Immigration Opinion Letters for Criminal Defence Counsel

Criminal defence counsel are often the first to realise that a client is not a Canadian citizen, and that the resolution on the table may carry consequences well beyond the sentence. We prepare written immigration opinions for defence counsel in Ontario, setting out a client’s status and what each possible disposition would mean for it.

The letter is addressed to you, written for use in resolution discussions and at sentencing, and it is prepared on the understanding that the criminal file remains yours.

Why the disposition matters more than the sentence

Under section 36 of the Immigration and Refugee Protection Act, criminal inadmissibility for an offence committed in Canada turns on a conviction. Three features of the scheme regularly surprise counsel who do not work with it daily:

• Hybrid offences are deemed indictable under paragraph 36(3)(a), whatever the Crown’s election, so a summary conviction is treated as an indictable one for immigration purposes.
• For a foreign national, a single conviction under paragraph 36(2)(a) is enough, and the sentence is irrelevant to it. A fine has the same effect as a custodial term.
• A discharge under section 730 of the Criminal Code is not a conviction, so it grounds no inadmissibility, and neither does a withdrawal, a stay, or a peace bond.

For permanent residents, the thresholds in paragraph 36(1)(a) and the six-month line that removes the right of appeal to the Immigration Appeal Division become the critical points. For clients with a family application in progress, a conviction can reach their spouse and children through section 42. For clients already under a removal order, a conviction can convert a temporary bar on returning into a permanent one.

When to ask for an opinion

As early as possible, and in any event before a plea is entered or a resolution position is finalised.

R v Pham confirms that a sentencing judge may take collateral immigration consequences into account and may adjust a sentence to avoid them, provided the sentence remains proportionate. R v Wong addresses what happens when a plea is entered without that knowledge. Both are easier to rely on with a written opinion in hand than to raise from the podium.

An opinion is also useful earlier than that: at the screening stage, where the Crown may be prepared to consider diversion or a peace bond once the consequences are set out, and at the release stage, where conditions can be drafted so that they do not conflict with a client’s CBSA obligations.

What the opinion covers

• The client’s current immigration status, any pending application, and any existing removal order or CBSA conditions.
• A count-by-count analysis of the charges under sections 36 and 42, including which counts carry serious criminality and which do not.
• What follows a conviction: reports under subsection 44(1), whether a removal order can be made without an admissibility hearing, appeal rights, and the eligibility periods for a record suspension.
• The dispositions that avoid inadmissibility, in order of preference, and where a plea to one count rather than another changes the analysis.
• Release, probation and peace bond terms that would conflict with the client’s immigration obligations, with suggested wording.
• Supporting authority, cited so that it can be put before the Crown or the court.

What we need from you

• The Information, or the charge screening form, so that the sections charged can be confirmed.
• The undertaking, release order or bail conditions.
• The synopsis and any disclosure you are able to share.
• The Crown’s screening position and election, once known.
• The client’s immigration documents: permits, permanent resident card, any IRCC or CBSA correspondence, and any removal order.
• The next court date.

We will normally speak with the client directly, on a limited scope retainer for the immigration advice, so that the advice on consequences is given to the person who has to make the decision. You are welcome to attend that conversation.

After the opinion

We can provide a letter or an affidavit for use at sentencing, attend to assist on the immigration issue, and remain available while the matter is resolved so that any change in the Crown’s position can be assessed before it is accepted. If a client is taken into immigration detention, or the CBSA begins to act while the charges are outstanding, we act on the immigration side.

Getting in touch

Call us at (437) 299-9952 or use the form below with the next court date and a short description of the charges, and we will tell you what we would need and how quickly the opinion can be prepared. Our Inadmissibility & Criminal Rehabilitation page sets out the immigration side of this work in more detail.