SPECIAL SERIES: Immigration Hearings and Appeals

by Rekha McNutt

I’m really excited to announce that I’ll be doing a podcast series with my good friend Mark Holthe, an immigration lawyer based in Lethbridge, Alberta, all about the Immigration and Refugee Board of Canada! We’re going to cover all things hearings and appeals. Here’s the introductory episode where we lay out our plan for the series. The first episode on the IAD should be out very soon! So stay tuned!

https://www.canadianimmigrationpodcast.com/special-series-immigration-hearings-and-appeals/

If there are other topics you would like to see posts or podcasts on, please email me!

HUGE decision by SCC - Conditional Sentences & Serious Criminality for Permanent Residents

by Rekha McNutt

The Supreme Court of Canada just released its decision in the Tran case. At issue in the case was the interpretation to be given to section 36(1)(a) of the Immigration and Refugee Protection Act (IRPA), which reads:

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;

Any permanent residents found to be inadmissible for "serious criminality" lost their right of appeal to the Immigration Appeal Division (IAD) pursuant to section 64 of IRPA:

64 (1) No appeal may be made to the Immigration Appeal Division by a foreign national or their sponsor or by a permanent resident if the foreign national or permanent resident has been found to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality.

(2) For the purpose of subsection (1), serious criminality must be with respect to a crime that was punished in Canada by a term of imprisonment of at least six months or that is described in paragraph 36(1)(b) or (c).

The SCC in Tran clarified two points:

1. the relevant point in time when the punishment of an offence is to be assessed; and
2. whether conditional sentences are to be considered a "term of imprisonment"

Tran had been charged under the Controlled Drug and Substances Act for production of a controlled substances (he had a grow op). At the time of his charge, the section he was charged under had a maximum possible punishment of 7 years in prison (therefore not "seriuos criminality" under IRPA). However, the max possible punishment was amended to 14 years in prison by the time he was convicted (now suddenly "serious criminality". 

The SCC clearly held that "the relevant datefor assessing serious criminality under s. 36(1)(a) is the date of the commission of the offence, not the date of the admissibility decision" [paragraph 42].

The other issue in Tran was the actual punishment that was imposed. Tran received a 12-month conditional sentence of imprisonment, to be served in the community. In essence, no jail time. The question then became whether a conditional sentence ought to be interpreted as a "term of imprisonment" for purposes of IRPA, thereby classifying this as a "serious criminality" issue and barring any appeal rights to the IAD.

The SCC held that a conditional sentence was not equivalent to a prison sentence and the two ought not to be considered as such. The SCC wrote:

[25] First, the purpose of s. 36(1)(a) is to define “serious criminality” for permanent residents convicted of an offence in Canada. It is clear from the wording of the provision that whether or not an imposed sentence can establish “serious criminality” depends on its length. Length is the gauge. It must be “more than six months”. However, the seriousness of criminality punished by a certain length of jail sentence is not the same as the seriousness of criminality punished by an equally long conditional sentence. In other words, length of the sentence alone is not an accurate yardstick with which to measure the seriousness of the criminality of the permanent resident.

[26] Chief Justice Lamer explained in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 44, that “a conditional sentence, even with stringent conditions, will usually be a more lenient sentence than a jail term of equivalent duration”...

[28] Not only is length an unreliable indicator of “serious criminality” when comparing jail sentences to conditional sentences, but it may not even be a reliable measure across conditional sentences because of the disparate conditions attached to them. More fundamentally, conditional sentences generally indicate less “serious criminality” than jail terms. As Lamer C.J. said, a “conditional sentence is a meaningful alternative to incarceration for less serious and non-dangerous offenders” (Proulx, at para. 21; see also R. v. Knoblauch, 2000 SCC 58, [2000] 2 S.C.R. 780, at para. 102). Thus, interpreting “a term of imprisonment of more than six months” as including both prison sentences and conditional sentences undermines the efficacy of using length to evaluate the seriousness of criminality.

[32] If s. 36(1)(a) is interpreted such that a conditional sentence is a “term of imprisonment”, absurd consequences will follow...It would be an absurd outcome if, for example, “less serious and non-dangerous offenders” sentenced to seven-month conditional sentences were deported, while more serious offenders receiving six month jail terms were permitted to remain in Canada. Public safety, as an objective of the IRPA (s. 3(1)(h)), is not enhanced by deporting less culpable offenders while allowing more culpable persons to remain in Canada.

This decision has enormous implications for any permanent residents facing criminality issues. If a permanent resident has been convicted of an offence "punishable" by 10 years or more, but receives a conditional sentence, then they still have an appeal right to the IAD. The IAD has the ability to allow such individuals to remain in Canada despite the criminality, by considering any humanitarian and compassionate factors that may justify such a decision. 

Immigration Appeal Division - National Post Article

by Peter Wong

The Immigration Appeal Division is an important tribunal that is integral to our immigration system.  It deals with cases where Canada Immigration has refused spousal sponsorships, parental sponsorships and permanent residents who may be removed from Canada for various issues including the meeting of residency requirements after becoming a permanent resident.  There is a current crises within the IAD as many members appointed by the previous government are not being renewed, and the current government has not yet appointed new members to replace the past members.  This National Post Article discusses this problem:

http://nationalpost.com/news/canada/western-canadas-immigration-appeal-system-in-crisis-lawyers-say/wcm/71bd83cf-4149-4b7d-9ee6-4fad16662560 

Crisis at the Immigration Appeal Division

Wait times for Family Class appeals in Calgary have been horribly long for many years but a new crisis is affecting the Immigration Appeal Division - there's no one trained to hear the cases! Take a read through what Peter Wong had to say on the issue as he sat down with CBC - click here for full article.

Application refused? Can the Federal Court help?

It can be very frustrating, not to mention puzzling, when an immigration application is refused. Whether that application is for a temporary visa (to visit, study or work in Canada), to permanently immigrate, or a hearing gone wrong, the question is what can be done about it. The answer may be a Judicial Review ("JR") application to the Federal Court. 

Rekha McNutt recently "sat down" (ie. Skyped) with a fellow Immigration Lawyer, Mark Holthe, to talk about the JR process and what it all means. 

Take a listen to the Podcast that resulted from Rekha's conversation with Mark. You can also access it on iTunes.

If you have had your application refused, contact us immediately for advice on what to do.