Two solitudes: the treatment of non-citizens and criminally accused in Canada

Ron Poulton
The gap between how we treat non-citizens and criminally accused in Canada may be perpetual. The immigration bar has, for years, struggled to close the distance between the rules applied to two groups of people in Canada. The solid regime of constitutional protections that permeates criminal law and ensures the protection of a person charged with a crime from arbitrary state action has never quite been grounded in immigration law. The use of secret evidence in hearings, the assumption that the written notes of police or government officials are accurate and the confounding view that if a prospective surety knows the detainee too well they may not be trustworthy enough are examples of concepts unknown in criminal law. Yet, time and time again, we are faced in immigration hearings with these and other “principles” that cloud and diminish any attempt to realize a sense of justice and fair play in immigration law.

And now the Federal Court of Appeal has rendered a decision that furthers this distance and reinforces the belief that a non-citizen is just a little less worthy than any person accused of a crime.

The decision is Chung v. MCI 2017 FCA 68, released on March 31. The case centres on the application of a negative inference by the Immigration Appeal Division relating to an appellant who pleaded not guilty to a criminal offence. The inference applied by the IAD was that if the accused pleaded not guilty and maintained his innocence, he was not demonstrating remorse, and as such he was not rehabilitated. This is in direct contrast to the approach in criminal law that prohibits a criminal court from considering as an aggravating factor in setting a sentence the fact that an accused pleaded not guilty and maintains their innocence. Why should there be a difference? Essentially, because the non-citizen does not benefit in the immigration context from the presumption of innocence.

The facts in decision were: Chung was born in Chile and then immigrated to Canada. He never acquired Canadian citizenship. In 1997, he was ordered deported from Canada following convictions for drug trafficking. His appeal of the deportation order led to a stay of removal and in 2006 the order was quashed. In 2008, Chung pleaded guilty to a charge of fraud and in 2011, following a trial, was convicted a third time of possession of cocaine for the purpose of trafficking. He was sentenced to 15 months imprisonment. A second deportation order was issued against him on August 26, 2013, which led to a second IAD appeal. At the appeal, Chung argued that the removal order should be stayed once again on the basis of humanitarian grounds as reviewed through a number of elements called Ribic factors. The Supreme Court of Canada adopted the use of the Ribic factors in removal order appeals in Chieu v. Canada (Minister of Citizenship and Immigration) in 2002. At Chung’s hearing, he alleged he had committed neither fraud nor the latest event of trafficking in cocaine. He claimed the police had lied during his trafficking trial and he had pleaded guilty to fraud as a matter of convenience. In dismissing the appeal, the IAD considered the combination of his prior criminal history along with his lack of acceptance of responsibility and minimal remorse in deciding there was little possibility of Chang’s rehabilitation. The Court of Appeal held that this was a reasonable approach.

The court drew a distinction between the treatment of remorse in the context of a criminal trial and treatment of remorse in an immigration proceeding. That distinction is based on the presumption of innocence, a principle imbedded in criminal law, but which finds no foundation in civil proceedings such as removal order appeals. According to the court, a criminal court may not treat a plea of not guilty and lack of remorse as an aggravating factor during sentencing as this would undercut the presumption of innocence. As no such presumption applies to civil proceedings, including appeals before the IAD, a plea of not guilty may be treated as demonstrating a lack of remorse and so a negative factor in an assessment of the Ribic factors.

What this all means is that if an accused who is a non-citizen is innocent of a crime, they best fight hard for an acquittal before a criminal court as, once convicted, claims to having pleaded guilty merely to be released from detention or other expressions of innocence will not only fall on deaf ears at the IAD but will also be seen as evidence of a lack of remorse. Without remorse, a non-citizen has little hope of success before the IAD.

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