Collateral Consequences: Immigration Consequences Of Criminal Law

• Published date: 11 July 2023
• Subject Matter: Immigration, General Immigration
• Law Firm: Cox & Palmer
• Author: Maggie Hughes

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...