Your status in Canada ran out, and the CBSA issued a removal order. You were planning to leave. Then you were charged with a criminal offence, the police kept your passport as a condition of your release, and now you cannot leave even if you want to.
You are dealing with two systems at once, and they do not coordinate themselves. What happens in the criminal case will decide whether you leave Canada with a short bar on returning or a permanent one.
Not all removal orders are equal
There are three kinds of removal order, and the difference between them is the whole point of this article.
- Departure order. You must leave within 30 days of the order becoming enforceable and confirm your departure with the CBSA. If you do, you need no special permission to return. If you do not, it becomes a deportation order.
- Exclusion order. You cannot return for one year after the order is enforced without written authorization. Where the order was made for misrepresentation, the period is five years. Overstaying a permit commonly results in this type of order.
- Deportation order. You may never return without written authorization, however much time has passed.
That written authorization, an Authorization to Return to Canada, is discretionary. It is not a formality, and it is not granted as a matter of course to someone removed for criminality.
A charge does not change your order. A conviction can.
Inadmissibility for an offence committed in Canada depends on a conviction. If the charges are withdrawn or stayed, or you are acquitted, receive a peace bond, or are discharged under section 730 of the Criminal Code, your existing order stays what it is.
If you are convicted, the CBSA can write a fresh report under subsection 44(1) of the Immigration and Refugee Protection Act (IRPA). Where a foreign national is convicted in Canada of a hybrid or indictable offence, paragraph 228(1)(a) of the Regulations allows the Minister’s Delegate to make a deportation order directly. There is no hearing before the Immigration Division and no appeal to the Immigration Appeal Division. The only recourse is an application for leave and judicial review in the Federal Court.
That is how a one-year bar becomes a permanent one. The conviction also makes you criminally inadmissible in its own right, which generally lasts until a record suspension is granted years later. We set out which outcomes count as convictions in Fine or conditional discharge: why the lighter sentence can cost you your status.
Can the CBSA remove me while the charges are pending?
Do not assume either answer. Under paragraph 50(a) of IRPA, a removal order is stayed if enforcing it would directly contravene a decision made in a judicial proceeding. A court order requiring you to attend can have that effect. The Regulations also provide that no such stay exists where the CBSA and the Crown have agreed that the charges will be withdrawn or stayed once removal is confirmed, and CBSA officers are directed to ask the Crown that question.
In practice, removal is often deferred until the criminal matter concludes. Sometimes the Crown agrees to drop the charges so that removal can proceed, which may be the best result available to you. Which way it goes depends on the charge, the Crown, and the position your lawyers take.
Two related points: if you are sentenced to a term of imprisonment, removal is stayed under paragraph 50(b) until the sentence has been served, and a probation order generally does not stay removal at all.
Leaving on your own is not simple either
A removal order is enforced when you appear before an officer, have your departure verified, and leave Canada. That requires a passport. If yours is being held under your release conditions, you cannot comply until it is returned.
Leaving anyway is not the answer. Failing to attend court leads to a warrant and a new charge, and failing to comply with a release order is itself a hybrid offence, and so a fresh ground of inadmissibility. Leaving without confirming your departure also means the order is not properly enforced, which causes problems if you ever apply to come back.
Two sets of conditions, both mandatory
You are probably subject to conditions imposed by the criminal court and separate conditions imposed by the CBSA under subsection 44(3): reporting in person, keeping your address current, not working or studying, surrendering your passport, and notifying the CBSA of any new charge or conviction.
These can collide. A court date can fall on a reporting day. The police may hold one address for you and the CBSA another. The CBSA may want the passport the police are holding. None of this resolves itself, and a missed CBSA report can lead to arrest and immigration detention, which will complicate your attendance in court. Tell both of your lawyers about every condition from both sides.
What to aim for
An outcome without a conviction. Withdrawal, a stay, a peace bond, or a discharge leaves your existing order as it is.
Terms that let you leave. Any peace bond or probation order should expressly permit you to leave Canada and should not require you to reside in or report to a place in Ontario once you have gone.
Your passport back. It should be dealt with as part of the resolution, not left to be sorted out afterwards.
Accurate disclosure later. Any future application to Canada will ask about the charges, whatever the outcome was.
One further point. A person subject to a removal order that is in force generally cannot make a refugee claim. If you fear returning to your country, a pre-removal risk assessment may be the relevant process, and it should be raised early rather than on the eve of removal.
How we can help
At Kabir & Alam, we represent people facing removal and work alongside criminal defence counsel so that a criminal case does not turn a temporary bar into a permanent one. You can read more on our Immigration Litigation and Inadmissibility & Criminal Rehabilitation pages.
If you are under a removal order and facing a criminal charge, book a consultation with us as early in the criminal matter as you can.
Acting for someone in this situation? We prepare written immigration opinions for criminal defence counsel: see Immigration Opinion Letters for Criminal Defence Counsel.