Immigration Status in Criminal Sentencing

There have been several stories in the news lately of courts taking an accused’s immigration status into account when pronouncing the accused’s punishment. Some commentors have been critical of the court’s doing so and some have described such actions as leading to a two-tiered justice system. That is, one for Canadians and one for non-Canadians. This has prompted Bill C-220, a private members bill, to be tabled in the House of Commons. Bill C-220 proposes to amend the criminal code to explicitly direct judges to not take into consideration the potential impact the sentence could have on the offender’s immigration status in Canada, or on that of a member of their family.

Leaving aside the last phrase “or on that of a member of their family” for the time being, let’s look at the sentencing process itself. Sentencing principles are set out in s.718 of the Canada Criminal Code. Basically, any imposed sentence must be consistent with the fundamental purpose of sentencing which is to contribute to respect for the law and the maintenance of a just, peaceful and safe society. It must have at least one of the objectives of denunciation, general and specific deterrence, separation of offenders from society if necessary, rehabilitation, reparations to victims and promotion of a sense of responsibility in offenders and acknowledgement of the harm they have caused. Proportionality is fundamental in the sense that the sentence must be proportionate to the gravity of the offense and the degree of responsibility of the offender.

In addition to the directives set out in the Criminal Code, judges are often guided by other judicial pronouncements, especially from the Supreme Court of Canda. Specifically with respect to immigration status, the Supreme Court of Canada in R v. Pham [2013] 1 SCR 739 makes it clear that a sentencing judge may exercise their discretion to take collateral immigration consequences into account as part of the process to achieve parity and the correctional imperative of sentence individualization.

However, the Supreme Court was quick to point out that the weight to be given to collateral consequences varies with each case. An offender, as a result of the commission of the offense, may suffer physical, emotional, social or financial consequences. Jobs are lost, families are disrupted, sources of assistance disappear. While these are not punishments imposed by the state in the sentencing process, they do have a bearing on the offender’s ability to live productively in the community.

So, the Court says, “[t]herefore collateral consequences related to immigration may be relevant in tailoring the sentence, but their significance depends on and has to be determined in accordance with the facts of the particular case. … [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 degree of responsibility of the offender. The flexibility of our sentencing process should not be misused by imposing inappropriate and artificial sentences in order to avoid collateral consequences which may flow from a statutory scheme or from other legislation, thus circumventing Parliament’s will. These consequences must not be allowed to dominate the exercise or skew the process either in favour or against deportation. Moreover, it must not lead to a separate sentencing scheme with a de facto if not a de jure special range of sentencing options where deportation is a risk.”

So long as the sentencing judge is mindful of what an accepted range of punishments for a particular offence is, and the sentence imposed falls within that range, the sentencing judge may take into account immigration consequences when pronouncing that sentence. In which case there is no two-tiered justice system. Rather, there is one system for all. Both Canadian’s and nonCanadian’s punishments fall within the same range of possible punishments.

There have been many examples of courts declining to take immigration factors into consideration when imposing a sentence. It still remains within a judge’s discretion to consider immigration consequences or not. These cases do not get reported with a spicy headline.

Sentencing judges have to balance and weigh many factors as per s.718 of the Canadian Criminal Code. It is not an easy job. Usually the task is done with the assistance of both crown and defence counsel after full submissions. Those submission will most likely reference a case like Pham where the judge has a discretion to factor in immigration consequences so long as the overall sentence remains within an acceptable range of sentences for the offence(s).

Indeed, critics of judges’ ability to factor in immigration consequences have pointed to a recent sentencing case of Roosevelt Rush. They say Mr. Rush received a lighter sentence because of his immigration consequences amongst other factors. After considering the sentencing principles in the Criminal Code, Pham and other similar offence cases, the sentencing judge specifically declined to accede to defence submissions on the appropriate length of sentence, saying: “I regret that this sentence will impact Mr. Rush’s children, and that it will have immigration consequences which may effect his children even more severely. As in Spencer, I conclude that given the gravity of the offences, neither the immigration consequences nor the needs of Mr. Rush’s children can justify a sentence below the accepted range.” The sentence imposed was in line with what the crown was seeking for imprisonment. It is obvious that, in Mr. Rush’s case, the sentencing process, as envisioned by the Supreme Court of Canada in Pham, worked exactly as it was supposed to.

When we look behind the news headlines and look more closely and critically at what we are being told, we can often find what actually happened diverges from the sensational to the commonplace.

Each situation is unique. Timely advice and understanding your legal and immigration position matters. Contact us today to book a consultation.