Under section 36 of the Immigration and Refugee Protection Act (IRPA), a non-citizen convicted of a Canadian offence can be found criminally inadmissible — for "serious criminality" if the offence carries a maximum sentence of at least 10 years or an actual sentence of more than 6 months was imposed, or for lesser "criminality" involving other offences. Inadmissibility can lead to loss of status and removal from Canada. A discharge is generally not treated as a conviction for immigration purposes, which is one reason the outcome negotiated in your criminal case matters enormously if you are not a citizen.
- Non-citizens convicted of certain Canadian offences can be found criminally inadmissible under IRPA section 36.
- "Serious criminality" generally applies to offences with a maximum sentence of 10+ years, or where an actual sentence of more than 6 months was imposed.
- A sentence of 6 months or more, for an offence with a 10-year maximum, generally removes your right to appeal a removal order on humanitarian grounds.
- An absolute or conditional discharge is generally not treated as a conviction for Canadian immigration purposes.
- How your criminal case is resolved — the specific charge, plea, and sentence — can materially affect your immigration exposure.
- A criminal defence lawyer can factor immigration consequences into case strategy, but complex immigration-specific questions warrant dedicated immigration law advice as well.
The Short Answer
If you are not a Canadian citizen — whether a permanent resident, a temporary resident, or another foreign national — a criminal charge in Ontario can affect more than the criminal case itself. Under section 36 of the Immigration and Refugee Protection Act (IRPA), certain convictions can make you criminally inadmissible to Canada, which can lead to loss of status and removal. Understanding this risk — and how your criminal case is resolved — matters from the very beginning of the process, not after the fact.
Who This Affects
These inadmissibility provisions apply to non-citizens: permanent residents, temporary residents (including work and study permit holders), and other foreign nationals in Canada. Canadian citizens are not subject to removal based on a criminal conviction, though a conviction can still affect other things, such as future citizenship applications for those not yet citizens.
“Serious Criminality” vs. “Criminality”
IRPA distinguishes between two grounds of criminal inadmissibility. Serious criminality generally applies where you are convicted of an offence punishable by a maximum term of imprisonment of at least 10 years, or where a sentence of more than 6 months was actually imposed. Criminality is a broader category covering other, less serious offences, with somewhat different consequences and procedural protections.
Serious criminality can be triggered by an offence's maximum available penalty under the Criminal Code, even if the sentence you actually received was much lighter — this is a common point of confusion worth understanding clearly.
Why a 6-Month Sentence Is a Critical Line
For an offence with a maximum penalty of 10 years or more, receiving an actual sentence of 6 months or more generally removes your right to appeal a resulting removal order to the Immigration Appeal Division on humanitarian and compassionate grounds. This makes the specific sentence imposed — not just the finding of guilt — a critical factor in cases involving non-citizens.
Why a Discharge Can Matter So Much
An absolute or conditional discharge is generally not treated as a conviction under Canadian law — see our full guide on absolute vs. conditional discharges in Ontario. Because inadmissibility findings generally flow from convictions, a discharge can mean the difference between a resolved criminal matter with no direct immigration consequence, and one that puts your status at real risk — even where the underlying facts are similar to a case that resulted in conviction.
How Criminal Defence Strategy Can Help
A criminal defence lawyer who understands these stakes can factor them into how your case is approached — for example, pursuing a resolution to a lesser included offence, seeking a discharge rather than a conviction where appropriate, or being deliberate about the length of sentence negotiated in a plea discussion. None of this changes the underlying facts of the case, but it can meaningfully affect the collateral consequences that follow from how the case resolves.
Getting the Right Advice
Immigration law itself is a specialized, separate area of practice from criminal defence, and complex inadmissibility questions — particularly involving appeals, waivers, or humanitarian applications — often warrant working with an immigration lawyer alongside your criminal defence team. What a criminal lawyer can and should do is make sure your immigration exposure is understood and factored into the criminal case from the outset. Call 416-274-2222 for a free, confidential consultation.
Frequently Asked Questions
A charge alone does not — inadmissibility findings generally flow from a conviction, not merely a charge. But the way a charge is resolved can have lasting immigration consequences, which is why the outcome matters even if you ultimately avoid jail time.
Serious criminality generally applies to offences punishable by a maximum of 10 years or more, or where an actual sentence of more than 6 months was imposed. "Criminality" covers a broader range of other offences and generally carries somewhat different consequences and appeal rights.
For an offence with a maximum penalty of 10 years or more, a sentence of 6 months or more generally removes your right to appeal a removal order to the Immigration Appeal Division on humanitarian and compassionate grounds — a significant loss of options.
Generally, no — an absolute or conditional discharge is not treated as a conviction under Canadian law, which extends to how it is generally treated for immigration purposes. This is one of many reasons a discharge can be a meaningfully different outcome than a conviction, even where the underlying facts are similar.
A criminal defence lawyer can factor immigration consequences into how a case is defended and negotiated — for example, considering how a particular plea or sentence range may affect inadmissibility. For complex or high-stakes immigration questions, coordinating with an immigration lawyer alongside your criminal defence is often the right approach.
No. These inadmissibility provisions apply to non-citizens — permanent residents, temporary residents, and other foreign nationals in Canada. Canadian citizens cannot be removed from Canada on the basis of a criminal conviction.