Most of the criminal lawyers representing their clients are not aware of the immigration consequences of sentences to their clients. Depending on the nature & type of the offence(s) and resulting convictions/sentences would determine the criminal inadmissibility of an immigrant involved in a crime. There are various grounds of inadmissibility in the Immigration and Refugee Protection Act (IRPA); I will be discussing here grounds of criminal inadmissibility that applies to permanent residents.
Immigration Consequences of Discharges and Peace Bond
Under s. 36 of IRPA, criminality is defined as “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 6 months has been imposed.” It means that any disposition short of conviction would not result in criminal inadmissibility under IRPA, which includes peace bonds, discharges – absolute or conditional, diversion programs, stay of charges, withdrawal and Not Criminally Responsible (NCR). It is worth to mention here that only offences arising from federal legislation will result in inadmissibility and an offence under a provincial legislation will not result in inadmissibility to Canada.
However, any breach of the term(s) of a Peace Bond or a Probation Order, made with the conditional discharge may lead to a new charge; and, if such new charge of disobeying the court order or breach of recognizance or failure to comply with probation order, leads to conviction, could result in inadmissibility. The same thing would apply to diversion: if diversion is not completed, it may result in conviction or if the charges are stayed and are not withdrawn on the completion of diversion, the Crown may bring back the stayed charges, which may result in conviction.
Nature of Offences and Inadmissibility
Indictable Offences always result in inadmissibility to Canada.
Summary Offences: Under s. 36 of IRPA, a single summary conviction would not result in inadmissibility. However, s. 36 of IRPA says that two or more summary convictions, not arising out of the same occurrence, will result in inadmissibility.
Hybrid Offences: A vast number of offences in the Criminal Code of Canada are provided hybrid offences. It is the Crown’s discretion to proceed by way of summary election or by indictment. But Crown’s election does not make any difference in triggering inadmissibility in accordance with s. 36(1)(a) of IRPA. All hybrid offences are considered indictable for the purposes of IRPA. S. 36(3)(a) of IRPA states: “an offence that may be prosecuted either summarily or by way of indictment is deemed to be an indictable offence, even if it has been prosecuted summarily.”
Criminality’s effects on PR’s Citizenship Application
- 22 of the Citizenship Act states that a person will not be granted citizenship if the person:
- Is under a probation order
- Is a parole inmate
- Is serving a term of imprisonment
- While the person is charged with, on trial for, or appealing an offence
- If the person has been convicted of offences that was prosecuted by way of indictment during the four-year period immediately before the date of the application.
Effect of Criminality on Sponsoring a Family Member
Under s. 133 of the IRPA Regulations, a Canadian citizen or Permanent Resident is barred from sponsoring a family member if such sponsor has ever been convicted of any of the following Criminal Code offences:
- An offence of a sexual nature, or an attempt or a threat to commit such an offence, against any person;
- An indictable offence involving the use of violence and punishable by a maximum term of imprisonment of at least 10 years, or an attempt to commit such an offence, against any person; or,
- An offence that results in bodily harm against a family member, or an attempt or a threat to commit such an offence against a family member.
New Impaired Driving Laws and Impact on Immigration Status
As a result of Bill C-46, the Canadian Government has increased the maximum penalties for impaired driving on December 18, 2018 – a government resolve that it will not tolerate impaired driving of any kind. S. 320.19(1) of the Criminal Code of Canada states that the Crown may elect to prosecute such offence by way of summary election or as an indictable. If the offence is prosecuted by indictment, the maximum penalty is imprisonment for a term of not more than 10 years. In short, anyone convicted of new impaired driving offences may become inadmissible to Canada.
If you or your family members are permanent residents in Canada and anyone is charged with a criminal offence, he/she must consult a lawyer who is conversant with Criminal & Immigration Laws and their implications. We, at Millars Law, have the services of qualified Criminal and Immigration Lawyers who can help you at the early stages of any criminal proceedings.
(519) 657-1LAW or Info@millarslaw.com
By: Nasar Iqbal