Whether a criminal matter makes you inadmissible to Canada usually turns on a narrower question than clients expect: was there a conviction? Under sections 36(1) and 36(2) of the Immigration and Refugee Protection Act, a conviction is the usual trigger for criminal inadmissibility — but the label your local court used is not the answer. IRCC and the CBSA apply Canadian criteria, and outcomes that feel like a clean result at home (a discharge, a sealed file, a foreign pardon) can still count, while some that sound serious (a suspended sentence appealed successfully) may not. This article explains how the conviction question is assessed in 2026.
Key Takeaways
- For offences committed in Canada, a conviction is required before criminal inadmissibility can be found; an acquittal does not create inadmissibility.
- For offences committed outside Canada, paragraphs 36(1)(c) and 36(2)(c) allow a finding based on committing an act — a conviction is not always necessary.
- Following IRCC’s operational guidance (ENF 2 / OP 18), an absolute or conditional discharge under the Canadian Criminal Code, an expungement or pardon, and a conviction overturned on appeal are generally not treated as convictions. A suspended sentence, a conviction under appeal, and a conviction in absentia generally are.
- A foreign pardon, sealing or expungement does not automatically remove Canadian immigration consequences. The question is whether the foreign relief is equivalent to a Canadian record suspension, or whether the disposition avoided a conviction altogether.
- The same words can mean different things in different systems. Get the police and court records, and analyse the essential elements — not the label.
Why the conviction question comes first
Criminal inadmissibility under IRPA s. 36 is built on offences. Section 36(1) (serious criminality) applies to permanent residents and foreign nationals; s. 36(2) (ordinary criminality) applies to foreign nationals. Both are framed around having been convicted — in Canada or abroad — with a separate branch for acts committed outside Canada.
That structure has a practical consequence. Before anyone asks about criminal rehabilitation or a temporary resident permit, counsel should establish whether there is a conviction at all, and if so, what Canadian offence it corresponds to. Skipping that step is how people end up applying for a remedy they do not need, or travelling on the assumption that they are admissible when they are not. For the broader framework, see our guide to criminal inadmissibility to Canada.
In Canada: conviction required
For an offence committed in Canada, inadmissibility under s. 36 requires a conviction. An acquittal does not make a person inadmissible, and neither does a charge that was withdrawn or stayed — although a pending charge can still hold up processing while the outcome is unknown.
Where an application is in progress and criminal charges are outstanding, expect the file to sit until the charges are resolved. If they are dropped, the inadmissibility question may disappear. If a conviction follows, the analysis shifts to remedies.
Outside Canada: a conviction is not always necessary
Paragraphs 36(1)(c) and 36(2)(c) allow a finding of inadmissibility for committing an act outside Canada that is an offence where it was committed and that would be an offence in Canada. So a foreign acquittal does not automatically end the inquiry. Officers may look at the basis of the acquittal and at the legal system that produced it, and a foreign acquittal obtained in a manner that is abhorrent to the Canadian justice system will not necessarily be honoured.
In the temporary resident context, an admission to having committed an offence can itself be enough to raise inadmissibility. That is one reason casual explanations at a port of entry or in an interview can do real damage.
What counts as a conviction — and what does not
IRCC’s operational guidance (ENF 2 / OP 18) draws the line roughly as follows.
Generally not a conviction
- An expungement or pardon (subject to the recognition analysis below)
- A conviction overturned on appeal
- An absolute or conditional discharge as provided for in the Canadian Criminal Code
Generally is a conviction
- A suspended sentence — the sentence is suspended, not the conviction
- A conviction that is under appeal (the appeal is not yet decided)
- A conviction entered in absentia
The suspended sentence point catches people regularly. A client who served no time, or who received a sentence held in suspense on conditions, has still been convicted. In one teaching example from a 2026 continuing-education session, a foreign national who received a suspended sentence abroad for two counts of fraud was assessed as criminally inadmissible on that basis, because the Canadian equivalent — fraud over $5,000 under s. 380(1)(a) of the Criminal Code — is punishable by up to 14 years.
Foreign pardons, sealing and expungements
Clients often arrive with paperwork showing that a record was sealed, set aside, expunged or pardoned, and assume the matter is closed for Canadian purposes. It is not automatic. The question Canadian decision-makers ask is whether the foreign relief would equate to the conditions of a record suspension in Canada, or whether the alternative disposition meant no criminal conviction resulted at all.
Where recognition of a foreign law is in issue, the courts have applied a three-part approach drawn from Canada (Minister of Citizenship and Immigration) v. Saini, [2001] F.C.J. No. 1577: the foreign legal system must be similar to the Canadian system; the content, aim and effect of the foreign law must be similar to the Canadian law; and there must be no other valid reason for Canadian authorities to decline to recognize the foreign law’s effect.
A concrete illustration: a conditional discharge in Canada is an alternative measure that can leave the person without a criminal record. A “conditional discharge” in New York can involve a verdict of guilty with the punishment withheld — the charges are not withdrawn and the conviction is not overturned. Same phrase, different legal effect, different immigration outcome.
Even a conviction is not the end of the analysis
If a conviction exists, the next question is equivalency: comparing the essential elements of the foreign offence with the essential elements of the corresponding Canadian offence, including the actus reus, the mens rea, available defences, and the facts of the case. If a crucial element is missing on the facts, there may be no equivalent Canadian offence.
Two structural points matter here. First, IRPA looks only at criminal law — the exclusive authority of Parliament under s. 91(27) of the Constitution Act, 1867. A state or provincial regulatory offence matters only if it equates to an offence under an Act of Parliament. Second, under s. 36(3)(a) of IRPA, a hybrid offence is treated as indictable regardless of how the prosecution elected, and most Criminal Code offences are hybrid.
We cover that comparison in more detail in our note on equivalency between a foreign conviction and the Canadian Criminal Code. Where a conviction and an equivalent Canadian offence are established, the conversation moves to remedies such as criminal rehabilitation or a temporary resident permit.
What to gather before anyone gives you an answer
- The charging document, the disposition or judgment, and the sentence imposed
- Police reports, which often reveal the facts that decide the equivalency question
- Police certificates at the state or provincial and national levels
- The text of the foreign statute as it read on the date of the offence
- Any pardon, expungement, sealing or set-aside order, with the statute it was granted under
Where the foreign law is genuinely unclear, the sound course is to obtain an opinion from criminal counsel in that jurisdiction rather than guess at the essential elements.
FAQ
Does a discharge in Canada make me inadmissible?
An absolute or conditional discharge under the Canadian Criminal Code is generally not treated as a conviction for the purposes of IRPA s. 36. Foreign dispositions using the same name may be treated differently, because what matters is the legal effect, not the label.
I received a suspended sentence. Is that a conviction?
Generally yes. A suspended sentence follows a finding of guilt; the sentence is suspended, not the conviction. It can support a finding of criminal inadmissibility if the Canadian equivalent offence meets the s. 36 thresholds.
My conviction is under appeal. Am I inadmissible in the meantime?
A conviction that is under appeal is generally still treated as a conviction while the appeal is pending. If the conviction is later overturned on appeal, that changes the analysis.
My record was expunged in my home country. Do I still have a problem?
Possibly. A foreign expungement or sealing does not automatically remove Canadian immigration consequences. The relief has to be assessed against Canadian standards, including whether it is comparable to a Canadian record suspension.
Can I be inadmissible without ever being convicted?
For acts committed outside Canada, yes — IRPA ss. 36(1)(c) and 36(2)(c) permit a finding based on committing an act that is an offence where it occurred and would be an offence in Canada. In the temporary resident context, an admission to committing an offence can also be enough.
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 admissibility assessments. Book a consultation with our team in Toronto and Kingston. We work in English, Mandarin, and Cantonese.
