Conservatives say the justice system favours non-citizens. Experts disagree

The Conservatives want to change the Criminal Code to eliminate what they say is a double standard in the justice system that allows non-citizens to get lighter sentences than Canadians who have been convicted of the same crime.

"When it comes to sentencing non-citizens, Canada has essentially adopted a form of two-tier justice," Conservative MP Michelle Rempel Garner said Wednesday in Ottawa.

"This offends all principles of fairness that should be foundational to our justice system."

Deportations are automatically scheduled to allow time for appeal, but certain criminal sentences remove the right of the offender to challenge their removal.

"Removing non-citizens convicted of serious crimes is a no-brainer," Rempel Garner said. "Becoming a Canadian is a privilege, not a right."

But immigration experts say the Conservatives' characterization of Canada's justice system as being biased in favour of non-citizens is simply false. They say the law is designed to ensure the sentence fits the crime, regardless of the offender's status.

WATCH | Conservatives want judges to stop considering immigration status in sentencing:

Conservative MP Michelle Rempel Garner says she'll introduce legislation when Parliament returns that would amend the Criminal Code, preventing judges from considering a non-citizen's immigration status during sentencing.

Rempel Garner said her party will introduce a private member's bill when the House of Commons returns in September, promising the change will "restore the value of Canadian citizenship."

The bill "will expressly outline that any potential impact of a sentence on the immigration status of a convicted non-citizen offender, or that of their family members, should not be taken into consideration," the Conservative Party says in a statement.

Rempel Garner's suggestion that Canada has "two-tier" sentencing provisions is, she said, the direct result of a 2013 Supreme Court of Canada ruling that clarified sentencing guidelines.

In the ruling, Canada's top court said that when sentencing a non-citizen, a judge can use an offender's immigration status as one of several factors when considering what sentence to impose.

"That's what judges do in sentencing. They take into account factors that are individual that are relevant; this is just one more of them," said Audrey Macklin, a law professor at the University of Toronto.

Macklin said other factors commonly considered during sentencing are whether the offender has a substance abuse issue; whether they are a single parent and what will happen to their child; or the prospects that they can be rehabilitated.

"Sentencing always takes into account factors unique or specific to that individual," she said. "It's a misrepresentation to suggest that this is two-tier justice."

Macklin said the 2013 ruling also clarified that while immigration status can be considered, it could not be used to reduce the sentence below the standard minimum.

Under the law in Canada, a person who has been ordered to be removed from the country cannot appeal their deportation order if:

• They were convicted of a crime in Canada and given a sentence of six months or more.
• They were convicted of a crime outside Canada punishable in Canada by a sentence of 10​ years or more.
• They were involved in organized crime.
• They violated human or international rights law, by, for example, committing war crimes.

Toronto immigration lawyer Pantea Jafari says she has argued similar cases. She told CBC News that the 2013 ruling was crafted to ensure the consequences of a sentence are proportional to what the judge intends.

In a case where a judge may think someone has committed a minor offence and only deserves a slap on the wrist, Jafari said the judge may decide to give them a six-month sentence.

For a Canadian citizen, the punishment would be six months in jail. But for a non-citizen, it could result in deportation without the ability to appeal.

Jafari said the 2013 ruling simply gives the judge in her example the authority to lower the sentence to six months less a day so they can still appeal their deportation. She said this would ensure a citizen and non-citizen receive comparable sentences.

"When [a judge] is considering a sentence, they can't be blind to the fact that this person is not a naturalized Canadian, is still an immigrant and therefore will have additional consequences as a result of the sentence," Jafari said.

"To have [this provision] scrapped is really problematic and something that I would vigorously defend against."