Analysis

Winnipeg Free Press - PRINT EDITION

Removing non-Canadian criminals fair policy

By: R. Reis Pagtakhan

Posted: 06/28/2012 1:00 AM | Comments: 0

Immigration Minister Jason Kenney has introduced a proposed new law that will make it easier for the government to remove certain non-Canadian criminals from Canada. While some of the other parts in this proposed law may need to be changed, the part that eliminates the ability of certain convicted criminals to appeal their removal from Canada is fair.

Under the current law, a Canadian permanent resident who is convicted of a crime and is sentenced to less than two years of prison can appeal an order removing him or her from Canada. This appeal is made to the Immigration Appeal Division where the convicted criminal can argue why he or she should be given a second chance to remain in Canada.

Under the proposed new law, a Canadian permanent resident who is convicted of certain crimes would only be able to appeal if found guilty of a crime for which the sentence was less than six months of prison.

It is important to note we are not talking about removing non-citizens who have been merely charged or accused of a crime. The only people that will be removed without appeal are permanent residents convicted of a crime and sentenced to six or more months of prison. These individuals are no longer presumed innocent. They were found guilty after having the right to hire a lawyer and to defend themselves in court. It is only after going through this process that these individuals were convicted and sentenced.

Some might argue that eliminating the immigration right of appeal for certain permanent residents is unfair. It is true that there have been cases of long-term permanent residents being removed from Canada without appeals. In some of these cases, the permanent resident has lived here for decades and has family here. The fact is, however, that these individuals would not have been removed from Canada if they did not commit a crime so serious they were given jail sentences of six months or more.

No one is suggesting permanent residents convicted of minor crimes not be given an immigration appeal. This proposed law will not take away appeal rights for individuals who were only fined, put on probation, sentenced to shorter prison terms, or given alternative sentences to prison. These individuals will continue to be able to appeal any removal order from Canada that is given to them.

Some will also argue these changes are unfair because the convicted criminal will not be able to plead their personal immigration circumstances in an appeal. This argument does not hold much water since the Manitoba Court of Appeal ruled last year that judges must look at a convicted criminal's personal immigration circumstances before handing down a sentence.

When sentencing convicted criminals, judges already take into account a number of factors including whether the individual has pled guilty, has shown remorse, has family and community support, is employed, and, of course, has committed previous crimes. Since judges must take into account a criminal's personal immigration circumstances, the convicted criminal should have more than ample protection of his or her rights.

Where the proposed legislation is more troubling is with some of the other suggested provisions. One example is the proposal that a non-Canadian who makes a "misrepresentation" to Canadian immigration be barred from Canada for five years -- an increase from the existing two-year bar.

The problem with the increase is that the law of misrepresentation makes non-Canadians responsible for inadvertent misrepresentations and misrepresentations made by others without their knowledge. For instance, if a non-Canadian's representative sent in a fake document to immigration authorities without the non-Canadian's knowledge, the non-Canadian could be barred from Canada for five years.

If the proposed law only bars non-Canadians for misrepresentations that they know about, this change in law would be much fairer. However, to penalize a non-Canadian for what other people may have done is not fair.

While certain improvements will be necessary to this proposed law, the change with respect to limiting immigration appeal rights for certain convicted criminals is fair.

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

Republished from the Winnipeg Free Press print edition June 28, 2012 A13

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