Roster Updates

There can be significant immigration consequences for permanent residents and foreign nationals (aka temporary residents such as visitors, students and workers) when they are charged with or convicted of criminal offences. 

This summary is to help criminal defence counsel understand the main problems that arise when clients who are not Canadian citizens are criminally charged or convicted.  

Non-Canadians with outstanding immigration applications must declare outstanding criminal charges. 

People who are in the process of renewing immigration status or applying for Canadian citizenship have a legal obligation to notify Immigration, Refugees and Citizenship Canada (IRCC) if they have outstanding criminal charges (see s.16(1) of the Immigration and Refugee Protection Act “IRPA”). Failure to declare outstanding charges could not only result in negative outcomes of their applications, but they may find themselves facing more serious immigration ramifications that could lead to the issuance of removal orders. To report charges, clients can start by calling IRCC at 1-888-242-2100 or visiting them online at https://www.canada.ca/en/immigration-refugees-citizenship/corporate/contact-ircc/client-support-centre.html 

Permanent residents and foreign nationals with criminal convictions may receive deportation orders. 

There are two ways that non-Canadians can lose their immigration status: 

1. Permanent residents or foreign nationals convicted of a serious criminal offence can lose their status (this is called being ‘inadmissible’) and risk being issued a deportation order. Serious criminal offences are ones where there is a possible maximum term of imprisonment of at least 10 years. Or a term of imprisonment (served in prison) of more than six (6) months.  See s 36(1)(a) of IRPA. 

1. Foreign nationals convicted of an offence punishable by way of indictment, or two offences not arising out of a single occurrence, will lose their status (are inadmissible) and risk being issued a deportation order. See s 36(2)(a) of IRPA. 

WARNING! Offences that may be prosecuted either summarily or by way of indictment are deemed to be indictable offences – even if they are prosecuted summarily. See s 36(1)(3)(a) of IRPA. 

The next question is: Can you appeal a deportation order? People with criminal sentences 6 months and less can appeal deportation orders, but this is only available to permanent residents and convention refugees/protected persons. Foreign nationals with criminal convictions cannot appeal their deportation order – it does not matter if they receive a short sentence. 

Finally, how do you know if your client could face immigration problems? We recommend that at your first meeting with clients you ask them the following questions:  

• What is your status in Canada? 

• Where were you born?  

• Where were your parents born? (This is relevant to help clients who are adamant that they are citizens, but actually might not be on further investigation.) 

Counsel should be asking these questions of each criminal client they assist. The answers to these questions will help guide counsel in determining whether further investigation into a client’s immigration status is warranted.  

For more information and guidance on the intersection between immigration and criminal law, we recommend that you explore the following resources online: 

Helpful references: 

• There are a number of videos on this area of immigration available on our Roster Event Recordings page. We recommend starting with the February 9, 2024, session.   

• A downloadable presentation from Legal Aid Ontario on intersection between immigration and criminal law  

• Visit Legal Aid BC’s practice resource page to download their guide Immigration Consequences at Sentencing 

Helpful references for your non-Canadian clients:  

• Reach out to Edmonton Community Legal Centre, or Calgary Legal Guidance for legal advice. 

• Contact Legal Aid Alberta to apply for immigration counsel.