Inadmissibility and Deportation of Permanent Residents in Canada
By Myrna El Fakhry Tuttle
Reposted from LawNow 46(2) with permission
Unlike Canadian citizens, non-citizens can be deported from Canada for various reasons. For example, for committing crimes, for breaching immigration laws, for being a security threat, for political reasons, etc. Deportation occurs when immigration authorities order individuals to leave a specific country. People who are deported are usually sent back to their country of origin.
Under the Canadian Constitution, the federal government enacts immigration laws and is in charge of deporting non-citizens from the country. In 2001, Canada enacted the Immigration and Refugee Protection Act (the IRPA).
The Immigration and Refugee Protection Act (the IRPA)
Under the IRPA, permanent residents have a limited right to enter and remain in Canada. Unlike citizens, permanent residents do not have a constitutional right to stay in the country. See section 6 of the Charter of Rights and Freedoms (the Charter).
The IRPA determines who is admissible to Canada. If a person lives in Canada and becomes inadmissible, that person may be subject to a removal order and might be deported.
Sections 34-42 of the IRPA list nine categories of inadmissibility, among them serious criminality, health grounds and financial reasons. This article will focus on inadmissibility on the grounds of serious criminality.
The Faster Removal of Foreign Criminals Act (the FRFCA)
In June 2013, Bill C-43 or the Faster Removal of Foreign Criminals Act (the FRFCA) came into effect. The FRFCA included changes related to admissibility and the right to appeal.
The FRFCA amended section 36(1) of the IRPA which now states:
A permanent resident or a foreign national is inadmissible on grounds of serious criminality for
a) having been convicted in Canada of an offence … punishable by a maximum term of imprisonment of at least 10 years, or of an offence … for which a term of imprisonment of more than six months has been imposed…
The FRFCA also amended section 64 of the IRPA which reads:
(1) No appeal may be made to the Immigration Appeal Division … if the foreign national or permanent resident has been found to be inadmissible on grounds of … serious criminality ….
(2) … serious criminality must be with respect to a crime that was punished in Canada by a term of imprisonment of at least six months…
Consequently, Canada can deport permanent residents who are convicted of an offence and sentenced to jail for more than six months. The deportation decision cannot be appealed.
Criminal Code Changes
In December 2018, Bill C-46 (section 320.19 (1)) amended the Canadian Criminal Code to include tougher immigration consequences for permanent residents and foreign nationals convicted of an impaired driving offence.
Impaired driving offences are punishable, under the updated Code, by a sentence of up to ten years of imprisonment rather than up to five years. This will render them a “serious crime”, which falls under section 36(1) of the IRPA. Therefore, permanent residents could lose their status and face deportation if they get convicted of an impaired driving offence in or outside Canada.
Criticism of the FRFCA
If a permanent resident receives a removal order, they cannot legally stay in Canada. They must leave the country. Permanent residents can lose their permanent resident status if a removal order is made against them and comes into force.
Under the former IRPA, permanent residents sentenced to a period of imprisonment of two years or more lost their right to appeal the removal order to the Immigration Appeal Division (IAD). The FRFCA amended this requirement and stated that permanent residents sentenced to six or more months of imprisonment become inadmissible on the grounds of serious criminality and lose their appeal rights to the IAD (section 64 of the IRPA).
The FRFCA made the change by amending the definition of “serious criminality” and consequently denying these individuals their right to appeal.
When it comes to the importance of the IAD, the Canadian Bar Association (CBA) stated:
The IAD considers the seriousness of criminality, likelihood of rehabilitation, establishment in Canada, level of community and family support, and hardship on family in Canada. It balances the need to protect Canadian society from further criminal behavior, and consideration of the circumstances of the permanent resident. It is a rational, transparent and necessary process. In some cases, a stay order is the sensible resolution: the permanent resident is given the opportunity to demonstrate that they should be allowed to remain in Canada. In other cases, deportation is appropriate.
The fact that the FRFCA denied permanent residents the right of appeal means these individuals will be removed automatically without an independent decision-maker looking into their unique situation, which might include:
· The fact that they came to Canada as a child and have lived effectively all their life in this country. They may have no family or connections in the country of their birth and may not even speak the language.
· They are suffering from mental health problems, which contributed to the commission of the crime.
However, in some criminal cases, sentencing judges take these considerations into account to avoid deportation.
In the 2018 case of R v Belakziz, Ms. Belakziz was a permanent resident born in Morocco. She was convicted of conspiracy to rob a bank. After she pled guilty, the Alberta Court of Queen’s Bench rejected the joint submission of the Crown and defence asking for a sentence of six months less one day, plus two-years probation. She was sentenced to two years less one day, reduced to 18 months for pre-trial custody and delay. Ms. Belakziz appealed the sentence.
The Court of Appeal stated:
The defence and the Crown were entitled to take into account the severe collateral immigration consequence that would result from a sentence over six months. The appellant was born in Morocco and had never become a Canadian citizen despite having lived most of her life in Canada. She had no family in Morocco, was relatively youthful, and had no prior criminal record. Deportation or the threat of deportation would be a particularly harsh consequence for this appellant.
The Court of Appeal reduced Ms. Belakziz’s sentence to six months less one day of imprisonment, followed by two years of probation.
Violation of the Charter
The consequences for a permanent resident of receiving a sentence of six months or more may violate the principles of fundamental justice under section 7 of the Charter. The denial of an appeal under IRPA section 64(2) violates the principles of fundamental justice in section 7 by not looking into the relationships that permanent residents developed in Canada through family, education, culture, work, etc.
The principles of fundamental justice determine what is at stake. Liberty and security will be removed from permanent residents, who may be deported to a country they have no relation to or have never been to, where they do not speak the language and will be separated from their family in Canada.
In addition, imposing a six-month sentence under the IRPA on permanent residents may be considered cruel and unusual punishment under section 12 of the Charter. Individuals can be deported to countries where they may be facing persecution and torture.
Commentary
Forbidding permanent residents from appealing the inadmissibility findings and the removal order can be cruel—especially for those who have been living in Canada for a long time.
Not all permanent residents with imposed sentences of six months or more should be deported from Canada without looking at other factors. The amended IRPA does not take into consideration whether:
· this was a single conviction or the individual had previous convictions as well
· family and children are dependent on the individual for care and support
· the individual has been in Canada for a short or long time
· the individual moved to Canada as a child
· the individual can be rehabilitated
Therefore, the federal government should revise sections 36(1)(a) and 64(2) of the IRPA. In addition, the IAD should look into, when it comes to removal cases, the seriousness of the criminality, the country to which permanent residents would be deported, their connections in Canada, and the effect of deportation on their family in Canada.