The Consequences of a Criminal Record on your Immigration Process in Canada

Criminal Law Immigration Inadmissibility

To determine the issues related to your immigration status following a criminal charge, the first step is to determine your immigration status. There are several types of statuses in Canada, the main ones are:

  • Citizens: These are individuals who hold Canadian citizenship.
  • Permanent Residents: individuals who have received permission from the government to reside permanently in Canada. A resident can apply to become a Canadian citizen if they meet all the required conditions; this is the last “step” before obtaining Canadian citizenship.
  • Temporary Residents: individuals who have received permission to reside in Canada for a limited period. Temporary residents include those holding a visitor visa, a study permit, or a work permit. Once the authorized stay period expires, temporary residents must leave the country (unless they have initiated new procedures).
  • Asylum Seekers: individuals who have applied for protection as refugees and are awaiting a decision on their application.
  • Protected Persons: asylum seekers who have received a positive decision from the Immigration Section and are thus considered protected persons.
  • Foreigners: any person in Canada not included in the previous categories.

Except for citizens, all the above categories are subject to the Immigration and Refugee Protection Act (IRPA) and particularly to the provisions of Section 36 and subsequent sections.

Types of Criminal Offenses:

In Canada, the Criminal Code provides for several types of offenses: purely summary, purely indictable, and hybrid. Hybrid offenses can be prosecuted either summarily or by indictment, depending on the prosecutor’s choice (the Crown attorney).

Section 36(3) of the Immigration and Refugee Protection Act states that in the case of a hybrid offense, it is treated as an indictable offense regardless of the chosen mode of prosecution. Thus, regardless of the mode of prosecution, when an offense is hybrid, it will be presumed, for immigration purposes, to have been prosecuted by indictment even if, in reality, the chosen mode of prosecution was summary. This has significant impacts on your immigration status.

Consequences of a Criminal Conviction Depending on Your Status in Canada:

The consequences of a criminal conviction depend based on your status in Canada. The following is a detailed explanation of the consequences of a conviction for depending on your status.

Temporary Residents:

Section 36(2)(a) of the Immigration and Refugee Protection Act states that a temporary resident becomes inadmissible to Canada for criminality if:

  • 36(2) A foreign national is inadmissible on grounds of criminality for:
    • (a) having 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 not arising out of a single occurrence

Thus, a temporary resident will be inadmissible following a conviction for a purely criminal or hybrid offense under the Criminal Code or a conviction for two offenses (even purely summary) not arising from the same set of facts.

Additionally, Section 36(1)(a) of the IRPA states that a temporary or permanent resident becomes inadmissible to Canada for serious criminality in two scenarios:

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

The term “punishable by a maximum term of imprisonment of at least 10 years” refers to any offense for which a person is “liable to imprisonment” for 10 years or more.

This first criteria is not based on the actual sentence imposed by the court but rather on the maximum sentence the offender is liable to.

The second criteria of Section 36(1)(a) states that a temporary or permanent resident will be inadmissible for serious criminality if the imposed sentence, regardless of the offense, is more than six months of imprisonment.

Permanent Residents:

Permanent residents are subject, like temporary residents, to Section 36(1)(a) of the IRPA regarding inadmissibility to Canada for serious criminality.

A conviction for an offense punishable by a term of imprisonment of 10 years or a sentence of more than six months of imprisonment will result in the inadmissibility of the permanent resident.

Unlike temporary residents and asylum seekers, permanent residents have the right to appeal the removal order before the Immigration Appeal Division to present humanitarian grounds, such as the degree of establishment or the best interests of the child.

However, if a sentence of 6 months or more is imposed on a permanent resident for an offense with a maximum sentence of 10 years or more, they will have no recourse to contest the removal order before the Immigration Appeal Division.

Asylum Seekers:

Asylum seekers are subject, like permanent residents, to Section 36(1)(a) of the IRPA regarding inadmissibility to Canada for serious criminality.

Section 101 of the IRPA states that an asylum claim is inadmissible for criminality if:

  • 101 (1) A claim is ineligible to be referred to the Refugee Protection Division if:
    • (f) the claimant has been determined to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality.
  • 101 (2) A claim is not ineligible by reason of serious criminality under paragraph (1)(f) unless
    • (a) in the case of inadmissibility by reason of a conviction in Canada, the conviction is for an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years.

Accordingly, an asylum claim will be considered inadmissible if the claimant is convicted of an offense with a maximum sentence of 10 years or more. An asylum seeker will not be able to be heard by the Refugee Protection Division to determine if they are a protected person.

In case of a conviction, the asylum seeker will be inadmissible, and a deportation order will be issued against them.

Furthermore, proceedings before the Refugee Protection Division are suspended when an asylum seeker is charged with a serious criminal offense pending the outcome of the criminal proceedings.

Example:

If a person is charged with impaired driving, they will be charged under Section 320.14 of the Criminal Code for driving a vehicle while their ability to operate it is impaired to any degree by alcohol, a drug, or a combination of both.

Section 320.19 of the Criminal Code provides the applicable mode of prosecution:

320.19 Punishment

  • (1)  Every person who commits an offence under subsection 320.14(1) or 320.15(1) is guilty of,
    • (a) an indictable offence and liable to imprisonment for a term of not more than 10 years and to a minimum punishment of,
      • (i) for a first offence, a fine of $1,000,
      • (ii) for a second offence, imprisonment for a term of 30 days, and
      • (iii) for each subsequent offence, imprisonment for a term of 120 days; or
    • (b) an offence punishable on summary conviction and liable to a fine of not more than $5,000 or to imprisonment for a term of not more than two years less a day, or to both, and to a minimum punishment of,
      • (i) for a first offence, a fine of $1,000,
      • (ii) for a second offence, imprisonment for a term of 30 days, and
      • (iii) for each subsequent offence, imprisonment for a term of 120 days.

The offense of impaired driving by alcohol is thus a hybrid offense that could, depending on the circumstances, be prosecuted either summarily or by indictment. The IRPA specifies that such an offense is treated as an indictable offense regardless of the chosen mode of prosecution. Thus, regardless of the actual mode of prosecution in your case, when an offense is hybrid, for immigration purposes, it will be presumed that you are prosecuted by indictment even if, in fact, the chosen mode of prosecution was summary.

In the case of the offense of impaired driving, under Section 320.19 of the Criminal Code, the penalty for the offense prosecuted by indictment is a maximum term of imprisonment of 10 years.

It is therefore an offense of serious criminality referred to in Section 36(1) of the IRPA.

A conviction for impaired driving will result in inadmissibility for permanent residents, temporary residents, and asylum seekers, as it is an offense punishable by a maximum term of imprisonment of 10 years.

Conclusion:

Each case is unique, and our team of experienced criminal and immigration law lawyers possesses the expertise and qualifications to assist and advise you in a often stressful process.

We invite you to contact our firm to obtain information that may be relevant to your situation.

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