If you are convicted of a serious criminal offence and are not a Canadian citizen, you may be ordered to leave the country with no chance of appeal. A person who is a permanent resident faces deportation if their offence or sentencing meets the definition of ‘serious criminality’ under Canadian law. Any of the following are considered ‘serious criminality’:
- Conviction of a criminal offence that carries a possible prison term of 10 or more years (even if the actual sentence is less than 10 years);
- Sentencing of more than six months in jail for a criminal offence; or
- Conviction of a crime outside of Canada that would carry a prison term of 10 or more years if committed in this country
Foreign nationals may be deported if they’re convicted of a serious offence (as defined above), but also face deportation if found guilty of two fairly minor (and possibly, unrelated) criminal offences.
A foreign national generally has no right to appeal their deportation order, while a permanent resident loses their right to appeal if they receive a sentence of six months or more. If deported, you are generally barred from returning to Canada regardless of how many years you resided in this country prior to your deportation. A deported person may apply for an Authorization to Return to Canada (ARC) in order to return, but there is no guarantee that the ARC will be granted.
After you plead guilty or are found guilty of a criminal offence, the police forward your information to the Canada Border Services Agency (CBSA). The CBSA will then take steps to remove your permanent resident status and have you deported.
The following crimes are among the criminal offences that may result in deportation.
- Impaired driving due to alcohol or drugs
- Assault causing bodily harm
- Sexual assault or domestic violence
- Drug trafficking
- Theft over $5000
- Possession of a restricted weapon with ammunition
For non-Canadian citizens, it’s important to understand the immigration consequences if you’re charged with a crime, given that a guilty plea or conviction may result in a loss of permanent status. And, even if a judge is sympathetic to your situation, Canadian law requires that a permanent resident cannot appeal a removal order if they are convicted of a crime punishable by a prison term of six months or more (per Immigration and Refugee Protection Act (IRPA), s. 68). Humanitarian and compassionate considerations may be accepted as grounds for the appeal of a deportation order under the IRPA s. 63(3), but only if your sentence is less than six months in prison.
R. v. Auckbaraullee (2019) is a criminal trial involving a 53-year-old woman who was found guilty of Fraud over $5000. Ms. Auckbaraullee was employed as an Accounts Payable Clerk for a non-profit organization, the Ontario Hospital Association (OHA), when she issued fraudulent cheques totalling $80,370 to six businesses and business owners, although there was no evidence presented of personal financial gain. Fraud over $5000 carries a maximum sentence of 14 years in jail, so the conviction makes the accused vulnerable to deportation, with no right to appeal the removal order, despite the fact she had resided in Canada for 34 years and has raised her two children in this country.
The judge in this case found that there are significant mitigating circumstances in Ms. Auckbaraullee’s situation that suggest that justice would be best served by not prohibiting the offender from appealing a removal order. Justice Garton referred to R. v. Tran (2017) where the Supreme Court of Canada explained how, in addition to imposing a sentence that is proportionate to the seriousness of the offence, a judge may use their discretion to take into account the collateral immigration consequences of the sentence. In cases with significant mitigating circumstances, a judge may order a conditional sentence, which does not constitute a ‘term of imprisonment’ and therefore does not preclude the offender’s right to appeal deportation.
In the current case, Justice Garton found that a conditional sentence of two years minus one day, to be served in the community, is an appropriate penalty with a deterrent effect. Mitigating circumstances considered by the judge in deciding Ms. Auckbaraullee’s sentence include the fact that, at the time of the offence, she was a 53-year-old first offender; had a low risk to reoffend; was dealing with the recent death of her father; and had been suffering significant and ongoing domestic abuse which resulted in physical injuries for which she required surgery.
Deportation is clearly a devastating consequence, emotionally and financially, particularly when the affected person has lived in Canada for many years. A deported person faces long-term separation from any family members remaining in Canada, which may include their children, grandchildren and parents; and these family members also commonly suffer negative impacts, including psychological stress, financial hardship and the loss of a caregiver. Further, many deported persons are returning to a country or place where they have no residence, poor work opportunities and/or dangerous conditions due to the political conditions in their country of origin.
If you have received a removal order and are facing deportation, you likely have compelling reasons for remaining in Canada. If you have the right to appeal, you may make a removal order appeal to the Immigration Appeal Division (IAD). The appeal must be made within 30 days of receiving the removal order, and it is your opportunity to convince the IAD why you should be allowed to stay in Canada.
In addition to providing strong legal representation against criminal charges, our experienced criminal defence lawyers at Yoannou and Associates have helped many clients overcome immigration and deportation challenges. Call our office today at 416-650-1011 to find out how we can help you to achieve the best possible outcome in your case.