I’m a foreign national: what happens if I get criminally charged in Canada?

I’m a foreign national: what happens if I get criminally charged in Canada?

Date Updated: April 16, 2020
Written By: Ravi Prithipaul (Alberta Criminal Defence Lawyer)

Detailed Law Breakdown

The federal Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27 governs admissibility, that is, whether a person can remain in Canada. The IRPA distinguishes between “permanent residents” (“a person who has acquired permanent resident status”) and “foreign nationals” (“a person who is not a Canadian citizen or a permanent resident”).

Permanent residents become inadmissible in Canada (that is, subject to deportation) for “serious criminality”. According to section 36(1) of IRPA, “serious criminality” means: “having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed”. A permanent resident may be subject to deportation if he or she is convicted (that is, found guilty and sentenced) for an offence in the Criminal Code or the Controlled Drugs and Substances Act, and if the crimes in question are punishable by a maximum term of imprisonment of at least 10 years, or if the permanent resident receives a jail sentence greater than six months.

Section 36(1) applies equally to foreign nationals, so they, too, may be removed for “serious criminality”. In addition, however, foreign nationals become inadmissible under s. 36(2) on grounds of “criminality” alone by virtue of “having been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment, or of two offences under any Act of Parliament not arising out of a single occurrence”. This means that a temporary foreign worker who is convicted of any criminal offence under a federal statute may be subject to deportation.

Hybrid offences are deemed to be indictable even if prosecuted summarily (s. 36(3)(a)). On the other hand, an acquittal or record suspension does not ground inadmissibility (s. 36(3)(b)), and neither do youth convictions (s. 36(3)(e)).

Thoughts from a Criminal Lawyer’s Perspective

Several strategies are available to an experienced criminal defence lawyer. The first, of course, is to evaluate the chances of success. If defences exist, a trial may well be feasible. Second, in the case of permanent residents, if a finding of guilt is likely, the goal is persuade the court to impose a sentence of less than six months’ imprisonment. Notwithstanding that a permanent resident or foreign national is found inadmissible on grounds of serious criminality, that person may appeal to the Immigration Appeal Division if the sentence imposed was less than six months: section 64(2), IRPA.

With respect to foreign nationals, in particular, where the goal is to avoid a conviction for any criminal offence, an absolute or conditional discharge may prevent deportation. That said, there are some offences for which discharges are not available, such as impaired driving. A foreign national charged with driving under the influence of alcohol or drugs needs to be very concerned because a finding of guilt for that offence could result in that person being declared inadmissible in Canada and deported.

Consider that deportation affects not only the individual in question, but his or her spouse, children, and other dependents. If you are, or a loved one is, a permanent resident or foreign national, and facing a criminal charge, it is imperative to reach an experienced Edmonton criminal defence lawyer. Contact Mr. Ravi Prithipaul, Q.C. at 780 705 7737 (see also www.Prithilaw.com).