Mr. Speaker, as the Bloc Québécois immigration critic, I want to tell the House our position on the bill introduced by my Conservative colleague from Calgary Nose Hill. We will vote in favour of Bill C-220 so it can be studied in committee. This is to allow for continued democratic discussion on the important issue of sentencing in criminal cases where the accused does not have citizenship status.
However, my colleague should curb her enthusiasm, because we have several reservations about this bill. These are serious reservations, which I will summarize in two points. First, we believe that the current legal situation is well balanced. Second, we believe it is important to preserve judicial discretion, in order to avoid inappropriate decisions that fail to take the circumstances of individual cases into account.
Before I go over our reservations, let us look at the bill and its purpose. Bill C-220 contains a single clause that seeks to amend the sentencing portion of the Criminal Code. The clause reads as follows: “A court that imposes a sentence on an offender who is not a Canadian citizen shall not take into consideration any potential impact the sentence could have on the offender's immigration status in Canada, or on that of a member of their family”. If this bill were to pass, a judge would simply not be able to consider the impact of a criminal conviction on a non-citizen's immigration status. Why does my Conservative colleague want to go in that direction?
We got some answers from an article published in the National Post on December 1, which reported that the Conservative Party was outraged that a court had permitted an adjournment in a criminal case to allow an accused to weigh how his reaction to the charges would affect his immigration status. Adjournments are very common in our courts. In this particular case, the adjournment allowed the accused to gather information and ultimately make an informed decision, which was to plead guilty. It also meant avoiding a trial and allowing a victim of sexual assault to avoid having to testify, as that was what the case was about.
I am struggling a bit with this, but the National Post article states that the Conservative Party has identified several cases where it feels that criminal sentences for non-citizens were determined in such a way as to reduce the sentence in order to avoid deportation. The purpose of this bill is therefore to prevent judges from reducing sentences for non-citizens by considering the effect a conviction would have on the criminal's immigration status.
To help the people watching at home understand what comes next, I want to say a few words about the consequences of a criminal conviction for an immigrant. The impact depends on the person's status, but the Immigration and Refugee Protection Act provides for adjustments when someone has been convicted of an offence. If the person is a Canadian citizen convicted of certain more serious offences, they will not be able to sponsor family members.
For non-citizens, the penalties are more severe. If a temporary resident, such as a student, worker or visitor, is convicted, they may become inadmissible. If a temporary or permanent resident is convicted of a serious offence, the sentences can range from more than six months in prison or at least 10 years in prison. That person will be inadmissible. It should also be noted that a criminal conviction will generally prevent someone from obtaining Canadian citizenship.
That being said, let us come back to the Bloc Québécois's reservations. First, what is the current state of the law when a judge is sentencing a non-citizen? It is set out in the Supreme Court's 2013 decision in R v. Pham. We can discuss that of course, but in my view, the rule is fairly well balanced. I will summarize it by quoting a few passages from that Supreme Court decision.
It reads, in part:
A sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, [judges currently have the right to do so] provided that the sentence ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender. The significance of collateral immigration consequences will depend on the facts of the case. However, it remains that they are but one of the relevant factors that a sentencing judge may take into account in determining an appropriate sentence. Those consequences must not be allowed to skew the process....
That is the state of the law.
In that decision, the Supreme Court of Canada found Mr. Pham guilty of producing and possessing marijuana. At trial, he was found guilty but also sentenced to two years in prison. After the trial, his lawyer realized that if he had been sentenced to two years less a day, he would not have lost his right to appeal a removal order against him. That is when an appeal was filed with the Court of Appeal. What the ruling shows is that the Crown prosecutor believed that a sentence of two years less a day was fine. The Crown would have agreed to it if it had been asked. The question was whether the Court of Appeal could intervene in such a case.
The Supreme Court reiterated that the current rule when it comes to sentencing is proportionality. That is a fundamental principle that is very simple to understand. A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
Another important principle is the principle of parity and the correctional imperative of sentence individualization. Each sentence must fit the individual in order to have a deterrent effect and to reflect the degree of moral blameworthiness of each defendant. In this analysis, the court will be able to look at the collateral consequences of a sentence. It will consider any effect that the sentence will have on the offender themselves. The immigration status of the convicted person will be one of the collateral consequences and will be part of the judge's analysis. The judge has to weigh various objectives in determining the sentence, including the objective of assisting in rehabilitating the offender.
The Supreme Court states that:
...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.
The general rule continues to be that a sentence must be fit having regard to the particular crime and the particular offender.
[However], 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....
I will close with this passage:
These [immigration] consequences must not be allowed to dominate the exercise or skew the process....
That is how things currently stand. Basically, if someone has been convicted and is in the process of immigrating, the impact their conviction will have on their immigration status will be taken into account, but it cannot be a decisive factor. There are already examples in case law that prove the opposite, where people tried to have their sentences reduced by saying that it would prevent them from being deported, but their argument was rejected. Most notably, those arguments have been rejected by the Ontario Court of Appeal. The case of Guzman v. R in Quebec is another example. The Conservatives need to prove that the current system needs to be changed.
Our other argument is that it is important to preserve judicial discretion, because each judge can look at each case to ensure that a humane and appropriate decision is made. If judges are prevented from taking this factor into account, mistakes could be made. In short, we are willing to look at everything to try to improve the system, but above all, we do not want to make it worse.