Conservatives aiming to amend Criminal Code so immigration status won't be a factor in sentencing
Michelle Rempel Garner, MP for Calgary Nose Hill and shadow minister for Immigration, said the practice has essentially resulted in a two-tier justice system that allows non-citizens to get lighter sentences than Canadians convicted of the same crime.
'This offends all principles of fairness that should be foundational to our justice system,' Rempel Garner said at a press conference in Ottawa on Wednesday.
https://t.co/kz3R7vH5Nr
She pointed to a 2013 Supreme Court of Canada decision that she says has permitted judges to consider immigration status at the sentencing stage of a case.
In that case,
R. v. Pham
, the accused was a non‑citizen, convicted of two drug‑related offences. The trial judge imposed a sentence of two years' imprisonment. However, the Supreme Court noted that under the Immigration and Refugee Protection Act, a non‑citizen sentenced to a term of imprisonment of at least two years loses the right to appeal a removal order against him or her.
In reducing Pham's sentence, the Supreme Court ruled that 'collateral immigration consequences' are relevant factors that a sentencing judge may take into account in determining an appropriate sentence, but added that those consequences should not influence whether or not deportation occurs.
Rempel Garner cited a few recent cases that relied on the Pham ruling in handing down a sentence. In the first example, a permanent resident was convicted of trying to buy sex from a police officer posing as a 15-year-old in an online sting operation.
The Crown sought a 90-day jail sentence.
Ontario Court
judge Paul O'Marra wrote that a criminal record would likely prevent the offender from sponsoring his wife to also become a permanent resident, as well as delay the offender's eligibility for Canadian citizenship and jeopardize his ability to become a licensed engineer.
O'Marra concluded that 'a custodial sentence would be unduly harsh' and instead handed down a conditional discharge with 12 months of probation, which included three months of house arrest. In establishing the basis for his reasoning, he wrote: 'The Pham decision stands for the principle that collateral consequences, while not determinative, can justify a lower sentence within the legal range to avoid disproportionate hardship,'
In
an Alberta case
cited by Rempel Garner, a man in Canada on a visitor's permit was accused of groping an 18-year-old woman in a nightclub twice. The judge ruled that 'in consideration of the devastating collateral immigration consequences to recording a conviction, I conclude that the appropriate sentence for Mr. Singh is a conditional discharge with a probation order of maximum duration, 3 years.'
Rempel Garner insists that when 'it comes to sentencing non-citizens, Canada has essentially adopted a system of two-tier justice where judges can and have given lighter sentences to individuals who are non-citizens.'
The Conservatives are proposing a bill that would prohibit immigration discounts in sentencing. Great news!
Courts have been more lenient on non-citizens since 2013, at times going light on sex offenders to help them remain in Canada. That can change if Parliament wills it.
https://t.co/jFNgxxKT3k
Rempel Garner said the Conservatives intend to introduce legislation to amend the Criminal Code. 'Our bill will add a section after Section 718.202 … which will expressly outline that any potential impact of a sentence on the immigration status of a convicted non-citizen offender, or … their family members, should not be taken into consideration by a judge when issuing a sentence.'
Acknowledging that the vast majority of immigrants and temporary residents in Canada abide by the law, she said 'removing non-citizens convicted of serious crimes is a no-brainer. Conservatives will always fight to protect Canadians, the value of our citizenship and the safety of every person who lives here. Becoming a Canadian is a privilege, not a right.'
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