August 24, 2011
P.E.I lawyers say that as the immigrant population on the Island grows, the cases in which newcomers receive lighter sentences to avoid criminal records — and possible deportation — are becoming more frequent.
On Wednesday two P.E.I. lawyers said that recent cases illustrate an emerging issue on courtrooms on the Island.
Yetunde Oluwo, who immigrated from Nigeria to attend UPEI in 2009, appeared in court on Monday for sentencing after she pleaded guilty in June of assault causing bodily harm. She was accused of stabbing her younger sister — also her roommate — in the abdomen.
Oluwo received a conditional discharge. Judge John Douglas said one consideration was the fact that a criminal record could have created “immigration issues” for Oluwo.
Douglas said as long as she stays out of trouble and reports to a probation officer, the assault causing bodily harm will not be on Oluwo’s criminal record.
“When a foreign national in Canada comes before the Criminal Justice system, the possibility of being removed from Canada if a conviction is entered against that person is very real,” said Lee Cohen, an immigration lawyer.
It's not that immigrants are committing more criminal behaviour than everyone else. Rather, landed immigrants face punishment that could send them back to their home countries, from which many leave for safety reasons.
It's why judges have the discretion to prevent immigrants from having criminal records.
On Monday, Douglas granted Oluwo and another Island immigrant conditional discharges.
Defence lawyer Jonathan Coady said that as the immigrant population rises, preventing criminal records for newcomers is an increasingly frequent factor in sentencing.
“It just represents the reality that their status in Canada is different,” he said. “The court is required to inquire into their individual circumstances and tailor the appropriate sentence to them.”
Cohen said that lawyers and judges in the province need to become more familiar with immigration law.
“Far too often, foreign nationals or people with permanent residence status are appearing before our criminal courts when none of the major players in the court have a sufficient enough understanding, or in some cases any understanding, of where criminal law and immigration law intersect,” Cohen said.
As a result, Cohen said that the risk of deportation can be ignored. Alternatively, a discharge could be granted without sufficient evidence.
“I think it is proper for a judge to consider the fact that a conviction may cause the removal of a person from Canada,” Cohen said.
But he acknowledged that when immigrants are charged with indictable offenses, judges must balance precedent with the special circumstances of the harsher penalty at stake.
Coady expects to see more cases involving new Canadians.
“Given the number of permanent residents and non-citizens in P.E.I., and given the reality that our population is changing, it's an issue bound to land on a lawyer’s desk more often going forward,” he said.
The issue with respect to the consequences of a criminal record is raised on a fairly regular basis, not just with new Canadians, but also with citizens who must travel out of the country.
The consequences of a criminal record now are much greater than they were certainly a decade ago.
"The issue is usually raised by defence council, and the judges do take it into consideration. I have no recollection of any particular case where an individual from Citizenship and Immigration Canada gave direct evidence to the court on the consequences of a criminal record, either for a new Canadian, or for a Canadian citizen," said Crown attorney John McMillan.
In addition to being removed from Canada, the person's ability to return to Canada as a visitor or as a permanent resident, is also significantly imperiled.
"That is where the tension does exist. If a Canadian citizen were to commit that act, the likelihood of a discharge is quite remote. If a foreign national commits that offence, as happened in P.E.I., the result in court yesterday was a discharge," said McMillan.
P.E.I lawyers say that as the immigrant population on the Island grows, the cases in which newcomers receive lighter sentences to avoid criminal records — and possible deportation — are becoming more frequent.
On Wednesday two P.E.I. lawyers said that recent cases illustrate an emerging issue on courtrooms on the Island.
Yetunde Oluwo, who immigrated from Nigeria to attend UPEI in 2009, appeared in court on Monday for sentencing after she pleaded guilty in June of assault causing bodily harm. She was accused of stabbing her younger sister — also her roommate — in the abdomen.
Oluwo received a conditional discharge. Judge John Douglas said one consideration was the fact that a criminal record could have created “immigration issues” for Oluwo.
Douglas said as long as she stays out of trouble and reports to a probation officer, the assault causing bodily harm will not be on Oluwo’s criminal record.
“When a foreign national in Canada comes before the Criminal Justice system, the possibility of being removed from Canada if a conviction is entered against that person is very real,” said Lee Cohen, an immigration lawyer.
It's not that immigrants are committing more criminal behaviour than everyone else. Rather, landed immigrants face punishment that could send them back to their home countries, from which many leave for safety reasons.
It's why judges have the discretion to prevent immigrants from having criminal records.
On Monday, Douglas granted Oluwo and another Island immigrant conditional discharges.
Defence lawyer Jonathan Coady said that as the immigrant population rises, preventing criminal records for newcomers is an increasingly frequent factor in sentencing.
“It just represents the reality that their status in Canada is different,” he said. “The court is required to inquire into their individual circumstances and tailor the appropriate sentence to them.”
Cohen said that lawyers and judges in the province need to become more familiar with immigration law.
“Far too often, foreign nationals or people with permanent residence status are appearing before our criminal courts when none of the major players in the court have a sufficient enough understanding, or in some cases any understanding, of where criminal law and immigration law intersect,” Cohen said.
As a result, Cohen said that the risk of deportation can be ignored. Alternatively, a discharge could be granted without sufficient evidence.
“I think it is proper for a judge to consider the fact that a conviction may cause the removal of a person from Canada,” Cohen said.
But he acknowledged that when immigrants are charged with indictable offenses, judges must balance precedent with the special circumstances of the harsher penalty at stake.
Coady expects to see more cases involving new Canadians.
“Given the number of permanent residents and non-citizens in P.E.I., and given the reality that our population is changing, it's an issue bound to land on a lawyer’s desk more often going forward,” he said.
The issue with respect to the consequences of a criminal record is raised on a fairly regular basis, not just with new Canadians, but also with citizens who must travel out of the country.
The consequences of a criminal record now are much greater than they were certainly a decade ago.
"The issue is usually raised by defence council, and the judges do take it into consideration. I have no recollection of any particular case where an individual from Citizenship and Immigration Canada gave direct evidence to the court on the consequences of a criminal record, either for a new Canadian, or for a Canadian citizen," said Crown attorney John McMillan.
In addition to being removed from Canada, the person's ability to return to Canada as a visitor or as a permanent resident, is also significantly imperiled.
"That is where the tension does exist. If a Canadian citizen were to commit that act, the likelihood of a discharge is quite remote. If a foreign national commits that offence, as happened in P.E.I., the result in court yesterday was a discharge," said McMillan.
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