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Judges in too many cases are protecting non-citizens from the consequences of their criminal conduct on their status in Canada. In doing so, they are flying in the face of what Parliament and the Supreme Court have directed. And they are adding to a growing sense among Canadians that judges are at times a law unto themselves.
Consider a 2024 Calgary case offered up by the federal Conservatives, who are proposing to bar judges entirely from considering the immigration consequences at sentencing.
The case involved a man living in Canada on a visitor’s permit who sexually assaulted a young woman in a bar. The woman, 18, was standing in line with friends, waiting to order drinks. Rajbir Singh, a 25-year-old Indian man not known to the woman, touched her buttocks and vagina, and, when she spun and confronted him, grabbed her vagina again.
Under federal law, foreign nationals convicted of a crime are subject to a removal order. But Justice Anne Brown of the Alberta Court of Justice gave Mr. Singh a conditional discharge so he would not have a criminal conviction registered against him. Citing a legal opinion the court had received, she wrote that he could still be deported, but would have a hearing first, and a chance to appeal. (This was wrong, according to an immigration lawyer who told The Globe and Mail no conviction means no inadmissibility hearing or removal.)
Almost 600 foreign nationals with criminal records due to be deported are missing, CBSA says
In her ruling, Justice Brown called the sexual assault “brazen yet minor,” finding it “clearly, impulsive” – two impulses in one assault? – “of extremely short duration” and “minimally invasive.” “Given the low level of seriousness,” she wrote, “it does not rise to the level of necessitating a public record. This is particularly so when the devastating immigration consequences are considered.” A Crown prosecutor had argued a jail term, albeit of just 15 to 45 days, was necessary for deterrence.
This was not minor. The judge acknowledged the victim suffered continuing psychological harm. She had precedent to cite in a similar immigration-related discharge after a sexual assault at a Calgary LRT station. It is not comforting that there is such a pattern of rulings.
In short, Parliament has passed legislation that expressly mandates a removal order for non-citizens who commit crimes. In Mr. Singh’s case, and others that are easily found on a publicly accessible, free legal database, judges are finding ways to require procedural layers that add cost, delay and uncertainty. Justice Brown’s apparent error aside, it amounts to helping offenders avoid the consequences of their actions.
A Supreme Court of Canada ruling in 2013 opened this door. A permanent resident had been given a two-year prison sentence for marijuana trafficking. At the time, permanent residents could appeal a removal order if sentenced to less than two years. (The Conservative government of Stephen Harper moved that line to six months that same year, 2013.) The defence lawyer, Crown and judge were unaware of the two-year rule. Understandably, the Supreme Court allowed a one-day sentence reduction, and said immigration consequences may be taken into account at sentencing.
But, the court stressed, “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.” And it offered up this prescient warning: “These consequences must not be allowed to dominate the exercise or skew the process either in favour of or against deportation.” The process has indeed become dominated and skewed.
Consider the leniency shown a 21-year-old permanent resident who drove a getaway car for armed bank robbers. The Ontario Court of Appeal in 2015 called it “grossly disproportionate” to deport him to Syria, then in a civil war. It reduced his sentence to just under six months, from nine, giving him back a chance at a humanitarian appeal of a removal order.
It is a deeply Canadian impulse to emphasize second chances, rehabilitation, and mercy. Yet does anyone ask whether Canadians would want these offenders as citizens? Hasn’t Parliament already pronounced on that issue?
We would not remove all discretion at this point. It would be harsh treatment in certain cases for permanent residents who have been here decades, or young special-needs people deserving of empathy. But judges need to abide by and enforce the rules Parliament has set out for newcomers and permanent residents, and stop skewing the results.