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House Arrest & Deportation

THANH TAM TRAN left Vietnam in 1989 and became a permanent resident of Canada.  Twenty-four years later he was convicted in British Columbia of producing marihuana and given a 12-month conditional sentence.  Such a sentence is imposed as a term of imprisonment, but one which, because of the relatively innocuous nature of the particular offender, may be served in the community on strict terms and conditions.  In popular parlance a person on conditional sentence is said to be under “house arrest” because they usually must remain in their house either around the clock or during certain specified hours.

Conditional sentences were introduced in 1995 in response to what was perceived to be the too-frequent imposition of jail sentences.They are only available where the sentence to be imposed is under two years, the crime committed does not have a minimum sentence and the sentencing judge is satisfied that community safety will not be threatened by the house arrest of the offender.  They are useful because the offender may be able to continue to work or otherwise provide for himself or his family while under sentence, or may attend school or medical appointments.  They also save the government a good deal of money by reducing the jail population.  Compliance is monitored, and if the offender breaches the sentence, there is a hearing, and he may be committed to jail for the balance of the term.

When the immigration authorities employed Mr. Tran’s conviction as a basis for referring him for deportation, he applied to the Federal Court to stop the process from going further.  He argued that, according to the terms of the law, his conditional sentence was not serious enough to warrant the termination of his permanent resident status and removal from Canada.  The central question for determination by the Court in his case was whether or not Mr. Tran’s sentence met the threshold for his deportation.

Under Canada’s immigration statute a permanent resident may be ordered deported if he has been convicted of a crime which drew a sentence of six months in jail or more, or for which a maximum sentence of ten years in jail or more might be imposed.  Was Mr. Tran’s 12-month conditional sentence such a sentence?

Justice O’Reilly of the Court found that it was not.  He concluded that, while a conditional sentence may in some circumstances be characterized as a term of imprisonment, the context of the characterization is critical.  Conditional sentences, he noted, were conceived for those offenders who do not require actual incarceration, and not for those who have been engaged in “serious criminality”, as contemplated under Canadian immigration law.  The threshold in the immigration statute relates to actual time in prison, not time spent under house arrest, the Court observed.

Also addressed in the decision was the issue of the maximum possible sentence for the offence which the Court found should be assessed as of the date of conviction, not the date of its referral to the immigration decision-maker.  Further, the Court found the Immigration Officer’s referral to be unreasonable because it relied on arrests and charges as evidence of Mr. Tran’s ongoing criminal behaviour, although they were unproven allegations.

However the key aspect of this case going forward is the finding regarding conditional sentences.  If, as Justice O’Rielly found, they may not be described as terms of imprisonment, then those permanent residents sentenced to house arrest for periods of up to two years less a day may not be deportable.  Further, those already ordered deported for offences for which conditional sentences were imposed or who have been sponsored by a spouse but found inadmissible in similar circumstances may have a remedy to challenge that deportation that could include the right of appeal to the Immigration and Refugee Board (Immigration Appeal Division).

It should be noted that the Federal Court did certify two questions for the appeal of its decision respecting Mr. Tran, one on the conditional sentence issue and the other on retroactivity.   In the circumstances these issues cannot be said to be resolved and caution should still be exercised in making submissions respecting the sentencing of permanent residents.

You can review Mr. Tran’s case online here.

Go Straight Home!

IT’S HARD IN PRISON, but it’s harder if you are not a Canadian citizen.  Jamaican citizen John McLeod, who is incarcerated in a Canadian prison, and who is the subject of a deportation order, has learned that lesson well.

In Canada the inter-relation of provisions of the immigration and correctional law results in the removal from the country of deportable inmates as soon as they get parole.  As they are turned over for deportation as soon as they get out of jail, non-Canadians are denied the possibility of enhancing their rehabilitation through day parole and supervision in the community, something available to their Canadian counterparts.  Is this unequal treatment consistent with our Charter of Rights and Freedoms?

Mr. McLeod felt that it was not.  He asked for parole but was denied it, so he challenged the laws that prevented him from having the benefit of day parole and a gradual release back into the community.  Although the fine contours of his argument were not clearly stated in the court’s judgment, Mr. McLeod seemed to be suggesting that he wanted to have the benefit of day parole and that, if had had that benefit, he might have been in a better position to get full parole later because, by obtaining and then successfully completing day parole, he could have proved he was ready for full parole.

It is certainly the case that a Canadian in Mr. McLeod’s situation would have had a better shot at parole than Mr. McLeod did.  A Canadian could have argued that although he might not yet be ready for full release into the community (full parole), he could at least meet the lower standard necessary to establish he could function at a halfway house under much closer supervision (day parole).  Mr. McLeod did not have that option as, if he had been granted day parole, he would have been immediately deported.  In other words, Mr. McLeod could not achieve his objective of securing release, because he did not have access to all of the tools that Canadians have to realize such an objective.

It should be noted that, as a practical matter, with the law as it is currently constituted, it is highly unlikely that the Parole Board of Canada, knowing that a grant of day parole would trigger Mr. McLeod’s removal from Canada, would grant him day parole.  From the perspective of the members of the Board, it would be illogical to carefully consider his plan, presented at a parole hearing, to be released to a Canadian day parole facility that he would never see, because he would be deported before he got there.  Knowing that an applicant for parole will be deported, the Board is generally only interested in considering a plan for parole for the purposes of deportation where the person before them is subject to a deportation order.  The Board Members only want to know what a person in Mr. McLeod’s situation will do when he gets back to Jamaica, as removal there is the only possible outcome of a grant of parole.

So how did the Federal Court address the issues raised by Mr. McLeod?  First, Mr. Justice Rennie said that he did not believe that there was a factual basis for addressing them at all, because the Parole Board had concluded that Mr. McLeod was not ready for any kind of parole, and therefore he was not denied parole because of the deportation order against him.

As respects the legislation, the Court noted “Parliament has the right to prescribe the conditions under which foreign nationals who are convicted in Canada will be removed from Canada” and continued:

As the applicant has no right to remain in Canada, he has no right to access Canadian society under terms and conditions that are available to Canadian citizens; hence no Charter issue arises from the decision by Parliament to link the removal to the completion of sentence, namely the first date of some form of parole eligibility.

Likewise, Mr. McLeod was not arbitrarily detained, because the loss of a day parole option for him was rationally connected to sentencing objectives within the context of having no right to remain in Canada.  While persons in Mr. McLeod’s position are treated differently than Canadian citizens, the Court noted that “not all distinctions are discriminatory” and Mr. McLeod was not denied day parole because of circumstances beyond his control, but because of the interplay between his choices not to become a citizen and to commit a crime.

As a result, it is now clear non-Canadians can be denied parole options available to Canadians, and there will be no violation of the equality, fundamental justice or arbitrary detention provisions of the Charter.  Once a non-Canadian penitentiary inmate is ordered deported, he will be removed to his country as soon as he gets full parole, which is his only release option.

Still, there was at least one question left unaddressed by the Court that might form the basis for future consideration.  Given that the promotion of international justice is an objective of immigration legislation, can it be said that that objective is achieved by deporting to another country offenders who have not had the opportunity to rehabilitate themselves through day parole and gradual release into the community?

The McLeod decision may be found here.

Schizophrenia and Deportation

CLEARLY, SCHIZOPHRENIA IS A SERIOUS MENTAL ILLNESS.  What has not been so clear is what that fact should mean for those who suffer from it and are facing deportation at an immigration hearing.  The rules respecting immigration boards in Canada require that a special “designated representative” be appointed to represent a person who is “unable, in the opinion of the applicable division [of the Board], to appreciate the nature of the proceedings”.  The idea is that such a designated representative can assist the person concerned by retaining a lawyer for him or her, if necessary, and by instructing the lawyer.

The question before the Federal Court of Appeal in Hillary was whether the mere fact that a tribunal knows someone appearing before it suffers from schizophrenia means the tribunal has to appoint a designated representative to assist that person when that person already has a lawyer.  That may sound like a complicated and rather particular question, but the fact is that the issue comes up quite regularly before the Immigration and Refugee Board, because so many of those with serious mental illnesses drift to the margins of society, fail to take out Canadian citizenship, and become substance abusers and petty criminals, or worse.

Wayne Anthony Hillary was just such a person.  He came to Canada from Jamaica when he was 13 years old and, upon arrival, was conferred permanent resident status.   In the nearly 30 years since then he was diagnosed with schizophrenia, developed a crack cocaine addiction, became HIV positive and accumulated a series of convictions.  There were some procedural twists and turns after that which are, for the purposes of our story, irrelevant.  Suffice it to say Mr. Hillary was ordered deported and had an appeal hearing at which he testified, with the assistance of a lawyer.  While the panel hearing the case knew he was schizophrenic, at risk and needed supervision, no request for a designated representative to assist him at the hearing was made by Mr. Hillary or his lawyer.  In order to protect the fairness of the process was the Board obligated to make inquiries as to whether a designated representative should be appointed to assist him?

According to the Federal Court of Appeal the answer to this question is “no”.  The Federal Court of Appeal concluded that there could be circumstances in which a tribunal was under “a duty to form an opinion about a person’s level of comprehension”, but it could only be required to intervene if, given the “entire context”, not to appoint one would be unreasonable.  Removal order appeals, which are sometimes known as deportation appeals, are “adversarial”, the Court stated, and it concluded that it was not the tribunal that was obliged to raise the issue of a designated representative, but Mr. Hillary’s own counsel.  “This Court”, it said, “is in no position to second guess counsel’s strategy”.

As a consequence, Mr. Hillary was out of luck.  As his counsel before the tribunal did not raise the issue of the need for a designated representative, and the tribunal itself was not obliged to do so, Mr. Hillary had a fair hearing, in the view of the Federal Court of Appeal.  His deportation order remained active and in effect, and he was not entitled to another hearing to challenge his removal.  He was subject to removal to Jamaica; separation from those of his family, mental health supports and friends as were unable to join him there; and a ban from returning to Canada.

I myself have represented many people before the Board in just these circumstances, people who are mentally ill and fighting a battle to remain in Canada.  While my clients have had substantial success, including once again just this month, there is no doubting that these cases can be difficult, and that having experience in one’s corner to deal with the multitude of procedural and substantive issues to which they give rise is an asset.  If you or someone you care about is in this situation, it is important that you get some help.

To read the full case, the citation for which is Hillary v. Canada (Minister of Citizenship and Immigration) 2011 FCA 51, click here.

Keep it Clean

The Omar Ghazal case reminds us that sometimes mum really does know best: you should always keep your hands clean!

Mr. Ghazal was convicted in Canada of criminal offences which are considered under immigration legislation to be serious.  As a result, he was ordered deported.  When the time came for him to leave Canada he did not show up for his scheduled departure, and he misidentified himself to the police.

It is not clear from the facts of this case set out in the reasons for decision whether Mr. Ghazal had lived in Canada for a long time, had family here, or was rehabilitated.  What is clear is that Mr. Justice Shore of the Federal Court felt that none of those issues made a difference as Mr. Ghazal did not have “clean hands”.

As the Court stated, “A stay of the removal is an injunction, therefore an exceptional measure.  It is a measure that is not granted to a person who does not have clean hands.  Knowing that the applicant did not appear for his last removal date, with his criminal past and that he was arrested and detained to ensure that he not become illegal again is sufficient to refuse to hear the stay motion”, and so Mr. Ghazal was sent packing without the opportunity to make his case to remain in Canada.

Unfortunately for him, Mr. Ghazal’s past had finally caught up with him.  He had run afoul of the principle that “he who seeks equity must do equity”, which I feel is more clearly stated as “equity will not grant relief from a self-created hardship”.

While it is not uncommon for those facing removal from Canada to obtain an order that their removal be stopped, Mr. Ghazal was denied the opportunity to even argue for one.  The Court found that because he had broken the rules he had created the hardship from which he now wished to be extricated, and therefore he was not deserving of the exercise of the special authority the Court has to relieve unfairness in the application of the law.  Mr. Ghazal was out of luck because he had failed to keep his hands clean.  Don’t let it happen to you!

If You Do the Crime, Be Sure to be on Time

“Punctuality is the thief of time”, said the Irish wag Oscar Wilde.  In this, as in perhaps other ways, it would seem Wilde’s position differs from that of the Federal Court of Canada.
This was illustrated again in the case of Strungmann v. the Minister of Citizenship and Immigration, decided October 31, 2011.  It seems that the applicant, a 24-year old European man who was visiting Canada, was convicted of the criminal offence of mischief for having spray-painted graffiti on a wall in Montreal.  As a consequence he was ordered deported from Canada, and removed from this country.
Deportation orders have the effect of barring those against whom they have been enforced from returning to Canada without special permission from the Minister of Citizenship and Immigration, which can be difficult to obtain.  A record of deportation orders have been issued is maintained in Canadian government databases, and is accessible to border officials.
In the two years that followed Mr. Strungmann’s removal he obtained counsel to appeal the mischief conviction, was successful in setting it aside, was re-tried, and successfully avoided re-conviction.  He then applied to court to set aside the deportation order, an application that he felt sure would be successful, because the order was based on the conviction, and the conviction had now disappeared.
Unfortunately, Mr. Strungmann failed to account for why it had taken so long for him to ask the court to set aside the deportation order.  Given that the order was valid when it was issued, and that it had been enforced to remove Mr. Strungmann from Canada, the court held that there was insufficient basis to excuse his tardiness.  As a consequence, his application to set aside the deportation order was denied, even though the conviction upon which it was based was overturned!
There is a deportation order against Mr. Strungmann on record with Canadian border officials.  As a consequence, he may find that he has problems whenever he attempts to enter Canada.  His application failed because he did not apply to the court in time, or at least better explain why he did not do so, and how he was prejudiced by the existence of the order, proving once again that, at least as far as the Federal Court of Canada is concerned, punctuality is the politeness of princes.

Would I Li to you?

Perhaps in your case you would be glad if I did Li to you. The Federal Court case of Li v. Canada (Citizenship and Immigration) 2009 FC 992 reminds us that it is an error for the decision-maker in a deportation proceeding to consider the principle of general deterrence. In other words, when the immigration authorities are determining whether or not their discretion should be exercised to allow you to remain in Canada, they should not be trying to make an example of you to send a message to the community, or trying to compensate for what is perceived to be an inadequate criminal penalty.
The Court in Li cited the decision of the the Immigration Appeal Division of the Immigration and Refugee Board in Khosa v. Canada (Citizenship and Immigration) [2004] I.A.D.D. No. 1268 (QL) as follows:

Counsel for the appellant made lengthy submissions contending that it is not the function of the Division to mete out further punishment to this appellant for his offence. Counsel is entirely correct that it would be inappropriate for the panel to take that role upon itself. The criminal justice system has spoken with respect to the appellant’s guilt and handed down a sentence consistent with principles of sentencing in Canada. The role of the Division is distinct and separate from the criminal courts.

Nonetheless, the panel dismissed the appeal. The case worked its way up to the Supreme Court of Canada, and was decided on March 6, 2009 as Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. Although the refusal of the Board to allow Mr. Khosa to remain in Canada was upheld by the Supreme Court, an important and helpful principle was confirmed. Justice Binnie, writing for the majority, stated:

The IAD has a mandate different from that of the criminal courts. Khosa did not testify at his criminal trial, but he did before the IAD. The issue before the IAD was not the potential for rehabilitation for purposes of sentencing, but rather whether the prospects for rehabilitation were such that, alone or in combination with other factors, they warranted special relief from a valid removal order. [emphasis added]

Therefore the starting point for prevailing in the face of deportation proceedings continues to be the Ribic factors, so called because they were first enunciated in the case of Ribic v. Canada (Minister of Employment and Immigration), [1985] I.A.B.D. No. 4 (QL). I will be addressing these factors in more detail in future posts.

Getting tough with crime seems to be an important part of the current federal government’s agenda

Getting tough with crime seems to be an important part of the current federal government’s agenda. Recent government initiatives include, amongst others, increasing the number of offences with minimum punishments. Is this get-tough approach really helpful in reducing crime?

According to the authors of Criminological Highlights, a publication of the University of Toronto’s Centre of Criminology, the evidence gleaned from studies of the application of minimum penalties over the last 40 years is clear: mandatory minimum penalties “do not affect crime rates”, and actually “interfere with accountability and the efficient operation of the criminal justice system”.

Developments in the law of deportation since the early 1990s reveal a similar movement away from the exercise of discretion by independent decision-makers and towards a quicker but much more harsh one-size-fits all approach. As a consequence, people who have grown up in Canada and who, in some cases, may have lived here for many decades, are being deported from Canada without a hearing, splitting up families and returning the deportees to countries with which they no longer have any connection, and which can ill afford to receive them.

While it is true that some immigrants to Canada have committed crimes , the evidence, according to Criminological Highlights, is that “violent crime rates decrease when immigrants move into a city”, at least “in part because immigrants are more likely to bolster intact (two-parent) family structures”.

Given that mandatory minimum penalties do not reduce crime, and that immigration results in reduced crime rates, is the current government’s policy respecting crime in Canada a responsible one?

These and other astounding insights are available for review in the most recent issue of Criminological Highlights, and are well worth a read.