If you are charged with a criminal offence and you are not a Canadian citizen, your immigration status in Canada and your right to remain in the country might be in jeopardy. In fact, it is not just charges under the Criminal Code of Canada that can cause problems. Offences under any other federal legislation such as the Controlled Drugs and Substances Act and the Customs Act can have serious immigration law consequences as well.
The degree to which you may be affected depends on your immigration status. Anyone who is not a Canadian citizen is either a “foreign national” or a “permanent resident” for Canadian immigration purposes. The threshold for deportation is substantially lower for foreign nationals than permanent residents under Canada’s Immigration and Refugee Protection Act (IRPA), which governs immigration matters. Visit an experienced Vancouver criminal defence lawyer to learn more.
Foreign National vs. Permanent Resident
Under IRPA, a “permanent resident” is defined as a person who has obtained and not lost “permanent resident” status. Permanent residents are entitled to live and work in Canada indefinitely, and are ultimately eligible to become Canadian citizens if they wish. If you are a permanent resident, you will have a form of photo identification known as a “permanent resident card” or “PR card” issued by the federal government. A “foreign national” is a person who is not a Canadian citizen or a permanent resident, and includes a stateless person. Permanent residents are people who have been accepted as permanent immigrants to Canada (formerly known as “landed immigrants”) whereas foreign nationals are typically individuals in Canada on a short-term basis such as foreign students and temporary workers.
Inadmissibility of Foreign Nationals
Under section 36(1) and (2) of IRPA, foreign nationals are “inadmissible”, meaning deportable, if they have been convicted in Canada of:
- an offence under an Act of Parliament (e.g., Criminal Code, Controlled Drugs and Substances Act or the Customs Act) punishable by way of indictment;
- an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed; or
- two offences under any Act of Parliament not arising out of a single occurrence
For the purposes of IRPA, an offence “punishable by way of indictment” includes offences which can be prosecuted summarily or by indictment (referred to as “hybrid offences” by criminal lawyers) even where the Crown has proceeded summarily. As a result, an “offence” includes the vast majority of offences set out in the Criminal Code, as there are very few offences punishable only by summary conviction.
Even a conviction for a minor assault (s. 266 of the Criminal Code) or shoplifting (s. 334(b) of the Criminal Code) therefore renders a foreign national “inadmissible” and subject to immediate deportation. Deportation is effected by way of a “removal order”, which cannot be appealed by a foreign national.
For a foreign national it is therefore critical to avoid being convicted of any hybrid offence or indictable offence. All options for avoiding a criminal record should be pursued by defence counsel.
Inadmissibility of Permanent Residents
Under section 36(1) of IRPA, permanent residents are “inadmissible”, meaning deportable, if they have been convicted in Canada of:
- an offence under an Act of Parliament (e.g., Criminal Code, Controlled Drugs and Substances Act or the Customs Act) punishable by a maximum term of imprisonment of at least 10 years; or
- an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed
Convictions for offences like robbery and breaking and entering, which are punishable by maximum sentences of life imprisonment, render permanent residents inadmissible. So do convictions for offences like assault and assault causing bodily harm since they are punishable by maximum sentences of 10 years if prosecuted by indictment. It makes no difference that the Crown has proceeded summarily because the offences are considered indictable for the purposes of IRPA. Avoiding a conviction is the only way to avoid inadmissibility.
If a permanent resident is found to be inadmissible for one of the reasons described above, he or she has a limited right of appeal to challenge the inadmissibility finding and removal order, provided that he or she was not sentenced to a term of imprisonment of more than six months. Representation for such an appeal should be provided by an experienced immigration lawyer.
Advice from an Immigration Lawyer
If you are either a permanent resident or a foreign national and have been charged with an offence under federal legislation, it is imperative to raise the issue of your immigration status with your criminal lawyer as soon as possible. Immigration issues can be complex and most criminal lawyers do not have the necessary expertise to provide complete advice on the immigration law consequences of convictions.
My practice is to refer clients to an immigration lawyer as soon as possible if there are potential immigration law issues. From the outset, a backup or contingency plan should be prepared in case a finding of inadmissibility results from the outcome of their case. If staying in Canada or returning to Canada is important to the client, there might be options that an immigration lawyer can develop.
I have worked on a number of cases with Vancouver immigration lawyer Rudolf Kischer of the firm Maynard Stojicevic Kischer, and urge you to contact Mr. Kischer for case-specific advice if you have a problem.