Immigration Consequences from a Conviction
The Immigration and Refugee Protection Act, SC 2001, c 27 renders foreign nationals and permanent residents inadmissible and subject to a removal order by virtue of certain types of criminal convictions depending on the circumstances.
34 (1) A permanent resident or a foreign national is inadmissible on security grounds for (a) engaging in an act of espionage that is against Canada or that is contrary to Canada’s interests; (b) engaging in or instigating the subversion by force of any government; (b.1) engaging in an act of subversion against a democratic government, institution or process as they are understood in Canada; (c) engaging in terrorism; (d) being a danger to the security of Canada; (e) engaging in acts of violence that would or might endanger the lives or safety of persons in Canada; or (f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b), (b.1) or (c). (2) [Repealed, 2013, c. 16, s. 13] 2001, c. 27, s. 34; 2013, c. 16, s. 13.
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;
- (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.
(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;
- (b) having been convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, or of two offences not arising out of a single occurrence that, if committed in Canada, would constitute offences under an Act of Parliament;
- (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 indictable offence under an Act of Parliament; or
- (d) committing, on entering Canada, an offence under an Act of Parliament prescribed by regulations.
(3) The following provisions govern subsections (1) and (2):
- (a) an offence that may be prosecuted either summarily or by way of indictment is deemed to be an indictable offence, even if it has been prosecuted summarily;
- (b) inadmissibility under subsections (1) and (2) may not be based on a conviction in respect of which a record suspension has been ordered and has not been revoked or ceased to have effect under the Criminal Records Act, or in respect of which there has been a final determination of an acquittal;
- (c) the matters referred to in paragraphs (1)(b) and (c) and (2)(b) and (c) do not constitute inadmissibility in respect of a permanent resident or foreign national who, after the prescribed period, satisfies the Minister that they have been rehabilitated or who is a member of a prescribed class that is deemed to have been rehabilitated;
- (d) a determination of whether a permanent resident has committed an act described in paragraph (1)(c) must be based on a balance of probabilities; and
- (e) inadmissibility under subsections (1) and (2) may not be based on an offence
- (i) designated as a contravention under the Contraventions Act,
- (ii) for which the permanent resident or foreign national is found guilty under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, or
- (iii) for which the permanent resident or foreign national received a youth sentence under the Youth Criminal Justice Act.
2001, c. 27, s. 36; 2008, c. 3, s. 3; 2010, c. 8, s. 7; 2012, c. 1, s. 149.
37 (1) A permanent resident or a foreign national is inadmissible on grounds of organized criminality for
- (a) being a member of an organization that is believed on reasonable grounds to be or to have been engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence punishable under an Act of Parliament by way of indictment, or in furtherance of the commission of an offence outside Canada that, if committed in Canada, would constitute such an offence, or engaging in activity that is part of such a pattern; or
- (b) engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or laundering of money or other proceeds of crime.
(2) Paragraph (1)(a) does not lead to a determination of inadmissibility by reason only of the fact that the permanent resident or foreign national entered Canada with the assistance of a person who is involved in organized criminal activity.
2001, c. 27, s. 37; 2013, c. 16, s. 15; 2015, c. 3, s. 109(E).
Two Approaches to Sentencing
There are two considered approaches to sentencing where deportation is at issue.
One approach is to take a two step process:
- determine an appropriate sentence should be without factoring the immigration consequences;
- determine whether it would be appropriate to reduce the sentence to avoid impact of the immigration consequences.
Another approach is to consider the immigration consequences "along with along with all of the other personal factors in determining the appropriate sentence".
No Separate Sentencing Range
Despite immigration consequences being a consideration on sentence, it should not have the effect of creating a "separate sentencing scheme" with a "special range of sentencing options where deportation is at risk".
"Term of Imprisonment"
The phrase "term of imprisonment" found in s. 36 of the IRPA has a different meaning than in the Criminal Code. Under IRPA it does not refer conditional sentence orders.
R v McKenzie, 2017 ONCA 128 (CanLII) at paras 28 to 34
R v Kljajic, 2017 PECA 19 (CanLII)
McKenzie at para 25 - cited as a "creat[ing] difficulties" and was not endorsed
R v Pham, 2013 SCC 15 (CanLII) at para 16
Tran v Canada (Public Safety and Emergency Preparedness), 2017 SCC 50 (CanLII)
Appealing Serious Criminality Violation
No appeal for inadmissibility
64 (1) No appeal may be made to the Immigration Appeal Division by a foreign national or their sponsor or by a permanent resident if the foreign national or permanent resident has been found to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality.
(2) For the purpose of subsection (1), serious criminality must be with respect to a crime that was punished in Canada by a term of imprisonment of at least six months or that is described in paragraph 36(1)(b) or (c).
(3) No appeal may be made under subsection 63(1) in respect of a decision that was based on a finding of inadmissibility on the ground of misrepresentation, unless the foreign national in question is the sponsor’s spouse, common-law partner or child.
2001, c. 27, s. 64; 2013, c. 16, s. 24.
Staying a Removal Order
Removal order stayed
68 (1) To stay a removal order, the Immigration Appeal Division must be satisfied, taking into account the best interests of a child directly affected by the decision, that sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case.
(2) Where the Immigration Appeal Division stays the removal order
- (a) it shall impose any condition that is prescribed and may impose any condition that it considers necessary;
- (b) all conditions imposed by the Immigration Division are cancelled;
- (c) it may vary or cancel any non-prescribed condition imposed under paragraph (a); and
- (d) it may cancel the stay, on application or on its own initiative.
(3) If the Immigration Appeal Division has stayed a removal order, it may at any time, on application or on its own initiative, reconsider the appeal under this Division.
Termination and cancellation
(4) If the Immigration Appeal Division has stayed a removal order against a permanent resident or a foreign national who was found inadmissible on grounds of serious criminality or criminality, and they are convicted of another offence referred to in subsection 36(1), the stay is cancelled by operation of law and the appeal is terminated.
In 2013, s. 68 was amended under the Faster Removal of Foreign Criminals Act, SC 2013, c 16. This Act, among other things, removed the right to appeal for offences punished by a penalty of 6 months or more.
R v McKenzie, 2017 ONCA 128 (CanLII), par. 24