Criminal Defense and Appeals
We assist individuals – adults and youth – facing criminal charges under the Criminal Code of Canada, the Controlled Drugs and Substances Act and other laws. We can offer advice and representation at any stage of the proceedings, including pre-charge assistance if you are the subject of an investigation. If you’ve already been charged with an offence, we can assist with:
- bail hearings
- guilty pleas
- constitutional challenges
Understanding your charges
Criminal charges in Canadian law can be more or less serious. More serious charges, known as indictable offences, can lead to longer sentences, while summary conviction offences carry shorter maximum penalties. All criminal charges are first heard in the BC Provincial Court, and summary conviction offences remain in that court, with all trials or guilty pleas presided over by a single judge. Those charged with some indictable offences have the right to a jury trial in the BC Supreme Court and can choose whether they wish to be tried by a judge or jury.
However, most offences in the Criminal Code of Canada are actually hybrid offences, meaning that it is up to the prosecutor (or Crown counsel) to decide how to proceed with the case, that is whether to proceed by indictment or summary conviction.
Criminal convictions can have serious immigration consequences for permanent and temporary residents, including deportation. However, it may be possible to structure a plea and/or sentence in such a way that the negative consequences of a criminal conviction are reduced or eliminated for such individuals. It is strongly recommended that non-citizens who are charged with a criminal offence seek legal advice before going to trial or pleading guilty.
An individual who has been convicted of a criminal offence, has the right to appeal their conviction and/or sentence. Similarly, if an individual pleaded guilty to an offence, they may wish to appeal their sentence or seek to withdraw their plea.
An appeal is not a new trial and generally, new evidence cannot be presented. In order to be successful, the appeal court must find that there was an error made during the first trial and/or sentencing. The appeal court can impose a different sentence or in the case of conviction appeals, either make a different decision or send the case back to the original court for a new trial.
It is critical that permanent residents and foreign nationals understand the varied and severe collateral immigration consequences that can arise by virtue of a criminal charge or conviction inside or outside Canada. This consequence can include deportation from Canada or a bar from entering the country.
The range of immigration consequences that an individual may face will depend on their status in Canada (as a permanent resident, protected person or foreign national, which includes persons on work permits, student permits, visitor visas, or making refugee claims).
Both permanent residents and foreign nationals can be found inadmissible under s. 36 (1) of the Immigration and Refugee Protection Act for serious criminality – for having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed. Equivalent convictions or acts committed outside of Canada can similarly result in inadmissibility for serious criminality.
Foreign nationals can become inadmissible for less serious criminal offences under s. 36(2) of IRPA – for having been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment, or of two offences under any Act of Parliament not arising out of a single occurrence. Equivalent convictions or acts committed outside of Canada can similarly result in inadmissibility for regular criminality.
Criminal procedures may also have other immigration implications. Someone who is making a
refugee claim or who has protected person status could face removal from Canada without assessment of their risk of persecution following certain types of convictions. Certain convictions or sentences could affect the ability to sponsor relatives, eligibility to apply for citizenship or access to travel documents. Admissions or findings of fact in criminal matters could also have serious implications in immigration processes. Inadmissibility on security grounds or on grounds of organized criminality, for example, do not require convictions and could be based on admissions made in criminal processes. Findings of fact in a criminal court will also be given significant weight in equitable appeals or other immigration proceedings.
It may be possible to avoid inadmissibility where the criminal disposition does not result in a conviction, where the conviction is not under an Act of Parliament, or where a sentence is tailored in a specific way. We can provide further advice in individual cases about the specific consequences that may arise in any given case, and the possible routes to avoid or overcome those consequences.
Where an individual has been convicted without having been advised on the collateral immigration consequences, we can advise on the options available to overcome the unintended consequences, which may include filing a conviction or sentence appeal.
The immigration consequences of criminal processes are of great significance to many of the individuals involved in the criminal justice system. It is crucial that criminal and immigration counsel work together as early in the process as possible to mitigate or plan for the immigration implications of criminal processes.
We provide legal opinions to persons facing criminal charges or who have criminal convictions about the specific potential immigration consequences and implications. These opinions can assist the person concerned, their criminal counsel, and/or crown counsel and the criminal courts in understanding the potential immigration implications – to avoid overly harsh and unintended consequences.