Inadmissibility Based on Criminality and Serious Criminality under Canadian Immigration Law

Understanding Section 36 of the Immigration and Refugee Protection Act (IRPA)

Why Criminal Convictions Can Affect Immigration Status

A criminal conviction in Canada or abroad can have lasting consequences on a person’s ability to enter or remain in Canada. Under section 36 of the Immigration and Refugee Protection Act (IRPA), both foreign nationals and permanent residents may be found inadmissible on grounds of either criminality or serious criminality.

At Apuntar Legal Services, we assist clients in assessing these risks — particularly where the charge involves a hybrid or sensitive offense, such as voyeurism under section 162 of the Criminal Code.

The Law: Section 36 of the IRPA

Serious criminality – s. 36(1)

A permanent resident or a foreign national is inadmissible on grounds of serious criminality for

(a) having been convicted in Canada of an offense under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offense under an Act of Parliament for which a term of imprisonment of more than six months has been imposed;

(b) having been convicted of an offense outside Canada that, if committed in Canada, would constitute an offense under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; or

(c) committing an act outside Canada that is an offense in the place where it was committed and that, if committed in Canada, would constitute an offense under an Act of

Parliament punishable by a maximum term of imprisonment of at least 10 years.

Criminality – s. 36(2)

A foreign national is inadmissible on grounds of criminality for

(a) having been convicted in Canada of an offense under an Act of Parliament punishable by way of indictment, or of two offenses under any Act of Parliament not arising out of a single occurrence;

(b) having been convicted outside Canada of an offense that, if committed in Canada, would constitute an indictable offense under an Act of Parliament, or of two offenses not arising out of a single occurrence that, if committed in Canada, would constitute offenses under an Act of Parliament; or

(c) committing an act outside Canada that is an offense in the place where it was committed and that, if committed in Canada, would constitute an indictable offense under an Act of Parliament.

Under IRPA s. 36(3)(a), hybrid offenses (those that can proceed either summarily or by indictment) are deemed indictable for the purposes of determining inadmissibility.

Case Law: How the Courts Interpret “Serious Criminality”

The Supreme Court of Canada in Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50clarified two key issues under s. 36(1):

1. The “maximum term of imprisonment” must be assessed based on the law in effect at the time the offense was committed, not based on later legislative changes.

2. A conditional sentence (a sentence served in the community) does not count as “imprisonment” for the purposes of the six-month threshold.

This ensures fairness and consistency between criminal and immigration law, preventing individuals from being retroactively penalized.

In Mason v. Canada (Citizenship and Immigration), 2023 SCC 21, the Supreme Court reinforced that findings of inadmissibility must rest on clear statutory interpretation and procedural fairness — principles equally vital in criminal inadmissibility cases.

Example: Inadmissibility Due to violation of Section 162 of the Criminal Code (Voyeurism)

Section 162(1) of the Criminal Code prohibits secretly observing or recording another person in circumstances where that person has a reasonable expectation of privacy, for a sexual purpose or in a sexually exploitative context. It is a hybrid offense, meaning the Crown can proceed either summarily or by indictment.

Example Scenario: A work permit holder in Ontario is charged and convicted under s. 162(1)(a) for recording another person without consent in a private space. Through plea negotiations, the Crown proceeds summarily, and the court imposes one year of probation with no jail time.

Because the offense was prosecuted summarily and the sentence did not exceed six months, the conviction does not amount to serious criminality under IRPA s. 36(1).

However, even though the Crown proceeded summarily, voyeurism remains a hybrid offense, and under IRPA s. 36(3)(a), hybrid offenses are deemed indictable for immigration purposes.

This means that a single conviction for voyeurism can still render a foreign national — such as a visitor, student, or worker — criminally inadmissible under IRPA s. 36(2)(a). It is not necessary to have two convictions; one hybrid (indictable) conviction is sufficient.

Practice Tip: What to Do if You Are in Restoration or Post-Conviction Status

If you were convicted of a hybrid offense like voyeurism and are now facing issues with your immigration status or restoration of status, there are several possible remedies:

• Temporary Resident Permit (TRP): Allows temporary entry or stay in Canada despite inadmissibility, granted in compelling situations such as employment needs, family reunification, or humanitarian reasons.

• Criminal Rehabilitation Application: Can permanently remove inadmissibility if at least five years have passed since completion of your sentence (including probation).

• Deemed Rehabilitation: May apply automatically after ten years for a single, non-serious offense, provided there are no further convictions.

• Record Suspension (Pardon): Issued by the Parole Board of Canada, it seals the conviction from the public record and may help in overcoming inadmissibility.

Each case depends on the nature of the offense, completion of sentence, and time elapsed. Early legal advice is crucial to identify the best available option.

Key Takeaways

• A single conviction for a hybrid offense like voyeurism can result in criminal inadmissibility for foreign nationals.

• Serious criminality applies when the maximum possible sentence is 10 years or more, or imprisonment exceeds six months.

• Hybrid offenses are always treated as indictable for immigration purposes.

• Rehabilitation and TRP applications can offer long-term or temporary relief.

  
  

How Apuntar Legal Services Can Help

Apuntar Legal Services assists individuals who have been charged or convicted of offenses that may affect their immigration status. We review your court record, determine whether inadmissibility applies, and explore legal remedies.

If you have been charged under section 162 of the Criminal Code or any other offense and are concerned about your immigration status in Canada, contact our office for a confidential consultation. Early legal advice can make a decisive difference in protecting your right to stay in Canada.