Conséquences d'une condamnation en matière d'immigration

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Principes généraux

The Immigration and Refugee Protection Act, SC 2001, c 27 renders foreign nationals and permanent residents inadmissible and subject to a removal order by virtue of certain types of criminal convictions depending on the circumstances.

A non-citizen person does not have an unqualified right to enter or remain in Canada.

There are four ground classes for which a person is inadmissible under the IRPA:

• security;
• criminality;
• serious criminality;
• organized criminality.

Persons who fall under any one of these categories may be deported, even to "moratorium countries."

Recommendation at Sentence

A sentencing judge may make a recommendation on the disposition of whether to deport an offender.

Security

Sécurité 34 (1) Emportent interdiction de territoire pour raison de sécurité les faits suivants :

a) être l’auteur de tout acte d’espionnage dirigé contre le Canada ou contraire aux intérêts du Canada;

b) être l’instigateur ou l’auteur d’actes visant au renversement d’un gouvernement par la force;

b.1) se livrer à la subversion contre toute institution démocratique, au sens où cette expression s’entend au Canada;

c) se livrer au terrorisme;

d) constituer un danger pour la sécurité du Canada;

e) être l’auteur de tout acte de violence susceptible de mettre en danger la vie ou la sécurité d’autrui au Canada;

f) être membre d’une organisation dont il y a des motifs raisonnables de croire qu’elle est, a été ou sera l’auteur d’un acte visé aux alinéas a), b), b.1) ou c).

(2) [Abrogé, 2013, ch. 16, art. 13]

2001, ch. 27, art. 34; 2013, ch. 16, art. 13.

– IRPA

Criminality and Serious Criminality

Criminality

Section 36(2) defines the class of offenders who are inadmissible on the basis of "criminality":

36
[omis (1)]

Criminality

(2) A foreign national is inadmissible on grounds of criminality for

(a) having been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment, or of two offences under any Act of Parliament not arising out of a single occurrence;

(b) having been convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, or of two offences not arising out of a single occurrence that, if committed in Canada, would constitute offences under an Act of Parliament;

(c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an indictable offence under an Act of Parliament; or

(d) committing, on entering Canada, an offence under an Act of Parliament prescribed by regulations.

[omis (3)]
2001, c. 27, s. 36; 2008, c. 3, s. 3; 2010, c. 8, s. 7; 2012, c. 1, s. 149.

– IRPA

Those who are inadmissible for criminality satisfy the following criteria:

1. they are "foreign nationals"
2. they were convicted of either:
   1. an indictable offence
   2. a hybrid offence, regardless of Crown election or
   3. "any two offences" that does not arise out of the same occurrence;
3. the convictions were in Canada or would have been an offence in Canada if committed elsewhere, regardless of foreign finding of guilt.

This class does not capture:

• persons who are "protected persons";
• offences where a "record suspension" has been granted (s. 36(3)(b) IRPA)
• offences where there was an acquittal (s. 36(3)(b) IRPA)
• offences where convictions were under the Youth Criminal Justice Act (s. 36(3)(e)(iii)).

Serious Criminality

Section 36(1) defines the class of offenders who are inadmissible on the basis of "serious criminality":

Serious criminality

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;

(b) having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; or

(c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years.

[omis (2) and (3)]
2001, c. 27, s. 36; 2008, c. 3, s. 3; 2010, c. 8, s. 7; 2012, c. 1, s. 149.

– IRPA

Those who are inadmissible for serious criminality satisfy the following criteria:

1. the person is a "permanent resident" or a "foreign national".
2. was convicted of an offence in Canada
3. the offence was one where either
   1. the maximum available penalty is 10 years or more
   2. the actual sentence imposed was greater than 6 months
4. if committed outside of Canada, whether or not convicted, would have been an offence with a maximum available penalty of 10 years or more.

Maximum Penalty

The maximum penalty refers to the maximum penalty at the time the offence was committed.

6 Month Sentence

The requirement of a sentence of 6 months or more must be a jail or prison sentence. It does not include conditional sentence orders.

Under s. 64(1) and (2), there is no right of appeal to the Immigration Appeal Division where the conviction is for 6 months or more.

In calculating the amount of time served, pre-trial custody will be included.

The set period of imprisonment is calculated on a per-charge basis. A global sentence in excess of the limit will not trigger inadmissibility unless one or more of the individual charges has a sentence in excess of the set period of imprisonment.

Subsequent Offences

Where a person receives a "stay of removal" after a finding of criminality or serious criminality, any subsequent convictions for serious criminality will cancel the stay order.

Exemptions

This class does not capture:

• persons who are "protected persons";
• offences where a "record suspension" has been granted (s. 36(3)(b) IRPA)
• offences where there was an acquittal (s. 36(3)(b) IRPA)
• offences where convictions were under the Youth Criminal Justice Act (s. 36(3)(e)(iii)).

An offender who receives a discharge as a sentence are not "convicted" within the meaning of s. 36 IRPA.

Application

36
[omis (1) and (2)]

Application

(3) The following provisions govern subsections (1) and (2):

(a) an offence that may be prosecuted either summarily or by way of indictment is deemed to be an indictable offence, even if it has been prosecuted summarily;

(b) inadmissibility under subsections (1) and (2) may not be based on a conviction in respect of which a record suspension has been ordered and has not been revoked or ceased to have effect under the Criminal Records Act, or in respect of which there has been a final determination of an acquittal;

(c) the matters referred to in paragraphs (1)(b) and (c) and (2)(b) and (c) do not constitute inadmissibility in respect of a permanent resident or foreign national who, after the prescribed period, satisfies the Minister that they have been rehabilitated or who is a member of a prescribed class that is deemed to have been rehabilitated;

(d) a determination of whether a permanent resident has committed an act described in paragraph (1)(c) must be based on a balance of probabilities; and

(e) inadmissibility under subsections (1) and (2) may not be based on an offence

(i) designated as a contravention under the Contraventions Act,

(ii) for which the permanent resident or foreign national is found guilty under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, or

(iii) for which the permanent resident or foreign national received a youth sentence under the Youth Criminal Justice Act.

2001, c. 27, s. 36; 2008, c. 3, s. 3; 2010, c. 8, s. 7; 2012, c. 1, s. 149.

– IRPA

Organized Criminality

Section 37(1) defines the class of offenders who are inadmissible on the basis of "organized criminality":

Organized criminality

37 (1) A permanent resident or a foreign national is inadmissible on grounds of organized criminality for

(a) being a member of an organization that is believed on reasonable grounds to be or to have been engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence punishable under an Act of Parliament by way of indictment, or in furtherance of the commission of an offence outside Canada that, if committed in Canada, would constitute such an offence, or engaging in activity that is part of such a pattern; or

(b) engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or laundering of money or other proceeds of crime.

Application

(2) Paragraph (1)(a) does not lead to a determination of inadmissibility by reason only of the fact that the permanent resident or foreign national entered Canada with the assistance of a person who is involved in organized criminal activity.
2001, c. 27, s. 37; 2013, c. 16, s. 15; 2015, c. 3, s. 109(E).

– IRPA

Those who are inadmissible for organized criminality satisfy the following criteria:

1. the person is a "permanent resident" or a "foreign national"
2. either:
   1. "being a member of an organization that is believed on reasonable grounds to be or to have been engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence punishable ...by indictment... or engaging in activity that is part of such a pattern" , or
   2. “engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or laundering of money or other proceeds of crime”

Under s. 64(1) and (2) IRPA, there is no right of appeal on finding of "organized criminality".

Two Approaches to Sentencing

There are two considered approaches to sentencing where deportation is at issue.

One approach is to take a two step process:

1. determine an appropriate sentence should be without factoring the immigration consequences;
2. determine whether it would be appropriate to reduce the sentence to avoid impact of the immigration consequences.

Another approach is to consider the immigration consequences "along with along with all of the other personal factors in determining the appropriate sentence."

No Separate Sentencing Range

Despite immigration consequences being a consideration on sentence, it should not have the effect of creating a "separate sentencing scheme" with a "special range of sentencing options where deportation is at risk."

"Term of Imprisonment"

The phrase "term of imprisonment" found in s. 36 of the IRPA has a different meaning than in the Criminal Code. Under IRPA it does not refer conditional sentence orders.

Appealing Serious Criminality Violation

No appeal for inadmissibility

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.

Serious 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).

Misrepresentation

(3) No appeal may be made under subsection 63(1) in respect of a decision that was based on a finding of inadmissibility on the ground of misrepresentation, unless the foreign national in question is the sponsor’s spouse, common-law partner or child.
2001, c. 27, s. 64; 2013, c. 16, s. 24.
[annotation(s) ajoutée(s)]

– IRPA

Staying a Removal Order

Removal order stayed

68 (1) To stay a removal order, the Immigration Appeal Division must be satisfied, taking into account the best interests of a child directly affected by the decision, that sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case.

Effect

(2) Where the Immigration Appeal Division stays the removal order

(a) it shall impose any condition that is prescribed and may impose any condition that it considers necessary;

(b) all conditions imposed by the Immigration Division are cancelled;

(c) it may vary or cancel any non-prescribed condition imposed under paragraph (a); and

(d) it may cancel the stay, on application or on its own initiative.

Reconsideration

(3) If the Immigration Appeal Division has stayed a removal order, it may at any time, on application or on its own initiative, reconsider the appeal under this Division.

Termination and cancellation

(4) If the Immigration Appeal Division has stayed a removal order against a permanent resident or a foreign national who was found inadmissible on grounds of serious criminality or criminality, and they are convicted of another offence referred to in subsection 36(1), the stay is cancelled by operation of law and the appeal is terminated.

– IRPA

Under s. 50 IRPA, the imposition of a term of imprisonment will have the effect of staying any removal orders. But a probation order stay removal.

Section 50 IRPA also has the effect of staying removal while the accused has pending charges in Canada. Collins v Canada (Attorney General), 2012 FC 268 (CanLII), 406 FTR 87, per Near J
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History

In 2013, s. 68 was amended under the Faster Removal of Foreign Criminals Act, SC 2013, c 16. This Act, among other things, removed the right to appeal for offences punished by a penalty of 6 months or more.

Other Consequences

Citizenship

A person applying for citizenship must satisfy, among other requirements, the requirement of physical presence in Canada for a fixed duration. Time spent physically in Canada but under the following orders does not count towards the presence requirement:

• probation order
• parole
• serving a prison or jail sentence.

See Also

• Serving Sentences
• Consequences of Criminal Records After Sentencing