Why Immigration Opinions are Essential on Sentencing before Criminal Courts

Foreign nationals and permanent residents in Canada facing criminal charges need to consult and an experienced immigration lawyer and obtain an immigration opinion as to the consequences of a potential criminal conviction.  They must ensure that this opinion is filed with the Court and presented to the trial judge upon sentencing. This is the best way to allow the Court to make an informed decision, taking into consideration the serious impact of a conviction on the accused, and in particular the likelihood that it can result in the individual’s permanent removal from the country.

It is a reality that without an immigration opinion the Court may not be aware of and turn its mind to the relevant immigration regulations and legislation that apply and the particular impact on the foreign national, if convicted of the criminal offence in question.  Criminal charges can lead to Canada Border Service Agency (‘CBSA’) preparing an admissibility report, and the referral of the accused to an admissibility hearing before the Immigration and Refugee Board.  The Immigration Division does not have jurisdiction to consider humanitarian and compassionate grounds or to look beyond the fact of the criminal conviction(s). Nor does a foreign national have a right to appeal the deportation order (other than to the Federal Court if there has been a reviewable error).  Permanent residents being convicted of a sentence that is longer than 6 months also lose their right to appeal a finding of inadmissibility before the Immigration Appeal Division.

Once the individual has been found inadmissible for criminality or serious criminality, a deportation order will be issued and removal proceedings will be initiated by CBSA. At that point it is only in exceptional situations that a removal may be put on hold, such a successful pre-removal risk assessment (in less than 5% of cases).

The Supreme Court of Canada in R v. Pham (2013 SCC 15) recently held that immigration consequences are one factor that must be considered in the sentencing process.  This is in line with the individualization of sentencing, and relevant along with all the other sentencing principles such as parity and proportionality.  While the Courts are hesitant to allow a different sentencing regime to develop based on immigration consequences, they recognize they have the discretion to consider the adverse consequences of a particular sentence on the particular accused.  And this is in line with both the principles of procedural fairness and the requirement of a balanced approach in the sentencing process. An effective immigration opinion can highlight all of this for the Court and allow the judge to draw on the relevant provisions and reasoning in coming to its conclusion.

If possible, it is always in the accused’s best interest to argue for a conditional or absolute discharge.  A discharge is not a conviction and under subsection and under 730(1) of the Criminal Code, the court can (if it considers it to be in the best interest of the accused and not contrary to the public interest), grant a discharge to the accused.   The courts needs the necessary justification to consider a discharge and defence counsel will highlight the information that is detailed and explained in the immigration opinion to the Court at the sentencing hearing.

Thus, it is essential that the accused understands the importance of consulting the an immigration lawyer before either pleading guilty to criminal charge or being convicted and receiving a sentence that could have serious consequences for his or her immigration status.

*Please note that this the information in this blog does not constitute legal advice.  Please consult an immigration lawyer at Gerami Law PC if you are a permanent resident or foreign national facing criminal charges.

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by Arghavan Gerami

Barriers to Integration in Quebec May Be Causing the Decline in its Immigration

According to l’Institut de la statistique, the drop in Quebec’s population growth may in part be caused by fewer people immigrating to Quebec.  In 2013, the province’s population only increased by about 63,000, which signified a decrease of 10,000 people compared to 2012.

The majority of Quebec’s immigrants are coming from China, France and Algeria. Quebec also holds the largest proportion of Arabs in Canada relative to its population. Statistics Canada reports that the number of Quebeckers who identify themselves as Muslims has doubled between 2001 and 2011, reaching a total of more than 200,000.

However, the challenges of finding a job and integrating into the workforce may be one of the factors deterring immigrants from settling in Quebec. Many Arab immigrants from Northern Africa, although educated and fluent in French, have faced difficulty in securing  positions based on their qualifications.

In addition, in September 2013, Quebec announced that The Charter of Quebec Values would ban state employees, including police officers, doctors, and teachers, from wearing headscarves, yarmulkes, or obvious crosses and other religious symbols.  This announcement raised much concern over the Quebec government’s failure to accommodate and potential breach of constitutional rights.  Ultimately, this plan was not implemented, and the proposed Bill died as of the 2014 election, which was won by the Quebec Liberal Party.

Nonetheless, the drop in immigration rates may in part also be related to the fall-out from these proposed government plans to restrict the wearing of religious symbols and the negative message it sent to new immigrants, who decided against immigrating to Quebec.

REFERENCES

CBC News, “Quebec to launch consultation on immigration and diversity” (14 January 2015),  online: CBC.

CBC News, “Quebec population growth slows due to fewer immigrants” (9 December 2014), online: CBC.

LuAnn LaSalle, “Cogeco CEO Louis Audet says Quebec’s proposed values charter harmful to economy” (28 January 2014),online: The Canadian Press.

Lysiane Gagnon, “How Quebec chooses immigrants” (20 November 2013), online: The Globe and Mail.

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by Arghavan Gerami

Recent Changes to Canada’s “Live-In” Caregiver Program

The Minister of Citizenship and Immigration implemented changes to the Live-In Caregiver Program (LCP) on November 30, 2014.

While removing the “live-in” requirement and speeding up processing times for LCP-based permanent residence applications are welcome improvements, the amendments also imposed some new requirements that may prove challenging for caregivers to meet.

Change One: Two Pathways to Permanent Residence & Their Requirements

As of November 30, 2014, there are now two pathways through which caregivers can apply for permanent residence. In the first pathway, caregivers who have provided childcare in a home may apply for permanent residence, regardless of whether they lived inside or outside of the home. In the second pathway, caregivers who have provided care, either at home or at a health facility, to persons who are elderly or have disabilities or chronic disease, may apply for permanent residence. Caregivers in the latter pathway must also have provided this care as a registered nurse, registered psychiatric nurse, licensed practical nurse, nurse aide, orderly, patient service associate, home support worker, or similar professional.

To be eligible under either pathway, caregivers must have provided the above-stated care for at least two years with a valid work permit, have completed at least one year of a Canadian post-secondary credential (or its equivalent foreign credential), and have achieved a language level of at least “initial intermediate” or “adequate intermediate,” depending on the profession.

Citizenship and Immigration Canada (CIC) will only accept a maximum of 2,750 applicants per each pathway of permanent residence per year, in addition to their family members. CIC has also adopted a standard to process such applications within 6 months.

Some things have not changed. The two-year work requirement to apply for permanent residence is the same as under the old system. Caregivers must still obtain a positive Labour Market Impact Assessment (LMIA) from an employer in Canada and have a written contract with their future employer. In addition, the standard wait time for approving a prospective caregiver’s application to come to Canada and begin working in the LCP remains approximately 16 months.

The upside to these changes is that CIC will attempt to process LCP-based permanent residence applications within 6 months, as opposed to previous approximate 39 months. This will promote speedier family reunification for caregivers.

The downside is that there is now a cap of 5,500 LCP-based permanent residence spots per year, whereas previously there was no yearly maximum and caregivers could apply at any time. The requirements for caregivers to have post-secondary education and heightened language abilities are also new and will likely prove to be inhibitive for some prospective applicants.

Change Two: Removing the “Live-In” Requirement

Caregivers are no longer required live in the home where they are working. New and current caregivers may choose to live outside the home, and still later apply for LCP-based permanent residence in the new pathways.

However, caregivers who choose to live outside the home must apply for a regular work permit and state in their employment contract and LMIA that they are not living in the home where they are working. Current caregivers who wish to live outside the home must also apply for a regular permit to replace their LCP-specific work permit and will require a new LMIA.

Dropping the “live-in” requirement is a welcome change, in that it may reduce the vulnerability and extended hours that many caregivers face in the workplace. It also gives caregivers and their employers a choice to agree on living inside or outside the home.

Change Three: Type of Work Permit Needed

Prospective caregivers who have not yet worked in Canada under the LCP must apply for a regular work permit, if they submitted their LMIA after November, 30, 2014. Caregivers, old and new, who wish to live outside the home where they are working, must also apply for a regular work permit.

Prospective caregivers who have not yet worked in Canada under the LCP, but submitted their LMIA before or on November, 30, 2014, may apply for a LCP-specific work permit. Caregivers who already have a LCP-specific work permit, would like to extend or change the permit, and still wish to live inside the home, may also apply for a LCP-specific work permit.

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by Arghavan Gerami

Citizenship Changes: A Chart Comparing the Old and the New Act

The Canadian government has introduced a variety of changes to the way the Citizenship system will work in Canada. Not all the changes are in force yet, and there is no indication when they would be in force.  The Table below provides a summary of these changes:

 

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by Arghavan Gerami