Authored by Charu Vinayak, Student member of CILA
The intersection of criminal and immigration law in Canada presents a complex legal landscape with significant consequences for non-citizens. For permanent residents, foreign workers, international students, and refugee claimants, criminal convictions can lead to inadmissibility, loss of status, and removal from Canada. Recent jurisprudence has clarified how criminal convictions affect immigration status under the Immigration and Refugee Protection Act (IRPA, SC 2001, c 27). This article examines key developments in Canadian case law regarding the immigration consequences of criminal convictions. Understanding these consequences is crucial for both criminal defense and immigration lawyers, as well as for non-citizens navigating the Canadian legal system.
Serious Criminality and Inadmissibility
Under section 36(1) of the IRPA, a permanent resident or foreign national is inadmissible to Canada on grounds of “serious criminality” for:
- Being convicted in Canada of an offense punishable by a maximum term of imprisonment of at least 10 years, or of an offense for which a term of imprisonment of more than six months has been imposed;
- Being convicted outside Canada of an offense that, if committed in Canada, would constitute an offense that, if committed in Canada, would be punishable by a maximum term of imprisonment of at least 10 years; or
- Committing an act outside Canada that is an offense in the place where it was committed and that, if committed in Canada, would constitute an offense punishable by a maximum term of imprisonment of at least 10 years (IRPA, SC 2001, c 27, s 36(1)).
This section establishes a clear threshold for inadmissibility based on the severity of the crime committed. The focus is not only on convictions within Canada but also on acts committed abroad that would be considered serious offenses in Canada.
Tran v. Canada: The Six-Month Threshold
In Tran v. Canada (Public Safety and Emergency Preparedness) (2017 SCC 50), the Supreme Court of Canada clarified that when assessing whether a conviction triggers inadmissibility under section 36(1)(a), immigration authorities must consider the actual sentence imposed, not the potential maximum sentence. The Court held that conditional sentences do not constitute “terms of imprisonment” for the purpose of the six-month threshold. This distinction is critical because it significantly narrows the scope of “serious criminality” as it applies to those who receive conditional sentences.
As Justice Côté explained: “Parliament chose to make the length of the term of imprisonment imposed a key distinction between serious and simple criminality. This indicates an intent to focus on the actual sentence imposed as a measure of the seriousness of the criminality at issue” (Tran v Canada, 2017 SCC 50, para 28).
This decision has significantly impacted how criminal defense lawyers approach sentencing for non-citizens, often negotiating for conditional sentences or sentences just under the six-month threshold (see also R v Pham, 2013 SCC 15, where the Supreme Court confirmed that immigration consequences are a relevant consideration in sentencing). For example, a defense lawyer might argue for a sentence of 5 months and 29 days imprisonment followed by probation, to avoid the six-month threshold.
Vavilov Framework and Reasonableness Review
In Canada (Minister of Citizenship and Immigration) v. Vavilov (2019 SCC 65), the Supreme Court established a new framework for judicial review of administrative decisions, including Immigration Appeal Division (IAD) and Immigration Division (ID) decisions regarding criminality and inadmissibility. The Vavilov framework mandates a standard of reasonableness in the review of administrative decisions, requiring that decisions be justified, intelligible, and transparent, and fall within a range of acceptable outcomes.
In Moretto v. Canada (Public Safety and Emergency Preparedness) (2021 FC 212), the Federal Court applied the Vavilov framework to review an IAD decision regarding serious criminality, emphasizing that while deference is owed to the IAD’s interpretation of the IRPA, the review must focus on whether the decision is reasonable in light of the legal constraints imposed by the governing statutory scheme. In essence, the Court ensures that the IAD’s decisions are consistent with the legislative intent and are supported by the evidence.
Rehabilitation and Relief from Inadmissibility
Deemed Rehabilitation under Bill C-93
The passage of Bill C-93 in 2019, which amended the Criminal Records Act (RSC 1985, c C-47), has significant implications for immigration cases involving cannabis possession convictions. This legislation allows for no-cost, expedited record suspensions for simple possession of cannabis.
In Canada (Public Safety and Emergency Preparedness) v. Mujagic (2021 FC 1221), the Federal Court confirmed that a record suspension granted under this legislation effectively removes the immigration consequences of the conviction. This means that a non-citizen with a past conviction for simple cannabis possession, who has obtained a record suspension, is no longer inadmissible to Canada on that basis.
IAD Jurisdiction and Appeals
In Benhmuda v. Canada (Citizenship and Immigration) (2021 FC 1406), the Federal Court clarified the IAD’s jurisdiction in appeals involving criminality. The Court confirmed that under section 63(3) of the IRPA, permanent residents have the right to appeal inadmissibility findings based on criminality to the IAD, where humanitarian and compassionate factors can be considered.
However, section 64(1) of the IRPA removes this right of appeal if the crime is punishable by a maximum term of imprisonment of at least 10 years and a sentence of at least six months was imposed (IRPA, SC 2001, c 27, s 64(1)). In Salibian v. Canada (Public Safety and Emergency Preparedness) (2023 FC 127), the Federal Court reiterated that this bar to appeal applies even in cases where the appellant had been in Canada for decades and had extensive family ties. This highlights the stringent nature of the legislation, even in cases with compelling humanitarian considerations.
Equivalency Analysis for Foreign Convictions
When determining whether a foreign conviction triggers inadmissibility, Canadian authorities must conduct an equivalency analysis to determine if the foreign offense would constitute an offense in Canada. This is a crucial step to ensure that the foreign offense is comparable to a Canadian offense that would render the person inadmissible.
In Alam v. Canada (Public Safety and Emergency Preparedness) (2022 FC 16), the Federal Court emphasized that this analysis must focus on the essential elements of the foreign offense and its Canadian equivalent, not on the specific conduct that led to the conviction. The Court stated: “The focus must be on the essential elements of the offenses being compared, not the particular facts giving rise to the conviction” (Alam v Canada, 2022 FC 16, para 42). For example, if someone is convicted of “theft” in another country, the Canadian authorities will examine whether that theft meets the elements of “theft” under the Canadian Criminal Code.
Criminality and the Refugee Context
The intersection of criminality and refugee protection raises particular complexities. Under section 101(2) of the IRPA, a claim for refugee protection is ineligible if the claimant has been convicted in Canada of an offense punishable by a maximum term of imprisonment of at least 10 years (IRPA, SC 2001, c 27, s 101(2)).
In Febles v. Canada (Citizenship and Immigration) (2014 SCC 68), the Supreme Court clarified that Article 1F(b) of the Refugee Convention (exclusion for serious non-political crimes) refers to the crime’s inherent nature, not to whether the claimant is currently a danger to the host country. This means that even if a refugee claimant has served their time and is no longer considered a threat, they can still be excluded from protection if the crime they committed was inherently serious.
More recently, in Canada (Public Safety and Emergency Preparedness) v. Gunasingam (2023 FC 306), the Federal Court upheld the Refugee Appeal Division’s decision to grant refugee status despite criminal convictions, emphasizing that danger opinion assessments must be forward-looking and evidence-based. This highlights the importance of assessing the current risk a refugee claimant poses to Canadian society, even if they have a criminal history.
International Money Laundering and Organized Crime
The Federal Court in Chowdhury v. Canada (Public Safety and Emergency Preparedness) (2022 FC 1238) upheld an inadmissibility finding under section 37(1) of the IRPA for organized criminality based on money laundering convictions in the United States. The Court emphasized that the Minister does not need to establish a link to a specific criminal organization, but rather that the activity in question was part of a “pattern of criminal activity planned and organized by a number of persons acting in concert” (Chowdhury v Canada, 2022 FC 1238, para 29). This demonstrates the broad reach of the IRPA in addressing transnational criminal activity.
Strategic Considerations for Practitioners
Criminal Defense Strategy
Criminal defense lawyers representing non-citizens should:
- Consider immigration consequences at every stage of criminal proceedings (Waldman, 2024).
- Negotiate for sentences less than six months where possible.
- Explore alternative measures and diversion programs.
- Ensure clients understand potential immigration consequences before entering guilty pleas (Barnes, 2022).
Immigration Representation
Immigration lawyers managing cases involving criminality should:
- Conduct thorough equivalency analyses for foreign convictions.
- Explore rehabilitation options under sections 18 and 42.1 of the IRPA (IRPA, SC 2001, c 27, ss 18, 42.1).
- Prepare comprehensive humanitarian and compassionate submissions for IAD appeals.
- Consider constitutional challenges where appropriate (see Revell v Canada, 2019 FCA 262, where the Federal Court of Appeal considered section 7 Charter challenges to deportation orders based on criminality).
Conclusion
Recent Canadian jurisprudence has clarified several key aspects of the immigration consequences of criminal convictions. The Supreme Court’s decisions in Tran and Vavilov have particularly impacted how these cases are assessed and reviewed. For practitioners, understanding the interplay between criminal and immigration law remains crucial for effective representation of non-citizens involved in the criminal justice system. As the Federal Court continues to interpret provisions of the IRPA relating to criminality, practitioners must stay informed of developments in this complex and consequential area of law.
References
Alam v Canada (Public Safety and Emergency Preparedness), 2022 FC 16.
Barnes, Jonathan. “The Interrelationship between Criminal Law and Immigration Law” (2022) 40 Windsor YB Access Just 185.
Benhmuda v Canada (Citizenship and Immigration), 2021 FC 1406.
Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65.
Canada (Public Safety and Emergency Preparedness) v Gunasingam, 2023 FC 306.
Canada (Public Safety and Emergency Preparedness) v Mujagic, 2021 FC 1221.
Chowdhury v Canada (Public Safety and Emergency Preparedness), 2022 FC 1238.
Criminal Records Act, RSC 1985, c C-47.
Febles v Canada (Citizenship and Immigration), 2014 SCC 68.
Immigration and Refugee Protection Act, SC 2001, c 27.
Macklin, Audrey. “Dancing Across Borders: Immigrants, Citizenship, and the Legal Construction of Belonging in Canada” (2021) 58:1 Osgoode Hall LJ 35.
Moretto v Canada (Public Safety and Emergency Preparedness), 2021 FC 212.
Revell v Canada (Citizenship and Immigration), 2019 FCA 262.
R v Pham, 2013 SCC 15.
Salibian v Canada (Public Safety and Emergency Preparedness), 2023 FC 127.
Tran v Canada (Public Safety and Emergency Preparedness), 2017 SCC 50.
Waldman, Lorne. Canadian Immigration & Refugee Law Practice, 2024 ed (Toronto: LexisNexis Canada, 2023).
