Immigration Consequences in Sentencing

Original article: February 15, 2017 | By Hans ‘John’ Kalina | Reviewed and updated October 6, 2026

A criminal sentence can affect a non-citizen’s ability to remain in Canada and to appeal a removal order. Those consequences matter, but they do not permit a sentencing court to impose a sentence that is otherwise unfit. Criminal and immigration advice should be coordinated before a plea or sentencing hearing.

McKenzie: the sentence must remain fit

In R. v. McKenzie, 2017 ONCA 128, the Ontario Court of Appeal upheld a nine-month sentence for sexual assault despite serious immigration consequences. The sentencing judge had considered those consequences but could not justify imprisonment below six months within the circumstances of the offence. Reducing the sentence solely to avoid immigration consequences would have produced an unfit result.

The decision does not say immigration consequences are irrelevant. It confirms that they must be considered within the ordinary sentencing principles rather than used to create a separate, more lenient range for non-citizens. This updated discussion replaces lengthy case extracts with the practical principles; the original decision remains the authority.

What Pham permits—and what it does not

In R. v. Pham, 2013 SCC 15, the Supreme Court recognized immigration consequences as part of the offender’s personal circumstances. A court may account for them while selecting a proportionate sentence. They must not dominate the exercise, and even a small reduction may be inappropriate if it makes the sentence unfit.

Pham reduced the sentence from two years to two years less a day under the immigration legislation then applicable. That historical threshold is not the present Canadian-imprisonment threshold for the IAD appeal bar. A one-day reduction is not an automatic entitlement or a general solution to immigration risk.

Two different six-month rules

Under section 36(1)(a) of the Immigration and Refugee Protection Act, a permanent resident or foreign national can be inadmissible for serious criminality after a Canadian conviction for an offence punishable by a maximum of at least ten years, or where imprisonment of more than six months has been imposed. These are alternative grounds.

Under section 64(2), the Canadian-imprisonment branch of the serious-criminality bar to an IAD appeal applies at six months or more. Exactly six months therefore differs from the “more than six months” wording in section 36. Other statutory grounds may also bar an appeal.

A sentence below six months does not necessarily avoid inadmissibility: the offence’s applicable maximum punishment can still trigger serious criminality. Foreign nationals also face the separate criminality provisions in section 36(2), and hybrid offences are treated as indictable under section 36(3)(a). Do not treat a short sentence as a guarantee of immigration safety.

The type of disposition also matters

An absolute or conditional discharge, a conditional sentence served in the community and custody in jail are different dispositions. Their criminal and immigration effects must not be treated as interchangeable. Eligibility, the offence, applicable law and relevant decisions must be assessed before requesting any particular outcome.

For the distinction between a conditional sentence and imprisonment in the immigration analysis, see Conditional Sentences and Immigration Inadmissibility Revisited. A criminal court’s disposition does not itself decide all questions of admissibility, removal or immigration relief.

Prepare before the plea or sentencing hearing

Immigration consequences are not a promise that an appeal will succeed or that removal can be avoided. The sentencing submission must remain legally supportable and proportionate to the offence and responsibility of the offender.

Related guidance

For advice about your circumstances, contact our office. This article provides general information, not legal advice.