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.