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The Interplay between Criminal Convictions and Immigration Consequences

Understanding Different Status under the Immigration and Refugee Protection Act

Almost all of immigration law is governed by the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA) and the Immigration and Refugee Protection Regulations, SOR/2002-227 (IRPR). This legislation divides all persons into distinct categories and provides them with certain rights and benefits based on their category.

Statuses under the IRPA

  • Canadian citizen
  • Permanent resident
  • Protected person (i.e.: refugee)
  • Foreign national (i.e.: Visitors, temporary workers, students, Refugee claimants (person waiting for claim to be heard), Persons with no status (i.e.: undocumented workers, visitor overstays, unsuccessful refugee claimants)
  • A “person registered as an Indian under the Indian Act” always has a right to enter Canada.

Immigration Consequences for Canadian citizens

There are almost no collateral immigration consequences for Canadian citizens engaged in the criminal justice system, with one important exception. There are consequences for these persons’ ability to sponsor their relatives from overseas for permanent residence in Canada.

Immigration Consequences for Non-Canadian Citizens

The case of Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711 states: “The most fundamental principle of immigration law is that non citizens do not have an unqualified right to enter or remain in the country.” To understand the immigration consequences of criminal dispositions and sentences for non-citizens, it becomes important to learn the definition of two terms-of-law under the IRPA. These are: Serious Criminality (s.36(1) of IRPA) and Criminality (s.36(2)).

Serious Criminality under IRPA (s.36(1))

Serious criminality in Canada refers to a permanent resident or a foreign national who has been convicted in Canada of any offence under an Act of Parliament, punishable by a maximum term of imprisonment of at least 10 years OR for which a term of imprisonment of more than six months has actually been imposed.

Criminality under IRPA (s.36(2))

Criminality in Canada refers to a foreign national (not a permanent resident) who has 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

What dispositions amount to criminality under IRPA?

In order for immigration penalties to trigger, one must face a conviction of an offence under an Act of Parliament. These pre requisites narrow the scope of offences described under s.36 of the IRPA.

Criminal charges that result in a disposition short of a conviction such as discharges, peace bonds, NCR (not criminally responsible) do not result in criminal inadmissibility under s.36 of the IRPA. Further, convictions for offences under a statute that is not a federal Act of Parliament such as offences under the Highway Traffic Act, RSO 1990, c H.8 – do not result in criminal inadmissibility under s.36(1)(a) of the IRPA.

What Dispositions Do Not Amount to Criminality Under IRPA?

Criminality does not result for an offence:

  • for which a person is found guilty under the Young Offenders Act (s.36(3)(e))
  • for which a person received a youth sentence under the Youth Criminal Justice Act (s.36(3)(e))
  • record suspension has been granted (s.36(3)(b))
  • designated as a contravention under the Contraventions Act (s.36(3)(e))

One important thing to note is that under the IRPA, all hybrid offences are indictable regardless of how the Crown elects to proceed (IRPA, s.36(3)(a)). Hence, only first-time conviction for a pure summary offence will not render a foreign national inadmissible for criminality.

Pre-sentence Custody Calculation

Under the IRPA, the calculation of the length of a sentence of imprisonment imposed is assessed prior to any credit given for pre-sentence custody. As stated by the Federal Court of Appeal in Martin 2005 FCA 347: “We are all of the view that the word ‘punished’ in subsection 64(2) of the Immigration and Refugee Protection Act refers to the sentence imposed, not the actual duration of incarceration.” The same principle applies under s.36(1) of the IRPA.

The aforementioned is not a comprehensive coverage of the topic of criminal convictions and collateral immigration consequences. To learn more about this very important topic that can unexpectedly impact the life of a person in Canada, speak to one of the lawyers at Aitken Robertson by taking advantage of our 30-minute free consultation and flexible accommodating hours.

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