You have been charged with a minor offence. The Crown makes an offer: plead guilty, pay a modest fine, and the matter is over today. The alternative is a conditional discharge with a year of probation, reporting, and counselling. The fine sounds like the better deal.
If you are a Canadian citizen, it may well be. If you are a visitor, a student, a worker, or someone with a permanent residence application in progress, the fine can end your future in Canada and the discharge would not.
Immigration law asks about the conviction, not the punishment
Under section 36 of the Immigration and Refugee Protection Act (IRPA), a foreign national is inadmissible for criminality if convicted in Canada of an offence punishable by way of indictment. Three features of that rule catch people out.
Hybrid offences count as indictable. Most Criminal Code offences can be prosecuted summarily or by indictment. Paragraph 36(3)(a) deems them indictable even where the Crown proceeds summarily. Theft, fraud, assault, mischief, and impaired driving are all hybrid.
The sentence does not matter. One conviction for a hybrid offence is enough. A fine, a suspended sentence, and a jail term all produce the same result.
A suspended sentence is a conviction. The name suggests otherwise, but a suspended sentence with probation follows a conviction being entered.
Offences that can only be prosecuted summarily are treated differently. For those, it takes two convictions not arising out of a single occurrence before a foreign national becomes inadmissible.
What a discharge does
Under section 730 of the Criminal Code, a court that finds a person guilty may discharge them, absolutely or on conditions, instead of convicting them. A person who is discharged is deemed not to have been convicted of the offence. With no conviction, there is nothing for section 36 to attach to.
A discharge is not available for every offence. It is excluded where the offence carries a minimum punishment or a maximum of fourteen years or life, and the court must be satisfied that a discharge is in the accused’s interest and not contrary to the public interest.
A conditional discharge comes with a warning. If you are convicted of another offence while the probation order is in force, including a breach of the order itself, the court can revoke the discharge and enter a conviction on the original charge.
Other outcomes that are not convictions
- Withdrawal or a stay of the charges, often following diversion or a similar program;
- A peace bond, where you agree to conditions and the charge is withdrawn;
- An acquittal after trial.
From an immigration standpoint these rank ahead of a discharge, because they involve no finding of guilt at all.
The lines that matter if a conviction cannot be avoided
Serious criminality is a second and heavier category, and it applies to permanent residents as well as foreign nationals. Under paragraph 36(1)(a), it is triggered by a conviction in Canada for an offence with a maximum sentence of ten years or more, whatever sentence is actually imposed, or by any conviction for which a term of imprisonment of more than six months is imposed.
Two points from the Supreme Court of Canada in Tran v Canada (Public Safety and Emergency Preparedness) are worth knowing. The relevant maximum is the one that applied when the offence was committed, not a maximum that Parliament raised afterwards. And a conditional sentence served in the community is not a “term of imprisonment” for the six-month branch of the test.
For permanent residents there is a further line. A permanent resident ordered removed for serious criminality loses the right to appeal to the Immigration Appeal Division where the offence was punished by a term of imprisonment of at least six months.
Why it is so hard to fix afterwards
Many people have heard of criminal rehabilitation. It is a remedy for convictions and acts outside Canada. For a conviction entered in Canada, the route is generally a record suspension under the Criminal Records Act, and you cannot apply until five years after completing your sentence for a summary conviction, or ten years for an indictable one. The clock starts only when the whole sentence is finished, including any probation order and payment of any fine or surcharge.
Until then, the only way to enter or remain is a temporary resident permit, which is discretionary and exceptional.
Courts can take this into account
In R v Pham, the Supreme Court confirmed that a sentencing judge may consider collateral immigration consequences and may adjust a sentence to avoid them, provided the sentence remains proportionate to the offence and the offender. A judge may not impose an unfit sentence for that purpose.
In R v Wong, the Court held that a guilty plea entered without knowledge of its immigration consequences may, in some circumstances, be withdrawn. That is a difficult remedy to obtain after the fact. It is far better to have the advice before the plea.
Three cautions
You still have to disclose. Immigration forms ask about charges and arrests, not only convictions. A withdrawn charge or a discharge does not make you inadmissible. Concealing one can.
Other countries apply their own rules. A Canadian discharge may not be treated the same way elsewhere. If travel to another country matters to you, get advice on that country’s law as well.
Already under a removal order? The stakes are different again, and we cover that in I already have a removal order and now I’ve been charged with a crime.
How we can help
At Kabir & Alam, we advise non-citizens and their defence lawyers on the immigration consequences of each possible resolution, before a plea is entered. You can read more on our Inadmissibility & Criminal Rehabilitation page.
If you are facing a criminal charge and you are not a Canadian citizen, book a consultation with us before your next court date.
Acting for someone in this situation? We prepare written immigration opinions for criminal defence counsel: see Immigration Opinion Letters for Criminal Defence Counsel.