Interview on the Jon McComb Show – February 5, 2019 – Immigration Consequences for Jaskirat Singh Sidhu Guilty Plea

Paul Jefferson:                  “Yes, we helped [inaudible 00:00:03] but at the same time he’s a human being who … he’s not a serial killer. He didn’t go out and kill anybody that day.”

Jon McComb:                    The thoughts of Paul Jefferson. He is a billet parent for the Humboldt Broncos. Speaking about Jaskirat Singh Sidhu at a sentence hearing last week and questions remain about the fate of the truck driver who caused the deadly Humboldt bus crash. He’s going to be sentenced on March 22nd for 29 dangerous driving causing death charges. Mr. Sidhu is a Canadian permanent resident but not a citizen. Any sentence over six months makes him liable for deportation back to his native India. Would a sentence of several years, or many years, make him eligible to be deported to India and is that the proper response in this kind of case? Joining us on the line now from Calgary is immigration lawyer Raj Sharma. Mr. Sharma, nice to have you on our program.

Raj Sharma:                        My pleasure.

Jon McComb:                    Tell me, because basically all people who come to Canada from another country, unless they become citizens, are liable for deportation if they commit a serious crime. Just first of all, how often does that happen?

Raj Sharma:                        Jon, it happens all the time.

Jon McComb:                    Does it?

Raj Sharma:                        Whether you’re a permanent resident or a foreign national, for example, if you’re a student or a temporary foreign worker, they actually have lower thresholds. It’s quite a bit easier to deport a foreign national student or a temporary foreign worker than it is for a permanent resident. Permanent residents have some more rights. The starting point, of course, is section 36 of the Immigration Refugee Protection Act. If you’re convicted of a crime in Canada that carries with it a max sentence of 10 years or more or a sentence of six months or more has been imposed then you can be found inadmissible to Canada. Now, inadmissibility does not necessarily equal deportation.

Jon McComb:                    Okay, explain the difference.

Raj Sharma:                        Well, an officer has to write a report. That report is called a section 44 report. Its kind of like an information for the police and that initiates the deportation process. So Mr. Sidhu, for example, he’s pled guilty and the sentences carry with it 10 years or more and he’s presumably going to be sentenced to six months or more so an officer has the discretion of whether or not to write a report. If the officer writes the report then it will result in a removal order. Now, will he then have a right of appeal to the Immigration Appeal Division is where they can consider humanitarian and compassion a factor.

Raj Sharma:                        So there’s a Vancouver sort of connection to all this. There’s the case of Beant Singh Khosa and his friend Bhalru who were street racing on Marine Drive and killed a woman in Vancouver. They got sentences of two years less. They got sentences of two years with eight conditional sentences. They were then … they appealed it, they lost their appeal. They were ordered deported and they actually went all the way to the Supreme Court of Canada. That’s the sort of insight, that’s where we get the sort of insight as to what could happen to Mr. Sidhu.

Jon McComb:                    What was the ultimate outcome of that case? Remind us.

Raj Sharma:                        In the Khosa case, both were ordered deported.

Jon McComb:                    Yes.

Raj Sharma:                        In this case, there is a way for example, there’s two ways for Mr. Sidhu to avoid deportation. Number one is that after his conviction, you could then put forward a case to the responsible officer and say, “Don’t write the report. Deporting him would be disproportionate given all the circumstances.” This is a very unique case. Mr. Sidhu was not street racing like Khosa and Bhalru. He was not drunk like some other cases that we have seen, as well. The moral culpability is different and so one approach is don’t write the report.

Raj Sharma:                        The second approach to preserve his appeal, you could have a very sort of creative sentencing approach. You could actually ask the sentencing judge, “Sentence him to 16 consecutive sentences of six months less a day” and that will get you close to eight years in jail but it will preserve a right of appeal to the Immigration Appeal Division.

Jon McComb:                    In a situation like this, because it would seem to me that yes, there is case law but I mean, a tragedy like this doesn’t happen regularly.

Raj Sharma:                        Thankfully, yes.

Jon McComb:                    Yeah, thankfully for sure. The fact that he pled guilty to all of the charges, he accepted the responsibility for what happened and you know, there was no drugs or alcohol involved, he wasn’t on his phone. I mean, all that kind of stuff. Does that play into, do those factors, are they considered as part of a possible deportation order?

Raj Sharma:                        Yes, I mean, the officer can consider those factors in deciding whether or not to write a report and Jon, I’ll tell you, I represent an individual here in Calgary, he was drunk, he was driving an Escalade, he t-boned a taxi, killing the taxi driver and the passenger. He was from Mexico and we sought the discretion of the officer, we asked the officer not to write the report. He had, you know, he’d done his sentence of four to five years and significant family here, a lot of remorse and the officer ultimately decided not to initiate the removal proceedings against him. This can certainly be the same outcome for Mr. Sidhu. Deportation is not a foregone conclusion, despite the wording of the law.

Jon McComb:                    Yeah and would deportation occur immediately or would he spend his time in a jail in India or would he serve the sentence here and then be deported?

Raj Sharma:                        No, the way our system is is that the individual will serve their sentence here and then be removed from Canada.

Jon McComb:                    Alright, Mr. Sharma, I appreciate your time this morning and your insight on this. Thank you.

Raj Sharma:                        Thank you.