Immigration Consequences of A Criminal Conviction
Criminal convictions can have very serious, long-term consequences for immigrants. While many criminal convictions can disqualify someone from applying for work visas or permanent residency, immigrants who are already in Canada and are convicted of a crime may risk deportation.
Because of these severe possible implications, your or a loved one’s rights must be protected if they’re facing a criminal conviction. A skilled criminal lawyer can assist you.
Overview of Criminality Grounds
The Immigration and Refugee Protection Act contains several grounds for inadmissibility. However, the focus of this article will be on the criminal inadmissibility grounds outlined in S.36. This article does not include inadmissibility based on related reasons like security, human or international rights breaches, or organized criminality.
S.36 distinguishes between two types of criminal inadmissibility: (a) serious criminality [S.36(1)] and (b) criminality [S.36(2)]. Only foreign nationals are subject to the criminality ground 2. (e.g., temporary workers, students, and visitors). The serious criminality ground, on the other hand, is applicable to both foreign nationals and permanent residents. Hybrid offences are deemed to be indictable for immigration purposes, irrespective of whether the Crown proceeds summarily or by indictment
A removal order will normally be issued if a permanent resident or a foreign national is found inadmissible in Canada under S.36 unless he or she is eligible for relief.
Federal Offences, Provincial Offences and Juvenile Offences
Only offences resulting from federal legislation will result in inadmissibility, according to “an Act of Parliament.” This means that committing a crime under a provincial statute does not automatically make someone inadmissible to Canada. Any non-citizen sentenced as a youth will not face any direct immigration consequences.
As an example, under A36(1) and A36(2), a sentence for reckless driving under the Ontario Highway Traffic Act 4 would not result in inadmissibility. Consequently, an accused charged with dangerous driving under paragraph 320.19(5) of the Criminal Code 5 [which would be regarded a serious crime] who successfully reduced the accusation to careless driving would not be ineligible.
Conviction Usually Required
The use of the word “convicted” implies that a conviction must happen before inadmissibility can be imposed. As a result, non-conviction dispositions will not result in inadmissibility. The following are examples of dispositions that are not deemed convictions:
- An acquittal or stay of proceedings;
- An absolute or conditional discharge; or
- A recognizance under CCC 810 or a common law peace bond.
A suspended sentence, on the other hand, is regarded as a conviction. As a result, even if the accused is given a suspended sentence, he or she may still be found inadmissible.
Entering a Plea
Your criminal lawyer will often present you with several options for resolving your case. This can take the form of a “plea deal,” in which the Crown agrees to a specific punishment or just goes to trial. Many elements can influence someone’s decision to act one way or another, but it’s crucial to remember the Supreme Court of Canada case of R v. Wong, 2018 SCC 25.
It was determined that, among other things, a guilty plea entered by someone who does not understand the immigration implications of the plea may be void. To summarize, it is important to understand the immigration implications of your plea. A criminal lawyer will often advise their client to consult with an immigration lawyer, especially, if there are here on a visa or hold a permanent residency.
Future Removal from Canada
The Canada Border Service Agency (CBSA) usually gives you an opportunity to reply to their concerns before you are found inadmissible to Canada. If the CBSA believes they have grounds to deem you inadmissible to Canada for criminal reasons, they will report you to the Immigration Division. This is accomplished through a document known as the Section 44 Report.
If you are a Permanent Resident who is convicted of a crime that makes you inadmissible to Canada under section 36(1)(a) of the Immigration and Refugee Protection Act and the CBSA refers your case to the Immigration Division for an Admissibility Hearing via a Section 44 Report. The Immigration Appeal Division is the sole place where you can challenge the Deportation Order. Your access to the Immigration Appeal Division, on the other hand, is limited by the following:
- A permanent resident or a protected person can appeal a removal order to the Immigration Appeal Division.
- A foreign national or their sponsor, or a permanent resident, may not appeal to the Immigration Appeal Division if the foreign national or permanent resident has been deemed inadmissible.
Many criminal cases in Canada will undoubtedly have major immigration repercussions. As a result, clients should seek the advice of a skilled immigration professional early in any criminal proceedings.