If you are not a Canadian citizen, a criminal charge is not just a criminal law problem. It can put your ability to stay in Canada at risk, whether you are a permanent resident, a worker, a student, or a refugee claimant.
This guide explains how Canada’s immigration law treats criminal convictions, what makes a conviction serious enough to trigger removal, and what options exist. Immigration law is federal, so the rules apply across Canada, including to people charged in Ontario.
Disclaimer: This article reflects general legal information based on Canadian immigration and criminal law. It is not legal advice. Every case is unique, and you should consult a qualified lawyer about your specific situation.
Key Facts
- A criminal charge in Canada does not by itself make you inadmissible; inadmissibility is generally based on a conviction, or in some cases on an act committed outside Canada.
- Canadian citizens cannot be deported for a criminal conviction, but permanent residents and foreign nationals can be.
- A conviction is "serious criminality" if the offence carries a maximum sentence of ten years or more, or you were actually sentenced to more than six months; a separate section 64 test decides whether a permanent resident loses the right to appeal a removal order.
- Any hybrid offence is treated as an indictable offence for immigration purposes even if the Crown proceeds summarily.
- A Canadian record suspension, once granted and while it remains in effect, means the conviction can no longer be used as a basis for inadmissibility.
Who This Affects, and Who It Does Not
Canadian citizens cannot be removed from Canada because of a criminal conviction. A conviction can still affect a citizen indirectly, for instance by delaying or complicating a family member’s sponsorship application. Everyone else, permanent residents, workers and students here on temporary status, and refugee claimants, can be found inadmissible and face removal. How serious the consequences are, and what options remain, depends heavily on which of these categories you fall into.
What Actually Triggers Immigration Consequences
A Charge Alone Does Not Normally Establish Inadmissibility
Being arrested or charged in Canada does not, by itself, normally make you inadmissible. The Immigration and Refugee Protection Act (IRPA), the main federal statute governing this area, generally requires an actual conviction, or in some contexts, having committed an act outside Canada that would be an offence here. A charge that is withdrawn, stayed, or resolved through diversion generally does not count. This is one of the most important practical points for anyone facing a criminal charge: resolving the matter without a conviction, where that is realistically possible, has value that goes beyond the criminal case itself.
A Discharge Is Not a Conviction
Under section 730(3) of the Criminal Code, an absolute or conditional discharge is deemed not to be a conviction. Because the criminality grounds for offences committed in Canada depend on a conviction, a discharge on its own does not create inadmissibility under section 36, and the Immigration Appeal Division has accepted this. A discharge can still appear on a background check, but it does not trigger IRPA’s criminality provisions.
Peace Bonds and Similar Resolutions
A peace bond is not a conviction. Where a matter is resolved this way instead of through a guilty plea or trial, it generally does not create the conviction the criminality grounds depend on. This is one of the reasons defence counsel should flag immigration status early, since it can shape which resolutions are worth pursuing.
Serious Criminality vs. Criminality: Why the Distinction Matters
Section 36 splits criminal inadmissibility into serious criminality (section 36(1)) and criminality (section 36(2)). They apply to different people and carry different consequences.
Serious Criminality
Section 36(1) applies where the offence is punishable in Canada by a maximum sentence of ten years or more, or where you were actually sentenced to a term of more than six months, regardless of the offence’s maximum. Both permanent residents and foreign nationals can be found inadmissible on this basis. It also covers equivalent foreign convictions and certain acts committed outside Canada.
Ordinary Criminality (Foreign Nationals Only)
Section 36(2) applies only to foreign nationals, such as workers, students, and visitors. It covers convictions that do not meet the serious criminality threshold, generally an indictable offence (including hybrid offences) or two offences that do not arise out of a single occurrence. A permanent resident whose conviction falls short of serious criminality is generally not inadmissible for criminality at all. Most foreign nationals have no right to appeal a removal order to the Immigration Appeal Division, though other remedies discussed below may still be available to them.
Hybrid Offences Are Treated as Indictable
Many Criminal Code offences, including many assault charges, are hybrid: the Crown can proceed summarily or by indictment. For immigration purposes, a hybrid offence is deemed indictable however the Crown proceeds, so even a summary conviction is assessed as if it were indictable.
Serious Criminality and the Right to Appeal Are Not the Same Test
Section 64 removes a permanent resident’s right to appeal to the Immigration Appeal Division where they have been found inadmissible for serious criminality, but it defines serious criminality differently. The crime must have been punished in Canada by a term of imprisonment of at least six months, or fall within the foreign conviction and foreign act grounds. The two tests do not line up. A permanent resident convicted of an offence with a ten-year maximum but sentenced to under six months can be inadmissible and still keep the appeal. A sentence of exactly six months is not “more than six months” under section 36(1)(a), but it bars the appeal where inadmissibility rests on the ten-year maximum.
Why the Actual Sentence Also Matters
Section 36(1)(a) looks to the sentence actually imposed for the six-month prong, not the maximum available. In Tran v Canada, 2017 SCC 50, the Supreme Court held that a conditional sentence, one served in the community, is not a “term of imprisonment” under section 36(1)(a), even if it runs longer than six months. Because the sentence can affect both inadmissibility and the right to appeal, sentencing submissions can matter enormously to someone’s immigration future.
Immigration Consequences Can Be Argued at Sentencing
In R v Pham, 2013 SCC 15, the Supreme Court confirmed that a sentencing judge can consider collateral immigration consequences when deciding on a fit sentence, as long as the sentence remains proportionate. Defence counsel can therefore put the immigration stakes before the court. For example, counsel can explain that five months rather than seven could keep a client under both six-month thresholds, without asking the court to ignore the seriousness of the offence.
What Happens After a Conviction
The Inadmissibility Report and Hearing
Where immigration officials become aware of a qualifying conviction, they can prepare an inadmissibility report and, in many cases, refer the matter to the Immigration Division for an admissibility hearing. If inadmissibility is found, a removal order follows.
A Foreign National Generally Cannot Be Removed While Still Serving a Sentence
Section 50(b) of IRPA stays enforcement of a removal order against a foreign national sentenced to imprisonment in Canada until the sentence is completed. In practice, immigration enforcement typically begins at or near the point your sentence is considered complete, when the Canada Border Services Agency can take you into immigration custody.
Losing Status Once a Removal Order Is Final
For a permanent resident, once a removal order comes into force, meaning no appeal was available, none was filed, or an appeal was unsuccessful, permanent resident status is lost by operation of law. A stay of removal granted on appeal is not necessarily permanent protection either: a new qualifying conviction during that stay can cancel it.
Options If You Are Facing Inadmissibility
A Canadian Record Suspension
Once a record suspension is granted under the Criminal Records Act and while it remains in effect, the conviction can no longer be used as a basis for inadmissibility. This is one of the more accessible remedies for someone with an older, eligible conviction. Our How to Get a Criminal Record Suspension (Pardon) in Canada guide covers the waiting periods and eligibility rules.
Rehabilitation for Foreign Convictions
A person with a foreign conviction may apply for criminal rehabilitation once enough time has passed, generally at least five years since the sentence was completed, if they can show they are unlikely to reoffend. For an act committed outside Canada, the five years run from the act. Some people are deemed rehabilitated after 10 years, if conditions are met.
A Temporary Resident Permit
Someone who is otherwise inadmissible may be issued a temporary resident permit if an officer is of the opinion that it is justified in the circumstances, which generally means a compelling reason to enter or remain in Canada. It does not erase the inadmissibility. It is discretionary and time-limited, and is reserved for significant need where the person poses no undue risk.
Humanitarian and Compassionate Consideration
Subject to other statutory restrictions, a foreign national in Canada can ask for permanent residence on humanitarian and compassionate grounds under section 25. A finding under section 36 does not close that door. The Act’s inadmissibility exclusions are security, human or international rights violations, sanctions, and organized criminality. A permanent resident whose appeal is available raises humanitarian and compassionate considerations before the Immigration Appeal Division instead. Where children are involved, the Supreme Court held in Kanthasamy v Canada, 2015 SCC 61, that decision-makers must be alert, alive, and sensitive to the child’s best interests, which must be well identified and examined with a great deal of attention.
An Appeal to the Immigration Appeal Division
Where available, meaning the person is a permanent resident who is not barred by section 64, an appeal allows hardship, family ties, and rehabilitation evidence to be weighed directly against the removal order. Most foreign nationals cannot appeal.
If You Are Not a Canadian Citizen and Facing Charges
Say So Early
Tell your criminal defence lawyer about your immigration status at the first meeting. It can affect whether a resolution avoids a conviction, keeps a sentence under six months, or changes which offence you plead to.
Consider Diversion and Alternative Resolutions
Where available, diversion, a peace bond, or withdrawal avoids creating the conviction that triggers immigration consequences.
Coordinate Criminal and Immigration Advice
Your criminal and immigration lawyers need to talk to each other. A plea that looks reasonable on criminal grounds alone can be the wrong choice once immigration consequences are considered.
How Sanctuary Lawyers Can Help
Where immigration status is at stake, we factor it into how a criminal matter is defended and resolved from the outset, not as an afterthought once a plea has already been entered. That can mean pursuing diversion where realistic, making immigration-consequence submissions at sentencing, and coordinating with immigration counsel on complex files.
Frequently Asked Questions About Criminal Charges and Immigration Status
Here are answers to common questions from non-citizen clients facing criminal charges.
Can I be deported just for being charged with a crime?+
Generally, no. A charge alone does not normally make you inadmissible. Inadmissibility is generally based on a conviction, or in some cases an act committed outside Canada.
Can a Canadian citizen be deported for a criminal conviction?+
No. Citizens cannot be removed from Canada for a criminal conviction, though a conviction can still complicate sponsoring a family member.
What is the difference between serious criminality and criminality?+
Serious criminality (section 36(1)) applies to permanent residents and foreign nationals and is based on a ten-year maximum or a sentence of more than six months. Criminality (section 36(2)) applies only to foreign nationals. Whether a permanent resident can appeal removal turns on a separate section 64 test, which for a Canadian conviction generally looks to a sentence of at least six months.
Does a conditional sentence count toward the six-month threshold?+
For the serious criminality threshold in section 36(1)(a), no. The Supreme Court held in Tran v Canada that a conditional sentence is not a term of imprisonment. Because section 64 uses the same phrase, a conditional sentence generally should not count toward the appeal bar either, but confirm with an immigration lawyer.
If I get a discharge instead of a conviction, am I safe?+
A discharge is not a conviction and generally does not create inadmissibility under the criminality provisions discussed here. However, individual immigration circumstances should still be reviewed before relying on that result.
Can a pardon or record suspension fix an immigration problem?+
Yes, for a Canadian conviction. Once a record suspension is granted and while it remains in effect, that conviction can no longer be used as a basis for inadmissibility.
Will the judge consider my immigration status when sentencing me?+
A sentencing judge can take collateral immigration consequences into account under R v Pham, so long as the resulting sentence is still proportionate to the offence.
What if my charge gets withdrawn or I complete a diversion program?+
Generally, no conviction means no criminal inadmissibility for an offence committed in Canada, since IRPA’s criminality grounds there are tied to a conviction.
Talk to Sanctuary Lawyers About Your Situation
If you are facing a criminal charge and you are not a Canadian citizen, the earlier you get advice that accounts for both sides of your situation, the more options you are likely to have. Contact Sanctuary Lawyers for a free initial consultation, or see our Criminal Lawyer in Toronto & Aurora page to learn how we defend criminal charges.
