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Immigration Implications with a Charge

When an individual is charged with a criminal offence, it is important for them to have an understanding of all the ways the charge could impact their life. For those who are not Canadian citizens, there can be serious immigrations implications associated with being arrested and criminally charged. In Canada, certain criminal convictions may result in an individual becoming inadmissible to Canada, and in very serious cases could result in deportation from the country. An individual may be deemed inadmissible from Canada as a result of serious criminality.

Will a Criminal Conviction Impact an Immigration Application?

A criminal conviction is likely to negatively impact someone’s immigration application. The actual impact of any conviction will depend on the crime the applicant was convicted of. For lesser crimes, the conviction may simply prolong the process, whereas more serious offences can result in denial and deportation. Specifically, under s. 36(1) of the Immigration and Refugee Protection Act, any permanent resident of Canada, or citizen of another country, otherwise known as a foreign national, is inadmissible to Canada for reasons of serious criminality.

This section applies where a person has been convicted of an offence in Canada or elsewhere, where that offence would carry a maximum punishment of at least 10 years according to Canadian law. Similarly, under s. 36(2), foreign nationals are inadmissible for criminality if they have been convicted in Canada or elsewhere of any offence that would be considered an indictable offence under Canadian law, or of two offences of any type that were committed at separate times.

However, a person that would otherwise be deemed inadmissible to Canada for reasons of criminality or serious criminality may still successfully enter Canada via an immigration application in some circumstances. If the applicant has received a record suspension for the crimes that would otherwise prohibit their entry into Canada, their conviction will likely not doom their application.

Does a Criminal Charge Impact Permanent Resident Status?

It can, so it’s important to get legal advice from the lawyer handling your case. In fact, Judges are required to warn any accused person pleading guilty about immigration consequences. Permanent resident status is one of the classifications given to foreign nationals that have been allowed to enter Canada to live. As the name suggests, a permanent resident has the right to remain in Canada unless and until their status is revoked by the government. As mentioned above, a criminal conviction can be grounds for the removal of permanent resident status and deportation according to ss. 36(1) of IRPA where a permanent resident has been convicted of criminal offence that meets the definition of serious criminality. For permanent residents, a deportation order on the grounds of serious criminality may be the result of an admissibility hearing conducted by the Immigration and Refugee Board.

What is a Record Suspension?

A record suspension, previously called a pardon, occurs when the Parole Board of Canada agrees to remove the individual’s criminal record from the national repository. Effectively, a record suspension removes a person’s criminal record. It can only be obtained after an offender has completed the sentence issued for the offence for which they were convicted. A person seeking a record suspension must also wait for a set time, known as the eligibility period, and behave as a law-abiding citizen before applying. Persons convicted after 2012 become eligible to apply for a record suspension five years after the completion of their sentence if they were convicted of a summary offence, or ten years following an indictable offence sentence.

Stages of the Criminal Justice System

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Does a Criminal Charge Impact Temporary Resident or Refugee Status?

Temporary residents are foreign nationals that have only been permitted entry into Canada for a set period of time. Common examples of temporary residents include people who have a student or work visa. A criminal charge will impact a temporary resident in much the same way as it would a permanent resident. Except, there are a wider range of crimes that can make a temporary resident inadmissible to Canada. The concept of serious criminality applies to both temporary and permanent residents, as discussed above. But temporary residents can also be deemed inadmissible because of criminality where they have been convicted of an offence classified as indictable under Canadian law, or of any two criminal offences that occur at different times. If a person is seeking to renew their temporary resident status, or apply for permanent residency, a criminal conviction will negatively impact that process.

Under Canadian law, refugees are considered permanent residents. However, they must apply for and be granted refugee protection prior to applying and receiving their permanent resident status. This means they are subject to the same admissibility requirements as a typical permanent resident. As such, a refugee convicted of an offence that meets the definition of serious criminality could be deemed inadmissible at a Board hearing and removed from Canada. Importantly, in most cases, refugees cannot be deported back to the country from which they claimed protection. This applies if the person can demonstrate that they would be at risk of persecution, torture, or cruel and unusual punishment in that country.

For example, a Syrian refugee will not be returned to Syria after being found inadmissible to Canada for reasons of serious criminality, if they can satisfy the Board that deporting them there would be putting their life at risk because of their political beliefs, personal history, or some other factor.

Consequences of a Criminal Record

Will an Undisclosed Conviction Revoke a Person’s Citizenship?

For persons applying for Canadian citizenship, they must disclose any crimes they have been charged with or convicted of. Misrepresenting or knowingly concealing material facts from the government is grounds to have a person’s citizenship revoked. It is important to know that when dealing with the Immigration and Refugee Board as an applicant in any capacity, they will not take the information provided to them at face value. The Board is permitted to take the initiative in any case to discover any information relevant to their decision. This means that any attempt to hide a criminal record will likely not be successful and will likely create more issues for the applicant.

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About the Author

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Jordan Donich

Jordan Donich has been a Lawyer for over 10 years and is a trusted legal analyst by Canadian Media. He is as a leader in Canada’s tech sector for lawyers and developer of Law Newbie. Jordan is a Black Belt with the Japan Karate Association and trained in Krav Maga. He won a Gold Medal at 2004 Canadian National Championships and was published in the National Newspaper Awards.

Jordan has been featured in Forbes and is a member of DMZ Angels in Toronto.