A citizen is a permanent member of our society, with a right to remain in Canada indefinitely, regardless of social status, education, health or criminality (with limited exceptions). Permanent residents (“PRs”) also have the right to remain in Canada indefinitely, but are subject to various requirements, one of which is to remain criminally admissible. Many PRs have lived in Canada for decades without obtaining citizenship because of a belief that their status is secure.
PRs who commit certain crimes may be removed from Canada. In theory, the removal of criminals from Canada will protect Canadians from violence and crime. In practice, however, the legislative provisions that define serious criminality and govern the removal process mean that PRs can lose their permanent status and be removed from Canada even when they do not pose a real threat to Canadian society. The provisions even allow for removal of PRs when it will likely put them at risk of serious harm.
Two recent legislative amendments (Immigration and Refugee Protection Act, S.C. 2001, c. 27 [s. 64(2) and s. 48(2)]) have jeopardized the durable nature of PR status in Canada. The first amendment governs when PRs can appeal a criminal inadmissibility determination. A PR used to be barred from an appeal if convicted and sentenced in Canada to a term of
imprisonment of at least two years. Now, a PR convicted of an offence in Canada will lose the right of appeal if sentenced to a term of imprisonment of at least six months. The second amendment pertains to when officers are required to remove an inadmissible PR. A removals officer used to effect removal “as soon as practicable.” Now, a removals officer must effect removal “as soon as possible,” which has arguably stripped the discretion of officers to defer removals in appropriate circumstances.
The effect of these amendments is that PRs who have humanitarian and compassionate considerations to justify overturning an inadmissibility determination or staying a removal no longer have the right to have those considerations assessed. Examples of humanitarian and compassionate considerations include the best interests of children, such as Canadian children residing in Canada, establishment in Canada, employment history, community involvement, rehabilitation, and physical and mental health.
The assessment of humanitarian and compassionate considerations is a safeguard that protects vulnerable PRs and their family members from undue hardship. Consider, for example, a PR who has resided in Canada since she was an infant, who has no ties to her country of citizenship, and who has a serious mental illness. As an adult, she receives a seven-month prison sentence for uttering threats even though she does not harm another person. In that case, she will be subject to removal proceedings without any consideration of her mental health, lack of ties to her country of citizenship, or whether she is a true danger to the public. In the past, her circumstances would have been assessed by an appeal panel and an officer, who would have had the ability to stay or defer her removal.
When PRs are removed from Canada without an assessment of humanitarian and compassionate considerations it undermines the nature of permanent resident status. Such a removal process also creates a risk that PRs will be subject to more severe consequences than those contemplated by criminal courts. These consequences are unnecessary from an immigration objective of protecting public safety if the PR does not pose any danger to the public in Canada, and they undermine the successful integration of PRs into Canada as permanent members of our society.