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Speaker's Corner: Does conditional sentence bar immigrant from equity?

On Jan. 13, the Supreme Court is scheduled to hear R. v Tran.

The hearing will focus on the question of whether a conditional sentence served in the community is a term of imprisonment that would disentitle a permanent resident of Canada to access the equitable jurisdiction of the Immigration Appeal Division of the Immigration and Refugee Board of Canada.

As an immigration lawyer, this is fascinating to me. It also suggests that we ask contextual questions. For example, what does it mean to be a permanent resident of Canada?

And, what is such serious criminality as to deny a permanent resident access to equitable mitigation of a removal order? These questions should be of interest not only to everyone in the legal profession but to all Canadians because they define our Canadian cultural identity.

In order to grow our population, Canada must have immigration to be viable. Having immigration means welcoming people from elsewhere to live permanently in Canada. We disingenuously categorize these people — if and after they have met the required criteria as selected workers, qualified sponsored family members or persons in need of protection — by calling them landed immigrants or permanent residents of Canada. However, “permanent” they are not. They are permanent only so long as we deem them to be or until they have applied for and qualified for Canadian citizenship.

Subject to defined exceptions, one may, therefore, lose the status of permanent resident by living abroad for too long. And a so-called permanent resident of Canada is also subject to removal from Canada for “serious criminality” — the definition of which is the core of this matter.

Serious criminality, for the purpose of being the subject of a report by the Canada Border Service Agency that compels a deportation order from the immigration division of the IRB is defined as a conviction of any offence for which the maximum punishment may be 10 years or any offence for which a term of imprisonment of more than six months has been imposed. It should shock readers to know that hybrid offences are deemed indictable for the purpose of deportation.

However, we have a treasure in the Immigration Appeal Division. The IAD is a modern institution empowered to exercise the residual authority of a monarch. The IAD in deserving cases as defined by Parliament can grant clemency from consequences of misconduct. It has the authority to allow an appeal and set aside a deportation order. This is a rare occurrence indeed.

The IAD can also deny an appeal. The special mitigating power of the IAD is to put a deserving offending permanent resident on a stay of execution, which is a long-term immigration probation. If an offender behaves appropriately and rehabilitates, they may stay in Canada. (It should be noted that a conviction for any indictable offence while a person is on a stay automatically terminates the stay, and then the person is removed at the end of the sentence.)

The IAD has a long and fine tradition of careful consideration of several matters, often referred to as the Ribic Factors. These factors include the severity and pattern and context of the criminality, prospects of rehabilitation and the family who would suffer in Canada if the person were removed. The factors specifically include the best interests of any child who would be directly affected by the removal of the permanent resident convicted of the serious offence.

Serious criminality — where conduct was determined by Parliament to be so severe as to not allow access to equity — was defined for many years as anyone who was sentenced to jail time of two years (or more) for any single conviction. In my opinion, this was not an intolerable cutoff. Serious criminals had no appeal in equity to the IAD.

However, since December 2012, serious criminality was reduced to any offence punished by a term of imprisonment of six months or more. This change meant the threshold was reduced to the point where even a person given a conditional sentence to be served in the community could be deported without an appeal in equity.

In Tran, the Supreme Court is being asked to rule on whether a conditional sentence is a term of imprisonment, as the IAD has held it to be when it declined jurisdiction to hear Tran’s Appeal. One hopes the Supreme Court, in Tran, will at least allow the IAD to hear an appeal in equity against a deportation order for a crime by a permanent resident of Canada punished by a conditional sentence of six months.

Marshall Drukarsh is a certified specialist in immigration law and a founder of the immigration section of the Canadian Bar Association.

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