Immigration Inadmissibility
Immigration inadmissibility is the legal status under which a non-citizen — including permanent residents, foreign workers, students, and visitors — can be barred from entering Canada or removed from it because of criminal conduct. The framework is set out in sections 36 and 37 of the Immigration and Refugee Protection Act (IRPA). Inadmissibility findings can have profound consequences: loss of permanent resident status, removal from Canada, family separation, and lifetime bars on return.
Mass Tsang LLP coordinates closely with immigration counsel where appropriate. For more, see our blog post on immigration consequences of criminal convictions.
Serious criminality — section 36(1)
Section 36(1) renders a permanent resident or foreign national inadmissible for "serious criminality" on three grounds: (a) conviction in Canada of an offence punishable by a maximum term of at least 10 years' imprisonment, or for which a sentence of more than 6 months has been imposed; (b) conviction outside Canada of an offence that, if committed in Canada, would be punishable by at least 10 years; or (c) commission of an act outside Canada that is an offence in the place it was committed and that would be punishable by at least 10 years in Canada.
Criminality — section 36(2)
Section 36(2) renders foreign nationals (but not permanent residents) inadmissible for "criminality" — a lower threshold capturing any conviction punishable by indictment or two or more summary convictions. Most hybrid offences are deemed indictable for IRPA purposes, even where the Crown elected summarily.
Loss of appeal rights
Permanent residents convicted of serious criminality with a sentence of more than 6 months lose the right to appeal a removal order to the Immigration Appeal Division. The 6-month threshold is a critical inflection point in sentencing for permanent residents — a 6-month sentence preserves appeal rights; 6 months and one day eliminates them. Defence counsel must understand this threshold and structure sentencing strategy accordingly.
How Mass Tsang protects non-citizen clients
Where a criminal client is a non-citizen, immigration consequences must be central to the defence strategy from day one. Strategies include: avoiding a conviction entirely (discharge, peace bond, withdrawal); securing a summary election on hybrid offences (reducing IRPA exposure); negotiating sentence to keep below the 6-month threshold; and obtaining the proper plea inquiry so the accused understands the immigration consequences before pleading. The Supreme Court in R v Wong, 2018 confirmed that immigration consequences are part of the consequences a properly advised accused must understand at plea.
Related glossary terms
