Immigration opinion letters for criminal defence counsel
Updated
The short answer
An immigration opinion letter sets out how a plea, a conviction or a particular sentence would affect a client who is not a Canadian citizen: whether it makes them inadmissible, whether they could lose permanent residence, and whether they would keep a right of appeal to the Immigration Appeal Division. Counsel can use it to weigh resolution options and, where appropriate, put the consequences before the court. In R. v. Pham, 2013 SCC 15, the Supreme Court of Canada recognised collateral immigration consequences as a relevant factor in sentencing. Manny Hundal, a Barrister & Solicitor called to the Ontario Bar in 2013, prepares these letters for criminal defence lawyers and law firms.
For defence counsel
Request an opinion letter
Call or email the chambers with the client’s name, the court location and any plea or sentencing date. A conflict check comes first; please hold privileged material until it is complete.
Or use the intake form. Fees are discussed when you retain the chambers.
Who is this for?
This page is for criminal defence lawyers and law firms in Ontario whose client is not a Canadian citizen. It is also for Crown counsel who want an immigration opinion reviewed.
Manny Hundal has written hundreds of immigration opinion letters for criminal defence lawyers and law firms, including letters used at sentencing hearings. Crown counsel have also consulted him to review immigration opinion letters prepared by others.
The letter is prepared for counsel. It is counsel’s decision whether and how to use it in resolution discussions or put it before the court.
When should defence counsel ask for one?
Before a plea or resolution
The immigration consequences of a plea can turn on the exact offence, the Crown’s election and the sentence. The time to consider them is while the options are still open.
Before sentencing
A letter can set out how each sentence under discussion would affect the client’s status, so the consequences are part of the submissions rather than a surprise afterwards.
Urgently, before a sentencing date
Letters are prepared as quickly as the matter requires, including on short notice before a sentencing date. Call the chambers as soon as the date is set.
What does the letter cover?
The client's status
The analysis starts with who the client is in immigration terms: a permanent resident, a foreign national (a worker, student or visitor, or someone without status), a refugee claimant or protected person, or a permanent resident with a citizenship application in progress. The same conviction can have very different results for each.
Serious criminality: IRPA section 36(1)
A permanent resident or foreign national is inadmissible for serious criminality if convicted in Canada of an offence punishable by a maximum term of imprisonment of at least 10 years, or of an offence for which a term of imprisonment of more than six months is imposed. For a permanent resident, serious criminality is the criminality ground that can lead to a removal order and loss of status.
Criminality: IRPA section 36(2)
A foreign national is also inadmissible for criminality if convicted in Canada of an indictable offence, or of two offences that do not arise from a single occurrence. A hybrid offence is treated as indictable for this purpose, even if the Crown proceeded summarily.
The right to appeal to the Immigration Appeal Division: IRPA section 64
A permanent resident found inadmissible for serious criminality can usually appeal the removal order to the Immigration Appeal Division, which can consider humanitarian and compassionate factors. That appeal is lost where the crime was punished in Canada by a term of imprisonment of at least six months. For many permanent residents, the difference between a sentence just under six months and one of six months or more decides whether they keep that appeal.
Conditional sentences
In Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, the Supreme Court of Canada held that a conditional sentence of imprisonment is not a “term of imprisonment” for the purposes of section 36(1)(a). A conditional sentence therefore does not meet the “more than six months imposed” branch. It does not change the maximum-sentence branch: if the offence carries a maximum of 10 years or more, the conviction can still be serious criminality.
Discharges
Under section 730 of the Criminal Code, a person who receives an absolute or conditional discharge is deemed not to have been convicted. A Canadian discharge is generally not a conviction for the inadmissibility provisions, which can make it an important option to consider.
Citizenship applications
Outstanding charges, a recent conviction, probation or a sentence being served can bar or delay a grant of citizenship. Time spent serving a sentence generally does not count toward the physical presence requirement.
Refugee claimants and protected persons
A conviction can affect whether a refugee claim can be referred to the Immigration and Refugee Board, whether a protected person can become a permanent resident, and, in serious cases, whether the person keeps protection from removal. The letter sets out what applies on the client’s facts.
How the options compare
The core of the letter is a comparison: for each plea and sentence under discussion, what the immigration result would likely be. That might be a different offence, a discharge, a conditional sentence, a sentence below six months, or a different structure for the sentence. The letter addresses the immigration side only. It does not comment on the criminal merits.
Documents to send
The first step is a conflict check. Please send the client’s full name and the names of any co-accused or complainants, and hold privileged material until the conflict check is complete.
Timing and fees
Turnaround is set by the matter. Where a sentencing date is close, tell the chambers the date at the first call and the letter is prepared to meet it.
Fees are discussed when you retain the chambers.
How to reach the chambers
Call the office at 905-452-0348 or email the chambers. Please include the court location and any upcoming plea or sentencing date. Counsel can also use the intake form.
For the immigration side generally, see criminal inadmissibility and inadmissibility hearings.
Frequently asked questions
If your client is not a Canadian citizen, an opinion letter is often the clearest way to put the immigration consequences before the court. It sets out, in writing, how the sentences under discussion would affect the client’s status and appeal rights. Whether to obtain one, and whether to file it, is counsel’s decision.
As fast as the matter requires. Letters can be prepared on short notice before a sentencing date. Call the chambers as soon as you know the date, and send the documents listed on this page after the conflict check.
In R. v. Pham, 2013 SCC 15, the Supreme Court of Canada held that collateral immigration consequences may be considered in sentencing. The sentence must still be fit and proportionate: the court cannot impose an inappropriate sentence to avoid them. Within the range of fit sentences, they can be a relevant factor.
Not always. In Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, the Supreme Court held that a conditional sentence is not a “term of imprisonment” under section 36(1)(a) of the Immigration and Refugee Protection Act. But if the offence carries a maximum sentence of 10 years or more, the conviction can still be serious criminality, whatever the sentence imposed.
The letter is prepared for counsel and is built mostly from the documents counsel provides. Manny may need to confirm parts of the client’s immigration history with the client, with counsel’s agreement.
Yes. Crown counsel have consulted Manny to review immigration opinion letters prepared by others. A conflict check comes first.
This page is general information, not legal advice about your situation.