Criminal Lawyers and Immigration Law

Introduction

Under present Canadian Immigration Law, Permanent Residents (PR) and Foreign Nationals (FN) can find him or herself inadmissible as a result of various kinds of criminal activity[1].  In this article I intend to briefly deal only with those issues related to offences committed in Canada.  I

When a criminal lawyer handles the case of a Foreign National or Permanent Resident the lawyer must take into account additional considerations that would be irrelevant in the case of a citizen.  In particular, a plea bargain might be the rational choice in the case of a citizen who is not vulnerable to deportation, but could in the case of a foreign national or permanent resident lead to facts which give rise to removal proceedings.

Permanent Residents

There are a number of IRPA provisions dealing with various crimes which could render a person inadmissible and lead to deportation.  However, the most common provisions would be the s.36(1) “serious criminality provisions” of IRPA.  These provisions state that a PR would be inadmissible if convicted of an offence punishable with a term of imprisonment of at least 10 years or, has received a sentence of 6 months or more.

Obviously, having knowledge of these factors would be critical when determining whether to plea or go to trial depending on the nature of the crime.

Foreign Nationals

The criminality provisions relating to Foreign Nationals are more stringent than those applicable to Permanent Residents.  S. 36(2) of IPRA indicates a Foreign National is inadmissible if convicted in Canada of an indictable offence, or two convictions of any kind of offences.  Thus, two summary convictions would meet the definition in this provision and could lead to deportation.

Of even greater concern are the provisions under S. 36(2)(d) which indicate that a Foreign National can be inadmissible if Immigration has reason to believe that the Foreign National has committed an offence which would include offences under the IRPA, the Criminal Code, the Firearms Act, the Customs Act or the Controlled Substances Act.  Of particular note is the fact that this provision can be invoked based on “committing” and act and does not require a conviction.

Again, when a criminal lawyer considers a client’s options, even for a relatively minor summary offence, the criminal lawyer must be cognizant of how any such a plea or conviction will impact the client’s immigration status.

Criminal Lawyers

Some criminal lawyers deal with the immigrant community on a regular basis and may be familiar with these provisions and the relevant case law.  However, we see many instances where clients come to us long after they have dealt with their criminal cases only to find that they have plead out to an offence which renders them inadmissible.  Accordingly, clients must be certain to make their immigration status well known to their lawyers and ensure these factors are considered when assessing how to proceed with their criminal cases.  In cases where a criminal lawyer finds him or herself dealing with a situation which has a complex immigration component, it is always advisable to seek the opinion of an Immigration lawyer for an opinion on the Immigration consequences of a particular plea or conviction.

[1] I will also not deal with the narrow set of criminal offences which may lead to the revocation of one’s citizenship.

Posted in Uncategorized |

Please note: There is no solicitor-client privilege attached to this communication.  Sending an e-mail to Levine Associates will not make us your lawyers.  You will not be considered a client of the firm until we have agreed to act for you in accordance with our usual policies for accepting clients.  Unless you are a current client of Levine Associates, please do not include any confidential information in your e-mail, because no information you send us can be held in confidence, and no information we provide to you can be treated by you as legal advice, unless and until we have agreed to act for you.  There is no solicitor-client privilege attached to this communication.