Immigration law looks at a criminal record quite differently from criminal court. A person can finish a sentence in full, with no further trouble for years, and still be told that Canada considers them inadmissible. A permanent resident in Brampton who accepts what appears to be a practical plea deal can lose their status because of the sentence.
The key to making sense of this is that criminal inadmissibility is not one rule. It turns on a few questions. Was the offence in Canada or outside? How serious does Canadian law treat it? What sentence did you get? Are you a foreign national or a permanent resident? How long ago did it finish? The answers can lead to very different outcomes, including a remedy that happens automatically or no practical remedy at all.
This is general information, not legal advice. Immigration consequences depend on the exact offence, including its wording and the law at the relevant time. IRCC forms and processes also change, so check IRCC’s current guidance.
Two Categories in the Act
Section 36 of the Immigration and Refugee Protection Act creates two main categories.
Serious criminality applies to both permanent residents and foreign nationals. It covers a conviction in Canada for an offence with a maximum sentence of at least 10 years, a conviction in Canada where a term of imprisonment of more than six months was imposed, a conviction outside Canada for something that would carry a maximum of at least 10 years here, and committing an act outside Canada that would do the same.
Criminality applies only to foreign nationals. It covers a Canadian conviction for an indictable offence, two offences under federal law that did not come from the same event, an equivalent conviction abroad, or an act abroad that would be an indictable offence here.
A few details matter a great deal:
- It’s the maximum sentence that counts, not only the sentence you got. A person who receives a modest sentence may still be caught because the offence allows a maximum of 10 years or more.
- Hybrid offences are treated as indictable. Many Canadian offences can be prosecuted either way. For immigration purposes, subsection 36(3) treats a hybrid offence as indictable, even if the Crown proceeded summarily.
- Foreign offences are compared with Canadian law. The officer asks what the foreign offence would be in Canada. That comparison can be technical, and the foreign label is not decisive. An act that’s not an offence here, or one with a much lower maximum sentence here, may lead to a very different result.
- You don’t always need a conviction. Under the “committing an act” branches, an officer may rely on evidence that a person committed an act abroad, even without a conviction there. The standard is reasonable grounds to believe.
Impaired Driving Deserves a Special Mention
Immigration officers see impaired driving files constantly, and many people still think of it as a minor matter. In Canada, since December 18, 2018, the maximum sentence for impaired driving has been high enough that a conviction may lead to inadmissibility for serious criminality. That is true whether the conviction occurred in Canada or abroad. For a foreign national, it can mean being refused entry or status. For a permanent resident, it can mean a report and potentially a removal order.
Offences from before that date are assessed using the penalties in force at the time, so an older conviction may be treated as criminality and not serious criminality. If you have been charged with impaired driving in Peel, your immigration status is one of the first things to raise with your lawyer. Our impaired driving page describes that side of things.
When a Charge Is Before the Court
If you are a non-citizen facing charges at the Ontario Court of Justice at 7755 Hurontario Street, or anywhere else, speak to a lawyer about immigration consequences before you resolve the case. The sentence itself may decide what happens to you later.
For a permanent resident, sentencing has two thresholds to watch:
- A term of imprisonment of more than six months can trigger serious criminality under paragraph 36(1)(a).
- A term of imprisonment of at least six months can remove the right to appeal a removal order to the Immigration Appeal Division under section 64.
Time served before sentencing may in some cases be relevant to how a sentence is calculated, and so may the difference between a jail term and other sentences. In Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, the Supreme Court of Canada held that a conditional sentence is not a “term of imprisonment” for paragraph 36(1)(a). A discharge is not treated as a conviction in the same way, and a withdrawn charge or peace bond also has different results. A plea to a different offence can also change the maximum sentence that applies. These are the reasons a criminal lawyer and an immigration lawyer should talk to each other before a plea. Sentence terms often can’t be undone afterward.
Do not assume that a Crown, duty counsel, or your friend’s experience has covered the immigration side. Tell your criminal lawyer about your status at your first meeting, and show them your documents.
Convictions in Canada: Record Suspensions
For a Canadian conviction, immigration rehabilitation is not the route. Under IRPA, inadmissibility may not be based on a conviction for which a record suspension has been ordered and has not been revoked. IRCC’s guidance tells people convicted in Canada to get a record suspension from the Parole Board of Canada.
A record suspension is available only after the waiting period has passed, generally starting once the entire sentence, including fines and probation, is finished. Certain offences are excluded, and the waiting periods differ depending on the offence and how it was prosecuted. The Parole Board is responsible for this process, and it has its own forms and fees. Plan on it taking some time. Note, too, that a record suspension doesn’t necessarily help with past decisions already made, or with other countries’ immigration systems.
For someone who has already become a permanent resident and has a removal report pending, the timing of a record suspension can be particularly important. Have someone look at it early.
Convictions Abroad: Deemed Rehabilitation
The law may treat a person with an older foreign conviction as rehabilitated without any application. The regulations create a class of people “deemed to have been rehabilitated,” but the conditions are narrow. In general, a person with a single foreign conviction may qualify if:
- The offence would be an indictable offence in Canada, with a maximum sentence of less than 10 years
- At least 10 years have passed since the sentence was completed
- The person has no other relevant convictions in Canada or abroad, subject to the exact wording of the regulation
The regulations also address some cases of two or more less serious foreign offences, with their own time limit and conditions. Deemed rehabilitation does not apply to serious criminality, which in most cases means that an offence with a maximum of 10 years or more will rule it out. This is why so many impaired driving convictions after December 2018 do not fit.
Even if you believe you qualify, an officer has to agree when you apply for status. It can be useful to include the court records, proof that your sentence was complete, and a brief explanation.
Convictions Abroad: Individual Rehabilitation
If deemed rehabilitation doesn’t apply, you may be able to apply for individual rehabilitation. You generally become eligible five years after finishing your entire sentence, including probation, or five years after committing the act if there was no conviction. The officer must be satisfied that you have been rehabilitated and that you are highly unlikely to commit new crimes.
The application uses IRCC’s rehabilitation forms and requires police certificates, court documents, and the text of the foreign law. A personal statement should explain what happened, what you’ve done since, and why it won’t happen again. Evidence of stable work, family life, community involvement, and treatment where relevant can all support your claim. Officers will generally look at whether you take responsibility.
The fee differs by category: IRCC’s list shows one amount for criminality and a substantially higher amount for serious criminality. Check the current fee list. Processing can take well over a year, and it’s generally a good idea to start long before you need it. Rehabilitation only removes this particular barrier. You still have to meet all the other requirements for what you are applying for.
Temporary Resident Permits
If you have a compelling reason to be in Canada and you aren’t yet eligible for rehabilitation, or your application is still pending, you can ask for a temporary resident permit. This is a discretionary document under section 24 that allows someone who is otherwise inadmissible to enter or stay for a limited time. An officer will balance your need to be in Canada against any risk to Canadians. A family wedding may or may not be enough, so the reason has to be concrete and the person’s circumstances explained.
A TRP isn’t a clean slate. It covers only the permitted period and doesn’t cure the underlying inadmissibility, and a border officer still has to allow entry.
Be Upfront on the Forms, and Move Quickly
Application forms ask about arrests, charges, and convictions anywhere in the world, sometimes in broad wording. People often assume that an old, minor, or withdrawn matter does not need disclosure. Unless a lawyer has reviewed the question and your situation, disclose it. Failing to do so could turn a manageable issue into a finding of misrepresentation with a five-year bar.
Getting your records before filing helps you be accurate. That could mean police certificates from every country you have lived in, court documents, or a Canadian criminal record check. If a police certificate shows something you didn’t expect, find out what it is before you submit it.
If you are a permanent resident and an officer has written you a letter about a possible section 44 report, or a Canada Border Services Agency officer has asked to interview you about your conviction, treat it as urgent. You may be able to make written submissions asking the officer not to send the matter forward. Be careful about giving a statement before you have advice.
If you are a visitor, student, or worker, a conviction can cut short your status and prevent an extension. An application for permanent residence can also stall or be refused because of a pending charge, so tell your representative right away.
Practical First Steps
Start with the facts. Gather your charge documents, the information and any plea or sentencing record, your release papers, and the proof that fines and probation are finished. For foreign matters, collect certified court records and an English translation. Write down your immigration history alongside the criminal history on one page, with dates.
With that page in hand, a lawyer can tell you which category applies and how much time you still have to wait. You can read about our immigration law work, or arrange a conversation through the contact page. The sooner these two parts of your life are looked at together, the more options you are likely to have.