Paper prepared by Peter Edelmann TLABC September 2013 (some edits done by poster for simplicity of posting)
The severity of deportation—”the equivalent of banishment or exile,” […] only underscores how critical it is for counsel to inform her noncitizen client that he faces a risk of deportation. It is our responsibility under the Constitution to ensure that no criminal defendant—whether a citizen or not—is left to the “mercies of incompetent counsel.” […] To satisfy this responsibility,we now hold that counsel must inform her client whether his plea carries a risk of deportation.
The passage above, written by the Supreme Court of the United States, underscores the growing importance of understanding immigration consequences of the criminal process. The Courts in Canada have not been as explicit in finding that a failure to raise immigration consequences at sentencing amounts to incompetence of counsel. However, a growing line of appellate cases varying sentences in such situations make it less and less defensible for counsel to fail to inquire into the immigration consequences for an accused. In R. v. Martinez-Marte, 2008 BCCA 136, our Court of Appeal even urged Crown counsel to raise the issue of immigration consequences upon the failure of defence counsel to do so:
A number of recent cases in this Court have raised this issue. It is to be hoped that in future, the record will demonstrate adequate consideration of the immigration consequences of any sentence to be imposed. It is perhaps not too much to ask the Crown to address these matters before the sentencing judge in the event that defence counsel fails to do so.
The passage above reflects that for many years, it has been accepted that immigration consequences are a relevant consideration at sentencing2. A number of appellate courts have dealt with the issue in a long line of cases where a permanent resident was sentenced to two years or more, and the sentence was reduced to two years less a day to preserve the right of appeal under the former legislation.3 In other cases, the Courts have granted discharges given the unduly harsh consequences of a conviction4. Although immigration consequences are a legitimate factor to be taken into account at sentencing, the immigration status of an accused will generally not be a basis for departing from the established range for a given offence5. This approach was recently affirmed by the Supreme Court of Canada in R. v. Pham, 2013 SCC 15 at paragraph 14:
The general rule continues to be that a sentence must be fit having regard to the particular crime and the particular offender. In other words, a sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, provided that the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender.
It can also be helpful to raise the issue of immigration consequences with Crown at an early stage, as it is clearly a factor to be taken into account in deciding whether it is in the public interest to proceed with a given set of charges, or under a particular section.
The following sections will explore a number of the immigration issues that arise in the context of criminal sentencing.
Posters note: This is a very helpful article. It’s worth reading the full article. Posted by Avtar Bhangal, Mississauga Criminal Defence Lawyer practising in Peel since 1994. Mr. Bhangal deals with a significant number of persons charged in Mississauga and Brampton with various Criminal Charges. He prides himself on providing the best Criminal Defence possible for his clients.