Canadian Convictions
A PR or FN is inadmissible under 36(1)(a) of the IRPA (“serious criminality”) for having been convicted in Canada of an offence under an Act of Parliament that could result in a maximum term of imprisonment of at least 10 years[1] or for which a term of imprisonment of more than six months was imposed. Again, whether or not an offence is ”serious” depends on the length of the possible sentence or actually imposed –not on the nature of the offence. ”Term of imprisonment” refers to gaol –not to a Conditional Sentence Order[2]. Criminality ”locks in” as of the date of commission, not the date of a finding of inadmissibility.
There is a lower threshold for Foreign Nationals[3]; a FN can be found inadmissible to Canada for a single conviction for any hybrid offence even if prosecuted summarily. On the other hand, a FN can avoid immigration jeopardy with a conviction of two straight summary offences arising from a single occurrence.
Generally speaking, offences committed while the person concerned was a minor do not lead to inadmissibility. However, if the case is/was transferred to the ordinary courts, the exemption does not apply[4].
A conviction of course, refers to a finding or admission of guilt. Outcomes that don’t result in immigration jeopardy:
- Acquittal/NCR;
- A plea bargain or arrangement to plead guilty to a straight summary offence[5] or arrangement to plead guilty to an offence under a provincial statute;
- Peace bond (or orders under s.810 of the CCC);
- absolute, conditional -and a curative discharge; and
- A stay or withdrawal of charges.
A suspended sentence or a Probation Order is a conviction, and an individual may face immigration jeopardy without spending a night of incarceration.
[1] Such as the operation while impaired of a motor vehicle; s.320.14(1); fraud; break and enter, among others.
[2] Tran v. MPSEP 2017 SCC 50.
[3] See s.36(2) of the IRPA.
[4] Tessma v. MCI 2003 FC 1126
[5] There’s not a lot of straight summary conviction offences in the CCC; they include: unlawful assembly (s.66); false statement when not required (s.134); disturbance (s.175); fraudulently obtaining food (s.364); obtain transport by fraud (s.393(3))...
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