Not a citizen yet: how can a criminal conviction in Ontario affect your permanent resident status?

A conviction in Canada makes a permanent resident inadmissible for "serious criminality" if the offence carries a maximum of at least 10 years in prison, or if the court imposes a prison term of more than six months (Immigration and Refugee Protection Act s. 36(1)(a)). That finding can lead to a removal order and the loss of permanent resident status. If the sentence is six months or more in prison, there is also no appeal to the Immigration Appeal Division (s. 64).

This page explains the criminal side of that risk: which charges and sentences cross the lines in the Act, what a discharge or a conditional sentence changes, and what a sentencing judge in Ontario may consider. Gambriani Law PC defends criminal charges; it does not give immigration advice, and anyone with status at stake should also speak to an immigration lawyer. For the charges we defend, see our criminal defence practice areas.

How does a criminal case turn into an immigration problem, step by step?

The criminal court does not decide your status. It decides guilt and sentence. Those two results are then read against the Immigration and Refugee Protection Act (IRPA) by federal officials. The sequence looks like this.

Steps 3 to 6 are immigration law and outside what this firm does. Steps 1 and 2 are where a criminal defence lawyer works, and they decide whether the later steps can happen at all. That is why the immigration question has to be raised before any plea or sentencing hearing, not after.

Which charges carry a maximum of 10 years or more?

The first test in s. 36(1)(a) looks only at the maximum sentence the law allows, not the sentence you receive. Two rules make it reach further than people expect. First, an offence that can be prosecuted either summarily or by indictment is treated as indictable for this purpose, even if the Crown chose to proceed summarily (IRPA s. 36(3)(a)). Second, the Supreme Court of Canada held in Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, that the maximum that counts is the one in force when the offence was committed. Our page on what the Crown's summary or indictable choice changes explains hybrid offences in more detail.

Impaired driving surprises many people. The minimum for a first offence is a fine, yet the maximum is 10 years, so a conviction by itself meets the test in s. 36(1)(a). Our impaired driving defence page covers the charge itself. Our page on the theft over and under $5,000 tiers shows how much the value alleged can matter.

Which sentences cross the six-month lines?

The second test looks at the sentence actually imposed. Two numbers matter, and they are not the same: "more than six months" for inadmissibility (s. 36(1)(a)), and "at least six months" for losing the appeal (s. 64(2)).

Discharges are not available for every offence. The Criminal Code bars them where a minimum punishment applies or the maximum is 14 years or life (s. 730(1)), which rules them out for impaired driving and for fraud over $5,000. Our guide to what each criminal case outcome means explains withdrawals, peace bonds and discharges in detail. Our page on conditional sentences in Ontario sets out when one is possible.

Can a sentencing judge take immigration status into account?

Yes, within limits. In R. v. Pham, 2013 SCC 15, the Supreme Court of Canada said a sentencing judge may consider collateral immigration consequences, provided the sentence imposed stays proportionate to the gravity of the offence and the offender's degree of responsibility. The Court also said the sentencing process must not be misused to impose "inappropriate and artificial sentences" that get around Parliament's will, and that a judge is not compelled to reduce a sentence in every case.

Pham also shows why timing matters. The trial judge had not been told about the immigration consequences, so the appeal court could step in. The Court said that where the issue was not raised at trial and the Crown does not consent, evidence such as an affidavit should be filed on appeal. When Pham was decided, the appeal cut-off was two years; Parliament has since lowered it to six months in s. 64(2). Our page on pre-sentence reports in Ontario explains how personal circumstances reach the judge before sentencing.

What changes the answer?

• Your status. These tests are for permanent residents. Foreign nationals, such as visitors, students and workers, face a wider "criminality" test: any conviction for an indictable offence, or two offences not arising out of a single occurrence (IRPA s. 36(2)(a)).
• A record suspension. Inadmissibility cannot be based on a conviction for which a record suspension has been ordered and remains in effect (s. 36(3)(b)). See how long you must wait to apply for a record suspension.
• Youth matters. A youth sentence under the Youth Criminal Justice Act cannot ground inadmissibility under s. 36 (s. 36(3)(e)(iii)).
• Offences abroad. A conviction outside Canada, or an act committed outside Canada, can count if the Canadian equivalent carries a maximum of 10 years or more (s. 36(1)(b) and (c)).
• The date of the offence. Under Tran, the maximum that applies is the one in force when the offence was committed.
• Citizenship plans. The Citizenship Act bars a grant of citizenship while a person is charged with an indictable offence, on probation or serving a term of imprisonment, and after a conviction for an indictable offence in the four years before the application (s. 22(1) and (2)). An open charge can therefore delay a citizenship application even before any verdict.

For example: two charges, two very different risks

These are hypotheticals, not real clients or results. Suppose two permanent residents who came to Canada from Iran are charged in Toronto in the same month.

The first is charged with theft of goods worth $800 from a store. The maximum is two years, so a conviction alone does not meet the 10-year test. The risk would come only from a jail sentence of more than six months. The defence can also explore outcomes that avoid a conviction, such as diversion in Toronto or a discharge.

The second is charged with impaired driving after a roadside test. Even if the only sentence is the minimum fine, a conviction for an offence with a 10-year maximum meets s. 36(1)(a), and a discharge is not available because of the minimum punishment. For this person, the strength of the evidence and any Charter issues matter far more than the sentence. The two cases look similar in court, but the immigration stakes are not similar at all.

What mistakes do permanent residents make after a charge?

1. Accepting the first offer without checking the maximum. A plea to a "smaller" charge can still be a 10-year offence. Check the section number, not the label.
2. Not telling the lawyer about status. Your lawyer needs to know you are a permanent resident, not a citizen, from the first meeting.
3. Assuming a conditional sentence and jail are the same. Under Tran they are treated differently for s. 36(1)(a), so the form of a sentence can matter as much as its length.
4. Raising immigration only after sentencing. Pham makes clear the judge should hear about the consequences at sentencing; fixing it on appeal is harder.
5. Forgetting the other charges. A failure to comply charge added during the case is a separate conviction risk.
6. Leaving immigration advice too late. A criminal lawyer can shape the criminal outcome, but questions about removal, appeals or citizenship belong with an immigration lawyer, early.

What can you do this week?

1. Find your permanent resident card or confirmation of permanent residence and note the date you became a permanent resident.
2. Write down every charge on your papers with its Criminal Code section number.
3. Tell your criminal defence lawyer your status, any past charges in Canada or abroad, and any citizenship application in progress.
4. Book a consultation with an immigration lawyer so both lawyers can work from the same facts.
5. Keep every release condition exactly, to avoid a new charge under s. 145.
6. Do not accept or discuss any plea until both the criminal and the immigration effects have been explained to you.
7. Use our first-week checklist after a criminal charge in Toronto to organize the rest.

Frequently asked questions

Does a peace bond affect permanent resident status?

A peace bond under s. 810 of the Criminal Code is a court order, not a conviction. The s. 36(1)(a) tests are triggered by a conviction, so a peace bond does not meet them in itself. Breaching a peace bond, though, is a separate offence.

Does a withdrawn charge cause problems?

A withdrawn charge is not a conviction, so it does not meet s. 36(1)(a). While the charge is open, though, the Citizenship Act can prevent a grant of citizenship if the charge is for an indictable offence.

Is a six-month sentence safe?

Not completely. Exactly six months is not "more than six months", so it does not meet the sentence test in s. 36(1)(a). But if the offence carries a 10-year maximum, the person is inadmissible anyway, and a sentence of at least six months removes the right to appeal (s. 64(2)).

Can my lawyer ask for a shorter sentence because of my status?

Your lawyer can put the immigration consequences before the judge, with evidence, and ask for a sentence that is fit and avoids them. Under Pham, the judge may take them into account, but the sentence must remain proportionate, and the judge can decline.

Does a conviction in Iran count?

It can. IRPA s. 36(1)(b) covers convictions outside Canada for conduct that, in Canada, would carry a maximum of 10 years or more. Whether a foreign conviction meets that test is an immigration law question.

Will a discharge show up anywhere?

A discharge is not a conviction, but the court record and police records still exist. Our page on what Ontario police record checks disclose explains how each outcome appears.

Can I be held for bail because I might leave Canada?

A justice can detain an accused where it is necessary to ensure attendance in court (Criminal Code s. 515(10)(a)), and can order passports deposited (s. 515(4)(f)). Our page on how bail hearings work in Ontario explains the grounds.

Getting help

For a permanent resident, the criminal case and the immigration file are linked from day one. Gambriani Law PC defends criminal charges across the Greater Toronto Area in English and Farsi, and works alongside the client's immigration lawyer so the criminal strategy reflects what is at stake. If you or a family member is Persian-speaking, our page for Persian-speaking clients charged in the GTA explains how we work.

This page is general information about Ontario criminal law and how federal immigration law reads criminal outcomes. It is not immigration advice or legal advice about your situation.