Immigration Issues at Sentencing (18:XIII)

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This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on August 5, 2024.

In June 2013, changes to the IRPA came into force that severely altered the permanent residence consequences of a term of imprisonment of 6 months or more, including credit for time served. Such permanent residents will be issued a deportation order with no appeal of the deportation order to the IAD. Previously, the period of imprisonment required to result in a consequence of no appeal to the IAD of a removal was 2 years. This change is retroactive, and any permanent resident who had not already been referred to the IAD for an appeal of the removal order will not have that option even if the sentence was imposed before the law changed.

  • If a permanent resident has been convicted of an offence in Canada for which a maximum term of imprisonment of more than 10 years could be imposed, they become inadmissible to Canada and will be issued a deportation order. A permanent resident has the right to appeal a deportation order to the IAD under s 63(3) of the IRPA. As noted above, this right of appeal is lost if the permanent resident actually receives a sentence of 6 months or more, and the calculation of 6 months includes pre-trial custody, so an individual who receives a 2-month sentence in addition to double credit for 2 months pre-trial custody, has received a 6-month sentence. A conditional sentence of imprisonment imposed pursuant to the regime set out in ss 742 to 742.7 of the Criminal Code " is not a term of imprisonment" under s 36(1)(a) of the IRPA. The phrase “maximum term of imprisonment” in paragraph A36(1)(a) refers to the maximum term of imprisonment available at the time of the commission of the offence and not the term of imprisonment available at the time of sentencing or the time admissibility is assessed



NOTE: The accused should actively raise these immigration considerations with criminal defence counsel at the earliest opportunity, and make sure that counsel is engaging these issues whenever the accused is in custody, or faces a possible custodial sentence.


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