People who immigrate to Canada are usually aware that if convicted of a specific crime they could lose their permanent residence status. Accordingly, when immigrants are charged with crime, immigration lawyers and defense lawyers will often work together to ensure that the accused do not lead to deportation. It is therefore important to note that the Canada Border Services Agency has recently adopted an exceptionally rigorous approach to interpreting Canadian immigration laws that could fundamentally change the immigration consequences of violent actions in Canada. The question is now before the Federal Supreme Court of Canada.
The consequences of criminal records
Canadian immigration legislation provides that permanent residence in Canada due to serious crime is not permitted if it has been convicted in Canada of an offense under a Parliament law that is punishable by a minimum of ten years imprisonment or an offense under the law Law of Parliament for which a prison sentence of more than six months has been imposed.
First of all, it should be noted that a conviction is required. A conviction is a Canadian court finding that a person is guilty of a crime. An indictment or a confession is not a conviction. A suspended sentence is also not an immigration sentence, nor is it an absolute or conditional release in which a guilt is found but no individual sentence is registered.
Secondly, it should be mentioned that only convictions for certain crimes make permanent residence in Canada illegal. The offense must either be an offense with a maximum sentence of ten years or more or a sentence of more than six months. Conditional sentences are not included.
A permanent resident who is inadmissible to Canada for a serious crime can appeal to the Immigration Appeal Division. The Immigration Appeal Division either overrides a deportation order based on humanitarian and compassionate reasons, allows the deportation to continue, or suspends the deportation for a period of time so that the immigrant can demonstrate that he is not carrying out any further criminal acts. This is known as a stay.
Section 34 Inadmissibility
The federal appeals court will shortly hear an appeal in two cases in which individuals expelled by the Canada Border Services Agency for violent behavior although they are not inadmissible due to serious crime.
In the first case, Mason v. Canada (Citizenship and Immigration)A permanent resident fired a gun eight times and injured two people. As a result, two charges of attempted murder were brought against him. However, fees have been retained (and essentially dropped). Mr. Mason was not inadmissible to Canada for serious crime since he had never been convicted of a crime.
In the second case Dleiow v Canada (Citizenship and Immigration). A permanent home broke into the house of his former life partner, damaged a door and made threats. He pleaded guilty to several charges, none of which had a maximum sentence of ten months or more, and was conditionally released. Mr. Dleiow was also suspected of attacking a woman, although she denied it, and he was never convicted of a crime. Mr. Dleiow was not inadmissible for serious crimes in Canada since none of the crimes had a maximum sentence of ten years or more.
In both cases, the Canada Border Services Agency pursued the deportation through a so-called “Section 34” illegality. Section 34 of the Canadian Immigration and Refugee Protection Act Provides that permanent residence for security reasons is not permitted for Canada because (a) there is espionage against Canada, (b) one Government is infiltrated by force, (c) terrorism, (d) a threat to the U.S. security of Canada, (e) acts of violence that could endanger or endanger the life or safety of people in Canada, or (f) membership in an organization involved in any of the above actions.
An immigrant who is prohibited to Canada under s. 34 cannot appeal their deportation to the Immigration Appeal Division. Immigration officials are prohibited from taking humanitarian and compassionate factors into account. You are not allowed to request rehabilitation or a record ban (formerly known as a pardon). While a person may only be inadmissible because of serious crime if the authorities have determined that the person has committed a crime “beyond doubt”, section 34 inadmissibility only presupposes that there is “sufficient reason to believe” that there was an action has occurred.
in the masonJustice Manson said that s. 34 (e) includes “acts of violence” that “endanger the life or safety of people in Canada”. However, since they are grouped with crimes such as terrorism, espionage and subversion, this could only have meant that Parliament intended them to be used in the most serious cases. in the Dleiow, Judge Barnes said that he would follow what Judge Manson said, but found that the federal appeals court would ultimately rule on the matter.
If the Federal Appeals Court finds that the Canada Border Services Agency’s arguments are correct, the following applies: s. 34 (e) applies to criminal acts such as bodily harm, then legal protection for permanent residents who commit violent acts is significantly restricted. Permanent residents would no longer need to be charged and convicted of crime to be removed from Canada for such crime, provided there is “reasonable reasonable belief” that they have committed violence. This would be a fundamental shift in the ramifications for permanent residents of criminal activity in Canada, and it will be interesting to see what the federal appeals court decides.
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