Chris Selley: There’s no reason for courts to be setting Canadian immigration policy

The interior of an Edmonton Court of King's Bench courtroom. Photo by Ed Kaiser /Postmedia

Article content

In a recent ruling, Court of Quebec judge Antoine Piché tore a strip off Crown prosecutors who appear before him for discounting sentences based on offenders’ immigration status, to avoid non-citizens being flagged for deportation — which is supposed to happen after a criminal sentence of six months or more is handed down.

Article content

I was most intrigued by Piché’s annoyance at the widespread insistence that this doesn’t happen. This is one of those Canadian phenomena that clearly exists — National Post has reported many such cases, many of which wouldn’t be known to the public otherwise — but that we’re supposed to pretend does not.

Article content

Article content

Article content

“Immigration experts say the Conservatives’ characterization of Canada’s justice system as being biased in favour of non-citizens is simply false,” CBC News reported in August, after Tory immigration critic Michelle Rempel Garner raised the issue. (She tabled a private member’s bill that would ban the practice.)

Article content

Article content

“Sentencing always takes into account factors unique or specific to that individual,” University of Toronto law professor Audrey Macklin told CBC, for example. “It’s a misrepresentation to suggest that this is two-tier justice.”

Article content

Parick Michel, the provincial director of prosecutions, released an aggrieved statement in response to Piché’s concerns. “Immigration status is one element among many that can be considered when determining the appropriate sentence,” he wrote, dancing a jig on the head of a pin, “but it is not the determining factor.”

Article content

Piché was having none of this. “This practice is so widespread that to deny that the prosecutor’s approach currently has the effect of creating a separate sentencing regime between Canadian citizens and individuals governed by the IRPA (Immigration and Refugee Protection Act) is tantamount to denying the daily reality of the criminal and penal division of the Court of Quebec in the judicial district of Montreal,” he wrote.

Article content

Article content

It’s certainly true that individual circumstances are, and I believe should be, considered at sentencing, and that this doesn’t necessarily constitute a “two-tier justice system.” Mentally healthy criminals aren’t discriminated against because mentally ill criminals, assuming the illness bears on their culpability, might be offered some degree of mercy. (Public safety should always come first.)

Article content

Article content

But immigration status isn’t an immutable characteristic like race, sex or mental illness, all of which are protected under the Charter. And it’s very clear that immigration status is the determining factor in some cases, such as the one Piché ruled on.

Article content

Guzman Bladimir-Castillo, a 23-year-old permanent resident from the Dominican Republic, pleaded guilty to stealing an SUV and leading police on a 200 km/h chase for half an hour, then slamming into a building. (The Crown’s suggested driving ban was all ofthree years, just by the by.)

Article content

“The Crown believes that the appropriate sentence would be nine months’ imprisonment, followed by a two-year probation order,” Piché noted in his sentencing ruling, explaining the parties’ positions. “However, considering the potential impact such a prison sentence could have on the accused’s immigration status, the Crown suggests reducing the term of imprisonment to six months less a day.”