Immigration prosecution Lawyers in Canada

The Crown is the prosecutor, and it has to prove the charge. A person charged is presumed innocent until proven guilty, a right in section 11(d) of the Canadian Charter of Rights and Freedoms. What the Crown must prove depends on the offence named, because each is worded differently.

Section 117 covers organizing, inducing, aiding or abetting the coming into Canada of one or more persons, knowing that, or being reckless as to whether, their coming into Canada is or would be in contravention of the Act. Section 118 covers knowingly organizing the coming into Canada of one or more persons by means of abduction, fraud, deception or use or threat of force or coercion. Section 119 covers disembarking people at sea for the purpose of inducing, aiding or abetting them to come into Canada in contravention of the Act.

Section 122 covers possessing, using, importing, exporting or dealing in a passport, visa or other identity document in order to contravene the Act.

Section 124 holds the general offences. They include contravening a provision of the Act for which a penalty is not specifically provided, failing to comply with a condition or obligation imposed under the Act, escaping from lawful custody or detention under the Act, and employing a foreign national in a capacity in which that person is not authorized to be employed. Section 127 covers knowingly misrepresenting or withholding material facts relating to a relevant matter, and communicating false or misleading information with intent to induce or deter immigration to Canada. Section 129 covers offences relating to officers, such as obstructing or impeding an officer.

The penalty depends on the section. For organizing the coming into Canada of fewer than 10 persons, section 117 sets on indictment a fine of up to $500,000 or imprisonment of up to 10 years, or both, for a first offence, and a fine of up to $1,000,000 or imprisonment of up to 14 years, or both, for a subsequent offence. On summary conviction the maximum is a fine of $100,000 or imprisonment of up to two years, or both. For a group of 10 persons or more, the maximum on indictment is a fine of up to $1,000,000 or life imprisonment, or both.

Section 117 also sets minimum punishments on indictment. For fewer than 50 persons, the minimum is three years if the person endangered the life or safety of, or caused bodily harm or death to, any of the persons, or if the offence was for profit or in association with a criminal organization or terrorist group, and five years if both apply. For a group of 50 persons or more, the minimums are five years and 10 years on the same conditions.

Sections 118 and 119 carry, under section 120, a fine of up to $1,000,000 or life imprisonment, or both, on indictment. Section 121 requires the court, in setting that penalty, to take into account harm or danger to a person, links to a criminal organization, profit, and humiliating or degrading treatment. For the document offences, section 123 sets imprisonment of up to five years for possession, and up to 14 years for use, import, export or dealing.

For the general offences, section 125 sets on indictment a fine of up to $50,000 or imprisonment of up to two years, or both, and on summary conviction a fine of up to $10,000 or imprisonment of up to six months, or both. For misrepresentation, section 128 sets a fine of up to $100,000 or imprisonment of up to five years, or both, on indictment, and a fine of up to $50,000 or imprisonment of up to two years, or both, on summary conviction. Section 129 sets $50,000 or five years on indictment, and $10,000 or six months on summary conviction.

A maximum is a ceiling, not a prediction, and nothing here says what sentence a court would give. Under section 137, a court that convicts a person may also order that offence-related property seized in relation to the offence be forfeited to Her Majesty in right of Canada.

The Act limits some charges. Under section 124, a person who owns or operates a vehicle or a transportation facility, or an agent of such a person, shall not be found guilty of the general offence if it is established that they exercised all due diligence to prevent it. Under section 133, a person who has claimed refugee protection may not be charged with an offence under section 122, section 127 or paragraph 124(1)(a), or with certain Criminal Code offences, in relation to their own coming into Canada, pending disposition of the claim or if protection is conferred. A lawyer can say whether either rule applies.

The Charter applies to federal prosecutions, under section 32(1)(a). Section 7 protects life, liberty and security of the person, section 8 protects against unreasonable search or seizure, and section 9 against arbitrary detention. Section 10 gives a person on arrest or detention the right to be informed promptly of the reasons and to retain and instruct counsel without delay. Under section 24(2), evidence obtained in a manner that infringed Charter rights is excluded if admitting it would bring the administration of justice into disrepute.

Under section 117, no proceedings for that offence may be instituted except by or with the consent of the Attorney General of Canada. Section 133.1 allows a summary conviction proceeding for an offence under section 117, 126 or 127 within 10 years, and for any other offence under the Act within five years, of the day the subject-matter arose.

In Ontario, every charge under the Criminal Code, the Controlled Drugs and Substances Act, the Youth Criminal Justice Act and most other federal statutes starts in the Ontario Court of Justice, and about 95% of them are completed there. The Superior Court of Justice can try any indictable offence but generally tries only the most serious. A lawyer can say where a given charge will start.

Under section 515, a justice shall make a release order without conditions unless the prosecutor shows cause why detention in custody is justified or why another order should be made. Section 493.1 says the decision-maker gives primary consideration to release at the earliest reasonable opportunity and on the least onerous conditions.

After a conviction on indictment, an appeal goes to the court of appeal under section 675: as of right on a question of law alone, and with leave on a question of fact or mixed law and fact, or against sentence. A summary conviction appeal in Ontario goes to the Superior Court of Justice in the region, district or county where the case was decided, under sections 812 and 813.

Legal Aid Ontario may pay for a lawyer if the person qualifies and is charged with a crime that could mean jail on conviction, or is 12 to 17 and charged under the Youth Criminal Justice Act. Duty counsel, a lawyer at the courthouse for that day, can advise on rights and act at a bail hearing, for people who qualify and have no lawyer. A legal aid certificate pays a roster lawyer for the length of the criminal case. Applications are online or by phone at 1-800-668-8258.

The Law Society of Ontario keeps a public Lawyer and Paralegal Directory, where a lawyer's licence can be looked up. The Ontario lawyers on this site are listed by city. Nothing on this page ranks or recommends any of them.