Two strikes, you’re out!

1. Two strikes, you’re out!

2. TWO STRIKES, YOU’RE OUT ! Geraldine Sadoway Staff Lawyer, Parkdale Community Legal Services & Keyshawn Hyacinth/Danielle Leon Foun Lin Law Students, Osgoode Hall Law School 2007

3. The current Immigration and Refugee Protection Act (IRPA) became law in June 2002. Section 36(1) of IRPA provides that permanent residents and foreign nationals who have been convicted, either in Canada or abroad, of certain offences, may be denied admission to Canada or deported from Canada if they are “criminally inadmissible”.

4. Criminal inadmissibility is either “serious criminality” or “criminality”.

5. What is “serious criminality”?

8. Under s. 36(1) of IRPA a person convicted of an offence punishable by a maximum term of 10 years, or an offence for which 6 months imprisonment or more has been imposed is inadmissible for “serious criminality”.

9. For example: A permanent resident or a foreign national is convicted of assault with a weapon for throwing a box of nails at his landlord during an argument: The sentence was one day in jail but this man is now inadmissible for “serious criminality”.

10. What is “criminality”?

11. Under 36(2) of IRPA, “criminality” means: conviction for an offence punishable by indictment, or conviction for two summary offences not arising out of a single occurrence

12. For example: A foreign national is charged with uttering threats. She is prosecuted summarily and pleads guilty to this charge. She is convicted but given a suspended sentence. Since this is an offence punishable by indictment, she is inadmissible to Canada for “criminality”.

13. What is the “deeming” provision?

14. Section 36(3) of IRPA provides that 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.

15. This is to say, IRPA deems ALL hybrid offences to be indictable even if the Crown elects to proceed summarily.

16. In effect, IRPA ignores the Crown’s prosecutorial discretion and deems even minor offences to be serious for immigration law purposes.

17. What are the implications of the deeming provision for permanent residents and foreign nationals?

19. Permanent Resident If an Immigration Board Member determines that a permanent resident (also known as a “landed immigrant”) is criminally inadmissible for “serious criminality” he or she is ordered deported.

20. Foreign National If a foreign national is convicted of an offence which is deemed to be either “serious criminality” or “criminality” the foreign national is inadmissible to Canada as an immigrant, until rehabilitated or pardoned.

21. What are the implications for family members of criminally inadmissible foreign nationals?

22. “vicarious criminality”

23. What is “vicarious criminality”?

24. Under section 42 of IRPA, if one member of a family is criminally inadmissible, all the other family members are also inadmissible.

25. For example, if her 21 year old son is convicted of theft under $5000, his mother is inadmissible under section 42 of IRPA due to her son’s criminality.

27. To avoid this “vicarious criminality” it is necessary to seek a special exemption from section 42 of IRPA.

28. Does a permanent resident who has been ordered deported have a right to appeal the deportation order?

30. Pursuant to S.64(2) of IRPA, only those PRs sentenced to less than 2 years in jail have a right to appeal a deportation order to the Immigration Appeal Division (IAD) of the Immigration and Refugee Board (IRB).

31. For example: PR pleads guilty and is convicted of Possession of property obtained by crime. If he is sentenced to 2 years or more (including time served or “dead time”) then he does NOT have an appeal to the IAD.

32. He would be subject to immediate deportation from Canada.

33. But if this permanent resident received a sentence of less than 2 years, he would have an appeal to the Immigration Appeal Division of the IRB.

34. …..and the deportation order might be quashed, or (more likely) a stay of removal might be granted for a period of three to five years.

35. However if the PR is convicted of another hybrid offence during the stay, the stay is cancelled and he is subject to immediate deportation from Canada.

36. Two strikes, you’re out!

37. What happens in situations of domestic violence?

39. Scenario: Permanent resident is convicted of assaulting his spouse, causing bodily harm, and sentenced to 3 months imprisonment. This is deemed “serious criminality”.

40. An “inadmissibility report” under section 44 of IRPA is written by an immigration enforcement officer. The case is referred to the Immigration Division of the IRB where the permanent resident is ordered deported.

41. Since PR had been sentenced to less than 2 years, he has a right of appeal to the Immigration Appeal Division where his deportation order is stayed for five years.

42. However, during the 5-year stay, PR is convicted of another hybrid offence for which a term of 10 years could have been imposed… Under section 68(4) of IRPA, the stay is cancelled and the deportation is carried out with no further appeal to the IAD.

43. Two strikes, you’re out!

44. Unintended result for the immigrant community

45. Contacting police in domestic violence situations has the very real possibility for one’s spouse (who could also be one’s potential or actual sponsor, the father of one’s children or one’s provider) being deported.

46. Immigrant women want abuse to stop and want to be able to call the police and use the court system. However they do not necessarily want their abusive partner to be deported.

47. There is also concern that police sometimes countercharge the other spouse when investigating an incident of domestic violence, partly to ensure that the complainant appears in Court to testify.

48. So a victim of spousal assault, who is herself an immigrant, may find herself facing charges that could lead to a deportation order.

50. As a result, permanent residents and foreign nationals may be less likely to report domestic violence.