By Yoann Axel Emian, Canadian Immigration Lawyer.
Deportation is often viewed as an administrative measure, separate from criminal punishment. Yet for many migrants in Canada, the consequences of a criminal conviction extend well beyond the sentence handed down in court. A sentencing decision that might seem routine can result in removal from the country, sometimes to a place the individual has not lived since early childhood. This legal and human reality places criminal court judges in a difficult position. Although they are not responsible for making immigration decisions, their rulings can determine whether someone remains in Canada or is permanently expelled.
The overlap between immigration and criminal law, often referred to by scholars as “crimmigration,” becomes particularly visible during sentencing. Canadian courts have long grappled with whether, and how, to consider immigration consequences when determining an appropriate sentence. The Immigration and Refugee Protection Act “IRPA” sets out clear legal consequences based on convictions and sentence lengths. However, it is often criminal judges who bring those consequences into effect.
The 2013 enactment of the Faster Removal of Foreign Criminals Act “FRFCA” marked a significant development in this area. By restricting the right of appeal for permanent residents facing deportation, Parliament aimed to reduce judicial discretion and tighten the link between criminal convictions and removal from Canada. Despite this legislative change, sentencing judges have continued to grapple with the impact of deportation in their decisions. In some cases, they have found ways to challenge or mitigate these consequences.
Deportation and Criminality
At the center of Canada’s deportation regime is section 36(1)(a) of the IRPA. This section states that permanent residents and foreign nationals may be deemed inadmissible to Canada on the grounds of serious criminality. Inadmissibility can be triggered in one of two ways: either through a conviction for an offence that carries a maximum sentence of at least 10 years, or through the actual imposition of a sentence of more than six months for any offence under federal law.
This framework creates a dual-layered set of consequences for migrants with criminal convictions. The first layer, which stems from sentencing law, focuses on determining a fair and appropriate penalty based on the nature of the offence and the personal circumstances of the individual. The second layer, which falls under immigration law, determines whether the same offence will result in permanent removal from Canada.
For permanent residents, the consequences are especially serious. Many have lived in Canada for most of their lives and maintain strong ties to family and community. However, if they receive a sentence longer than six months, they may lose the right to appeal a removal order to the Immigration Appeal Division “IAD”. This change, brought about by the FRFCA in 2013, lowered the previous appeal threshold from two years to just six months. Foreign nationals, those in Canada on temporary status or without legal status, have no right of appeal at all under the IRPA when facing removal due to criminal convictions.
Reducing the appeal threshold from two years to six months was not a small procedural adjustment. It reflected a broader policy aim: to speed up the removal of migrants with criminal records and to reduce the ability of courts and tribunals to delay or block deportation.
Judicial Discretion Meets Immigration Logic
The close connection between sentencing and deportation raises a fundamental legal question: should judges take immigration consequences into account when imposing a criminal sentence? Over the years, Canadian courts have answered this question with varying degrees of caution, uncertainty, and occasionally, boldness. The 2013 Supreme Court decision in R. v. Pham offered some clarity, but it also highlighted the ongoing complexity of the issue.
R. v. Pham
In R. v. Pham, the accused was a permanent resident of Canada who pleaded guilty to several charges. He received a two-year sentence, which triggered inadmissibility under the IRPA and removed his right to appeal a removal order. The original sentencing judge imposed this term without considering the immigration implications. On appeal, however, Pham’s sentence was reduced to two years less a day, thereby preserving his ability to appeal deportation.
The Supreme Court upheld this reduction. The Court emphasized that while sentencing judges should not impose unduly lenient sentences solely to avoid immigration outcomes, they may properly consider collateral consequences, including the potential impact on immigration status, as part of an individualized and just sentence.
This judgment acknowledged that sentencing is not an abstract exercise. When foreseeable consequences such as deportation may occur, and especially when those consequences appear disproportionate to the offence, judges are permitted to adjust their sentences accordingly, as long as they remain consistent with the principles of proportionality and legal precedent.
Collateral Consequences as Part of Proportionality
The Pham decision solidified a position that had emerged inconsistently across Canadian jurisdictions. Earlier cases like R. v. Hamilton, R. v. Kanthasamy, and R. v. Critton had suggested that immigration consequences might be relevant to sentencing, but courts often hesitated to engage too deeply, wary of stepping into what they saw as immigration law’s domain.
What Pham clarified was that considering immigration consequences does not transform the sentencing court into an immigration tribunal. At the same time, these consequences are not irrelevant.
However, this middle ground is a delicate one. Judges must strike a balance between fairness and legality, compassion and consistency. In some cases, this may mean imposing a sentence of six months less a day to preserve a permanent resident’s right to appeal. In others, the judge may affirm that a longer sentence is appropriate, even when aware that it will result in removal. What matters is that sentencing remains transparent, individualized, and just.
Judicial Tightrope Walking
Despite the guidance provided by Pham, sentencing practices around immigration consequences remain uneven across Canada. Some judges are hesitant to consider deportation risks, seeing them as speculative or unrelated to their core responsibilities. Others are more proactive, especially when defence counsel presents compelling evidence such as immigration records, expert testimony, or personal details about the accused’s ties to Canada.
Regional context also plays a role. Courts in major cities like Toronto, Montréal and Vancouver, where the criminal and immigration bars often intersect, are more likely to take immigration issues seriously during sentencing. In contrast, judges in smaller jurisdictions may lack the familiarity or institutional culture to do so.
Additionally, judicial attitudes vary. Some judges view sentencing as a space where humane discretion should be exercised, particularly to soften the harshest aspects of deportation law. Others worry about exceeding their authority or creating inconsistency in sentencing decisions.
Still, one truth remains consistent across these differences: judicial discretion endures. And in many cases, that discretion is the only safeguard separating a migrant defendant from the complete disruption of their life in Canada.
FRFCA and the Attempt to Curb Judicial Influence
The Supreme Court’s decision in R. v. Pham, affirming that judges may consider immigration consequences when sentencing, was delivered just months before Parliament took explicit steps to reduce the practical impact of that discretion. The FRFCA, passed in 2013, significantly reshaped the legal landscape. It did so by narrowing access to appeal for permanent residents facing deportation and, in doing so, sought to limit the role of criminal courts in shaping immigration outcomes.
From Two Years to Six Months
Prior to the FRFCA, permanent residents who were convicted and sentenced to less than two years of imprisonment retained the right to appeal a removal order to the Immigration Appeal Division “IAD”. This appeal mechanism functioned as a vital safeguard, allowing the IAD to consider humanitarian and compassionate grounds such as length of residence in Canada, family and community ties, rehabilitation, and the risk of hardship or persecution upon return.
With the enactment of the FRFCA, this appeal right was drastically curtailed. Now, only those who receive a sentence of less than six months can appeal a removal order. Any sentence of six months or more results in the loss of access to the IAD, regardless of the individual’s time in Canada, degree of integration, or potential consequences upon deportation.
A Legislative Pushback Against Judicial Discretion
In practice, the FRFCA created a new kind of sentencing dilemma. Even relatively minor offences could now lead to permanent removal if the sentence crossed the six-month mark. Judges were no longer deciding only what was just under the Criminal Code; they were also, by implication, deciding whether someone could continue living in Canada.
Ironically, this only raised the stakes. While Parliament aimed to limit judicial influence over deportation, the law’s structure made sentencing decisions even more consequential. In tightening the rules, the FRFCA arguably made it more likely that judges would carefully weigh collateral consequences, especially when the difference between five and six months could determine whether a person had any procedural path to remain in Canada.
Rather than eliminating discretion, the legislation narrowed the space in which it could operate. Judges still had to consider the full impact of their decisions, but now within a much more constrained legal environment, with fewer opportunities for external correction through appeals.
Backfiring or Working as Intended?
Whether the FRFCA achieved its intended effect depends on one’s perspective. From an enforcement standpoint, the legislation succeeded in streamlining removals by eliminating a key procedural safeguard. From a rule of law and justice perspective, however, it created a significant gap. Individuals could now be deported without any meaningful review of their personal circumstances, rehabilitation, or potential hardship abroad.
The judicial response has not been uniform. Some judges have adapted to the new framework by treating deportation as a consequence beyond their control. Others have continued to engage with the implications of their sentences, acknowledging that while they cannot stop a removal order, they can still consider whether a shorter sentence would meet the objectives of sentencing while preserving access to appeal.
In essence, the FRFCA did not silence judicial discretion, but it did narrow the space in which it could speak. What remains is a careful balancing act, between the legislative mandate for swift removal and the judicial responsibility to impose fair, individualized, and proportionate sentences.
Sentencing as a Site of Quiet Resistance
When judges do engage, their discretion often functions as a subtle form of resistance to the harshness of the deportation regime. This resistance is not defiance; its discretion exercised lawfully within the bounds of the Criminal Code. But it has powerful consequences.
In one Ontario decision, a judge faced a dilemma: the accused had committed a serious offence, but was also a long-term permanent resident, the father of Canadian-born children, and the sole financial provider for his family. The Crown sought a sentence of seven months. The defence requested five. The judge imposed six months less a day, the tipping point that would preserve the man’s right to a humanitarian appeal before the IAD.
There was no suggestion that the sentence was inappropriate. Rather, the court acknowledged that immigration consequences were among several factors relevant to the totality and proportionality of the sanction.
This approach reflects what some scholars have called the “ethical edge” of sentencing: the recognition that legal punishment does not occur in a vacuum. When the consequences of a sentence include permanent exile, the stakes are heightened and so too is the need for careful, compassionate, and individualized judgment.
Limits of Discretion and Its Risks
But discretion is not a panacea. It remains uneven, dependent on local legal culture, the preparedness of defence counsel, and the attitudes of individual judges. It also offers no guarantee: even where immigration consequences are considered, a judge may determine that the sentence required for proportionality must cross the six-month threshold, triggering removal.
Moreover, there is always a risk that discretion becomes arbitrary or inconsistent. Without clear guidance, two similarly situated migrants could receive dramatically different outcomes based on which judge hears their case, or whether immigration consequences were raised at all.
Nonetheless, within a tightly regulated system, sentencing discretion remains one of the few spaces where legal actors can respond to the human realities of deportation. It is not a shield, but it can be a lever, one that, when pulled carefully, can protect dignity, preserve families, and uphold the values of a just legal system.
Racialized Logics and Structural Exclusion
Any examination of how deportation operates through sentencing in Canada must address a deeper reality: immigration law and criminal punishment do not exist apart from race. From the construction of “dangerousness” to the framing of “foreignness,” racialized ideas have long shaped how both systems decide who belongs and who does not.
The Racial Subtext of Foreign Criminal
The political discourse surrounding the Faster Removal of Foreign Criminals Act was filled with coded language. Phrases such as “violent foreign criminals,” “abusing the privilege of being in Canada,” and “gaming the system” were repeated in both Parliamentary debates and public messaging. These narratives did more than justify legislative change; they shaped public perception of who posed a threat.
Although race was not named explicitly, these phrases relied heavily on racialized stereotypes. The message was clear. Certain communities, especially those already marginalized, were being depicted as inherently less deserving of protection and more appropriate targets for removal.
Racialized Enforcement and Sentencing Outcomes
Racialized ideas do not remain confined to political rhetoric; they also appear in courts. In some cases, judges invoke ideas of “cultural difference” or “community norms” to explain an individual’s actions. While sometimes intended to humanize or contextualize behaviour, these explanations can also reinforce stereotypes or reduce individuals to simplified identities. In other instances, unspoken assumptions about risk, rehabilitation, or remorse may influence a sentence. These assumptions, though rarely acknowledged, often carry racial undertones.
Racialized migrants are more likely to face deportation not just because of individual conduct, but because of structural factors. Over-policing, systemic poverty, precarious legal status, and limited access to legal resources all increase vulnerability.
The Production of Non-Citizens
Deportation regimes do more than punish conduct. They actively produce non-citizenship. Through the combined force of criminal and immigration law, certain individuals are placed permanently outside the bounds of national belonging. Sentencing, in this context, functions as a gatekeeping mechanism not only for justice but also for social and political membership.
This process is deeply racialized. Even when a racialized migrant avoids removal through a narrowly tailored sentence, their right to remain is seen as conditional rather than fully secure. These individuals are included through exclusion. They are permitted to stay, but not fully welcomed.
Why Race Must Be Central to Sentencing Reform
Recognizing these racial dynamics is not an invitation for judges to base decisions on race. Rather, it is a call to acknowledge the systems within which judges operate and the unequal burdens those systems impose.
If courts are to continue exercising discretion in sentencing cases with immigration consequences, they must do so with an understanding of racialized power not as an abstract principle, but as a reality embedded in the law’s operation. This requires awareness of how immigration enforcement disproportionately impacts racialized communities, how the justice system entrenches systemic inequalities, and how these forces converge to undermine meaningful inclusion.
Only with that awareness can sentencing discretion fulfill its highest purpose. It becomes more than a legal mechanism; it becomes a moral responsibility. It can be used not to reinforce injustice, but to resist it.
Between Systems and Beyond
Criminal courts in Canada were never intended to decide who stays and who goes. Yet through the act of sentencing, they often do just that. A sentence of six months and a day may result in permanent deportation. A sentence just one day shorter may offer a second chance. That seemingly technical difference, found in the Immigration and Refugee Protection Act, now marks a critical line not just legally, but in the lives of those affected.
Since the passage of the FRFCA, Parliament has made its intentions clear. Deportation should follow swiftly and automatically from certain convictions. Yet judges, tasked with delivering individualized justice, have responded with subtle but meaningful resistance. In exercising discretion, they have recognized that the consequences of removal often go far beyond what is proportionate to the offence, particularly for long-term residents, for families, and for individuals at risk of serious harm.
The space between criminal law and immigration law has become a zone of tension. It is also a site of possibility. While the FRFCA narrowed the scope of appeals, it could not eliminate the judiciary’s responsibility to consider collateral consequences. Nor could it remove the ethical weight attached to decisions that may decide a person’s future in this country.
This discretion is essential. It is not a loophole or a weakness. It is a vital part of a justice system that aspires to fairness. It allows judges to understand the full picture of a person’s life, to recognize when legal consequences extend beyond their intent, and to deliver punishment that is thoughtful, proportionate, and humane.
But with this power comes responsibility. Courts must use their discretion openly, fairly, and with full awareness of the ways that criminal and immigration law intersect, especially for racialized individuals. The inconsistencies in how immigration consequences are addressed across Canada expose serious gaps in access to justice.
At the same time, structural reform is urgently needed. A legal framework that allows a single sentence to result in permanent removal without appeal does not reflect the values of due process, proportionality, or human dignity. Reinstating a meaningful right of appeal, particularly for long-standing permanent residents, would be a step toward restoring fairness.
Until that happens, sentencing courts remain on the front lines. Their discretion may be limited, but it is not without purpose. In many cases, it is the only safeguard left between a person and forced removal from the only country they have ever called home.
