By Canadian Immigrant Magazine |
Immigrants to Canada are typically aware that if they are convicted of certain criminal offences that they could lose their permanent resident status. When immigrants are charged with criminal offences, immigration lawyers and criminal defense counsel will often work together as needed to ensure that those charged do not lead to deportations. It is therefore important to note that the Canada Border Services Agency has recently taken an exceptionally strict approach to interpreting Canadian immigration legislation which could fundamentally change the immigration consequences of violent actions in Canada. The issue is now before the Federal Court of Canada.
Consequences of criminal records
Canadian immigration legislation provides that a permanent resident is inadmissible to Canada on grounds of serious criminality if they have been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least ten years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed.
The first thing to note is that a conviction is required. A conviction is a finding by a Canadian court that a person is guilty of an offence. A charge or a confession is not a conviction. A conviction that is set aside on appeal is also not a conviction for immigration purposes, nor is an absolute or conditional discharge, which is where a finding of guilt is made, but no conviction against the individual is registered.
Secondly, the convictions for certain offences will result in a permanent resident being inadmissible to Canada. The offence must either be one whose maximum penalty is a term of imprisonment of ten years or more, or where a term of imprisonment of more than six months is imposed. Conditional sentences are not included.
A permanent resident who is inadmissible to Canada for serious criminality can appeal to the Immigration Appeal Division. The Immigration Appeal Division will either set aside any removal order based on humanitarian & compassionate grounds, allow the deportation to proceed or impose pause the deportation for a certain period to allow the immigrant to show that they will refrain from further criminal activity. This is known as a stay.