Under Canadian Immigration law, a foreign national is inadmissible to Canada on the grounds of (1) criminality or (2) serious criminality. A Permanent Resident, on the other hand, will only be inadmissible to Canada on the grounds of serious criminality. As such, the intersection between criminal and immigration law is of extreme importance to Permanent Residents and Foreign Nationals who have been charged with Criminal Code offences. Defence counsel must consider the collateral consequences of a finding of guilt and subsequent sentence and consider engaging an immigration lawyer at an early opportunity.

Criminality refers to a conviction of any offence under an Act of Parliament which is punishable by way of indictment or the conviction of two offences under any Act of Parliament, so long as they do not arise out of a single occurrence.

Serious criminality refers to the conviction of an offence under an Act of Parliament that is punishable by a maximum term of imprisonment of 10 years, or the conviction of any offence under an Act of Parliament where a term of imprisonment of more than six months has been imposed.

Permanent Residents

A Permanent Resident is a citizen of another country who has been granted Permanent Resident status by immigrating to Canada but who is not a Canadian citizen.

In the recent case of R v Mann, 2023 BCPC for example, the accused was a Permanent Resident and was therefore inadmissible to Canada for serious criminality. In that case, the Crown was proceeding summarily on a charge contrary to section 320.13(2) of the Criminal Code, dangerous driving causing bodily harm, where the maximum penalty is two years less a day. As such, serious criminality could arise if Mr. Mann were sentenced to a term of six months' imprisonment or more.

Typically, on facts such as those in R v Mann, one may expect a term of custody to exceed six months. Multiple victims were injured, the victims were greatly impacted, the accused was racing at the time of the offence, and the accused was not forthcoming with the police, among other factors. In fact, the Crown sought a term of imprisonment of eighteen months. If the Crown were successful, the accused would be deported after serving his sentence. However, a conditional sentence order1 ("CSO") of any length would not trigger the deportation provisions in the Immigration and Refugee Protection Act, SC 2001, c 27, as a CSO does not constitute "imprisonment" for the purpose of serious criminality.2 The defence thus sought a CSO for a term of two years less a day, which was ultimately granted.

In sentencing, immigration consequences are considered collateral consequences – the weight of which is highly fact dependent.3 While the court in R v Mann acknowledged that it did attach weight to this collateral consequence, it did not state how much. It further quoted R v Stampp, 2022 BCCA 408, which cautioned trial judges against reducing sentences to avoid immigration consequences where the result would be "an inappropriate and artificial sentence." As such, when proposing a CSO to avoid collateral immigrational consequences, defence counsel must illustrate that a CSO is not otherwise inappropriate or artificial.

Foreign Nationals

A Foreign National refers to anyone that is in Canada for a temporary purpose and may include a visitor or an individual on a work or study permit.

A Foreign National, in addition to being inadmissible to Canada on the grounds of serious criminality as discussed above, is also inadmissible on the grounds of criminality. This means the Foreign National can also be deported if convicted of an offence punishable by way of indictment or if convicted of two offences, so long as they do not arise out of a single occurrence ("criminality"). Defence counsel should consider negotiating alternative pleas, participation in diversion programs, or joint recommendations of absolute/conditional discharges in sentencing in these instances.

Conclusion

Overall, before entering a guilty plea, Permanent Residents, Foreign Nationals and their defence counsel are well advised to consult the advice of an immigration lawyer to determine what affect the plea and subsequent sentencing may have on their immigration status.

Key Takeaways and Other Things to Note:

  1. Foreign Nationals are inadmissible to Canada on grounds of criminality and serious criminality;
  2. Permanent Residents are inadmissible to Canada on grounds of serious criminality;
  3. Although the presumption will be inadmissibility, an individual can apply for rehabilitation or could be "deemed rehabilitated." Rehabilitation depends on factors including but not limited to: the nature of the crime, how much time has passed, whether they have been rehabilitated and completed their sentence/punishment, etc;
  4. Hybrid offences are considered an Act of Parliament punishable by indictment for the purpose of criminality, regardless of whether the Crown decides to proceed summarily;
  5. Outcomes including a not guilty verdict, conditional discharge, absolute discharge, having the charges withdrawn, peace bond or participation in alternative measures/other diversion program do not result in immigration consequences;
  6. CSOs do not constitute a term of imprisonment for the purpose of serious criminality;
  7. Collateral immigration consequences should be given weight by sentencing judges, but CSOs will not be ordered to avoid these consequences where it would be inappropriate or artificial to do so;
  8. Anything used in sentencing can be used in an immigration hearing (e.g. victim impact statement, notes, etc.); and,
  9. If you are a Foreign National or Permanent Resident charged with an offence under an Act of Parliament, such as the Criminal Code, you should engage an immigration lawyer as early in the process as possible.

Footnotes

1. A conditional sentence order refers to a term of imprisonment that is served in the community, which is often referred to colloquially as "house arrest."

2. Tran v.Canada (Public Safety and Emergency Preparedness), 2017 SCC 50.

3. R v Mann, 2023 BCPC 101 at para 41.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.