Proposed Immigration Legislation Unfair

By Patrick Rocca | October 3, 2012

Immigration lawyer Karen Kwan Anderson – I read with interest this article from the Toronto Star which begins,

Under a proposed new law, thousands of permanent residents could lose their status and be deported for minor convictions, from shoplifting to traffic and drug offences, warn Canada’s top immigration lawyers.

Section 7 of the Canadian Charter of Rights and Freedoms states that “Everyone has the right to life, liberty and security of the person and the right not be deprived thereof except in accordanace with the principles of fundamental justice.”

“Fundamental justice” means the concept of fairness, due process, equity.

Currently, a permanent resident who receives a sentence of two years or more loses the right to appeal a deportation order.  The proposed legislation shrinks the two year provision to 6 months.  This means permanent residents who receive a sentence of six months or more lose their right to appeal a deportation order.

This is unfair because even minor criminal convictions attract a potential penalty of over six months in jail.  Since they lose the right of appeal, they have no opportunity to present their case to an adjudicator of the Immigration Appeal Division (IAD) to consider humanitarian and compassionate grounds, which include long-time establishment in Canada, family connections in Canada, hardship if they were to be removed to a country to which they no longer have ties, and the best interests of any children directly impacted by a decision.

I’ve represented permanent residents who received deportation orders because they were convicted of various offences under the Criminal Code:  drug possession, fraud, assault, break and enter, and others.  However, because they received sentences of two years or less, their right to appeal the deportation orders were preserved. They – and their families – were overjoyed when the IAD eventually allowed the appeals after compliance with stay conditions was proven.

These individuals were not hardened career criminals.  They stumbled and committed offences either due to addictions or association with other influences.  The offences were isolated or due to a lapse in judgment.  They underwent treatment with proof of rehabilitation.  They were educated, volunteered, and had jobs, families, friends, property, savings in Canada.  Some were not but were trying to better themselves.

We presented these cases to the IAD.  The IAD’s function is to balance all factors, not just the negative ones, of an Appellant’s case.  The IAD has discretion to decide whether or not to allow an appeal based on careful consideration of the facts and evidence.  The proposed legislation would take away a permanent resident’s opportunity to plead his or her case before the IAD.  Is it fair to take away the right of appeal and send an individual back to a country to which they no longer have any connection, simply because they have a conviction for shoplifting?  If passed, the proposed legislation would likely not pass a Charter challenge.