Immigration Consequences of a Criminal Conviction

It is essential to consult a lawyer if you are charged with a criminal offence, but even more important if you are not a Canadian citizen as there can be very severe consequences if you are convicted.

Almost all of immigration law is governed by the Immigration and Refugee Protection Act. This legislation divides individuals into categories with each having certain rights based on these categories. 

There are four types of status in Canada: 

1. Citizen

2. Permanent Resident 

3. Protected Person (i.e. Refugee)

4. Foreign National (this includes visitors, temporary workers, students, persons with no status)

Convictions for certain criminal offences can cause an individual to be inadmissible to Canada. Individuals who are inadmissible are not permitted by law to enter or remain in Canada. 

Immigration consequences of criminal convictions apply to all individuals who are not Canadian citizens. The only consequence for Canadian citizens related to immigration is that certain criminal convictions may affect the ability to sponsor relatives for permanent residence. 

The range of criminal conduct that can render a Foreign National inadmissible is much broader and remedies are usually much more limited. 

Under the Immigration and Refugee Protection Act there are three terms of law that are essential to understanding immigration consequences of criminal convictions.

Serious Criminality 

This refers to a permanent resident or a foreign national who has been convicted in Canada of any offence under an Act of Parliament that is punishable by a maximum term of imprisonment of at least 10 years (no matter what sentence the person actually receives).

• This includes offences such as Driving Impaired, Robbery, Sexual Assault, Break and Enter, Assault with a weapon, Possession for the purpose of trafficking, and Murder (among many others).

OR for which a term of imprisonment of more than six year months has actually been imposed

• Following the Supreme Court of Canada decision Tran v Canada in 2017, a conditional sentence of imprisonment does not constitute a “terms of imprisonment”. A conditional sentence does not go towards determining serious criminality. 

Criminality Simpliciter

• A foreign national who has 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 arising out of a single occurrence.

  • It is important to note that all hybrid offences are considered indictable, no matter how the Crown chooses to proceed. 

Organized Criminality 

• A permanent resident or foreign national who is a member a member of an organization that is believed on reasonable grounds to be or to have been engaged in activity or who is him/herself engaging in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence punishable under an Act of Parliament by way of indictment, inside or outside of Canada 

• OR  in the context of trans-national crime, has engaged in activities such as people smuggling, trafficking in persons or laundering of money or other proceeds of crime. 

An Individual must be convicted of an offence under an Act of Parliament to amount to criminality under the Immigration and Refugee Protection Act.

If a case is resolved by way of a discharge or peace bond, it does not result in criminal inadmissibility. 

There are many other potential consequences of a criminal conviction if you are not a Canadian citizen including the loss of the ability to apply for citizenship, loss of ability to sponsor family members, among many others. 

It is important that you consult a criminal defence lawyer, as this can be difficult to navigate on your own. Kathleen is knowledgeable about the various immigration consequences of criminal convictions. If you have been charged with a criminal offence, contact Kathleen for a consultation.