Conservative MP to Propose Bill Challenging Sentencing Practices for Non-Citizens
Conservative MP Michelle Rempel Garner intends to introduce a private member’s bill in September when Parliament resumes, aiming to alter how sentencing impacts the immigration status of convicted individuals who are not Canadian citizens.Rempel Garner asserts the proposed legislation will “restore the value of Canadian citizenship.”
The bill would specifically prevent a judge from considering the potential immigration consequences – for the offender or their family – when determining a sentence. The Conservative Party states this change is necessary due to what thay perceive as a disparity in sentencing.
Rempel Garner argues that Canada currently operates with a “two-tier” sentencing system, a situation she attributes to a 2013 Supreme Court of Canada decision clarifying sentencing guidelines. The ruling established that a judge can consider an offender’s immigration status as one factor amongst many when deciding on a sentence.
Legal experts, however, dispute the claim of a two-tiered system. Audrey Macklin, a law professor at the University of Toronto, explains that judges routinely consider individual factors during sentencing, such as substance abuse issues, parental responsibilities, and potential for rehabilitation. “Sentencing always takes into account factors unique or specific to that individual,” Macklin said,adding that immigration status is simply another relevant consideration. The 2013 ruling also clarified that immigration status cannot be used to justify a sentence below the legally mandated minimum.
Currently, non-citizens face limitations on appealing deportation orders if they meet certain criteria:
A conviction in Canada resulting in a sentence of six months or more.
A conviction outside Canada for a crime punishable by 10 years or more imprisonment in Canada. Involvement in organized crime.
violations of human or international rights law (e.g.,war crimes).
Toronto immigration lawyer Pantea Jafari explains the 2013 ruling aimed to ensure proportionality between the intended punishment and the actual consequences. She illustrates this with an example: a judge might consider a minor offense deserving a six-month sentence. For a Canadian citizen, this would simply mean six months in jail. However, for a non-citizen, it could trigger deportation without the right to appeal.
Jafari argues the 2013 ruling allows judges to adjust sentences – to, for example, six months less a day – to preserve the non-citizen’s right to appeal deportation, ensuring comparable sentencing for citizens and non-citizens. She believes removing the ability for judges to consider immigration status would be detrimental. “To have [this provision] scrapped is really problematic and something that I would vigorously defend against,” she stated, emphasizing that judges cannot ignore the additional consequences a sentence may have for someone who is not a naturalized Canadian.
