A criminal charge is not a conviction, and by itself it does not make you inadmissible to Canada. Under the Immigration and Refugee Protection Act, criminal inadmissibility generally turns on a conviction, on the offence you are convicted of, and on the sentence the court imposes. That is why the decisive moment for your immigration status is usually not the arrest and not the removal proceedings. It is the plea and the sentencing, and the window to protect your status closes once the criminal case is resolved.
Key Takeaways
- A pending charge is not a conviction, but it must still be disclosed truthfully on immigration forms and at the border.
- How the charge is resolved matters more than what you were originally charged with. The offence and the sentence are what the immigration provisions actually measure.
- Tell your criminal lawyer or paralegal your immigration status at the first meeting. A resolution that is good in criminal terms can be severe in immigration terms.
- A sentence of more than six months of imprisonment, or an offence punishable by a maximum of ten years or more, engages the serious criminality provision, and six months also removes the right of appeal to the Immigration Appeal Division.
- Outcomes that end the case without a conviction, such as diversion, withdrawal, or a stay, are usually the best immigration result available, and they are negotiated early.
A charge is not a conviction, but it is not nothing
Section 36 of the Immigration and Refugee Protection Act is built around the word “convicted.” Serious criminality under s. 36(1)(a) applies to a person convicted in Canada of an offence punishable by a maximum term of imprisonment of at least ten years, or of an offence for which a term of imprisonment of more than six months has been imposed. Criminality under s. 36(2)(a), which applies to foreign nationals and not to permanent residents, applies to a person convicted in Canada of an offence punishable by way of indictment, or of two offences under any Act of Parliament not arising out of a single occurrence.
So while your matter is before the court, you have not yet met the statutory test. That is genuinely good news, and it is also the whole reason to act now rather than later.
What a pending charge does do is create a disclosure obligation. Immigration application forms ask about arrests and charges, not only convictions, and officers can ask at a port of entry. Answering inaccurately creates a separate and independent problem under the misrepresentation provisions, which is a risk that exists whether or not you are ever convicted. We have written separately about declaring a criminal record on immigration forms and at the border.
A pending charge can also affect discretionary decisions in practical ways. Applications can sit while a matter is outstanding, and an officer weighing a temporary resident application is entitled to consider the whole picture.
Why the plea is the most important immigration decision in your case
In a criminal matter you generally enter one of two pleas: guilty, which takes the case to sentencing, or not guilty, which takes it to trial. What is less obvious to most people is how much can be negotiated before that point. Resolution discussions with the Crown can address the charge itself, the sentence to be jointly proposed, and the facts that will be read into the record.
Each of those three levers maps directly onto an immigration provision:
- The charge. Whether the offence carries a maximum of ten years or more decides whether s. 36(1) serious criminality is even available. A negotiated reduction to a different offence can move a case out of that provision entirely.
- The sentence. A term of imprisonment of more than six months triggers s. 36(1)(a) independently of the maximum penalty. A sentence of at least six months also engages s. 64(2), which means no appeal to the Immigration Appeal Division.
- The facts. The agreed statement of facts read in at sentencing becomes the record that immigration officers and tribunals later read. Facts that are unnecessary to the criminal outcome can still do damage in an immigration file.
There is one more trap that catches people in Ontario. Hybrid offences, which the Crown may prosecute either summarily or by indictment, are deemed to proceed by indictment until the Crown elects on the record. Section 36(3)(a) of the Act reflects the same idea: a hybrid offence is treated as an indictable offence for inadmissibility purposes. The Crown’s election is therefore not a technicality. It can decide whether a foreign national falls under s. 36(2)(a) at all.
Professional conduct rules require a criminal lawyer or paralegal to advise you of the implications and possible consequences of a guilty plea before entering into any agreement with the Crown, and to confirm that you are voluntarily admitting the factual and mental elements of the offence. The court is not bound by a joint submission. Your plea must be informed, voluntary, and unequivocal, and “informed” includes understanding the immigration consequences.
Tell your criminal lawyer your immigration status at the first meeting
This is the single most useful thing a non-citizen can do. Criminal counsel is optimizing for the criminal outcome: keeping you out of custody, minimizing the record, closing the file. Those goals are legitimate and they do not always align with keeping your status.
Say plainly whether you are a permanent resident, a worker, a student, a visitor, a refugee claimant, or a protected person. The consequences differ for each. Ask your criminal representative to speak to an immigration lawyer before any resolution is agreed, not after the sentence is imposed. Once a sentence is imposed, the options narrow sharply and become slower and more expensive.
Note also that in Ontario a licensed paralegal may represent clients only on certain summary conviction offences within the scope set by the Law Society of Ontario, and a hybrid offence is out of scope until an election is made. If your charge is indictable or hybrid, that scope question is a practical one you should raise at the outset.
Whether a particular disposition counts as a conviction at all is a separate technical question, and the answer is not always intuitive. We have set that out in detail in our article on what counts as a conviction for Canadian immigration purposes.
Outcomes that end the case without a conviction
These are usually the best immigration results available, and most of them have to be pursued early:
- Diversion. Where the Crown agrees to divert a matter, the charge is typically withdrawn once the client completes the program terms. If the matter was not screened for diversion at the outset, counsel can still ask. Completing the terms quickly matters.
- Withdrawal or a peace bond. A resolution that ends the prosecution without a finding of guilt does not produce a conviction for s. 36 purposes.
- A stay for unreasonable delay. The Jordan framework sets presumptive ceilings of 18 months in provincial court and 30 months in superior court, calculated net of delay attributable to the defence. Where the ceiling is exceeded and the Crown cannot establish exceptional circumstances, charges may be judicially stayed.
- Exclusion of evidence under the Charter. A breach of ss. 8, 9, or 10 can lead to exclusion of evidence under s. 24(2), and in some cases to withdrawal of the charge. A client who admits the underlying act can still have a viable Charter argument, because the question is also how the evidence was obtained.
- Acquittal after trial.
One caution. A withdrawn charge is not the same as never having been charged. Police and court records of the charge can persist, and the disclosure obligation on immigration forms is about arrests and charges, not only convictions.
Bail conditions and the 2026 bail reforms
Bill C-14, the Bail and Sentencing Reform Act, received Royal Assent on 15 June 2026, with its bail and sentencing reforms coming into force on 15 July 2026. The reforms expand reverse onus for certain repeat, violent, and organized crime allegations, direct police more often to hold accused persons for a formal bail hearing where safety concerns exist, require courts to consider outstanding charges and unprovoked violence, and increase scrutiny of proposed sureties and release plans. Because this is recent legislation, confirm the current state of the provisions and any local practice direction before relying on them.
For a non-citizen, bail has effects beyond the criminal file. Release conditions can restrict where you live, whether you may travel, and who you may contact, and those conditions can collide with a work location, a study program, or reporting obligations. Time in custody also raises the practical risk of coming to the attention of the Canada Border Services Agency. If detention is a realistic possibility, raise your status with counsel before the bail hearing, not after.
Permanent residents and temporary residents face different exposure
Permanent residents can only be found inadmissible for criminality under s. 36(1) serious criminality. The practical line is the six-month sentence. A permanent resident punished in Canada by a term of imprisonment of at least six months loses the right to appeal a removal order to the Immigration Appeal Division under s. 64(2), which removes the forum where equitable and humanitarian factors are normally weighed.
Foreign nationals, including workers, students, and visitors, are exposed under both s. 36(1) and s. 36(2). A single indictable conviction, or two convictions not arising out of a single occurrence, can be enough under s. 36(2)(a).
In either case the mechanism is the same. Under s. 44(1), an officer who is of the opinion that a person in Canada is inadmissible may prepare a report to the Minister. If the Minister considers the report well founded, it may be referred to the Immigration Division for an admissibility hearing, or in prescribed circumstances a removal order may be made directly. Where a conviction has already been entered, the remaining tools are generally rehabilitation, a temporary resident permit, or litigation. Those are covered in our criminal inadmissibility guide and our page on the temporary resident permit.
What to do this week
- Collect every document: the information or charging document, the release order and its conditions, all disclosure received, and the next court date.
- Write down your exact immigration status, the expiry date of any permit, and whether any application is currently in process.
- Tell your criminal representative your status in writing, and ask them not to agree to any resolution before the immigration consequences have been assessed.
- Get an immigration assessment before the plea date, not after sentencing.
- Do not answer immigration form questions about arrests or charges inaccurately while the matter is pending.
FAQ
Can I be removed from Canada just for being charged?
A charge alone does not establish criminal inadmissibility under s. 36, which is framed around convictions. That said, a charge can affect discretionary decisions, and any inaccurate disclosure about it creates a separate risk.
My lawyer says I will get no jail time. Am I safe?
Not necessarily. Section 36(1)(a) is engaged either by a sentence of more than six months or by an offence punishable by a maximum of at least ten years. A non-custodial sentence for an offence with a high maximum penalty can still result in inadmissibility for a foreign national under s. 36(2)(a) if the offence is indictable or hybrid.
Does a withdrawn charge need to be disclosed?
Immigration forms commonly ask about arrests and charges, not only convictions. Answer the question that is actually asked, accurately. Omitting a charge carries misrepresentation risk that is independent of criminality.
I already pleaded guilty. Is it too late?
The options narrow but do not always disappear. Depending on the facts, the remaining routes may include rehabilitation where eligible, a temporary resident permit, submissions at the s. 44 stage, or judicial review. Get advice promptly, because several of these are time sensitive.
Should I use the same representative for both the criminal and immigration matters?
Not necessarily, but the two must coordinate. The most common and most costly failure we see is a criminal resolution agreed without anyone assessing what it does to status.
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Disclaimer: This article is for general information only and is not legal advice. Immigration law and IRCC/ESDC policy change frequently, and every case turns on its own facts. Reading this article does not create a lawyer–client relationship. Obtain advice tailored to your situation before you act.
Talk to a Canadian immigration lawyer. BridgePoint Law advises individuals and businesses across Canada — and on Canada–US–China cross-border matters — on criminal inadmissibility and the immigration consequences of criminal charges. Book a consultation with our team in Toronto and Kingston. We work in English, Mandarin, and Cantonese.