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IInformation contained on this web site is to be considered general information only and is not to be construed as constituting legal advice.
Please make an appointment for advice with respect to any specific legal concern.
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Options for Foreign Nationals Charged with a Criminal Offence
© August 2004 H. John Kalina |
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Probably the question I am most frequently consulted on is: what are the options for a person charged with a criminal offence who is neither a Canadian Citizen nor a Permanent Resident of Canada. The answer is very complex, given the wide range of factors that must be taken into account. I will attempt to provide a simplified explanation using a fairly common fact scenario.
Let us assume a foreign national arrives in Canada at Toronto’s Lester B. Pearson International Airport. He arrives with a false passport, meaning that it is not in his true name nor issued to him by a government authority. He will usually be interviewed by a an immigration officer upon arrival. He will try to maintain his false identity. The immigration officer will ask a series of questions and likely have concerns about his true identity either because they were previously alerted to the person coming into Canada or because of suspicions raised by the passport or answers to questions.After the immigration officer confronts the foreign national with their suspicions and advises the person that they are not being allowed into Canada, the person will often continue to maintain their false identity.The immigration officer will ask them if they fear to return to their country of nationality. The person will usually respond in the negative. The immigration officer will likely issue a removal order against the person and order them held in custody. Often they will continue to maintain the false identity even after the immigration officer advises them that they are being disbelieved. Usually the person will only admit to the falsehood, once they arrested by the Police and charged with the offence of entering Canada by using a false passport contrary to section 117 of the Immigration & Refugee Protection Act.
After arrest, the person will be transported to the courthouse in Brampton, Ontario. The first step is usually an appearance before a Justice of the Peace of the Ontario Court of Justice for the purpose of reading the criminal charge and ascertaining whether the person should be released from custody (for the criminal charge) pending disposition of the charge. In some cases, relatives or friends may request to be surety (bondsperson) for the person charged. Often, neither the person in custody nor the potential surety are properly prepared to conduct the hearing and are unsure how to proceed. To make matters worse the person is also subject to an immigration hold because they are neither a Canadian Citizen nor a Permanent Resident of Canada. |
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What are the options and likely scenarios?
The following is a simplified series of explanations for illustration purposes only.Caution should be used in applying this to any given person's situation.Every person's situation is unique and requires a thorough analysis by a lawyer before proceeding. |
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 A judicial interim release (bail) hearing before a Justice of the Peace.
a) If ordered released, proceed to obtain an immigration release as discussed below.
b) If ordered detained, must remain in custody. |
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Plead guilty before a Judge.
a) Likely sentence 60-90 days for the first-time offence of entering Canada by using a false passport contrary to section 117 of the Immigration & Refugee Protection Act.
b) May be reduced with strong advocacy and legal representations.
c) After sentence is completed, is still subject to an immigration hold. |
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Plead not guilty and set a date for trial.
a) Must wait in-custody 6-16 weeks for a trial date.
b) If found guilty, time spent in custody is considered as part of sentence on a (usually) 2 for 1 basis.
c) Apply to a Judge of the Superior Court of Justice for a review of the detention order made by a Justice of the Peace:
i. If detained, in same situation as above; or
ii. If released, set a trial date 6-9 months into the future; BUT still on an immigration hold. |
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If on an immigration hold and seeking a release from the immigration system, must appear for a hearing before a member of the Immigration Division of the Immigration and Refugee Board of Canada:
a) First appearance within 48 hours. Second appearance 7 days thereafter and then every 30 days after that.
b) If detained, must remain in custody and none of the time spent in custody is attributable to time served in custody awaiting criminal trial. The foreign national is considered out of custody for the purposes of the criminal justice system because they are on ‘merely an administrative detention’! Some people remain in administrative detention for a considerable period of time even after a criminal sentence has been completed.Legal representation at this stage can often reduce the time in detention between completion of sentence and removal from Canada.
c) If granted immigration release, allowed to out of custody into the community subject to conditions imposed by immigration and/or criminal release orders. |
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At the same time the above procedures are happening, if the foreign national wishes to remain in Canada, they may apply for a Pre-Removal Risk Assessment (PRRA).
a) Refugee status is not an option, because that opportunity was lost at the airport when the negative answer to fearing a return to their county of nationality was given. Once a removal order is issued, the law prohibits any request for asylum.
b) Only 3% of all PRRA applications are successful so it is critically important to ensure that the application is completed correctly.
c) Deportation may still occur even though the PRRA application has been filed but not processed.
d) Deportation may be stayed (stopped) upon a successful application to the Canada Border Services Agency, otherwise must apply to Federal Court.
e) The Federal Court may order a deportation order to be stayed. See below on procedure in the Federal Court.. |
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All criminal convictions or sentences can be appealed to either the Superior Court of Justice or the Ontario Court of Appeal depending on mode of prosecutorial proceeding.
a) An application for bail pending appeal can be made in either case.
b) Immigration detention review procedures above also apply. |
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Any immigration decision can be reviewed by the Federal Court of Canada:
a) All Federal Court immigration applications require leave (permission) of the Federal Court to proceed.
b) Leave for judicial review is only granted in 5% of cases. Often takes 7-10 months. If granted, add another 3-6 months.
c) Judicial Review is not an appeal. If successful (in 1% of the cases), it is because the Court found tha the tribunal made a procedural error of law. The Court does not substitute its own decision for that of the tribunal but rather makes an order that the tribunal make a new decision.
d) An application to stay a deportation order can only be made if there is an application for judicial review (or leave) before the Federal Court.
This is not intended to be an exhaustive discussion for everyone.Please make an appointment with us to discuss any concerns you have in your particular case. |
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