Criminal Convictions and Immigration Consequences

By Hans ‘John’ Kalina · Originally published March 23, 2016 · Updated and consolidated October 6, 2026

A criminal case can affect far more than the sentence imposed in court. For a person who is not a Canadian citizen, a conviction may affect immigration admissibility, permanent residence, applications, removal proceedings and appeal rights. Those consequences should be examined before a plea or sentencing agreement, not after the case has been resolved.

Does a charge automatically cause inadmissibility?

A Canadian criminal charge is not a conviction. The Canadian-conviction grounds in section 36 require a conviction and the applicable statutory criteria. A pending case may nevertheless affect the timing or assessment of an immigration application. Other inadmissibility grounds—including specified conduct outside Canada—may apply without a Canadian conviction. Neither a charge nor an immigration concern means that removal is automatic.

Permanent residents and foreign nationals face different tests

Section 36 of the Immigration and Refugee Protection Act (IRPA) distinguishes serious criminality from criminality. For a conviction in Canada, serious criminality under paragraph 36(1)(a) applies to a permanent resident or foreign national where the federal offence carries a maximum prison term of at least ten years, or where a prison term of more than six months was imposed.

Foreign nationals, including many visitors, students and workers, also face the separate criminality ground in subsection 36(2). For Canadian convictions, this can apply to an offence punishable by indictment, or two federal offences not arising from a single occurrence. A hybrid offence is treated as indictable for this purpose even if prosecuted summarily. A short sentence therefore does not necessarily protect a foreign national from inadmissibility.

Foreign convictions and acts outside Canada require a separate analysis, including Canadian equivalency and any applicable rehabilitation provisions. Do not assume that a foreign offence label or a foreign discharge has the same effect as a Canadian disposition.

A discharge is not a conditional sentence

Under Criminal Code section 730, an absolute or conditional discharge is imposed instead of a conviction, subject to the statutory rules. That distinction can be important for conviction-based immigration grounds. A discharge is not available for every offence and is not a guarantee against all immigration or foreign-border consequences.

A conditional sentence, by contrast, follows a conviction and is served in the community under conditions. In Tran v. Canada, 2017 SCC 50, the Supreme Court held that a conditional sentence is not a “term of imprisonment” for the sentence-length branch of paragraph 36(1)(a). Tran also requires the maximum-penalty analysis to use the law applicable when the offence was committed. However, the ten-year maximum-penalty branch or another inadmissibility ground may still apply. Read the conditional-sentence commentary for that distinction.

Six months means different things in different provisions

The Canadian-conviction sentence-length branch of paragraph 36(1)(a) uses more than six months. The ten-year maximum-penalty branch is a separate route to serious criminality.
Section 64 uses at least six months for the Canadian-crime serious-criminality restriction on Immigration Appeal Division appeals. It also covers the serious-criminality grounds involving foreign convictions or foreign acts in paragraphs 36(1)(b) and (c).
Exactly six months may therefore matter differently from a sentence of more than six months. The available appeal must be assessed against both the inadmissibility finding and the appeal provisions. Sentence arithmetic alone is not enough.

Immigration consequences at sentencing

In R. v. Pham, 2013 SCC 15, the Supreme Court recognized that immigration consequences may be considered when determining a fit sentence. The sentence must still be proportionate to the offence and the offender’s responsibility. The decision does not authorize an artificial or inappropriate sentence merely to avoid immigration legislation. Pham arose under an older appeal threshold; its sentencing principle should not be confused with today’s section 64 wording.

Counsel should have the immigration status, offence date, statutory maximum, proposed disposition and accurate court records available before advising on a resolution. A conditional discharge, conditional sentence, suspended sentence and jail sentence are not interchangeable.

Removal proceedings and appeal rights

Section 44 provides a reporting and referral process. Depending on the circumstances, a matter may proceed to an admissibility hearing or another authorized removal-order process. A criminal sentence does not itself constitute a removal order.

Section 63 gives specified appeal rights, including to permanent residents, protected persons and foreign nationals holding permanent resident visas in the circumstances described there. Section 64 restricts certain appeals. The former claim that foreign nationals never have Immigration Appeal Division rights was too broad. Judicial review is a different process, not a substitute merits appeal; obtain advice promptly about the available remedy and deadline.

Can a family member’s application be affected?

Section 42 addresses inadmissibility through an inadmissible family member. It contains exceptions, including specific rules for temporary residents and temporary-resident applications. A concern affecting one applicant can matter to an accompanying family member’s permanent-residence application, but it does not mean that every family member is automatically deported.

Where an immigration officer questions a criminal disposition, provide accurate court information, the sentencing or discharge order and any requested explanation through the appropriate process. Respond to the stated deadline. This is particularly important where a finding of guilt has been incorrectly treated as a conviction.

Before resolving the criminal case

Tell criminal counsel your exact immigration status and any pending applications.
Obtain coordinated criminal and immigration advice before deciding on a plea or proposed sentence.
Keep certified or otherwise acceptable court records showing the precise disposition.
Review application questions carefully and answer accurately; do not conceal a charge or finding because it did not result in a conviction.
Seek advice immediately if you receive an inadmissibility report, procedural-fairness letter, removal order or appeal notice.

Speak with counsel

Contact the Law Office of Kalina & Tejpal or call 416-900-6999 for advice about your circumstances.

This article provides general information, not legal advice. Immigration consequences depend on the offence, court record, status and applicable law.