Many permanent
residents, workers, students, and visitors charged with criminal offences
in Canada do not realize how much the criminal case can affect their
immigration status. A guilty plea, the way the Crown proceeds, and the sentence
imposed can all change whether someone keeps a right to stay in Canada — or
faces removal. That is why immigration consequences should be part of the
conversation from the very beginning, not after the criminal case is over.
This article
focuses on people who have been charged and convicted of an offence inside
Canada.
1. You Have
Been Charged With a Crime: Why Immigration Status Is Already in Play
The starting point is section 36 of the Immigration and Refugee
Protection Act (IRPA). That section sets out when a person becomes
inadmissible for serious criminality or criminality. For
convictions in Canada, serious criminality under s. 36(1)(a) can apply
where the offence is punishable by a maximum term of imprisonment of at least
10 years, or where a term of imprisonment of more than six months has
been imposed. For foreign nationals, criminality under s. 36(2)(a) can
apply where there is a conviction in Canada for an offence punishable by way of
indictment, or for two offences not arising out of a single occurrence.
One point that is especially important is s. 36(3)(a): if an
offence can be prosecuted either summarily or by indictment, it is deemed
indictable for immigration purposes even if it was prosecuted summarily.
That means so-called “hybrid offences” often create immigration exposure even
where the criminal court process looks less serious on paper.
For example, assault under Criminal Code s. 265 is a hybrid
offence. A permanent resident may not automatically lose all immigration
options because of a single assault conviction, but the case can still trigger
inadmissibility proceedings depending on the exact offence, sentence, and
facts. A foreign national — such as a worker, student, or visitor — is often
more vulnerable because a conviction for a hybrid offence can fall under
criminality.
Another example is theft over $5,000 under Criminal Code s. 334(a).
Because the offence carries a maximum penalty that can reach the
serious-criminality threshold, it may trigger serious immigration consequences
even where the Crown elects to proceed summarily. The immigration question is
not only what happened in criminal court, but how the offence fits into the
IRPA framework.
2. Plea
Deals Can Change the Immigration Outcome
A plea deal may resolve the criminal case, but it can also create or
worsen immigration consequences. Sometimes the immigration issue turns on the
sentence; sometimes it turns on whether the offence is one that fits within
section 36; and sometimes it turns on both. That is why people with immigration
status in Canada need to understand more than just the criminal sentence being
proposed — they need to understand what that sentence will mean for deportation
risk and appeal rights.
The Supreme Court of Canada addressed this in R. v. Wong, 2018 SCC 25.
The Court confirmed that immigration consequences can be legally relevant
collateral consequences of a guilty plea. The result is not that every plea
is automatically invalid if immigration advice was missing. Rather, a plea may
be challenged if the accused shows they were unaware of a legally relevant
consequence and can establish the required prejudice — in other words, that the
lack of knowledge mattered to the decision to plead guilty.
In practical terms, this means immigration consequences should be
discussed before a plea is entered. For some people, the difference
between a custodial sentence of five months and six months may be
the difference between keeping and losing access to the Immigration Appeal
Division.
3. How
Criminal Convictions Can Lead to Removal
If immigration authorities believe a permanent resident or foreign
national in Canada is inadmissible, an officer may prepare a section 44(1)
report setting out the relevant facts. If the Minister considers the report
well-founded, the Minister may refer the matter to the Immigration Division for
an admissibility hearing. In some prescribed cases involving foreign nationals,
the Minister may issue a removal order directly instead of referring the matter
for a hearing.
For people convicted in Canada, the classic route is still the section
44 report followed by inadmissibility proceedings. If the Immigration Division
makes a removal order, a permanent resident may generally appeal that
order to the Immigration Appeal Division under s. 63(3). But that
right does not exist in every criminal case. Under s. 64(1) and (2),
there is no IAD appeal where the person has been found inadmissible for
serious criminality and the crime was punished in Canada by a term of
imprisonment of at least six months.
That six-month threshold matters a great deal. If a permanent resident
receives a sentence below it, an appeal may still be available. If the sentence
is six months or more, the person may lose access to the IAD altogether.
That can remove one of the most important places to argue humanitarian and
compassionate considerations such as establishment in Canada, family ties,
hardship, and the best interests of affected children.
For temporary residents — including visitors, workers, and
students — the situation is harsher. They generally do not have the same
IAD removal appeal right as permanent residents.
4. If There
Is No IAD Appeal, What Is Left?
If there is no access to the Immigration Appeal Division, the case
becomes much harder — but not necessarily hopeless. Depending on the facts and
procedural posture, there may still be other immigration options to explore.
One possible avenue is an application under s. 25 of the IRPA on humanitarian
and compassionate grounds. The current legislation allows the Minister to
consider H&C requests from foreign nationals who are inadmissible, except
for inadmissibility under ss. 34, 35, 35.1, and 37. That means criminal
inadmissibility under s. 36 is not automatically excluded from H&C
consideration. In the right case, factors such as establishment in Canada,
family support, hardship on return, and the best interests of a child directly
affected may still matter.
Depending on the case, a person may also later be assessed for other
forms of protection or relief, but those pathways are highly fact-specific and
are not automatic. The key point is that once a criminal conviction is in play,
the immigration strategy should be thought through early, because waiting until
removal is imminent usually leaves far fewer options.
Final
Thought
When someone in Canada is charged with a crime, the criminal case and
the immigration case can quickly become tied together. A plea that looks
reasonable in criminal court may be devastating in immigration terms. A
sentence that seems short may still cost a permanent resident their appeal
rights. And for temporary residents, even one conviction can put status at
risk. The safest course is to assess the immigration consequences before the
criminal matter is resolved, not afterward.
Contact Us
A&M
Canadian Immigration Law Corporation assists clients with criminal inadmissibility, section 44 reports,
admissibility hearings, and removal-related immigration issues. A&M
Canadian Immigration Law Corporation, based in Winnipeg, Manitoba, assists
clients with Canadian admissibility matters, including criminal
inadmissibility. Contact us or book an appointment online for guidance.
Sources
● Immigration
and Refugee Protection Act, s. 36
● Immigration
and Refugee Protection Act, s. 44
● Immigration
and Refugee Protection Act, s. 63
● Immigration
and Refugee Protection Act, s. 64
● Immigration
and Refugee Protection Act, s. 25
Disclaimer
(Educational Use Only)
This content is for
general educational information only and is not legal advice. Immigration laws,
regulations, and policies can change. A criminal charge or conviction can
affect people differently depending on their status, the offence, the sentence,
and the timing. Get legal advice on your specific facts before making decisions
about pleas, sentencing, or immigration options.
