bill c 43 (attn:dpenna )

Hi

dpenabill wrote: Sorry, I have tried to grasp the significance of C - 43 for PRs and, well, generally I know that it lowers the threshold for revoking PR status considerably, but I am not clear about the details. I would note, though, that review by the Federal Court is still available, even though there is no appeal within the immigration system itself. I also expect there to be some litigation about this, and in the meantime I doubt CIC is going to be aggressively pursuing removal proceedings against what is, literally, tens of thousands of PRs who could technically be brought into the scope of the more strict provisions. If CIC prevails in the litigation, perhaps there will be some escalation in pursuing removal proceedings, but that will not be for a long while. Note: this is just my not-particularly-well-informed guess.

1. It has lowered the threshold for criminality, in that previously if you received a sentence of 2 years or more as a PR, then you didn't have access to the IAD. Now if you receive a custody sentence of 6 months or more you don't have access to the IAD. (That is my interpretation)
2. Misrepresentation is now a 5 year ban rather than 2. No application considered within that period.

Serious Criminality

Update Re Application of Threshold For Serious Criminality
Headline: Current Ministers' interpretation is more draconian than anticipated, let alone expected, considering even conditional sentences as meeting the "serious criminality" threshold. See discussion about the Minister's position below.

A recent Federal Court decision, in the Than Tam Tran and Minister of Public Safety case, addresses the questions raised above in 2013 regarding the scope and application of the statutory provisions governing the threshold for what constitutes serious criminality rendering Permanent Residents criminally inadmissible and subject to being issued a Removal Order, pursuant to which PR status is revoked and the individual deported from Canada, with no right of appeal (to the IAD).

PMM wrote: 1. It has lowered the threshold for criminality, in that previously if you received a sentence of 2 years or more as a PR, then you didn't have access to the IAD. Now if you receive a custody sentence of 6 months or more you don't have access to the IAD. (That is my interpretation)

I agreed with PMM's interpretation.

In particular, it seemed clear to me that the lowered threshold was based on a custody sentence of six months or more, meaning a sentence imposed for a period of incarceration of six months or more. (Perhaps I should say it "subsequently seemed clear" since at the time of the above discussion I was, as I noted in my post above, not then clear about what the new law prescribed, becoming more familiar with its provisions since then.)

It should be noted that the threshold of what constitutes serious criminality for which a PR becomes inadmissible was and continues to be a sentence of imprisonment for six months; in particular, section 36.(1)(a) prescribes that a permanent resident is inadmissible on grounds of serious criminality for:

. . . an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed

What changed, what was lowered in 2013, is another provision pursuant to which the threshold above which there is no right of appeal (this is in reference to the right of an appeal to the IAD; judicial review is nonetheless available, as the Than Tam Tran decision illustrates).

Much of the commentary and criticism has been aimed at how low the threshold is for revoking PR status based on "serious criminality." (Sidebar observation: what Canadians consider to be "serious criminality" in a general sense varies widely. My wife, for example, tends toward the view that all criminality is serious, thus serious criminality. As one who formerly advocated, before judges and juries, on behalf of more than a few individuals who commited murder, rape, and kidnapping, among a range of other offences I would call "serious" crimes, my view tends to be rather more nuanced if not lenient.)

In any event, here is what the Minister argued:

[7] The Minister argues that a conditional sentence has been definitively characterized as a sentence of imprisonment and, therefore, a conditional sentence of 12 months is obviously a term of imprisonment greater than 6 months.

In other words, this government has taken the position that even though a sentence is imposed which does not send the individual to jail for even a day, if there is a "conditional sentence" of six months or more, a PR is inadmissible and subject to loss of PR status with NO right of appeal.

PRs who have strayed over the line a little (not a lot) may take some comfort in Justice O'Reilly's decision to the contrary. Unfortunately, however, Justice O'Reilly's decision technically is not a binding precedent in other cases.

Part of the difficulty in anticipating how Canada will approach cases in the future, and frankly cause for some consternation, is how extreme this government's approach has been in this regard. In particular, the Ministers (these matters involve multiple Ministers, as CBSA, CIC, and Public Safety and Emergency Preparedness all have roles) appear to have totally ignored a decision by the Supreme Court of Canada, nearly a decade ago, that unequivocally ruled, for purposes of IRPA's provisions prescribing inadmissibility for "serious" criminality, that the threshold refers to a prison term. In contrast, CIC relied on another, older decision by the Supreme Court of Canada, which has been the subject of subsequent clarification, which characterized a conditional sentence as a term of imprisonment (notwithstanding specifically citing provisions of law which exclude the imposition of conditional sentences if the law prescribes a minimum term of "imprisonment," which seems, on its face, to distinguish a conditional sentence from a sentence of imprisonment).    
    
Thus, in regard to the OP's query:

nureya wrote: What if someone has been convicted of summary offense and recieved 360 days of conditional sentence. Will this still be applicable to them?

We now know that at least in some cases Canada, the current government anyway, has said yes, yes, a conditional sentence of 360 days meets the threshold for serious criminality.

In contrast, I believe that the vast majority of people who thought about this, thought that an actual custodial sentence of six months or more was the threshold.

Not our current government it appears.

Thus, I was apparently wrong when, back in 2013, I posted:

. . . in the meantime I doubt CIC is going to be aggressively pursuing removal proceedings against what is, literally, tens of thousands of PRs who could technically be brought into the scope of the more strict provisions . . .

I did, however, specifically couch that in a caveat: "this is just my not-particularly-well-informed guess."

In that regard, I must admit that overall CIC and CBSA have been more aggressive than I forecast or anticipated, and in some respects they have been rather draconian. The Than Tam Tran case illustrates this. While this individual obviously has a long history of criminality, that is a history of relatively minor offences (many apparently petty offences although some conduct leaned toward more serious offences), in contrast this is an individual who obviously came to Canada a quarter century ago as the child (an older child, 19) of the primary applicant for immigration, and thus is an individual whose life is solidly rooted in Canada, only in Canada, whose parents and siblings and extended family all live in Canada, and who has five children who are Canadian citizens living in Canada. Revoking PR status and deporting such an individual, who had been a PR for a quarter century, for an offence that a court considered minor enough that not a single day of jail was imposed, is indeed draconian in my view. I did not anticipate this.     

nureya wrote: If you see the Than tam tran case....

That was what my last post above, on November 12 was about, the Thanh Tam Tran case, which I acknowledged shows that CIC has taken a far more aggressive approach than I had anticipated it would.

That said, key elements include significant history of criminal activity and a conviction for an offence which carries the possibility of a very substantial period of imprisonment, of actual incarceration (potential sentence actually increased significantly since the time of the offence in the Thanh Tam Tran case).

I am not a lawyer. I do not know the Canadian criminal code all that much. I do not know what degrees or specific types of trespass offences there are, or what the potential sentence is.

One key is whether an offence is potentially punishable by imprisonment for ten years. If so, that is an offence falling within the scope of the serious criminality provisions.

Another key is whether a sentence is imposed for six months or more imprisonment. CIC took the position that a full year of a conditional sentence constitutes imprisonment for more than six months. Justice O'Reilly, rightfully I think, disagreed. But it is uncertain to what extent CIC is bound by or will follow this in any case other than that of Thanh Tam Tran.

Generally, unless a PR is sentenced to actual incarceration for six months or more, I doubt there is a problem. But, that is not certain.

Anyone on the cusp of this issue should, of course, consult with a reputable, licensed Canadian immigration and citizenship lawyer, and be prepared to show the lawyer copies of actual court disposition.