Judges Can't Weigh Deportation in Sentences

Summary#

This bill changes the Criminal Code to bar judges from considering immigration consequences when sentencing a person who is not a Canadian citizen. It also bars considering effects on the person’s family members’ immigration status. Today, courts may consider deportation risk as a collateral consequence when choosing a fit sentence; this bill would remove that discretion (R v Pham, 2013 SCC 15).

• Judges could not adjust a sentence to avoid deportation or loss of immigration appeal rights for non-citizens (Bill, s. 1).
• Effects on an offender’s family’s immigration status could not influence sentence length or type (Bill, s. 1).
• More sentences may cross immigration “trigger” thresholds in the Immigration and Refugee Protection Act (IRPA), such as 6 months and more than 6 months (IRPA s. 64(2); s. 36(1)(a)).
• The change would apply on Royal Assent, since no other start date is set (Interpretation Act, s. 5).

What it means for you#

• Households (non-citizens convicted of crimes)

  • Judges would not consider deportation risk or immigration appeal limits when deciding your sentence, including whether to set a sentence just below a legal threshold (Bill, s. 1).
  • A jail term of at least 6 months can bar certain immigration appeals (IRPA s. 64(2)); a term of more than 6 months can make a person inadmissible for “serious criminality” in some cases (IRPA s. 36(1)(a)). Judges could not shorten sentences to avoid these effects.
  • If you are a permanent resident or other non-citizen, you could face higher odds of removal when sentences land at or above these thresholds. Data unavailable on how many cases this would affect.

• Families of non-citizens

  • Courts could not lower or change a sentence because a spouse’s or child’s immigration status might be harmed by the sentence (Bill, s. 1).
  • Family hardship related to immigration status would not be a sentencing factor. Other traditional factors (e.g., remorse, prior record) would still apply (Criminal Code s. 718–718.2).

• Victims and the public

  • Sentences would be based on crime and offender factors, not immigration impacts. Supporters say this promotes consistency between citizens and non-citizens; opponents say it could reduce individualized justice. These are claims; quantitative impact on sentence lengths is Data unavailable.

• Judges and courts

  • You would lose discretion to consider immigration status or consequences. Existing case law allowing consideration of deportation as a collateral consequence would be overridden for sentencing (R v Pham, 2013 SCC 15; Bill, s. 1).
  • No change to other sentencing principles such as proportionality and restraint (Criminal Code s. 718.1–718.2).

• Lawyers (defence and Crown)

  • Defence could not seek a lower sentence on the basis of immigration impacts. Crown could object to any submissions based on immigration status (Bill, s. 1).
  • Plea negotiations that seek “six months minus a day” or non-custodial options to avoid immigration triggers would face a legal bar at sentencing. Data unavailable on effects on plea rates.

• Timing

  • If enacted, the change would take effect on Royal Assent, with no phase‑in (Interpretation Act, s. 5).

Expenses#

Estimated net cost: Data unavailable.

• The bill contains no appropriations, new programs, or fees (Bill, s. 1).
• No federal fiscal note is publicly posted. Data unavailable on downstream impacts (e.g., corrections costs, removal proceedings).

Proponents' View#

• Enhances equal treatment in sentencing by focusing on the offense and offender conduct, not civil status. Citizens cannot be deported; making immigration a factor creates unequal outcomes (Bill, s. 1).
• Closes a known loophole where sentences are tailored to avoid immigration triggers (e.g., “six months minus a day”), which can undermine consistency and denunciation (IRPA s. 64(2); s. 36(1)(a)).
• Restores clarity to sentencing by removing a collateral civil consequence that is outside criminal courts’ core role; immigration outcomes should be handled under IRPA processes, not criminal sentencing (Bill, s. 1).
• Aligns with proportionality by preventing undue discounts tied to a status unrelated to the crime itself; other individualized factors remain available (Criminal Code s. 718.1–718.2).
• Reflects Supreme Court recognition that considering deportation is discretionary, not mandatory; Parliament may set limits on what courts may consider (R v Pham, 2013 SCC 15). Assumes statutory direction will promote uniformity.

Opponents' View#

• Removes judicial discretion to account for severe collateral harms like deportation, which can be life‑altering and may render a sentence harsher in effect than intended, undermining true proportionality and restraint (Criminal Code s. 718.1–718.2; R v Pham, 2013 SCC 15).
• Likely increases the number of non-citizens who face removal or lose immigration appeals when sentences reach 6 months or more than 6 months; may separate families. Magnitude is unknown (IRPA s. 64(2); s. 36(1)(a)). Assumes current practice sometimes avoids these thresholds.
• Could pressure plea bargaining toward non-custodial outcomes earlier in the process or, conversely, reduce incentives to plead if immigration‑based submissions are barred at sentencing. Implementation impact is Data unavailable.
• May generate Charter challenges arguing that a categorical ban creates grossly disproportionate outcomes in individual cases. Litigation risk is uncertain. Data unavailable.
• Could shift costs to immigration enforcement and detention if more people become removable, while not improving public safety outcomes. No fiscal analysis provided; net effects are Data unavailable.