For anyone facing a criminal charge in Ontario who is not a Canadian citizen, immigration status can be affected in ways that are separate from, and can matter just as much as, the outcome of the criminal case itself. This guide gives a general overview of how a criminal record can intersect with Canadian immigration law under the Immigration and Refugee Protection Act (IRPA). It is general information only and is not immigration law advice; anyone in this situation should speak with an immigration lawyer in addition to a criminal lawyer.
If you are not a Canadian citizen and you are facing a criminal charge, get advice from an immigration lawyer before entering any plea. A plea that seems reasonable from a purely criminal law perspective can sometimes have serious, separate immigration consequences.
Who This Can Affect
These considerations generally apply to people who are not Canadian citizens, including permanent residents and foreign nationals such as those on a work permit, study permit, or visitor status. Canadian citizens are generally not subject to these particular immigration consequences, though a criminal record can still matter for citizenship applications in some contexts. This page focuses on the general immigration-law framework that can apply to non-citizens facing or holding a criminal record in Canada.
It is worth being clear at the outset that immigration law in this area is detailed, fact-specific, and subject to change, and that outcomes can depend heavily on individual circumstances such as immigration category, length of residence in Canada, and the specific offence involved. General descriptions like the ones on this page are meant to introduce the concepts involved, not to predict how they would apply to any particular person's situation.
IRPA Section 36: Criminality and Serious Criminality
Section 36 of the Immigration and Refugee Protection Act is generally understood to set out two related grounds of criminal inadmissibility for non-citizens: what is generally referred to as "criminality" and, for more serious matters, "serious criminality." These are general legal categories used to assess whether a criminal record can affect a person's ability to remain in, or enter, Canada, and they generally apply somewhat differently depending on whether the person is a permanent resident or a foreign national.
General Criminality
General criminality, as a ground of inadmissibility, generally applies more broadly to foreign nationals than to permanent residents, and can generally be triggered by things such as a conviction for an indictable offence in Canada, or by multiple summary convictions that did not arise from the same incident. The specific thresholds and how they apply can be technical, and they are generally best assessed by an immigration lawyer familiar with the current state of this area, rather than assumed from a general description.
Serious Criminality
Serious criminality is generally a higher and more consequential threshold, and can generally apply to both permanent residents and foreign nationals. It is generally associated with offences that carry a potential maximum sentence of ten years or more, or with a sentence that was actually imposed of more than six months, among other possible bases. Because this ground can have particularly serious consequences, including for a long-standing permanent resident, it is an area where individualized, current legal advice is especially important.
Consequences Without a Custodial Sentence
One point that is frequently misunderstood is the assumption that immigration consequences only arise where a person goes to jail. In some circumstances, immigration consequences can generally apply even without any custodial sentence, since the classification of the offence itself, and in some cases the maximum sentence available for it, can be enough to engage these provisions, separate from whatever sentence was actually imposed in a specific case. This is one of the more important reasons not to assume that a lighter sentence necessarily means there is no immigration risk.
A conditional sentence, probation, or a fine, without any jail time, does not automatically mean there is no immigration consequence. Whether a specific outcome triggers inadmissibility depends on the offence and the applicable provisions, which is a question for an immigration lawyer.
Why a Plea Matters Separately From Sentencing
A guilty plea, discussed generally on our page about findings of guilt, can trigger immigration consequences based on the offence a person is convicted of, regardless of how favourable the sentence itself turns out to be. This means the decision about how to plead, and in some cases which specific offence to plead to where more than one is on the table, can matter enormously from an immigration standpoint, even where the criminal sentencing outcome would look similar either way. This is a distinct consideration from the sentencing principles discussed generally on our page about sentencing principles.
Why Two Lawyers, Not One
A criminal lawyer is generally focused on the criminal case: the evidence, potential defences, and the best available outcome under the Criminal Code. An immigration lawyer is generally focused on a separate legal framework, IRPA, and how a given plea, charge, or sentence interacts with a person's immigration status. These are different areas of legal practice, and a criminal lawyer is generally not in a position to give reliable immigration advice, just as an immigration lawyer is generally not in a position to conduct a criminal defence. Anyone who is not a Canadian citizen and is facing a criminal charge should generally involve both, ideally before any plea is entered.
Frequently Asked Questions
Can a criminal charge affect my immigration status even if I am not convicted?
Generally, immigration consequences under section 36 are tied to a conviction or finding of guilt rather than a charge alone, but the interaction between criminal and immigration proceedings can be complex, so specific advice is important.
What is the difference between "criminality" and "serious criminality"?
These are generally two related but distinct grounds of inadmissibility under IRPA, with serious criminality generally tied to more serious offences or sentences.
Do I need an immigration lawyer if I already have a criminal lawyer?
If you are not a Canadian citizen, generally yes. A criminal lawyer and an immigration lawyer generally focus on different legal frameworks, and both perspectives matter before a plea is entered.
Can I face immigration consequences without going to jail?
In some circumstances, yes. Immigration consequences can generally be tied to the classification of the offence itself, not only to whether a custodial sentence was imposed.
Does this apply to permanent residents as well as other non-citizens?
Yes, though the specific thresholds and consequences can generally differ between permanent residents and other foreign nationals, which is another reason individualized advice matters.
When should I get immigration advice if I am charged with an offence?
As early as possible, and ideally before entering any plea, since a plea can have immigration consequences that are separate from the criminal sentence itself.