‘One Law for All’: Sentencing, deportation and Canadian penal populism

Guest post by Meritxell Abellan-Almenara and Jessica Templeman. Meritxell is a PhD candidate in criminology at the University of Montreal, Canada. Her research examines how criminal inadmissibility regimes shape judicial perceptions and practices at the sentencing stage, with particular attention to deportation on grounds of criminality. 

Jessica is an Assistant Professor in the Department of Sociology and Criminology at the Memorial University of Newfoundland. Her research examines the nature and effects of intersections between the immigration and criminal legal system for criminalized and racialised migrants.

Since 2013, Canadian criminal courts have been instructed by the Supreme Court of Canada via R v. Pham to consider the immigration-related consequences triggered by a criminal conviction when sentencing non-citizens. Provided that the sentence ultimately imposed remains proportionate to the gravity of the offence and the degree of responsibility of the accused, judges may consider the risk of deportation on grounds of criminality and the potential loss of appeal rights when crafting a sentence. This allows them to hand down a judgement that, while still proportionate, takes into consideration how a sanction might impact immigration consequences.

According to the Canadian Conservative Party, the 2013 decision of the Supreme Court created a “two tier system of justice” with “judges issuing more lenient sentences to non-citizens convicted of serious crime” as compared to citizens. To rectify this alleged unfairness at sentencing, on 17 September 2025, the Conservative Party tabled their Bill C-220, An Act to Amend the Criminal Code (Immigration Status in Sentencing). Marketed under the punchy title ‘One Law for All,’ the proposed legislation would amend the Criminal Code (CrC) to prohibit judges from considering the immigration status of the defendant when devising a sanction. 

The alleged parallel sentencing regime does not really exist, and is based on flawed understanding of legal principles. Despite this, the legislation was only marginally defeated in Canadian parliament in March. Narratives of ‘leniency’ also continue to be promoted by Canadian politicians and in media. We thus contend that the claims made by the Conservative Party continue to warrant serious reflection for two reasons. First, the textbook deployment of penal populist rhetoric, which legitimises an unprecedented restriction of judicial discretion, including through reference to sexual assault and public opinion of immigration writ large. And second, the attempted instrumentalisation of courts as mechanisms of post-entry border control. These claims rely on and perpetuate penal populism, defined by Pratt (2007), which sees governments prioritise public sentiments and electoral gains over evidence-based knowledge.

Misrepresentation of Sentencing

Conservative claims made in support of Bill C-220 were both unfounded and based on a mischaracterisation of the sentencing process. First, they offer a simplistic review of Pham that avoids engagement with the legal principles guiding the ruling, namely proportionality, individualisation, and parity. Had the Conservatives offered a fulsome assessment of the decision, including how the consideration of collateral consequences was affirmed as consistent with (and even required by) the operation of the noted legal principles, this would have undermined their position that the decision has allowed for the creation of a distinct system of justice for migrants. More specifically, it would have required a recognition that the principles guiding the Supreme Court in Pham apply to all decision making on sentence - regardless of the immigration status of the defendant.  

Second, claims of the existence of a “two-tier system of justice” do not accurately account for the practices undertaken by criminal courts when sentencing migrants, at least in Provincial, Superior and Appellate courts in Ontario and Quebec. Our research demonstrates that proportionality simultaneously allows sentencing judges to consider the immigration consequences that may flow from a conviction in individualising a sentence, while also delineating the limits of how far such consequences may legitimately influence the sentencing outcome, given the requirements of parity. Contrary to what parliamentarians in favour of Bill C-220 have suggested, this does not result in the imposition of lenient sentences on non-citizens, but rather in a weighing exercise, where judges must balance the protective and limiting elements of proportionality to ultimately reach an appropriate outcome for non-citizens. This weighing exercise again follows the guidelines established in the CrC for all individuals - citizen and non-citizen alike. 

Penal Populism in Action

Statements made by Conservative Members of Parliament in favour of the legislation were packed with inflammatory language that draw from public sentiments and thus promote penal populism. Alleged cases of non-citizens committing sexual assault – ideal targets of penal populism – were invoked repeatedly, in a clear attempt to instill fear and hatred towards the non-citizen ‘enemy’. Consider, for example, the following rhetorical question from MP and sponsor of Bill C-220, Michelle Rempel Garner: “Mr. Speaker, should judges be allowed to use a non-citizen's immigration status to issue a more lenient sentence to non-citizens convicted of serious crimes like sexual assault, just so that they can avoid deportation?” 

Rempel Garner then moved to discuss what Conservatives present as evidence that Canada has ‘lost control’ of its immigration system in general, and of convicted non-citizens in particular. Citing polls allegedly showing that support for immigration in Canada was at an all-time low, she finally claimed that “the government must quickly act to restore the immigration system that it broke.” By invoking poll results and framing the situation as an urgent crisis, Rempel Garner turned perceived public opinion into a call for immediate action.

Sentencing judges were also depicted as members of the hated elite throughout statements made by Conservative MPs, who described judges as “activists” who are so out of touch with regular Canadians’ reality that they had become accomplices of the feared convicted non-citizens. Conservatives held that these judges had to be stopped at all costs. The denigration of judges is particularly clear in statements made by Pierre Pollievre – the leader of the Conservative Party of Canada – when he rose in favour of the legislation during the second reading of Bill C-220 in the House of Commons. Pollievre charged judges with perpetuating “chaos” in Canadian streets, stating: “In recent years, there have been multiple instances of judges issuing sentences to non-citizens convicted of serious crimes that were designed to allow them to evade deportation.” 

Again, these statements are not based on an accurate representation of how the sentencing of migrants unfolds in practice. We thus recognise these claims as promoting penal populism through the disparagement of judicial ‘elites’ to rationalise the ‘common-sense’ approach to sentencing that the Conservative Party proposes. 

Judicial restrictions in favour of border control 

Based on the promoted mischaracterisation of judicial decision making, the ‘One Law for All’ attempted to force Canada’s criminal legal system to sacrifice one of its most fundamental pillars in the name of post-entry border control. While the gradual acquisition of immigration control powers by actors in the criminal legal system is documented worldwide - with scholarship showing how prosecutors, lawyers and police officers operate as de facto immigration adjudicators - the Canadian case would have been particularly striking, for the move would have constituted a frontal attack on the most central feature of the country’s sentencing laws: judicial discretion. Unlike other common law jurisdictions - most notably, the US and the UK - where sentencing guidelines significantly constrain judicial decision-making, in Canada judges retain the freedom to determine which sentencing goals and principles should prevail in any given case. 

As noted by Canadian scholar Benjamin Berger, discretion is part of the foundation of the Canadian criminal legal system, and past attempts to meaningfully curtail that discretion have been firmly resisted. The defeat of Bill C-220, while narrow, signals that this resistance continues to be promoted, at least in Parliament. We must remain vigilant, however, to further attempts to intervene in judicial decision making. Migrant admissibility to Canada and access to due process protections depends on our continued resistance.

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