Being charged with a criminal offence is stressful for anyone.
If you’re in Canada as a visitor, that stress is doubled: you’re facing a criminal case in an unfamiliar legal system, and you’re worried about what the charge means for your ability to stay in Canada – or ever come back.
The good news is that a charge isn’t the end of the road. Canadian immigration law draws an important line between being charged with an offence and being convicted of one, and that line matters enormously for your future in Canada.
A charge is not a conviction — and that matters for your immigration status
Under section 36 of the Immigration and Refugee Protection Act (IRPA), a foreign national can become inadmissible to Canada on grounds of criminality or serious criminality. But for offences committed inside Canada, inadmissibility under section 36 is triggered by a conviction – not by a charge.
This means that being charged, on its own, doesn’t make you inadmissible and doesn’t mean you will be removed from Canada. Criminal charges can end in many ways that never become a conviction, including:
- Withdrawn or stayed charges, where the Crown decides not to proceed;
- An acquittal, where you are found not guilty after trial;
- An absolute or conditional discharge, where the court finds guilt, but no conviction is entered;
- A peace bond, where charges are resolved without any finding of guilt.
None of these outcomes counts as a conviction for the purposes of section 36.
If your case ends in one of these ways, the charge itself doesn’t make you inadmissible for criminality.
That’s why how your criminal case is resolved matters so much. Two outcomes that might look similar from a criminal law perspective – for example, a conditional discharge versus a conviction with a small fine – can have completely different immigration consequences.
What happens if you are convicted
If the case does end in a conviction, the immigration consequences depend on the offence and the sentence. Broadly speaking, IRPA separates in-Canada convictions into two categories:
- Serious criminality: Covers convictions for offences punishable by a maximum of ten years or more, or where a sentence of imprisonment of more than six months is actually imposed.
- Criminality: Covers convictions for indictable offences, including “hybrid” offences that could be prosecuted either way – which describes a large share of offences in the Criminal Code.
For visitors and other foreign nationals, either category can lead to a report being written against you, an admissibility proceeding, and ultimately a removal order.
But even then, removal is a process with steps, decisions, and in some cases remedies – not an automatic outcome that follows the moment a conviction is entered.
Depending on your circumstances, options such as a temporary resident permit or, later, criminal rehabilitation or a record suspension may be available.
You can read more about those pathways on our Inadmissibility & Criminal Rehabilitation page.
Practical steps to take right away
Get a criminal defence lawyer and tell them about your immigration status: This is the single most important step. Your criminal lawyer needs to know you are not a citizen or permanent resident, because the way your case is resolved can determine whether you become inadmissible.
A resolution that looks acceptable for a Canadian citizen may be a serious mistake for a visitor.
Speak with an immigration lawyer too: Criminal and immigration law interact in ways that are easy to miss. An immigration lawyer can assess how each possible outcome of your criminal case would affect your status and can coordinate with your defence counsel on a resolution strategy.
Keep your status valid: Criminal proceedings often take longer than the period you were authorized to stay in Canada. If your case will continue past the expiry of your visitor status, you may need to apply to extend your stay. Falling out of status creates a separate immigration problem on top of the criminal one.
Our Temporary Resident Visa & Temporary Resident Permit page explains visitor status in more detail.
Don’t leave Canada without legal advice: Leaving while charges are outstanding can be risky. If you fail to attend court, a warrant can be issued for your arrest, and outstanding charges can complicate any future attempt to return to Canada. Whether and when to travel is a decision to make with your lawyers, not on your own.
Be honest in any future applications: Immigration forms routinely ask about charges as well as convictions. Failing to disclose a charge – even one that was later withdrawn – can lead to a finding of misrepresentation, which carries its own inadmissibility consequences.
How we can help
At Kabir & Alam, we help visitors, students, and workers understand the immigration consequences of criminal charges and work alongside criminal defence counsel to protect their ability to stay in or return to Canada.
If you’ve been charged with an offence while in Canada, book a consultation with us to discuss your situation.