Failure to inform judge of accused immigration status results in successful appeal on sentence

In criminal defence one of the most important aspects of any intake interview is to determine the immigration status of the client. Permanent residents and other non-Citizens who are convicted of criminal offences can suffer immigration consequences. For instance, a permanent resident convicted of a criminal offence in Canada for which a term of imprisonment of more than 6 months has been imposed is inadmissible on grounds of serious criminality. This means that the offender is subject to an automatic deportation order back to their country of origin.

As a result, lawyers defending individuals charged with criminal offences should familiarize themselves with the relevant sections of the Immigration and Refugee Protection Act, as well as the penalties for offences under the Criminal Code. If a client wishes to plead guilty or is otherwise convicted, the lawyer must inform the Court of the client’s immigration status due to the potential for serious immigration consequences resulting from a sentence.

R v Singh, 2021 ABQB 966 is a case where the lawyer failed to do the above and this resulted in serious immigration consequences for the accused. The lawyer represented the accused in relation to a charge of assault with a weapon. The accused was convicted. At the sentencing hearing, the Crown prosecutor sought a jail sentence of 6-9 months. The lawyer then sought a period of 10 weeks incarceration to be served on weekends. At the time of the initial sentencing, the lawyer did not raise the immigration issue whereby the accused was a permanent resident and not a Canadian citizen. The judge sentenced the accused to 7 months incarceration. This resulted in an automatic deportation order back to the country of origin, which in that case was India.

The judge’s sentencing decision was appealed to the Court of Queen’s Bench. On appeal, the accused’s trial counsel submitted an affidavit where he admitted that his practice consisted primarily of civil litigation, real estate, and wills and estates (not criminal and immigration law). He understood in a general way that the accused could face immigration consequences as a result of a criminal conviction but thought, in error, that a sentence over 6 months would result in an admissibility hearing, not an automatic deportation order. The lawyer did not have a detailed understanding of the consequences and did not look into the issue other than to have a discussion with the client and the client’s brother-in-law.

As a result, the Justice hearing the appeal found that because of counsel’s ineffectiveness, the sentencing judge did not have the opportunity to consider the deprivations that the accused would suffer upon deportation, which may have affected the outcome of sentencing. Consequently, the sentence was reduced from 7 months in jail to 6 months less one day.