Prohibiting judges from considering immigration consequences at sentencing ignores reality

Canada apparently has a two-tiered justice system – one where non-citizens can commit crimes and then stroll out of court with a lighter sentence because of their immigration status. At least, that’s the story being peddled by Conservative MP Michelle Rempel Garner. Like most good political myths, it’s built on a kernel of truth, wrapped in misrepresentations, and inflated into something that bears no resemblance to the actual law.

Rempel Garner recently introduced a private member’s bill that would prohibit judges from considering immigration consequences at sentencing. It went nowhere. Undeterred, she took to Parliament to spin anecdotes about violent offenders supposedly getting house arrest to avoid deportation. It’s a neat line. It’s also deeply misleading.

Let’s start with the basics. Sentencing in Canada has never been a mechanical exercise. Judges don’t plug facts into a formula and wait for a number to pop out. They are required to impose a proportionate sentence – one that reflects both the seriousness of the offence and the circumstances of the offender. That has always included considering the real-world consequences that flow from a conviction.

Immigration consequences are one of those realities.

In R v Pham, the Supreme Court of Canada confirmed that judges may consider the immigration consequences of a sentence. The reason is simple: without it, sentencing ceases to be proportionate. In some cases, a single day's difference in a sentence can trigger dramatically different outcomes for a non-citizen – outcomes that have nothing to do with the moral blameworthiness of the offence.

And here’s the part that makes Rempel Garner’s current outrage a little hard to take seriously. Pham was decided in 2013, when the Conservatives were in power, and Rempel Garner sat at the cabinet table. For two years, while this “disgusting practice” was apparently unfolding in plain sight, she did absolutely nothing about it. No bill. No speeches. No outrage. And the reason for that is simple: the law on this is reasonable. The real goal here is political theatre.

The framework for deportation is set out in the Immigration and Refugee Protection Act. A non-citizen becomes inadmissible – and subject to removal – if they are convicted of an offence punishable by a maximum of 10 years or more, or if they receive a sentence of six months’ imprisonment or longer. Even if the offence is less serious, cross that six-month line and deportation is effectively automatic. Stay just below it, and there may be a limited right to appeal based on humanitarian and compassionate grounds.

In plain terms, the difference between six months and five months and 29 days is enormous. One sentence means exile. The other at least leaves a narrow door open to remain in Canada.

That was the issue in Pham. The court held that a judge can take those consequences into account – but only within the range of otherwise fit sentences. That last part is the one critics like Rempel Garner conveniently ignore. A judge cannot impose an unfit or artificially low sentence to help someone avoid deportation. What they can do is choose between legally appropriate sentences that avoid grossly disproportionate outcomes.

And it’s not unique to immigration. Courts routinely consider collateral consequences. A professional may lose a licence. A parent may lose custody. A conviction may carry reputational or financial consequences that hit one person far harder than another. The law has long recognized that these effects matter when crafting a fit sentence. Immigration consequences are simply among the most severe because they can uproot a person entirely.

And the people who are affected are not the caricatures that populate political talking points. They are permanent residents who have lived in Canada for decades. People who came here as children. People with families, jobs, and lives that exist entirely within this country. I have represented clients who faced deportation to countries they had never meaningfully lived in, did not speak the language of, and had no connection to beyond a line on a birth certificate.

A six-month sentence for a Canadian might mean time served and a chance to move on. For a non-citizen, it can mean permanent exile from the only home they know.

None of this applies to the kinds of offences Rempel Garner invokes to generate outrage. People convicted of murder, serious sexual offences, terrorism, or major violence will all be deported, regardless of their sentence, because those offences are punishable by 10 years or more of jail.

The real issue arises with less serious offences – the kinds of cases where sentencing ranges overlap and judges are already exercising discretion. And here’s the uncomfortable truth: the Immigration and Refugee Protection Act casts a very wide net. It treats vastly different offences in the same way once certain thresholds are crossed. A shoplifting conviction with a six-month sentence can trigger the same immigration consequences as a murder conviction.

Rempel Garner’s solution is to blindfold judges and pretend those consequences don’t exist. Fairness has never meant treating everyone identically. It means treating people justly in light of their actual circumstances.

As Anatole France put it more than a century ago, “the law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges.” It’s often quoted as praise. It isn’t. It’s a warning: equal treatment can be profoundly unequal when it ignores reality.

Rempel Garner’s proposal doesn’t fix a broken system. It manufactures a problem, ignores the law, and offers a solution that would make sentencing less fair, not more. But she knows this, because her proposal has nothing to do with justice – it’s all about politics.