Toronto Deportation Risks After a Criminal Conviction

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For a permanent resident or a visa holder charged with a crime in Toronto, the sentence can matter more than the verdict. Immigration status is usually decided inside the criminal case itself, at five specific moments, long before any removal file opens. This page maps those five moments, explains the two six month lines that control them, and shows what a criminal defence lawyer should be doing at each one.

By Fadi Matthew Kazandji, Founding Partner, Kazandji Law. Serving Toronto. Updated July 2026.

Who is exposed, exactly

Start with the one distinction that ends the analysis: Canadian citizens cannot be removed from Canada for criminality. Everyone else can be. The Immigration and Refugee Protection Act, IRPA for short, sorts non-citizens into two groups and treats them very differently.

Permanent residents are caught by one provision only. Under s. 36(1), a permanent resident becomes inadmissible for serious criminality after a conviction in Canada of a federal offence punishable by a maximum term of imprisonment of at least ten years, or after any federal conviction where the court imposed more than six months of imprisonment. Nothing lighter reaches a PR.

Foreign nationals, and that includes students, workers, visitors and anyone else in Canada without permanent resident status, face the same serious criminality rule plus a second, much lower bar. Under s. 36(2), a single conviction for an offence punishable by way of indictment is enough. So are two summary conviction offences that did not arise out of a single occurrence. And s. 36(3)(a) adds a deeming rule with teeth: a hybrid offence is treated as indictable for these purposes even if the Crown prosecuted it summarily.

Your status	What a conviction can do to it
Canadian citizen	No removal for criminality. The analysis ends here.
Permanent resident	Inadmissible only for serious criminality under s. 36(1): an offence carrying a ten year maximum, or a sentence of more than six months of imprisonment.
Foreign national (student, worker, visitor)	Everything above, plus the lower s. 36(2) bar: one indictable conviction, or two summary convictions from separate occurrences. Hybrid charges are deemed indictable even when prosecuted summarily.

That table is why the same guilty plea can be a manageable setback for one person in a courtroom at 10 Armoury St and a life-altering event for the person seated beside them. A defence file for a non-citizen has to say, on page one, which row the client sits in. Ours do.

Moment 1: the charge lands

The first tripwire has nothing to do with the sentence a court might eventually impose. The serious criminality definition asks whether the offence itself is punishable by a maximum term of imprisonment of at least ten years. That is a property of the charge, fixed by the Criminal Code, and it attaches before anyone has said a word about outcome.

The Supreme Court settled the timing question in Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50. The phrase punishable by a maximum term of imprisonment of at least 10 years refers to the maximum available at the time the offence was committed. If Parliament later raises an offence maximum, the increase does not reach back to change the position of someone whose conduct predates it.

Here is the uncomfortable arithmetic. Many common Criminal Code offences carry maximums of ten years or more, so many ordinary Toronto prosecutions put a permanent resident on the serious criminality track from day one, whatever sentence is realistically in play. The eventual sentence decides something different, and we get to it below, but inadmissibility itself can be settled by the offence on the page.

So the first defence task on a non-citizen file is an exposure audit, done before anyone talks resolution: confirm the client's exact status, list every count with its maximum penalty as of the offence date, and mark which counts sit over the ten year line. That audit shapes election strategy, resolution posture and the sentencing position, and it belongs in writing at the start of the file. When it happens late, options have usually already been spent.

Moment 2: the Crown elects, and resolution talks begin

Most Criminal Code offences prosecuted in Toronto are hybrid, meaning the Crown chooses whether to proceed summarily or by indictment. Inside the criminal case that election matters enormously. It shapes the sentence range, the procedure and the realistic outcomes.

For immigration purposes it does less than people hope, and in one place it does nothing at all. Under s. 36(3)(a) of IRPA, a hybrid offence is deemed to be an indictable offence even if it has been prosecuted summarily. For a foreign national exposed to the lower s. 36(2) bar, a summary election therefore does not remove the danger. The conviction still counts as indictable when inadmissibility is assessed. Visitors, students and workers are caught by this constantly, and often learn it only at a border.

What resolution discussions can genuinely change is the offence and the sentence that end up on the record. A file that resolves to a different charge carrying a lower maximum, or that resolves with a sentence structure on the safe side of the lines described below, is a different file when an immigration officer later reads it. None of that is guaranteed, and no honest lawyer promises a particular resolution. It is advocacy: knowing which facts matter, which alternatives fit the conduct, and what the Crown needs to see before it will move.

Timing matters here too. Resolution positions harden as a case ages. The exposure audit from moment one has to be in counsel's hands for the first Crown pre-trial, not discovered months later at a judicial pre-trial.

Moment 3: the plea

A guilty plea is the single most consequential act in most criminal cases, and for a non-citizen it carries freight the courtroom conversation rarely surfaces on its own. The Supreme Court addressed this directly in R. v. Wong, 2018 SCC 25.

The second half of the holding is a warning. To withdraw a plea because you were unaware of a legally relevant consequence, you must establish subjective prejudice: sworn evidence showing a reasonable possibility that, properly informed, you would either have gone to trial and pleaded not guilty, or would have pleaded guilty on different conditions. The majority dismissed Mr. Wong's own appeal. Plea withdrawal is a narrow repair, not an undo button, and courts examine those affidavits closely.

The practical rule that falls out of Wong is simple: the immigration analysis has to be on the table before anyone pleads. For non-citizen clients we put the consequence advice in writing at the plea decision, including where the proposed sentence sits against both six month lines, and that letter stays in the file. If the analysis changes the plan, far better to learn that before the plea than to litigate prejudice after it.

Moment 4: the sentencing hearing

Sentencing is where the criminal courtroom and the immigration statute meet most directly. Two Supreme Court decisions belong in the room with defence counsel.

The first is R. v. Pham, 2013 SCC 15. A sentencing judge may take collateral immigration consequences into account, provided the sentence that results stays proportionate to the gravity of the offence and the degree of responsibility of the offender. Those consequences cannot be allowed to skew the process in either direction: no inflated sentence to invite removal, and no artificially discounted one to dodge it. In Pham itself the Court varied a sentence of two years to two years less a day. Treat that number as history rather than a target. The case predates the current six month threshold in s. 64, so the principle survives while the arithmetic underneath it has changed.

The second is Tran again, this time on what counts as a term of imprisonment. Conditional sentences are not captured in the meaning of the phrase term of imprisonment in s. 36(1)(a). A twelve month conditional sentence order, served in the community, did not make Mr. Tran inadmissible under the sentence branch. For a permanent resident whose offence sits under the ten year maximum line, the difference between a short jail term and a conditional sentence can be the difference between an immigration file opening and nothing happening at all.

So what does defence counsel actually ask the sentencing court for? A lawful, proportionate sentence, structured with the thresholds in view where the range fairly allows it: length measured against the six month lines, and form weighed with Tran in mind. Sometimes the range simply does not allow it, and honest counsel says so out loud. But where two sentences are both fit and only one of them ends a client's life in Canada, Pham says the court may consider that, and our job is to make sure it does.

The two six month lines

Two different six month rules cross in this area of law, they run in opposite directions, and mixing them up is the most common error we hear in first consultations. Set them side by side.

The line	Where it lives	What crossing it costs
More than six months of imprisonment imposed	s. 36(1)(a) of IRPA	Serious criminality on the sentence branch, whatever maximum the offence carried.
At least six months of imprisonment imposed	s. 64(2) of IRPA	A permanent resident found inadmissible for serious criminality loses the appeal to the Immigration Appeal Division, the tribunal that can weigh equities like family, employment and rehabilitation against removal.

Read the rows together and the asymmetry appears. The sentence branch of serious criminality needs more than six months. The appeal bar needs only at least six months. A sentence of exactly six months does not trigger the sentence branch on its own, but for a permanent resident who is already inadmissible through the ten year maximum branch, exactly six months still takes the IAD appeal away. Six months less a day preserves it. One day.

Now recall the earlier point: because so many Criminal Code offences carry maximums of ten years or more, the ten year branch alone often settles inadmissibility before sentencing even starts. In those files the fight at the sentencing hearing is not about preventing inadmissibility at all. It is about whether the client keeps the one tribunal where a removal order can be measured against a whole Canadian life. That is what a single day on a sentence can be worth, and it is why this section is the one we ask non-citizen clients to read twice.

Moment 5: after the sentence, the s. 44 pipeline

Nothing about removal happens automatically on sentencing day. What follows is a pipeline with human decisions at each stage, set out in s. 44 of IRPA.

First, an officer who believes a permanent resident or foreign national in Canada is inadmissible may prepare a report setting out the relevant facts, and that report is transmitted to the Minister. Second, if the Minister is of the opinion the report is well founded, the Minister may refer it to the Immigration Division for an admissibility hearing. In prescribed circumstances involving foreign nationals, the Minister may make a removal order directly instead. Conditions can be imposed along the way, with or without a deposit or guarantee.

Notice the word at both stages: may. Preparing a report is discretionary. Referring it is discretionary. That discretion is where the shape of the criminal file, and written submissions about the person behind it, can matter. The record built during the criminal case, the sentencing materials, the treatment and rehabilitation evidence, the employment letters, all of it gets read again later by different eyes. We assemble it knowing that.

If the Immigration Division finds a permanent resident inadmissible for serious criminality and makes a removal order, the appeal to the IAD survives only on the right side of the s. 64(2) line above. And here we stay deliberately inside our lane: this firm defends the criminal case and shapes what the pipeline later ingests. Proceedings inside the immigration system itself call for immigration counsel, and we work alongside them rather than pretending to replace them.

The repair tools already on this site

Three other pages on this site cover tools that can change a non-citizen's position after a conviction, and each connects straight back to this page's timeline.

A criminal appeal changes the inputs. A successful conviction appeal removes the conviction. A successful sentence appeal can restructure a sentence with Pham squarely in play, including where the trial sentence landed on the wrong side of a threshold the judge never heard about. Appeal deadlines in Ontario generally run 30 days from the day sentence is imposed, so for a non-citizen the appellate assessment happens immediately, not once an immigration file surfaces. Our Toronto appeals page maps both appeal routes, building by building.

A record suspension takes the conviction off the table. Under s. 36(3)(b) of IRPA, inadmissibility may not be based on a conviction for which a record suspension has been ordered and has not been revoked or ceased to have effect. The waiting periods make this a long game, so it pairs with careful handling of the criminal file rather than replacing it. Our Toronto record suspension page explains what one actually changes, what survives it, and how it can be lost.

Youth sentences are excluded. Under s. 36(3)(e)(iii), a sentence imposed under the Youth Criminal Justice Act cannot ground criminal inadmissibility. Families navigating a young person's charges with status in the background should read our Toronto youth criminal defence page, because protecting that exclusion is one more reason youth files get handled differently.

For the province-wide legal framework, including how removal orders are classified across Ontario, our Ontario deportation risk page is the umbrella resource. This page owns the Toronto courtroom sequence; that one owns the statute-level map.

The five moments at a glance

Here is the whole page in one table, the way we sketch it on a legal pad in the first meeting.

Moment	The decision being made	The law in the room
1. The charge lands	Which counts sit over the ten year maximum line, measured at the offence date	s. 36(1)(a); Tran on timing
2. The Crown elects	Which offence and sentence range the file is heading toward, knowing hybrids stay indictable for immigration purposes	s. 36(3)(a); s. 36(2) for foreign nationals
3. The plea	Whether the plea is informed, with immigration consequences understood and in writing	Wong
4. The sentence	Length measured against both six month lines, and form weighed knowing a conditional sentence is not a term of imprisonment under s. 36(1)(a)	Pham; Tran; s. 64(2)
5. After sentence	Whether a report is prepared and referred, and whether the IAD appeal survived the sentence	s. 44; s. 64(2)

Nothing in that table is exotic law. Each row is a routine courtroom event that happens in Toronto every day. The difference on a non-citizen file is that each one doubles as an immigration decision, and the person making it is usually a criminal lawyer. So the criminal lawyer had better be watching both statutes.

The first meeting: what we ask, and what to bring

When a non-citizen calls this office about a Toronto charge, the first conversation runs longer than a standard intake, because the audit starts right there. Expect questions in four areas.

• Status, precisely. Permanent resident, student, worker, visitor, or something in between, with dates. Bring the PR card or permit if you have it. The difference between s. 36(1) exposure and s. 36(2) exposure starts here.
• The charges, on paper. The charging documents and any disclosure you have received. We need the exact counts to check maximums as of the offence date, not a description from memory.
• Your record, all of it. Prior findings, discharges, youth matters, anything from another country. Some of it counts, some of it does not, and guessing wrong in either direction is expensive.
• Timelines that are running. A pending application, an expiring permit, planned travel. We do not give immigration advice on those, but they shape urgency and they go straight into the brief for immigration counsel when a referral is needed.

What you get back the same week: the exposure audit in writing, the court dates and any appeal window calendared, an honest read on where the six month lines sit for your realistic sentence range, and a clear statement of whether the file needs immigration counsel now or later.

What you will not get from us: a guarantee. Anyone promising a non-citizen a particular immigration outcome from inside a criminal case is selling something. What competent defence work delivers is a file shaped, at every one of the five moments, by someone who knew what was at stake.

What we do, and what an immigration lawyer does

This is a criminal defence page, written from the defence chair, and the division of labour deserves to be stated plainly rather than blurred.

What we do: defend the charge itself, run the exposure audit at moment one, negotiate resolutions with the thresholds in view, give written plea advice that covers immigration consequences, and put Pham and Tran to work at sentencing. Where a conviction has already landed, we assess appeals and record suspension eligibility. Every one of those levers lives inside the criminal courts at 10 Armoury St and 361 University Ave, which is where we spend our days.

What we do not do: represent people before the Immigration Division or the Immigration Appeal Division, promise that a report will never be written, or predict what an officer will decide. Those proceedings have their own bar and their own craft. When a file needs immigration counsel, we say so early, we brief them properly, and the two files move in step instead of surprising each other.

If you take one thing from this page, take the order of operations: the criminal file comes first in time, and most of the immigration outcome is baked by the time it closes. Get the defence lawyer choosing with both statutes open.

Why Kazandji Law for a non-citizen facing Toronto charges

Kazandji Law is a criminal defence firm built around senior counsel handling files personally. For clients with immigration exposure that matters twice over: the courtroom decisions described above are not delegable, and neither is the judgment about when to bring immigration counsel in.

• Toronto head office, 180 John St, Unit 320, minutes from the Ontario Court of Justice at 10 Armoury St and the Superior Court at 361 University Ave, the two buildings where these five moments play out.
• Thornhill office, 7191 Yonge St, Suite 310, serving Markham and York Region files heading to the Newmarket courthouse.
• North York and Oakville offices for clients across the GTA.
• Free, confidential consultations, in person or by phone, in plain language.

We have defended permanent residents and foreign nationals through exactly the sequence this page describes: the audit, the election, the plea decision, the sentencing hearing built around a threshold, and the quiet months afterward. See our recent results for how these files actually end.

This page is general legal information for people facing criminal charges in Toronto, not legal advice about your situation and not immigration advice. Outcomes turn on the statute text in force, your status and your history. Speak with a criminal defence lawyer before making decisions, and where removal proceedings have begun, retain immigration counsel as well. Kazandji Law, 180 John St, Unit 320, Toronto, ON. 647-588-3234.