Criminal charges can have a serious impact on an accused person’s life: in addition to the stigma surrounding a person accused of committing crimes, if criminal charges lead to a conviction, the accused will end up having a criminal record. A criminal record is an impediment to employment and to traveling. But do you know that if you are not a Canadian citizen, you may also be facing immigration consequences?

If you are not a Canadian citizen and you are facing criminal charges, you may face serious immigration consequences, including deportation. Section 36 of the Immigration and Refugee Protection Act ( IRPA ), S.C. 2001, c. 27 states that:

Serious criminality

36 (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for

Maximum Term Of Imprisonment

(a) 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;

(b) having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; or

(c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years.

This section of the law applies to permanent residents and foreign nationals. A foreign national is defined in section 2 of IRPA as a person who is not a Canadian citizen or a permanent resident, and includes a stateless person.

Committing A Crime Outside Of Canada

If you are either a permanent resident or a foreign national living in Canada and you are facing a criminal charge which, from an immigration perspective, constitutes a serious criminality offence, you will be inadmissible to Canada in the following cases:

• you have been convicted   of a crime that is punishable by 10 years or more in prison; or
• you have been convicted of an offence for which a term of imprisonment of more than six months has been imposed.
  

The 1st Step

The key elements to focus on in this provision are the conviction and the punishment for the offence that you are facing and/or the length of the term of imprisonment that is imposed. The first step in the analysis is that you have to be convicted of a criminal offence in order for there to be potential immigration consequences. There is no conviction if the sentence imposed by the court is a discharge (whether absolute or conditional), a peace bond or if the charges against you are withdrawn. If you are not convicted, you are not at risk of being inadmissible. Therefore, if you are a permanent resident or a foreign national facing criminal charges and you would like to resolve your matter, it is best to try to negotiate a plea agreement that would not cause you a conviction. (Caution : in the case of foreign nationals, there are other situations that could also cause immigration consequences but they are not covered in this post)

The 2nd Step

The second step of the analysis comes into play if there is a conviction. In that case, you need to check the maximum punishment imposed by law for the criminal offence you are facing. If the maximum punishment imposed by law is 10 years or more of imprisonment, then you are at a risk of being inadmissible. You can find the punishment for every criminal charge in the Criminal Code of Canada which is fully published and regularly updated online (just Google search Criminal Code of Canada). Another situation in which you may also be inadmissible is if you are convicted of a criminal offence, and you are sentenced to a term of imprisonment of more than six months. Therefore, if you are not a Canadian citizen and you are accused of committing crimes in Canada it is very important that you know the maximum punishment for the offence(s) you are facing as well as the sentence that will be imposed on you if you are convicted.

As you can see, if you are not a Canadian citizen, your immigration status is a very important factor to consider when you are facing criminal charges in Canada. If you have a lawyer make sure your lawyer knows about your immigration status if s/he does not ask you for it. And even if you do have a criminal lawyer, it is still recommended that you seek legal advice from an immigration lawyer to know exactly how your criminal charges impact your immigration status. Also, please note that there are other situations where criminal charges could lead to immigration consequences but these would be covered in another post.