I have been told by a immigration lawyer that there is the ability to appeal deportation if convicted and sentenced, depending on charges, and immigration appeal division has the ability to overturn deportation based on rehabilitation, ties to Canada and the state of the country in which they had left.
Jail time as a PR
- Thread starter thisismine0909
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I'm completely out of my league to answer this. This is a very complex situation and it depends on how many of the charges stick.
IMO there are way too many variables here and way too much complexity to be getting any reliable adivce from a free forum. However it's a very long list of charges and I think the OP is right to be extremely worried.
The first thing to focus on is getting the best crimial lawyer possible to reduce / drop as many of the charges as possible.
That is correct. Hopefully you don't get to that point since there are no guarantees of a positive outcome and that would be a long / expensive / stressful process.
Absolutely agree.
Perhaps the OP should consider the law firm that generously provides these forums (contact numbers in upper left of the page, here).
Again, having no law background, but...`based on rehabilitation' would seem to imply that many years have passed since the offence(s) before a person would be rehabilitated, which...they have not. Perhaps the other parameters listed may be enough to overturn a deportation order, should it even come to that.
?
I was told that rehabilitation would be based on a wide range of things IE therapy/counselling, volunteering, working/education to show positive effort, making effort to show remorse, there is not a cookie cutter expectation of rehabilitation for the Immigration Appeal Division, it comes down to what you have been charged with and what you can do to show you have changed essentially, this is only based on what I have been told again
You may be thinking of `Deemed Rehabilitation':I was told that rehabilitation would be based on a wide range of things IE therapy/counselling, volunteering, working/education to show positive effort, making effort to show remorse, there is not a cookie cutter expectation of rehabilitation for the Immigration Appeal Division, it comes down to what you have been charged with and what you can do to show you have changed essentially, this is only based on what I have been told again
https://www.canada.ca/en/immigration-refugees-citizenship/services/immigrate-canada/inadmissibility/overcome-criminal-convictions/deemed-rehabilitation.html
But...don't focus too much on what people here are saying, since most are just people that have gathered some knowledge/information after going through their own journey with Canada immigration; trying to pay it forward. Listen to what your lawyer(s) tell you.
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@thisismine0909
In addition to other well-stated cautionary observations by @scylla, there are many variables, many of which are contingent (not yet determined), which will have a lot of influence in how all this turns out.
It needs to be acknowledged that given just the fact of continued incarceration (this is not the U.S.), it appears or is at least suggested that there are very serious charges alleged, not just in terms of what offence is charged, but in terms of the perceived nature and severity of the acts constituting the crimes alleged, and that there is previous criminal history (further implicated by allegation of breach of conditions). This warrants some real attention because how things turn out will be influenced a lot by the perceived severity of acts for which there is a criminal conviction.
There appears to be a real risk of being convicted of an offence that meets the statutory definition of "serious criminality," whether that is something like threatening a person with a firearm or resulting in bodily harm, which would meet the definition of serious criminality even if the sentence actually imposed is less than six months, or it is any offence for which a sentence of at least six months plus a day is imposed.
As to the latter, and the initial query about time in jail pending trial, as @scylla noted, it will be the sentence imposed that matters . . . a defendant will ordinarily get credit for time served but that does not subtract from the sentence for purposes of whether the serious criminality definition is met. For an example, see the Gill case here: https://canlii.ca/t/jr5ct (conviction certificate lists sentence as 4 months, but that was based on a "global" sentence of 12 months with credit for 8 months time served). This is a big deal since there is no right of appeal, which mostly means no access to H&C relief from the IAD . . . no chance to have the Removal Order "stayed" with conditions and later set aside.
Beyond that it gets complicated with lots of big, big IF this or if that contingencies. It appears that CBSA and IRCC do NOT pursue inadmissibility proceedings against every PR who has been convicted of an offence meeting the serious criminality definition. It appears that how serious or severe the criminal acts are perceived to be can have a big influence in whether inadmissibility proceedings are prosecuted or not . . . and other than in the more obvious, typically more egregious cases, which are easy to predict, it appears difficult to forecast if and when CBSA or IRCC will pursue inadmissibility.
Most of the cases one can find described in published decisions seem to involve PRs who have, more or less, benefitted from less than aggressive prosecution of inadmissibility proceedings. Most seem to have a fairly extensive history before this or that offence finally triggers the inadmissibility proceeding that results in a Removal Order and an appeal.
Key Transactional Events in PR Serious Criminality Inadmissibility Case:
For the initial appeal of the Removal Order, it appears the promise or prospect of rehabilitation can play a major role in whether the IAD will stay the Removal Order and give the PR a chance to demonstrate they will not reoffend and are rehabilitated. A stay can be for just one year or it can be for many years.
Note, again, if there is a sentence for incarceration for more than six months, there is no right of appeal. IAD will not be evaluating the PR's rehabilitation because it has no jurisdiction.
In addition to other well-stated cautionary observations by @scylla, there are many variables, many of which are contingent (not yet determined), which will have a lot of influence in how all this turns out.
It needs to be acknowledged that given just the fact of continued incarceration (this is not the U.S.), it appears or is at least suggested that there are very serious charges alleged, not just in terms of what offence is charged, but in terms of the perceived nature and severity of the acts constituting the crimes alleged, and that there is previous criminal history (further implicated by allegation of breach of conditions). This warrants some real attention because how things turn out will be influenced a lot by the perceived severity of acts for which there is a criminal conviction.
There appears to be a real risk of being convicted of an offence that meets the statutory definition of "serious criminality," whether that is something like threatening a person with a firearm or resulting in bodily harm, which would meet the definition of serious criminality even if the sentence actually imposed is less than six months, or it is any offence for which a sentence of at least six months plus a day is imposed.
As to the latter, and the initial query about time in jail pending trial, as @scylla noted, it will be the sentence imposed that matters . . . a defendant will ordinarily get credit for time served but that does not subtract from the sentence for purposes of whether the serious criminality definition is met. For an example, see the Gill case here: https://canlii.ca/t/jr5ct (conviction certificate lists sentence as 4 months, but that was based on a "global" sentence of 12 months with credit for 8 months time served). This is a big deal since there is no right of appeal, which mostly means no access to H&C relief from the IAD . . . no chance to have the Removal Order "stayed" with conditions and later set aside.
Beyond that it gets complicated with lots of big, big IF this or if that contingencies. It appears that CBSA and IRCC do NOT pursue inadmissibility proceedings against every PR who has been convicted of an offence meeting the serious criminality definition. It appears that how serious or severe the criminal acts are perceived to be can have a big influence in whether inadmissibility proceedings are prosecuted or not . . . and other than in the more obvious, typically more egregious cases, which are easy to predict, it appears difficult to forecast if and when CBSA or IRCC will pursue inadmissibility.
Most of the cases one can find described in published decisions seem to involve PRs who have, more or less, benefitted from less than aggressive prosecution of inadmissibility proceedings. Most seem to have a fairly extensive history before this or that offence finally triggers the inadmissibility proceeding that results in a Removal Order and an appeal.
Key Transactional Events in PR Serious Criminality Inadmissibility Case:
-- conviction; what particular offences the PR is convicted of is the key defining factor; note, an assault based on making threats with a firearm or resulting in injury is an offence which meets the statutory definition of serious criminality, since a sentence of up to ten years may be imposed
-- sentence; sentence for MORE than six months (meaning at least six months plus a day) meets the statutory definition of serious criminality, and this has real teeth since this means there is no right of appeal, no opportunity to go to the IAD and obtain H&C relief from a Removal Order . . . and, again, time served pending trial does not get deducted from the sentence for this purpose; it gets credit against the whole sentence, so it reduces the time left to still serve, but does not reduce the sentence itself
-- inadmissibility proceedings in the ID (Immigration Division); as noted, not all PRs convicted of crimes which meet the definition of serious criminality have inadmissibility proceedings brought against them, but from out here (maybe lawyers will have more insight) it is near impossible to discern when and why . . . obviously, the more serious the offences, the more likely there will be inadmissibility proceedings, but beyond that we just do not know who, when, or why . . . some yes, some no
-- appeal to IAD if found to be inadmissible based on serious criminality; IAD has no jurisdiction, however, to hear appeal from a PR found inadmissible for serious criminality on the grounds of having been sentenced to more than six months incarceration; otherwise, in an appeal IAD can dismiss or allow relief including:
-- -- outright set aside a Removal Order, whether it is not valid in law or based on H&C reasons, or
-- -- issue a stay of the Removal Order on conditions; in the typical case this means that the Removal Order will be set aside if those conditions are successfully met by the PR (sometimes however it just means the case will be reconsidered); for some discussion of this in particular situations, see Hekalow decision here: https://canlii.ca/t/js014 and Palenfo decision here: https://canlii.ca/t/jqvnt
-- Removal Proceedings -- Deportation; I am not much acquainted with this phase, but aware that scores of former PRs who lost PR status for inadmissibility due to serious criminality remain in Canada pending actual deportation. Affected persons can apply for a Pre-Removal Risk Assessment, but unless there is real danger posed by being deported to the home country, for most PRs this merely delays things, and in particular for the former PR who lost status for serious criminality and lost an appeal to the IAD, the appeal to the IAD was a far better chance of getting relief allowing the individual to stay in Canada longer.
I believe what you describe is largely true. Not much if at all related to the "deemed rehabilitation" information referenced by @Ponga (well, some of the underlying factors overlap, like obviously no more crimes since those for which the PR was convicted is a clear factor in assessing rehabilitation).
For the initial appeal of the Removal Order, it appears the promise or prospect of rehabilitation can play a major role in whether the IAD will stay the Removal Order and give the PR a chance to demonstrate they will not reoffend and are rehabilitated. A stay can be for just one year or it can be for many years.
Note, again, if there is a sentence for incarceration for more than six months, there is no right of appeal. IAD will not be evaluating the PR's rehabilitation because it has no jurisdiction.
Was also going to point out that if your spouse hasn’t been released on bond that is very unusual in Canada unless there is a previous criminal history or proof of a risk to the general public. Canada regularly releases people who have multiple firearms and even attempted murder charges.
Yup, I should have elaborated further in my post, pointing to deemed rehabilitation not even being something to consider until years after the conviction...which is, ultimately, detailed when following the link.
It's true. I don't know why this guy was being granted bail! He randomly attack ppl with machette. He is for sure a risk to the general public.
https://bc.ctvnews.ca/machete-attack-suspect-immediately-disappeared-after-getting-bail-vancouver-police-say-1.6101180
Not saying that OP's spouse is committing a more serious crime but it doesn't sound common in Canada to not get released on bond.