Difference between revisions of "Immigration Issues at Sentencing (18:XIII)"

From Clicklaw Wikibooks
Jump to navigation Jump to search
m
(6 intermediate revisions by 2 users not shown)
Line 1: Line 1:
{{REVIEWED LSLAP | date= August 16, 2021}}
{{LSLAP Manual TOC|expanded = immigration}}
{{LSLAP Manual TOC|expanded = immigration}}


In June 2013, changes to the IRPA came into force that severely altered the '''permanent residence''' consequences of a term of imprisonment of 6 months or more,  including credit for time served. Such permanent residents are will be issued a deportation order with '''no appeal''' of the deportation order to the IAD.  Previously, the period of imprisonment required before there was no appeal to the IAD of a removal was 2 years. This change is retroactive, and any permanent resident who had not already been referred to the IAD for an appeal of the removal order will not have that option even if the sentence was imposed before the law changed.  
In June 2013, changes to the IRPA came into force that severely altered the '''permanent residence''' consequences of a term of imprisonment of 6 months or more,  including credit for time served. Such permanent residents are will be issued a deportation order with '''no appeal''' of the deportation order to the IAD.  Previously, the period of imprisonment required before there was no appeal to the IAD of a removal was 2 years. This change is retroactive, and any permanent resident who had not already been referred to the IAD for an appeal of the removal order will not have that option even if the sentence was imposed before the law changed.  
 
If a permanent resident has been convicted of an offence in Canada for which a maximum term of imprisonment of more than 10 years could be imposed, he or she becomes inadmissible to Canada and will be issued a deportation order. A permanent resident has the right to appeal a deportation order to the IAD under s 63(3) of the IRPA. As noted above, this right of appeal is lost if the permanent resident actually receives a sentence of 6 months or more, and the calculation of 6 months includes pre-trial custody, so an individual who receives a 2-month sentence in addition to double credit for 2 months pre-trial custody, has received a 6-month sentence.  A conditional sentence of imprisonment imposed pursuant to the regime set out in ss. 742 to 742.7 of the ''Criminal Code'' " is not a term of imprisonment" under s. 36(1)(a) of the ''IRPA.'' The phrase “maximum term of imprisonment” in paragraph A36(1)(a) refers to the maximum term of imprisonment available at the time of the commission of the offence and not the term of imprisonment available at the time of sentencing or the time admissibility is assessed
 


If a permanent resident has been convicted of an offence in Canada for which a maximum term of imprisonment of more than 10 years could be imposed, he or she becomes inadmissible to Canada and will be issued a deportation order. A permanent resident has the right to appeal a deportation order to the IAD under s 63(3) of the IRPA. As noted above, this right of appeal is lost if the permanent resident actually receives a sentence of 6 months or more, and the calculation of 6 months includes pre-trial custody, so an individual who receives a 2 month sentence in addition to double credit for 2 months pre-trial custody, has received a 6 month sentence.


:'''NOTE:''' Clinicians should advise clients to actively raise these immigration considerations with criminal defence counsel at the earliest opportunity, and make sure that counsel are engaging these issues whenever the client is in custody, or faces a possible custodial sentence.
'''NOTE:''' The accused should actively raise these immigration considerations with criminal defence counsel at the earliest opportunity, and make sure that counsel is engaging these issues whenever the accused is in custody, or faces a possible custodial sentence.




{{LSLAP Manual Navbox|type=chapters15-22}}
{{LSLAP Manual Navbox|type=chapters15-22}}

Revision as of 20:16, 16 August 2021


This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on August 16, 2021.



In June 2013, changes to the IRPA came into force that severely altered the permanent residence consequences of a term of imprisonment of 6 months or more, including credit for time served. Such permanent residents are will be issued a deportation order with no appeal of the deportation order to the IAD. Previously, the period of imprisonment required before there was no appeal to the IAD of a removal was 2 years. This change is retroactive, and any permanent resident who had not already been referred to the IAD for an appeal of the removal order will not have that option even if the sentence was imposed before the law changed.

If a permanent resident has been convicted of an offence in Canada for which a maximum term of imprisonment of more than 10 years could be imposed, he or she becomes inadmissible to Canada and will be issued a deportation order. A permanent resident has the right to appeal a deportation order to the IAD under s 63(3) of the IRPA. As noted above, this right of appeal is lost if the permanent resident actually receives a sentence of 6 months or more, and the calculation of 6 months includes pre-trial custody, so an individual who receives a 2-month sentence in addition to double credit for 2 months pre-trial custody, has received a 6-month sentence. A conditional sentence of imprisonment imposed pursuant to the regime set out in ss. 742 to 742.7 of the Criminal Code " is not a term of imprisonment" under s. 36(1)(a) of the IRPA. The phrase “maximum term of imprisonment” in paragraph A36(1)(a) refers to the maximum term of imprisonment available at the time of the commission of the offence and not the term of imprisonment available at the time of sentencing or the time admissibility is assessed


NOTE: The accused should actively raise these immigration considerations with criminal defence counsel at the earliest opportunity, and make sure that counsel is engaging these issues whenever the accused is in custody, or faces a possible custodial sentence.


© Copyright 2023, The Greater Vancouver Law Students' Legal Advice Society.