What are the Best Legal Options for Immigrants Facing Criminal Charges in Canada?

Being charged with a criminal offence in Canada is a stressful experience for anyone. But for temporary residents (visitors, students, workers) and permanent residents, the anxiety is magnified. A criminal charge or conviction can not only lead to typical criminal penalties but can also have devastating consequences for your immigration status, potentially derailing your Canadian dream.

This article aims to shed light on how criminal charges can impact your ability to stay in Canada, your path to citizenship, and what sentencing options might be more favorable from an immigration perspective. Understanding these implications is the first step in navigating the criminal justice system effectively and working towards the best possible outcome in negotiations with the Crown.

Disclaimer: This article provides general information only and is not legal advice. Every case is unique. If you are facing criminal charges, it is crucial to consult with both an experienced criminal lawyer and an immigration lawyer (or a criminal lawyer well-versed in immigration law) immediately.

Your Immigration Status: A Foundation at Risk

Whether you are in Canada as a temporary resident or a permanent resident, your status is subject to Canadian laws, including the Immigration and Refugee Protection Act (IRPA).

• Temporary Residents: This includes visitors, students, and foreign workers. Your stay is authorized for a specific period and purpose. Criminal inadmissibility can lead to the cancellation of your status, refusal of extensions, and removal from Canada.

  
  

• Permanent Residents: You have the right to live, work, and study anywhere in Canada indefinitely. However, this status is not absolute and can be revoked if you are found inadmissible, particularly for criminality.

The Reach of IRPA: How Criminal Matters Trigger Immigration Consequences

One of the first things to understand is how Canadian immigration law treats criminal offences, especially "hybrid offences."

• Hybrid Offences – Deemed Indictable for Immigration: Many offences in the Criminal Code are hybrid, meaning the Crown prosecutor can choose to proceed by summary conviction (less serious) or by indictment (more serious). However, for immigration purposes, IRPA Section 36(3)(a) states that a hybrid offence is deemed to be an indictable offence, even if the Crown chooses to proceed summarily. This means the maximum potential penalty for the indictable version of the offence is often what’s considered when assessing inadmissibility.

This "deeming" provision is critical because it means even if your charge is handled as summary in criminal court, immigration authorities may still view it through the lens of an indictable offence.

Inadmissibility for "Criminality" and "Serious Criminality"

Under IRPA, a permanent resident or foreign national can be found inadmissible to Canada on grounds of:

1. Criminality (IRPA Section 36(2)(a)): This includes:

   
   

   • Being convicted in Canada of an offence that is considered an indictable offence under any Act of Parliament.

     
     

   • Being convicted in Canada of two summary conviction offences (under any Act of Parliament) not arising out of a single occurrence.

     
     

2. Serious Criminality (IRPA Section 36(1)(a)): This is more severe and includes:

   
   

   • Being convicted in Canada of an offence for which the maximum potential term of imprisonment is at least 10 years.

     
     

   • Being convicted in Canada of an offence for which a term of imprisonment of more than six months was actually imposed.

Consequences of Inadmissibility: If an immigration officer believes you are inadmissible, they will prepare a report under IRPA Section 44. This can lead to an admissibility hearing before the Immigration Division (ID) of the Immigration and Refugee Board (IRB). If the ID finds you inadmissible, a removal order (deportation order) will be issued.

Loss of Appeal Rights for Permanent Residents (IRPA Section 64(2)): Permanent residents generally have the right to appeal a removal order to the Immigration Appeal Division (IAD) of the IRB. However, this right is lost if the inadmissibility is for "serious criminality" (under S. 36(1)(a)) and the permanent resident was sentenced to an actual term of imprisonment of six months or more. This makes the sentence received critically important.

Impact on Your Canadian Citizenship Application (for Permanent Residents)

If you are a permanent resident with a pending citizenship application, or hope to apply soon, criminal charges create significant hurdles under Canada’s Citizenship Act:

• Application Processing Halted: IRCC will typically pause the processing of your citizenship application once they become aware of outstanding criminal charges. They will await the final court disposition.

  
  

• Key Prohibitions Under Section 22 of the Citizenship Act: Even if you meet other eligibility criteria, you cannot be granted citizenship if:

  
  

  • S. 22(1)(a): You are currently charged with an indictable offence under any Act of Parliament. This is where the Crown’s election in criminal court can matter for citizenship processing (unlike for IRPA inadmissibility assessment). If the Crown elects to proceed summarily with a hybrid offence, you may no longer be considered "charged with an indictable offence" under this specific Citizenship Act provision, which can be beneficial while awaiting final resolution.

    
    

  • S. 22(1)(c): You are serving a term of imprisonment, are on parole, or are on probation. This means any sentence involving probation will suspend your citizenship eligibility for the entire probation period.

    
    

  • S. 22(2)(b): You are convicted of an indictable offence (or certain Citizenship Act offences) between the date you applied for citizenship and the date you are scheduled to take the Oath.

    
    

  • S. 22(1)(e): You are under a removal order.

Sentencing Options: Navigating Towards Favorable Outcomes

Given these serious potential consequences, the goal in resolving criminal charges for an immigrant is often to secure an outcome that avoids a criminal conviction or, if a conviction is unavoidable, minimizes its devastating impact on immigration status. Here are some common resolutions and their implications:

1. Peace Bonds (Section 810 of the Criminal Code)

A peace bond is not a finding of guilt or a criminal conviction. It's a recognizance (a promise to the court) to keep the peace and be of good behaviour for a specified period, often with other conditions (e.g., no contact with certain individuals). In exchange, the criminal charges are typically withdrawn by the Crown or stayed.

• Immigration Impact:

  
  

  • IRPA: Generally, no negative impact. Since there is no conviction, it does not trigger inadmissibility for criminality.

    
    

  • Citizenship: No conviction, so no bar under S. 22(2)(b). No probation, so no S. 22(1)(c) bar. Processing of a paused application can resume once IRCC receives confirmation of the charges being withdrawn/stayed.

    
    

• Negotiation Goal: Often a primary target in negotiations for minor offences, especially if the Crown’s case has weaknesses or there are significant mitigating circumstances.

  
  

2. Discharges (Absolute or Conditional – Section 730 of the Criminal Code)

A discharge means that although an individual has pleaded guilty or been found guilty, no conviction is registered.

• Absolute Discharge: No conviction is registered, and no conditions (like probation) are imposed.

  
  

• Conditional Discharge: No conviction is registered if the accused complies with conditions set out in a probation order for a specified period.

  
  

  • Immigration Impact:

    
    

    • IRPA: A discharge is not a conviction under Canadian law (R. v. Lu, 2013 ONCA 324). This is extremely favorable as it avoids inadmissibility based on a conviction under S. 36(1)(a) or S. 36(2)(a).

      
      

    • Citizenship: A discharge is also not a conviction for Citizenship Act purposes.

      
      

      • Absolute Discharge: No probation means no S. 22(1)(c) bar. Citizenship application processing can resume.

        
        

      • Conditional Discharge: The mandatory probation order means that under S. 22(1)(c) of the Citizenship Act, your citizenship application will be suspended for the entire duration of the probation period. However, once probation is successfully completed, this bar lifts, and because there is no conviction, the S. 22(2)(b) bar (for conviction) does not apply. This makes a conditional discharge a very good outcome for long-term citizenship eligibility if an absolute discharge or peace bond isn't achievable.

        
        

• Negotiation Goal: A top priority after a peace bond. Emphasize rehabilitation, mitigating factors, and the disproportionate immigration consequences of a conviction.

  
  

3. Suspended Sentence

With a suspended sentence, the person is convicted, but the imposition of the jail sentence itself is suspended, and a period of probation is ordered.

• Immigration Impact:

  
  

  • IRPA: IS A CONVICTION. This will trigger inadmissibility if the offence meets the criteria for "serious criminality" (S. 36(1)(a)) or "criminality" (S. 36(2)(a)). A removal order process may commence. For PRs facing serious criminality, a suspended sentence itself is not considered a "term of imprisonment" that would automatically remove IAD appeal rights under S. 64(2).

    
    

  • Citizenship: IS A CONVICTION. This would make you ineligible for citizenship under S. 22(2)(b) of the Citizenship Act, leading to the refusal of a pending application. The accompanying probation order also triggers the S. 22(1)(c) suspension.

    
    

• Negotiation Goal: Far less desirable than a discharge due to the conviction.

4. Conditional Sentence (Section 742.1 of the Criminal Code)

A conditional sentence is a term of imprisonment (jail sentence) that the offender is allowed to serve in the community under strict conditions, similar to house arrest.

• Immigration Impact:

  
  

  • IRPA: IS A CONVICTION and a sentence of imprisonment. It triggers inadmissibility (serious criminality or criminality). However, the Supreme Court in R. v. Tran (2017 SCC 50) ruled that a conditional sentence is not considered a "term of imprisonment" for the purpose of losing IAD appeal rights under S. 64(2) for PRs found inadmissible for serious criminality.

    
    

  • Citizenship: IS A CONVICTION. This would make you ineligible under S. 22(2)(b) of the Citizenship Act.

    
    

• Negotiation Goal: Also much less desirable than a discharge. While it preserves IAD appeal rights for PRs in some cases, the underlying conviction causes significant immigration and citizenship problems.

5. Other Convictions (Resulting in Fines, Standalone Probation (rare without a suspended sentence), or Short Jail Sentences)

• Immigration Impact:

  
  

  • IRPA: ALL ARE CONVICTIONS. They will trigger inadmissibility (criminality or serious criminality). For PRs, if the inadmissibility is for serious criminality and an actual jail sentence of six months or more is imposed, IAD appeal rights are lost.

    
    

  • Citizenship: ALL ARE CONVICTIONS. They will make you ineligible under S. 22(2)(b) of the Citizenship Act. Any associated probation will also trigger the S. 22(1)(c) suspension.

    
    

• Negotiation Goal: If a conviction is absolutely unavoidable, aim for the least serious offence possible and a sentence that does not include actual jail time of six months or more (for PRs facing serious criminality) to preserve IAD appeal rights.

Negotiating with the Crown: Strategies for Immigrants

When you are an immigrant facing criminal charges, your lawyer's negotiations with the Crown must consider the "collateral immigration consequences" of any potential plea or sentence.

• Educate the Crown: Ensure the Crown prosecutor understands the severe and often disproportionate impact a particular criminal disposition can have on your ability to remain in Canada or become a citizen. An outcome that seems minor in a purely criminal context could mean deportation for an immigrant.

  
  

• Highlight Your Equities: Present strong mitigating factors: your length of residence in Canada, family ties (especially Canadian children), employment history, educational background, community involvement, remorse, and steps taken towards rehabilitation.

  
  

• Focus on Favorable Resolutions: Clearly articulate the goal of obtaining a peace bond or a discharge (absolute or conditional) as the primary objective to avoid a criminal conviction.

  
  

• Immigration Opinion Letter: Your criminal lawyer can be greatly assisted by an immigration opinion letter prepared by an immigration lawyer or knowledgeable consultant. This letter formally outlines the specific immigration risks you face for each potential criminal outcome and can be a powerful tool in discussions with the Crown.

  
  

• Pleading to a "Lesser" Offence: If a conviction seems inevitable, explore whether a plea to a less serious offence, or an offence with a lower maximum sentence, might reduce the immigration consequences (e.g., avoiding a "serious criminality" designation under IRPA).

  
  

• Sentencing Submissions: If convicted, sentencing submissions should strongly emphasize rehabilitation and argue against sentences that trigger harsher immigration consequences (like actual jail time of six months or more for PRs facing serious criminality).

The Critical Role of Specialized Legal Counsel

Navigating the intersection of criminal law and immigration law is complex. The stakes are incredibly high.

• Seek a Criminal Lawyer Experienced with Immigration Issues: It's vital to retain a criminal defence lawyer who understands the immigration consequences of criminal charges and convictions, or who is willing to work closely with an immigration law expert.

  
  

• Consult an Immigration Lawyer: An immigration lawyer can provide a detailed assessment of the risks to your status, advise on strategies, and prepare crucial documentation like an immigration opinion letter.

Early and coordinated legal advice is your best defence.

Protecting Your Future in Canada

Facing criminal charges as an immigrant in Canada can feel overwhelming, but knowledge is power. By understanding how the criminal justice system intersects with immigration and citizenship laws, and by securing expert legal representation, you can proactively work towards a resolution that minimizes the damage to your status and allows you to continue building your life in Canada.

Take these charges seriously, act promptly, and arm yourself with the right legal support to navigate this challenging time. Contact us for an advocacy consultation to discuss your case further.

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About the Author

I’m Ahmet Faruk Ocak, a Canadian immigration lawyer and the founder of Blacksy Immigration Law Firm 🌊. 

At Blacksy, we specialize in providing honest, straightforward, and tailored immigration solutions to individuals and businesses worldwide. Our brand promise is simple: no unnecessary fuss, no false hopes, and no empty promises—just realistic, reliable guidance to help you achieve your immigration goals.

Whether you’re expanding your business to Canada, transferring top talent, or planning your future here, we’re here to guide you with precision, transparency, and care.

Visit us at www.blacksyimmigration.com to learn more or to start your journey.