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October 15, 2012

Dramatic changes coming to criminal law and immigration for permanent residents

Edward C. Corrigan

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On July 24, 2012, Statistics Canada reported the rate of crimes reported to Canadian police forces in 2011 reached its lowest level since 1972. Since 1991, the rate of males charged with violent crime has dropped by 32% and the rate of women charged with violent crime has risen 34%. The severity of crime index, a tool used to measure the extent of serious crime in Canada, also dropped by 6 per cent.

The current Conservative government has been criticized for their get tough-on-crime agenda despite the year-after-year evidence that shows crime rates lowering in Canada. As the Statistic Canada noted, “Overall, this marked the eighth consecutive decrease in Canada’s crime rate,” the study said. “Since peaking in 1991, the crime rate has generally been decreasing, and is now at its lowest point since 1972.”

While the decrease in crime statistics is welcome there is still work that needs to be done.  However, the question remains is the present Conservative government`s ``get tough with crime`` agenda the right approach given that Canada`s crime rate has been decreasing for eight consecutive years.

The law in Canada, as it currently stands, a Permanent Resident who is convicted and sentenced to two years in jail they lose their right to remain in Canada and have no right to Appeal a Deportation Order.

If an individual is convicted and sentenced to six months in jail and up to two-years less a day they generally become Criminally Inadmissible to Canada and are subject to a Deportation Order. These Permanent Residents, however, do have a right of Appeal to the Immigration Refugee Board Immigration Appeal Division (IAD).

At the IAD the Permanent Resident gets to present reasons why they should not be deported from Canada, why they do not pose a risk to Canadians and should be allowed to remain in Canada due to family ties and other reasons which the IAD may consider and grant a Stay of Removal. If the convicted Appellant convinces the IAD that they should not be removed at that time a Stay of the Deportation Order is issued usually with strong conditions attached.

There are many reasons why an individual who has been sentenced to six months in jail should be given a second chance and not deported from Canada. For example an individual may be a refugee and would be subject to torture and even execution if they are returned to their home country.

The current law is proposed to undergo a dramatic change. 

THE FASTER REMOVAL OF FOREIGN CRIMINALS ACT

On June 20, 2012, the Honourable Jason Kenney, Minister of Citizenship, Immigration and Multiculturalism, introduced Bill C-43 named, The Faster Removal of Foreign Criminals Act: An Act to amend the Immigration and Refugee Protection Act. To date it has only passed First Reading.

Through this proposed legislation the present Government is removing all rights of Appeal for a conviction of criminal charge that has a sentence of six months or more. The objective of this legislation will reportedly reduce the amount of time with criminals sentenced to six months in jail will spend in Canada by eliminating all rights to Appeal the Deportation Order.

Under current Canadian law all individuals have a right to a Pre-Removal Risk Assessment (PRRA) before being removed from this country.

By removing hope of staying in Canada if you are sentenced to six months in jail will, in my opinion, create unforeseen difficulties. In all likelihood these individuals will be held in detention until they can be deported from Canada. This factor will greatly increase the cost of detaining individuals who are now subject to a Deportation Order with no Appeal.

This new legislation if it passes, a likely outcome since the Conservatives hold a majority in Parliament, will have to be seriously considered by defense counsel in representing their clients who are permanent residents of Canada for if their clients receive a sentence of six months or more they lose their right to remain in Canada. This fact will have serious consequences for spouses and other family members. There will also be consequences for Canada in terms of financial and social costs.

According to Andras Screak, vice-president of the 1,200-member Ontario Criminal Lawyers Association, the new proposed law would now be cast broadly enough to include people committed of minor offences such as possession of marijuana plants. “We are not talking about serial killers, murderers or bank robbers,” Screak said. (“Bill could exile ‘thousands” of permanent residents for minor crimes,” by Nicholas Kung, Toronto Star, October 4, 2012). 

The current provisions of IRPA have considerable merit as they balance the risk faced by Canadians against humanitarian and compassionate factors including rehabilitation and the danger the individual poses to Canada in the short and long term. This is a debate that needs to occur before dramatic changes are made to the rights of Permanent Residents who are sentenced to between 6 months and 2 years less a day and have strong ties to Canada and who pose little or no threat to Canadians.

Edward C. Corrigan is a lawyer certified as a Specialist in Citizenship and Immigration Law and Immigration and Refugee Protection by the Law Society of Upper Canada in London, Ontario, Canada. He can be reached at corriganlaw@corrigan.ca or at (519) 439-4015.

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