Conservative immigration critic Michelle Rempel Garner announced plans on Wednesday to introduce a bill aimed at amending the Criminal Code. The proposed legislation seeks to "restore the value of Canadian citizenship by ending the practice of judges considering a non-citizen’s immigration status in sentencing."

This initiative follows a 2013 Supreme Court ruling in the case of R. v. Pham, which allowed judges to adjust sentences downward for non-citizens to prevent deportation or other immigration-related consequences. Critics, including columnist Jamie Sarkonak, argue that this has led to lenient sentences for non-citizens convicted of serious crimes.

Rempel Garner and her party aim to eliminate the possibility of judges considering immigration status during sentencing, effectively making the Criminal Code "Pham-proof." This proposal will challenge the Liberal government in a minority Parliament. The question remains whether the Liberals will adopt this Conservative initiative or dismiss it as racially motivated.

The case of Hoang Anh Pham illustrates the issue. He received a two-year prison sentence for marijuana charges, which would have resulted in the loss of his right to appeal a deportation order under the Immigration and Refugee Protection Act. The trial judge was not informed of this consequence, leading Pham to appeal for a shorter sentence. The Crown agreed that a slightly lighter sentence would still be appropriate. While Alberta’s appeal court rejected Pham’s plea, the Supreme Court ultimately ruled in his favor, with a unanimous decision.

The Supreme Court's ruling raised questions about equality before the law. The court acknowledged that a non-citizen facing deportation might experience a harsher outcome than a citizen receiving the same sentence. However, this creates a potential disparity in sentencing options available to non-citizens compared to citizens.

The Pham ruling emphasized that sentences should not fall outside accepted ranges and that judges could consider immigration implications without allowing them to dictate sentencing outcomes. This raises broader questions about the role of Parliament in establishing criminal sentencing principles and the distinctions made between citizens and non-citizens.

It is anticipated that the Liberal government may reject Rempel Garner’s bill with minimal discussion. However, if they choose to adopt it, the Criminal Code could see significant amendments. Public sentiment regarding immigration has shifted rapidly, making this a timely issue.

Should the bill pass, it remains uncertain how appellate courts would respond to the new directive. The recent Ontario Superior Court decision regarding bike lane protections under the Charter may serve as a precedent for how judges interpret legislative changes. A trial judge faced with the proposed amendments could argue that Charter rights are at stake, potentially leading to a re-evaluation of Parliament’s decisions.

This situation reflects a growing complexity in the relationship between legislative measures and judicial interpretation in Canada.