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Mental Illness, Criminal Offences, & Deportation

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Appealing a deportation order

In some cases, a permanent resident who has been ordered deported will have a right to appeal this decision to the Immigration Appeal Division (IAD) of the IRB. The same is true for a protected person.

No right to appeal
A permanent resident or protected person has no right to appeal if the order to deport is based on a conviction for a serious crime that resulted in a prison sentence of 6 months or longer. This can include time spent detained before the trial. In most cases, a foreign national has no right to appeal.

It is important to get legal help with an appeal to the IAD, see Finding legal help.

At an appeal hearing, the IAD can consider humanitarian and compassionate factors. The IAD must also consider the best interests of any child who could be directly affected by the deportation. For example, this could include a person's own child, born in Canada or elsewhere, or a child in Canada with whom they have a close relationship.

The IAD can also consider:

  • how serious the crime was, its impact on a victim, and the sentence received,
  • how long ago the crime was committed, under what circumstances, and whether the person has a history of criminal activity,
  • whether the person has taken responsibility for any harm caused by the crime (for example, by expressing remorse or compensating a victim),
  • whether the person is participating in counselling or treatment for mental illness or substance abuse, and can show that they are unlikely to commit another crime,
  • how long the person has been in Canada and their age at the time of arrival, degree of establishment in Canada, education, work history, and involvement in the community,
  • whether the person has family members in Canada and the effect the deportation would have on them,
  • how much hardship the person would face if they were forced to leave Canada (for example, hardship due to a lack of access to medical treatment and other supports such as family, or the risk of victimization, in the country of origin), and
  • how strong a connection the person has with their country of origin (for example, do they speak the language of that country, do they have family members there).

If an appeal is successful, the IAD usually grants a "stay of removal" for a certain period of time, for example, 3 years. A "stay" means the deportation order is temporarily suspended. A stay of removal has many terms and conditions, including a condition to report regularly to CBSA and not to commit any criminal offences.

Deportation following a stay of removal
Someone who gets a stay could still be deported if they do not comply with all the conditions. And if they are convicted of another serious crime, the stay is automatically cancelled. The person can then be removed from Canada with no further right to appeal.