Immigration Prosecutions

If you are convicted of an offence that carries a maximum punishment of 10 years imprisonment or more, or you were sentenced to more than six months imprisonment, there may be immigration consequences.

However, if you are inadmissible to Canada by reason of a criminal record, you may still be allowed to enter Canada if you:

• Demonstrate to an immigration officer that you meet the legal requirements to be deemed rehabilitated. One may be deemed rehabilitated depending on the offence, how long has passed since the sentence ended, and whether subsequent crimes were committed;
• Apply for rehabilitation and are approved;
• Have been granted a record suspension (formally known as a pardon); or
• Have a temporary resident permit where you have valid reasons to be in Canada.

When consulting an immigration lawyer, it’s essential to ask questions that provide clarity and help you make informed decisions. Start by inquiring about their experience and expertise, such as how long they have been practising immigration law and whether they have handled cases similar to yours. Ask about your legal options, potential challenges, and the expected timeline for your case. Understand the steps involved, whether you’ll need to attend interviews or hearings, and how to prepare for them. Discuss their fee structure, including whether they charge a flat fee, hourly rate, or retainer, and clarify any additional costs, such as filing fees or expenses. If your case involves a specific matter, such as visa applications, permanent residence, or citizenship, ask targeted questions about eligibility, documentation requirements, and the legal options available to you. These questions can help you understand the lawyer’s role and plan your next steps effectively.

A foreign national does not have an unqualified right to enter or remain in Canada. The Immigration and Refugee Protection Act 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.

There are four grounds for which a person may be deemed inadmissible:

• Security;
• Criminality;
• Serious criminality; and
• Organized criminality.

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).

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.

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.

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.

Persons who fall under any one of these categories may face deportation or other immigration consequences.

Canadian case law has held that a conditional discharge is not a “conviction” for the purposes of admissibility under the IRPA. If you plead guilty to a criminal offence and receive a conditional discharge, you may be able to remain in Canada, depending on your circumstances.

A lawyer will conduct a thorough review of your situation and develop an approach tailored to your specific needs. Every criminal case is fact-specific and ranges in complexity, depending on the issues at play. The defences available to you will depend on the facts of your particular case. Obtaining legal representation is an important step in preparing your defence.

There are many offences that are prosecuted under the Immigration and Refugee Protection Act, including the following:

• directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of the Immigration and Refugee Protection Act;
• communicating, directly or indirectly, by any means, false or misleading information or declarations with intent to induce or deter immigration to Canada;
• refusing to be sworn or to affirm or declare, or refusing to answer a question put to the person at an examination or at a proceeding held under the Immigration and Refugee Protection Act;
• being an officer or an employee of the Government of Canada and knowingly making or issuing any false document or statement;
• being an officer or an employee of the Government of Canada and accepting or agreeing to accept a bribe or other benefit;
• giving or offering to give a bribe or consideration to, or making an agreement or arrangement with, an officer to induce the officer not to perform their duties under the Immigration and Refugee Protection Act;
• falsely impersonating an officer or, by any act or omission, leading any person to believe that the person is an officer; or
• obstructing or impeding an officer in the performance of the officer’s duties under the Immigration and Refugee Protection Act.

One may face immigration proceedings where he or she has been charged with an offence under the Immigration and Refugee Protection Act.

• What Questions Should I Ask an Immigration Lawyer?
• What Crimes Are Inadmissible to Canada?

Some individuals may be prohibited from entering Canada under the Immigration and Refugee Protection Act. A person may be inadmissible for the following reasons:

• Security reasons;
• Human or international rights violations;
• Committing or being convicted of a crime;
• Organized crime, including membership in an organization that takes part in organized criminal activity, people smuggling, or money laundering;
• A medical condition that endangers public health and safety or causes excessive demand on health and social services;
• Financial reasons;
• Misrepresentation (i.e. providing false information or withholding information);
• Failure to comply with any provision of the IRPA; or
• Having an inadmissible family member.

Specifically with regard to criminal convictions, under section 36(1) of the IRPA, a permanent resident or foreign national is inadmissible to enter Canada where he or she was convicted 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.