Consequences of Criminality on Immigration Status

Raj Sharma KC, an experienced immigration lawyer, delivered his annual presentation to Student Legal Assistance (SLA) on the intersection of criminal law and immigration law in Canada. He outlines the critical hierarchy of immigration statuses, details how different levels of criminality affect non-citizens, explains the post-conviction enforcement process, and provides practical advice for SLA caseworkers on client intake, case management, and professional documentation.

The Legal Framework: Status Hierarchy and Criminal Inadmissibility

This section establishes the foundational principles for assessing immigration jeopardy. Raj Sharma first defines the three-tiered hierarchy of legal status in Canada—citizen, permanent resident, and temporary resident—explaining the distinct rights and vulnerabilities of each. He then details the specific provisions of the Immigration and Refugee Protection Act (IRPA) that define “criminality” and “serious criminality,” using case examples like the Humboldt bus crash to illustrate how maximum potential sentences and actual sentences imposed trigger different consequences, including the critical loss of appeal rights.

  • Hierarchy of Status: The starting point for any case is to determine an individual’s status, which dictates their rights and potential immigration consequences.
  • Citizens: At the apex, citizens cannot be deported under IRPA. However, criminality can have secondary consequences, such as being barred from entering other countries like the United States, necessitating a waiver. This is amplified by information sharing among the “Five Eyes” nations (Canada, US, UK, Australia, New Zealand).
  • Permanent Residents (PRs): This group has more rights than temporary residents but can face deportation for “serious criminality.”
  • Temporary Residents: This category includes international students, visitors, and foreign workers. They are the most vulnerable and can face immigration consequences for a much lower level of “criminality.”
  • Determining Status: Status is not always straightforward. Mr. Sharma recounted a case where a client with over 50 convictions, presumed to be a PR, was discovered to be a citizen by descent because his mother was born in Canada, thereby preventing his deportation. He also noted that due to recent legislative changes, citizenship can be passed down to children born abroad, as exemplified by Elon Musk’s children being entitled to Canadian citizenship.
  • Criminal Inadmissibility under IRPA (Section 36):
  • Serious Criminality (Affects PRs): This is defined as a conviction in Canada for an offence with a maximum potential sentence of 10 years or more, or a conviction that results in an actual jail sentence of more than six months.
  • Criminality (Affects Temporary Residents): Any conviction for an offence beyond a straight summary offence (of which there are only about 14-15 in the Criminal Code) can trigger immigration consequences.
  • Hybrid Offences: Under IRPA, hybrid offences are always deemed indictable, regardless of whether the Crown proceeds summarily.
  • The Critical Importance of Sentencing:
  • Maximum Sentence: For PRs, the maximum possible sentence for an offence is a key trigger. An assault with a weapon (max sentence of 10 years) creates jeopardy, while a simple assault (max sentence of 5 years) may not.
  • Actual Sentence: A sentence of more than six months is a critical threshold, as it eliminates the right to appeal a removal order to the Immigration Appeal Division (IAD), which can consider humanitarian and compassionate factors.
  • The Humboldt Case: The truck driver, a permanent resident, received an eight-year sentence, precluding any IAD appeal. Mr. Sharma noted that had the sentence been structured as consecutive sentences with no single sentence exceeding five months and 29 days, the appeal right would have been preserved.

The Enforcement Process and Non-Conviction Outcomes

This section outlines the procedural steps following a criminal conviction that triggers immigration consequences, starting with the issuance of a Section 44 inadmissibility report. It explores the legal debate around an officer’s discretion in this process, referencing the Sidhu and Campagna cases. Furthermore, it explicitly lists the types of legal dispositions—such as acquittals, discharges, and peace bonds—that do not constitute a conviction under IRPA and therefore do not result in immigration jeopardy, providing a clear pathway for avoiding such consequences.

  • Post-Conviction Enforcement:
  • Section 44 Report: The process begins when an immigration officer writes a Section 44 report, which functions like an information in criminal law, alleging inadmissibility. This report can lead to a deportation, exclusion, or removal order.
  • Officer Discretion: There is a divergence in case law on whether an officer has the discretion not to write a Section 44 report. The Sidhu case (via Justice Crampton) suggests no discretion, while the Campagna case (via Justice Norris) indicates that if an officer requests and assesses submissions, they must genuinely entertain them.
  • Removal Hearings: A permanent resident facing removal will get a hearing at the Immigration Division. A temporary resident convicted in Canada of a criminal offence will face a removal order without a hearing.
  • Avoiding Immigration Jeopardy: The following dispositions do not result in a “conviction” under IRPA and therefore prevent immigration consequences for both permanent and temporary residents:
  • Acquittal
  • Absolute or Conditional Discharge
  • Peace Bond
  • Stay of Charges or Withdrawal of Charges
  • Finding of Not Criminally Responsible (NCR)
  • Post-Conviction Remedies: An uninformed plea can be set aside based on the Supreme Court of Canada’s decision in R. v. Wong. This can be a viable post-conviction strategy to vacate a conviction that has triggered immigration consequences.
  • Collateral Consequences (“Double Jeopardy”): Immigration law effectively punishes an individual twice for the same offence. A criminal sentence is served, and then the person faces a second penalty of deportation. This reality is recognized by Canadian courts (R. v. Pham), which are supposed to consider collateral consequences, including immigration status, when determining a proportionate sentence.

Practical Guidance for Client Intake and Case Management

This section transitions from legal theory to practical application, focusing on the specific operational needs of the Student Legal Assistance (SLA) clinic. The discussion centres on refining the client intake process, particularly the necessity of verifying immigration status through official documents and asking crucial questions about parental citizenship. It also addresses practical challenges such as managing language barriers with interpreters and correctly identifying which offences pose an immigration risk based on client-provided examples.

  • Refining the Intake Checklist: Mr. Sharma stressed the need for a robust checklist to screen for immigration issues.
  • Verify Status: Do not assume a client’s status. Ask to see the physical document (PR card, work/study permit, citizenship card) and note how the status was verified.
  • Parental Status: Add the question: “Where were your parents born at the time of your birth?” This can uncover claims to citizenship by descent.
  • Refugee Status: Distinguish between a “refugee claimant” (claim made, no decision) and a “protected person” (claim accepted). A protected person has an additional layer of protection against removal and requires a “danger opinion” before deportation can occur.
  • Identifying Problematic Offences:
    • Act of Parliament: IRPA consequences are only triggered by convictions under a federal Act of Parliament. Provincial offences, such as those under a provincial Highway Traffic Act  do not lead to immigration inadmissibility.
    • Client Examples:
  • Theft Under: For a PR, this offence (max sentence under 10 years) typically does not create inadmissibility unless the actual sentence imposed is over six months. For a refugee claimant, it would not lead to removal but could delay their PR application.
  • Flight from Police: A provision stating “not more than 10 years” means a maximum of exactly 10 years, which overlaps with IRPA’s “10 years or more” rule and therefore creates immigration jeopardy.
  • Managing Language Barriers:
  • Use professional interpreters when possible.
  • Clients often bring family or community members. While this implies consent, advisors should be alert. If a long, detailed answer from the client results in a very short summary from the interpreter, it may be a red flag.
  • Technology like Google Translate can be a supplementary tool.

Professional Practice and Risk Mitigation for Legal Advisors

This section provides crucial advice on professional responsibility and best practices for the SLA team. Raj Sharma emphasizes the paramount importance of creating detailed, contemporaneous notes as the primary method of documenting advice and mitigating liability. He advocates for creating institutional knowledge through checklists and procedure manuals to ensure consistent, high-quality service. The conversation also highlights the strategic value of early intervention in cases where a minor adjustment to a sentence or plea can prevent catastrophic immigration outcomes.

  • The Primacy of Note-Taking: The single most important practice for risk mitigation is taking detailed, contemporaneous notes. Your notes should clearly document that the client was advised of potential immigration jeopardy and was recommended to seek specialized counsel.
  • Institutional Knowledge and Procedures:
  • Checklists: Citing The Checklist Manifesto, he urged SLA to create, use, and regularly update formal checklists for screening immigration issues.
  • Manuals: Develop a standard operating procedure manual, perhaps in a binder with tabs for different client statuses (PR, temporary resident, etc.), to ensure consistency despite student turnover.
  • Referral List: Maintain a “rolodex” of experienced immigration lawyers who are willing to provide advice or take referrals (such as CLG and Legal Aid).
  • Strategic Intervention (The 80/20 Rule):
  • SLA’s role is primarily screening and flagging issues for referral.
  • Focus intervention efforts on cases where a small change can have a massive impact. For example, negotiating a sentence from six months down to five months and 29 days preserves a PR’s right of appeal to the IAD. This is a “huge difference” where early intervention is key.
  • The “Practice” of Law: Mr. Sharma concluded by reminding the students that law is a “practice” and a “work in progress.” The goal is to do the best possible job with the available information, document it thoroughly, and understand that navigating ambiguity is central to the profession.

Clarifications on Legal Concepts and Citizenship

This final section captures a series of direct questions from the audience seeking clarification on specific legal points. Topics include the interpretation of statutory language like “not more than 10 years” in the Criminal Code, the process for a permanent resident to become a naturalized citizen, and the historical context of a repealed law that created a “subclass” of citizenship. This segment serves to resolve ambiguities and deepen the audience’s understanding of key concepts discussed throughout the presentation.

  • Interpreting “Not More Than 10 Years”: When a Criminal Code provision specifies a maximum penalty of “not more than 10 years” (as in the case of flight from police), this includes a maximum of exactly 10 years. Since IRPA’s threshold for serious criminality is “10 years or more,” this overlap means the offence does create immigration jeopardy.
  • Permanent Resident to Citizen: A permanent resident can apply for Canadian citizenship after being physically present in Canada for three years. This process is called naturalization. The other path to citizenship is by descent (jus soli), for those born in Canada.
  • “Subclass” of Citizenship: A student asked if naturalized citizenship was a “subclass.” Mr. Sharma explained that this is not currently the case. However, a previous Conservative government under minister Chris Alexander passed a law creating a system where dual citizens could have their Canadian citizenship revoked if convicted of terrorism. This law, which effectively created two classes of citizens, was repealed by the subsequent Trudeau government.
  • Citizenship by Descent (Updated Rules): The law regarding passing citizenship to children born abroad has evolved. The Harper government had restricted it to the first generation born outside Canada. An Ontario court decision overturned this, and the law has since been changed. Now, a Canadian citizen by descent (like Elon Musk, whose mother was Canadian) can pass on their citizenship to their own children born outside of Canada.