not recognized by the United States. Only pardons granted by the President of the United States or a Governor of a State are recognized by the Immigration and Naturalization Service: 22 CFR 40.21(a)(5). Waiver into the United States A Canadian citizen who has been convicted of a crime or admitted to a crime of moral turpitude or drug-related crimes must make an application for a waiver in order to gain admission to the U.S. on a non-immigrant basis.

Grounds for the waiver are provided for in section 1182(h) of the INA. A waiver is the grant of multiple entry into the United States over a given period of time (often five years). This is not to be confused with being 'paroled' into the United States, which is a one-time temporary grant of entry into the United States for a period of short duration.