Imagine a hypothetical permanent resident who has lived in Brampton for eleven years. He owns a house, has two Canadian-born children, and runs a small trucking business. After a dispute with a customer he is charged with assault with a weapon. Duty counsel tells him that the Crown is offering a modest sentence if he pleads guilty, and that he will be home that day. In criminal court, this sounds like a good result. In immigration terms, it could be the beginning of a removal proceeding.
Criminal law and immigration law look at the same event through different lenses. A sentence that feels lenient may still have severe immigration consequences, and a charge can stall an application long before any finding of guilt. Peel has many permanent residents, international students and temporary foreign workers, so this issue comes up constantly at the Brampton courthouse at 7755 Hurontario St.
This post provides general information, and it is not legal advice on your status. Immigration rules and policies change, so confirm the current position on the IRCC website and with a lawyer before you make any decision.
Who This Applies To
Canadian citizens cannot be removed for criminality, with narrow exceptions for citizenship obtained by fraud. Everyone else is potentially affected, including:
- Permanent residents, regardless of how long they have lived in Canada
- Foreign nationals, meaning people on study permits, work permits, or as visitors
- Refugee claimants and protected persons, for whom separate rules apply
- Sponsored family members, whose applications may be held up by a charge or conviction
- Citizenship applicants, since charges or some sentences can prevent the grant of citizenship
If you do not know your exact status, find out before court. Tell your lawyer the expiry date of any permit and bring your PR card or immigration documents.
Serious Criminality and Criminality
Section 36 of the Immigration and Refugee Protection Act (IRPA) is the core provision. There are two levels.
Serious criminality applies to both permanent residents and foreign nationals. A person who has been convicted in Canada is inadmissible on this ground for:
- an offence under an Act of Parliament punishable by a maximum of at least 10 years, or
- an offence for which a term of imprisonment of more than six months has been imposed.
Criminality is a lower threshold that applies only to foreign nationals. It covers a conviction in Canada for an offence punishable by way of indictment, or two offences under any federal Act that do not arise from a single occurrence.
Two features make these provisions wider than they first appear. First, section 36(3)(a) says that a hybrid offence, one the Crown may prosecute either summarily or by indictment, is deemed to be indictable for these purposes, even if the Crown actually proceeded summarily. So a person on a study permit convicted summarily of an ordinary assault is still treated as convicted of an indictable offence. Second, the “at least 10 years” test looks at the maximum available, not the sentence given. Many common offences have a 10-year maximum or higher, including impaired driving, assault with a weapon, and fraud over $5,000. A person can receive a short sentence, or no jail at all, and still be inadmissible for serious criminality.
The Crown’s choice of how to proceed therefore does not protect a client. The specific charge and the specific sentence must be examined together.
The Six-Month Line and the Right to Appeal
For a permanent resident found inadmissible, the Immigration Appeal Division may be the last chance to consider humanitarian factors such as family ties, establishment in Canada and the best interests of children. Section 64 of IRPA takes that appeal away from a person found inadmissible for serious criminality if the crime was punished in Canada by a term of imprisonment of at least six months.
Notice the difference. Section 36 refers to “more than six months” for inadmissibility, while section 64 refers to “at least six months” for the loss of appeal. A difference of a single day can matter. That is why careful lawyers do not leave the wording of a sentence to chance. Questions have also arisen about whether time spent in pre-sentence custody counts toward the term, so it should be dealt with explicitly during plea discussions, and with immigration counsel’s input.
Conditional Sentences and Discharges
Conditional sentences. In Tran v. Canada (Public Safety and Emergency Preparedness), the Supreme Court of Canada held that a conditional sentence is not a “term of imprisonment” for the purposes of section 36(1)(a). It also held that the maximum sentence for assessing serious criminality is the maximum at the time of the offence. A conditional sentence can therefore be a valuable option. But a conditional sentence does not fix everything. The conviction still stands, and the 10-year maximum rule can independently apply.
Discharges. A person who receives an absolute or conditional discharge under section 730 of the Criminal Code is deemed not to have been convicted. Since the IRPA provisions we have looked at turn on a conviction in Canada, a discharge generally does not trigger them. That is why it can be so important for a non-citizen, in the cases where it is legally available. Discharges are not available for offences with a minimum punishment, or those punishable by 14 years or life.
Withdrawn charges, diversion and peace bonds. These generally do not produce a conviction either. They can still raise questions on later applications, however, so keep your complete court paperwork, including the final disposition. Officers may ask for it.
Youth sentences. Inadmissibility cannot be based on an offence for which a person received a youth sentence under the Youth Criminal Justice Act.
Can Sentencing Consider Immigration?
Yes, within limits. In R. v. Pham, the Supreme Court said a sentencing judge may take immigration consequences into account, as one factor among others. The sentence must remain proportionate. A judge cannot impose an inappropriate sentence simply to avoid removal, but a judge can consider whether a sentence within the appropriate range can avoid an unnecessary consequence. For this argument to work, the court needs clear evidence of the actual consequences, not a general statement that “this will hurt him.”
Pleas raise a separate point. In R. v. Wong, 2018 SCC 25, the Court held that an accused who was unaware of a legally relevant consequence such as deportation may be able to withdraw a guilty plea, by showing a reasonable possibility that they would have acted differently had they known. Withdrawing a plea after the fact is hard and uncertain. It is much better to understand the consequences before you stand up in court.
What the Removal Process Looks Like
A conviction does not produce removal automatically, but it can begin a process.
- Section 44 report. A Canada Border Services Agency officer may prepare a report stating that the person is inadmissible.
- Minister’s delegate or referral. Depending on the person’s status and the ground, the report may lead directly to a removal order or may be referred to the Immigration Division for an admissibility hearing.
- Hearing. At the Immigration Division, the question is usually narrow. If the conviction exists and fits the section, little can be argued about the underlying facts.
- Appeal, if any. A permanent resident with a right of appeal may go to the Immigration Appeal Division, which can consider humanitarian and compassionate factors, and may sometimes grant a stay with conditions.
- Federal Court. Judicial review may be available, on strict timelines.
- Removal. A removal order against a permanent resident also ends that status once it comes into force, and a person may have to deal with a pre-removal risk assessment or a request to defer removal.
Do not ignore any CBSA letter or interview request, and do not attend one without advice. If you receive a call-in notice, bring it to a lawyer the same day.
Temporary Residents and Applications in Progress
For people on study or work permits, a charge can create problems before any verdict. An officer can ask about charges on an extension form. Answering incorrectly can create a separate misrepresentation problem, which has its own serious penalties. A pending charge may also hold up a permanent residence application until the case is resolved. A person who has let status lapse while waiting on a court date might be vulnerable in another way, so keep an eye on your expiry dates. Release conditions that limit your movement or require you to surrender a passport can also interfere with travel plans. If you need to leave Canada for family or work reasons, you may need to go back to court for a variation first.
Permanent residents should think carefully before travelling abroad while a charge is pending or after a conviction, since returning to Canada can bring an examination at the border. Get advice before booking.
Sponsorship applications can be affected too. Certain convictions may limit a person’s ability to act as a sponsor, and a sponsored relative’s own record can make them inadmissible. Our permanent residence page has some background on those applications.
Getting Past an Old Conviction
There may be ways forward. A record suspension under the Criminal Records Act, granted by the Parole Board of Canada, removes inadmissibility based on the conviction it covers. Wait times apply. Foreign convictions and acts committed abroad can sometimes be addressed through deemed rehabilitation or an application for individual rehabilitation, generally when at least five years have passed since the end of the sentence. A temporary resident permit can sometimes allow a person who is otherwise inadmissible to enter or stay for a limited time, if the need outweighs the risk. A person may also apply for humanitarian and compassionate consideration, in some cases. IRCC publishes information about these options, and it does change, so confirm current requirements directly.
How to Protect Yourself Early
Practical steps that do not require any legal training:
- Tell your criminal lawyer about your status on day one. Do not assume they will ask.
- Get an immigration lawyer’s input before any plea. Duty counsel can only do so much in a short window, and this is not a question to answer in the hallway.
- Bring documents: PR card, permits, any IRCC or CBSA letters, your landing record, past criminal records, and any Canadian or foreign court papers.
- Do not lie to officers on any form. If a form asks about charges, get help answering it accurately.
- Do not accept a quick deal without understanding it. Ask what the conviction, sentence and any probation terms mean for your status.
- Attend every court date and follow your release conditions. A breach is a new charge and can create a second offence for immigration purposes.
- Gather evidence of your ties. Family, employment, community, tax records, and children’s school records all help in a later humanitarian or sentencing argument.
A criminal lawyer focuses on the charge and the defence. An immigration lawyer focuses on what any outcome means for status. These issues overlap so closely that a file can go wrong if the two conversations do not happen together. A negotiated result might be possible on a different offence, a different sentence or a different form of order, but only if someone has spotted the issue in time. There is never a guarantee that the Crown or the court will agree.
At our firm, criminal law and immigration law are both areas of practice, and you can ask about having both sides of your file looked at. If you or a family member has been charged and is not a Canadian citizen, seek advice before your next appearance. The most important decision in the file may be the one that seems simplest at the time.