It’s all in the sentence

Immigration law can be harsh and leave little or no room for discretion, compromise, or forgiveness. This is certainly true for a permanent resident who has committed a criminal offence of a certain calibre.

Unlike citizens, permanent residents of Canada can lose their status and be deported if they commit crimes. As a means of possibly mitigating the severe consequences of deportation, a tribunal called the Immigration Appeal Board is empowered to hear deportation appeals and stay or quash removals if evidence of compelling humanitarian factors are presented and found to outweigh any risk to the public posed by the offender.

However, if the criminal sentence exceeds six months imprisonment, no appeal lies to the appeal board and removal from Canada is immediate, regardless of length of residency, family ties, children, or evidence of rehabilitation. It is a firm, blind line drawn through compassion.

It is also often simply unjust. Children have been left fatherless or motherless, or forced to leave the country of their birth and long residency because their parent was convicted and sentenced to six months in prison. This accumulation of time can include pre-sentence custody at 2:1. That means an offender in prison for three months pre-trial custody and given 2:1 credit at sentencing for his offence and nothing more loses his appeal right and is banished from Canada if a permanent resident.

The injustice of this process was exacerbated by the fact that many criminal lawyers and their clients had no understanding of the cut-off of appeal rights at a sentence mark. Guilty pleas were entered with the expectation that the permanent resident offender would then have his day in immigration court. Not so when the sentence was too long.

The Supreme Court of Canada recognized this inequity in its decision in R v. Pham, holding that a sentence could be reduced to account for this immigration consequence.

In Pham, at the criminal hearing, the defence and Crown made joint submission for a two-year sentence. (At that time, the cut-off of appeal rights was two years, later reduced to six months.) The defence lawyer was not aware that the law had changed and that the appeal rights would be lost with such a sentence.

On appeal to the Supreme Court, the court held that the immigration consequences were collateral consequences to the sentence and a judge could take them into account in exercising discretion, provided the sentence imposed was proportionate to the gravity of the offence and degree of responsibility of the offender.

The court did have this caution: The sentence can’t be misused to create an artificial sentence to circumvent Parliament’s will. That means if a sentence is varied to avoid collateral consequences, the further the varied sentence is from the range of appropriate sentences the less likely it will remain proportionate.

In Pham, the trial judge had not been aware of the cut-off of immigration appeal rights and so the Supreme Court overturned the sentence and reduced it by one day to maintain his right of appeal. It was the just thing to do, and the Supreme Court did it.