The Power of Perspectives

The Canadian Bar Association

Kim Covert

C-43 plus C-46 equals disproportionate penalties for immigrants

August 24 2018 24 August 2018

 

The harsh measures in 2013’s Faster Removal of Foreign Criminals Act will be exacerbated when the recently adopted Bill C-46 comes into effect, says the CBA’s Immigration Law Section. And the government should act now to prevent the disparate impact on immigrants.

Under the 2013 legislation, people who had been convicted of a crime in Canada and sentenced to six months in jail – a reduction from the previous two years – were denied the right to appeal their status before the Immigration Appeal Division, on the grounds of “serious criminality.” The law also denied appeal rights to permanent residents and foreign nationals convicted of foreign offences, regardless of sentence. These were just two of the grounds on which the Section objected to the bill at the time. The Section also made objections to bill C-46 before it passed.

“Reversing the harsh measures brought into effect by FRFCA is long overdue,” the Section says in a recent submission to government. “The situation is now critical due to the recent passage of Bill C-46, increasing Criminal Code penalties for impaired driving offences with the apparently unintended consequences of reclassifying these offences as constituting ‘serious criminality’ under IRPA.”

For example, for a Canadian citizen a first offence under C-46 might result in a $1,000 fine, while for a permanent resident it could mean permanent deportation and separation from family, possibly without recourse to appeal.

The Section makes a number of recommendations to “reverse the harsh measures brought into effect by FRFCA,” and to mitigate the compounding effect of C-46, which may make the immigration consequences more serious than warranted by concentrating on the maximum possible sentence for the crime instead of the facts of the case.

Among the recommendations the Section advises:

  • Reversing the threshold for loss of appeal rights from a six-month sentence to a two-year sentence
  • Amending IRPA to state that an impaired driving offence does not amount to serious criminality for purposes of inadmissibility
  • Removing the bar to humanitarian and compassionate relief for persons deemed to be inadmissible
  • Including an exception to the 10-year penalty threshold for impaired driving offences that do not involve serious bodily injury or death, allowing continued eligibility for deemed rehabilitation
  • Developing policies and procedures to ensure foreign nationals and permanent residents are not disproportionately affected by increased penalties for impaired driving offences

“Clearly the intention of Bill C-46 is to send a strong message that impaired driving is unacceptable,” the Section writes. “Yet, the immigration consequences for non-citizens are disproportionate and severe.”

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