Crimmigration -a discussion with Jatin Shory and Ian McKay -Part I

My friend Jatin Shory (who also practices immigration and refugee law) had asked Ian McKay (an experienced criminal defense lawyer here in Calgary) and myself to give a presentation to the CBA Immigration Section on ‘crimmigration’ in February. Part I of our discussion follows…

Jatin Shory:                       [Raj] … is also a lecturer of the University of Calgary, and he commonly appears at all tribunal levels, and also at the Federal Court and the Federal Court of Appeal. And a quick plug in for him, he is also the author of the newly minted Inadmissibility and Remedies. I know we’re going to get into that, but if you haven’t gotten your copy, go and take a look. Mine’s already tabbed up. Great place to start when you’re jumping into this very stressful space. With the introductions aside guys, I think I’m going to just go ahead and jump right into some of these more open-ended questions. For those who are here today, there is a Q&A button at the bottom of your screen. Feel free to drop questions wherever you like, we will get to them at the end.

Jatin Shory:                        Today’s more of a discussion, trying to get some best practices advice. If you have specific questions about the law-specific sections, please drop them in there. I’m sure either one of our speakers today would be more than happy to walk you through some of that. So, Ian, I’m going to start with you. I practice immigration refugee laws, so when I come across criminal matters, the first thing I think is, who’s a criminal lawyer? Some of the things I try to understand, from your perspective, is some of the more common situations that you find immigration intersecting with the work that you do, as a criminal defense lawyer.

Ian McKay:                         That’s a good question and something that’s been more at the forefront over the last, I’d say, five or six years. When I first started off doing some criminal law, a long time ago, it’s not something that you usually thought about. But now it becomes part of your file, basically right from the beginning. One of the things that I’ll do as soon as a new potential client comes in and I’m interviewing them … One of the questions I always ask them is, “What is their immigration status?” Some will look at me quizzically and others will offer it up right away. One of the things you want to … If you have a client that comes in and he says, “I’m a Canadian citizen.” Then you’re done, you move on. But if you have a client that comes in that talks about they’re permanent resident, here on a work visa, student visa, whatnot, then you have got a number of considerations that you have to consider, basically from the start of your mandate.

Ian McKay:                         One of the things you always recognize is the consequences of immigration issues in the criminal sphere, can be huge. It is the added complexity of your file that you have to take that into account, basically from the start of a mandate to the end. When you keep that in mind all the way through the process, the one that comes up most of the time, when you’re dealing with the immigration issues, when it comes into the new negotiation and sentencing part of it … Because there are certain things that can happen if you put someone out, and they get a prison term of six months and over, and they’re permanent resident, you lose rights of appeal, and whatnot, in the immigration … Part of it.

Ian McKay:                         One of the things we always have to be aware of, and there are a number of times when it comes to these types of things when I’m negotiating with the crown, I will actually retain the services of an immigration lawyer to give me an opinion, because that can go a long way. Not only knowing what the proper resolution is so they avoid the immigration consequences, but also it can be very beneficial when you’re dealing with the crown to say, “Look, this position you take is unreasonable because I have a [inaudible 00:04:20] here from Raj Sharma that says if this happens, they’re going to get kicked out of the country or a very real possibility they’re going to get kicked out of the country.” So I will oftentimes do that, more so lately. But those are things that I often look for.

Jatin Shory:                        Interesting. Do you find … You’ve been practicing a while, do you find the crown has over time become a little more sympathetic to the reality of immigration consequences in your ECR discussions, or what have you?

Ian McKay:                         Yes, I have. And I find it’s more so the younger to middling crowns, are usually pretty good. Some of the more senior ones are still pretty good. Others can be a bit old school and they sometimes don’t give a damn. But I’m finding more they’re open to those discussions and open to wanting to avoid them leaving the country.


Jatin Shory:                        … I guess a question for Raj because the immigration space. I think understanding everything that happened, especially in criminality matters is pretty big. I know, Raj, in your book, chapter four, you speak a lot … The chapter gives a lot of just information and context. Things to think about when you’re dealing with matters of criminality. I was wondering if maybe … I know we’re not going to go through all of it, but I know you came prepared to maybe pull up some sections and walk us through, off on the immigration side. If a file like this walks in the door, what are you thinking? Where are you heading with this matter?

Raj Sharma:                       Yeah, for sure. I think, probably everyone understands or knows that foreign nationals and, to a lesser extent, permanent residents remain strangers in the strange land. The IRPA has prioritized enforcement. … And criminal consequences will follow. … So many years ago, even when I started, IRPA was brand new. Prior to that, the IAD had greater jurisdiction, right of appeals for … You could have manslaughter level cases and sentences that were just well over five years and they would still have the ability to seek out discretionary relief, or a permanent resident would still have the ability to seek out discretionary relief at the IAD. So all of that has changed. This is the reality that we face, is that foreign nationals and permanent residents can be removed from Canada.

Raj Sharma:                       The criminality regime within the IRPA is very structured… But at the same time, it’s important not to lose hope and give up hope and just assume that things are a foregone conclusion. And so I’ll reiterate what Ian said, is that number one, status matters. And so if you’re practicing in criminal law, then understand that 20% plus of Canadians are born outside of Canada. And we have hundreds of thousands of foreign nationals at any given time. We have obviously hundreds of thousands of permanent residents. So number one, status matters. Now, double check, don’t take your client at their word as to what status they have. So you might … And this was back … Ian, you’ll remember this. Now I sound like an old timer myself. Remember the FK/FOB days.

Raj Sharma:                       A lot of these kids, these gangsters, or what have you, were in Canada since they were toddlers. And so they thought that they were citizens. And so they assumed that they’re citizens and you have to double check that if your client says, “I’m a citizen.” “Well, really? Where were you born?” And things of that nature. So, status matters, but double check that because some people assume that they’re citizens, when they’re not. Conversely … I had a very interesting case. Many years ago, Legal aid had asked me to go assist someone. This person was born in Scotland. He came to Canada when he was three or four years old. He had racked up 50 plus convictions in Canada. And so I’m looking at this rap sheet, longer than Pat King’s arm.

Raj Sharma:                       And I thought “this is not good because he’s a permanent resident. We’ve got these sentences. We don’t have a right of appeal to the IAD.” And so I went to the IAD, and basically I was holding his hand through this process. His mom is there. He’s born in Scotland. Mom was there. Mom’s got this thick, Scottish accent. She’s crying outside the hearing room. So I started talking to mom… “What happened? Why didn’t he apply for citizenship? She explained that “We had him in Scotland. Then we moved back to Canada.” I then asked, “Moved back? What do you mean moved back?” And she said, “Well, I was born here. And I’d gone to Scotland and got married with his dad, had him, and then we moved back.” And, that was almost like winning a lottery, I said, “Oh, okay.” Walked back into the hearing room. Announced, “We’re done. My client is a first generation Canadian, born outside Canada. And you don’t have jurisdiction over him.”

Raj Sharma:                       Those things are rare, but it highlights the point that you have to determine the status of your client. And sometimes it’s not actually clear. I’ll give you another example. It could be a permanent resident of Canada … So I have a permanent resident of Canada, came here when he was a child and many years later convicted of sexual assault. And sentenced to more than six months in jail. This is classified as a major sexual assault. I think the starting point is around three years or so. In that case, someone like that is usually hooped…But, he had in fact got his permanent resident status through a CR category, he was a Convention refugee. What that means is that now he needs a danger opinion to deport him.

Raj Sharma:                       So it’s very interesting when we say status, you’re right, determine status, but status is actually much more nuanced than we think it is. It could be a permanent resident with some sort of protected person status, which will give them that additional layer of security, for example. It could be a permanent resident who thinks that they’re … It could be a citizen who thinks they’re a citizen, but they’re actually a PR. It could actually be a citizen, but thinks that they’re a PR, that’s rare. And that’s like winning the lottery. But it’s important to determine status off the get go, because the status in Canada determines then … A number of things flow from there. So if you’re foreign national in Canada, even a scintilla of criminality will result in inadmissibility, other than a straight summary. And Ian will know this better than me, but there’s only 13 or 14 straight summary offenses.

Ian McKay:                         There aren’t too many.

Raj Sharma:                       So, there’s that. And then of course, if you’re a permanent resident, then we’ll get into this potential for appeal. And we can talk about [inaudible 00:17:10], which really exemplifies a number of different concepts. We have a question from an attendee, “How do you double check your client’s immigration status?”

Raj Sharma:                       Yeah, I think questioning will solve 99% of cases. It’s important that you also understand what status is and how that status … For example, you could have a foreign national, but that person is a protected person. A protected person is a foreign national in Canada, but again, can’t be removed from Canada because of section 115 of the Act. So most of the time they’re going to be a TRV holder, or someone with temporary resident status in Canada. For example, they’ll be student, worker, vista or a overstay. If it’s a refugee, then different things matter. If it’s a permanent resident … You typically know it’s a permanent resident, “How did you come to Canada? How did you get this status? When did you come to Canada?” So you can ask those questions. And of course, there’s the immigration documents. Always ask … Now that I got that Scottish guy, his citizenship … Always ask like, “Okay, where were your parents born? What was your parents’ status at the time of your birth?” Could be interesting to add that to the mix.