Non-citizens who engage in criminal misconduct place both their liberty and their immigration status at risk. More specifically, a conviction for a criminal offence may render a non-citizen criminally inadmissible and subject to removal by immigration officials following the conclusion of the criminal court proceeding.
Section 36 of the Immigration and Refugee Protection Act governs criminal inadmissibility in Canada. The section imposes an ongoing obligation upon non-citizens to abstain from criminal misconduct as a condition of maintaining their immigration status.
This is a discussion of criminal convictions inside Canada, although this section also deals with convictions and acts committed outside Canada.
'Criminality' - s. 36(2)(a)
Section 36(2)(a) pertains to foreign nationals. Foreign nationals include students, workers, visitors, temporary resident permit holders, and individuals who have no legal status in Canada.
The trigger for inadmissibility in Canada under section 36(2)(a) is 'criminality'. Criminality is defined as a conviction "for an offence under an Act of Parliament punishable by way of indictment, or two offences under any Act of Parliament not arising out of a single occurrence".
It is important to note that a hybrid offence (that may be prosecuted summarily or by way of indictment) is deemed to be an indictable offence for the purpose of this analysis, even if the Crown elects to proceed summarily (s. 36(3)(a)). For greater clarity, a foreign national who receives a criminal record of conviction for a hybrid offence under the Criminal Code will be criminally inadmissible in Canada.
'Serious criminality' - s. 36(1)(a)
Section 36(1)(a) pertains to permanent residents as well as foreign nationals.
The trigger for inadmissibility under section 36(1)(a) is 'serious criminality'. Serious criminality is defined as a conviction "for an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least ten years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed".
All hybrid offences offences are deemed to be indictable for the purpose of determining the maximum term of imprisonment, even if the Crown elects to proceed summarily (s. 36(3)(a)). By way of example, a permanent resident who receives a criminal record of conviction for a charge of assault causing bodily harm, assault with a weapon, or sexual assault, will be criminally inadmissible in Canada having regard to the maximum term of imprisonment by way of indictment, even if the Crown proceeds summarily.
All permanent residents, regardless of the number of years they have held that status, are subject to inadmissibility for serious criminality.
Future posts will discuss a number of practical considerations stemming from a criminal charge for a non-citizen, including what, if any, rights of appeal may be available within the immigration context in the event of a finding of criminal inadmissibility.
The Supreme Court of Canada in Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, clarified that a conditional sentence of imprisonment (s. 742 to 742.7 of the Criminal Code) is not a "term of imprisonment" for the purposes s. 36(1)(a) of the Immigration and Refugee Protection Act.
[This is a guest post by my colleague, and Criminal Meditations editor, Lori Hill.]