Winnipeg Free Press - PRINT EDITION

Courts should decide fate of permanent residents

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When Canadian citizens are convicted of a crime, they can face penalties that include jail time. When permanent residents are convicted of a crime, they also can face the possibility of deportation because they are not Canadian citizens. If deported, non-Canadians can face permanent removal from Canada.

Last month, the Supreme Court of Canada heard a case that will decide how criminal courts should treat permanent residents who break the law. The question the Supreme Court will decide is how the possibility of deportation should be considered when a permanent resident is being sentenced.

Because deportation is an additional penalty for permanent residents, they should be treated differently when being sentenced. This does not mean, however, that permanent residents should always be treated more leniently. In certain cases, judges should sentence permanent residents more harshly to increase the possibility of deportation.

It might seem unfair to treat non-Canadians differently than Canadians. Since Canadians cannot be deported from Canada, however, judges need to take this additional penalty into account.

In many cases, deportation is a more significant penalty than jail. Deportation can result in a person losing their ability to live in Canada. Deportees might lose their homes, jobs and the ability to be close to their families.

As a result, it is fair for judges to take this into account when sentencing permanent residents who commit crimes.

In some cases, judges should sentence a permanent resident more leniently because of the possibility of deportation.

For instance, if a permanent resident is convicted of a first offence that could result in deportation but that person has been living in Canada for 30 years, has a spouse and children here, has a good job, and has tried to turn his or her life around between the time of arrest and the time of trial, they might be deserving of a sentence that reduces the possibility of deportation.

If a permanent resident, however, has a history of violence, has a long criminal record, has a history of substance abuse, has only been in Canada for a few years, and has no family or job in Canada, a much harsher sentence that would hasten deportation may be appropriate.

Currently, the law does not let criminal courts decide if a person should be deported.

These decisions are made by a separate tribunal, known as the Immigration and Refugee Board, months and sometimes years after the original criminal conviction. The question is: why not let criminal courts decide if a person should be deported?

In my view, a criminal court is a better place to assess this. Criminal court judges have the advantage of hearing all of the evidence of the crime and also they hear directly from victims during sentencing.

In addition, if criminal court judges are given these powers, decisions on deportations would be made much more quickly.

In the present system, the Immigration and Refugee Board typically only reviews the criminal court's paper file. The board usually does not hear directly from the witnesses who were at court, nor does it often hear from victims.

In order for justice to be done, the judge who hears from the police, victims, witnesses, and the convicted criminal should be the one who makes a decision on the appropriate penalty.

If criminal court judges are given this power, these matters will be addressed in one process as opposed to piece-meal. Society and the convicted criminal deserve a quick answer to this question.

Currently, a law is going through Parliament that could increase the possibility of deportation for permanent residents sentenced to six months or more in jail. If this law passes, it will be increasingly important for criminal court judges to have the power to decide whether a permanent resident should be deported or not.

R. Reis Pagtakhan is an immigration lawyer with Aikins Law in Winnipeg.

Republished from the Winnipeg Free Press print edition February 8, 2013 A8

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