Immigration & U.S.-Border Consequences of a Criminal Charge in Alberta

If you are not a Canadian citizen, a criminal charge in Alberta carries consequences that reach beyond the courtroom. A conviction — and sometimes the sentence attached to it — can affect your right to stay in Canada and your ability to enter the United States. These consequences arise under separate laws, and they are decided by people other than the judge hearing your criminal case. They are easy to overlook while a charge is being dealt with, and some of them are settled by the time the charge is resolved.

This page explains how a Canadian criminal charge can affect immigration status under the Immigration and Refugee Protection Act (IRPA), how it can affect entry to the United States under U.S. immigration law, and how those consequences can bear on decisions made in a criminal case. It is written for permanent residents, foreign nationals, and the people advising them.

The information here is general. It is not legal advice, and it is not advice on immigration law or on United States law. It is meant to help you understand what is at stake, and why it is worth raising your status with your criminal lawyer early.

If You Are Not a Canadian Citizen, Tell Your Lawyer Before You Resolve the Charge

The single most important practical step is to tell your lawyer about your immigration status at the start. The immigration consequences of a charge turn on details that are decided in the criminal case: which offence you are convicted of, whether the Crown proceeds by indictment or summarily, and the length of any sentence. By the time a plea is entered or a sentence is agreed, some of those consequences are already set.

A criminal court does not decide whether you stay in Canada or whether the United States lets you in. What happens in the criminal case — a plea, a finding of guilt, a particular sentence — can trigger those outcomes elsewhere, under immigration law and at the border. When your lawyer knows your status from the beginning, the defence can be approached with those consequences in view rather than after the fact.

Tell your lawyer if you are a permanent resident, a foreign national, a person here on a work or study permit, a visitor, a refugee claimant or protected person, or anyone who is not a Canadian citizen. And tell them early.

Who Can Be Removed: Permanent Residents and Foreign Nationals

Inadmissibility for criminality under the IRPA reaches permanent residents and foreign nationals. A foreign national includes a person on a work or study permit, a visitor, and a refugee claimant. Canadian citizens cannot be made inadmissible or removed because of a crime — section 45 of the IRPA expressly preserves a citizen's right to enter Canada, and the same protection applies to a person registered as an Indian under the Indian Act.

Removal is not part of a criminal sentence. It is a separate consequence, under a separate statute, administered by immigration authorities rather than by the criminal court. The criminal case can trigger it, but the criminal judge does not impose it.

Some things do not, on their own, found inadmissibility for criminality. Under section 36(3) of the IRPA, inadmissibility cannot be based on:

• a conviction for which a record suspension (formerly a pardon) has been ordered and remains in effect under the Criminal Records Act, or an offence that ended in an acquittal;
• a finding of guilt under the former Young Offenders Act, or a youth sentence under the Youth Criminal Justice Act; or
• an offence treated as a contravention under the Contraventions Act.

Serious Criminality Under IRPA Section 36

For permanent residents, the provision that matters most is "serious criminality" under section 36(1)(a) of the IRPA. It is triggered in either of two ways:

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

The two limbs work differently, and the difference matters. The first limb — the ten-year limb — turns on the maximum penalty available for the offence, not on the sentence you actually receive. It is sentence-independent: a permanent resident can be inadmissible under this limb even with a light sentence, or no jail at all, as long as the offence carries a maximum of ten years or more. The second limb — the six-month limb — turns on the sentence actually imposed: a term of imprisonment of more than six months.

Foreign nationals who are not permanent residents face a second, lower threshold called "criminality" under section 36(2). For a foreign national, a single indictable conviction, or two separate offences not arising out of one occurrence, can be enough to found inadmissibility.

What counts as a "term of imprisonment" under the IRPA is not identical to its meaning in the Criminal Code. In R v Tran, 2017 SCC 50, the Supreme Court of Canada held that a conditional sentence order — a sentence served in the community — is not a "term of imprisonment" for the purpose of section 36(1)(a). Pre-sentence custody that is credited on the record does count toward the length of the sentence, and the threshold is measured on a per-charge basis rather than on the total of a combined sentence. These distinctions can change the immigration result, and they are part of why the way a sentence is structured matters.

Why a Summary Election May Not Help: Section 36(3)

Many offences are "hybrid," meaning the Crown can choose to proceed by indictment or summarily. It is natural to assume that a summary election lowers the immigration stakes. For the ten-year limb of serious criminality, it does not.

…an offence that may be prosecuted either summarily or by way of indictment is deemed to be an indictable offence, even if it has been prosecuted summarily.

For immigration purposes, then, a hybrid offence is treated as indictable regardless of how the Crown proceeds, and the question becomes the maximum penalty available — which for many hybrid offences is ten years or more. R v Gebremariam, 2024 ABCJ 131, is a recent Alberta example: the Crown proceeded summarily on a sexual assault charge, but because the offence is hybrid with a ten-year maximum on indictment, section 36(3) deemed it indictable for immigration purposes.

The Six-Month Line: Losing the Right to Appeal Removal

There is a second six-month threshold, separate from the one in section 36, and the two are easily confused. This one concerns the right to appeal a removal order to the Immigration Appeal Division.

…serious criminality must be with respect to a crime that was punished in Canada by a term of imprisonment of at least six months…

Under section 64 of the IRPA, a permanent resident who is found inadmissible for serious criminality and was sentenced to at least six months loses the right to appeal the removal order to the Immigration Appeal Division. When the Supreme Court decided R v Pham, 2013 SCC 15, in 2013, this rule was set at two years. The Faster Removal of Foreign Criminals Act (S.C. 2013, c. 16) lowered it to six months, where it remains.

The two six-month figures are different tests, and the distinction is worth being precise about. Inadmissibility under section 36(1)(a) turns on a sentence of more than six months. Loss of the appeal under section 64 turns on a sentence of at least six months. A sentence of "six months less a day" can preserve the appeal right under section 64 — but it does not, by itself, cure inadmissibility under the ten-year limb of section 36(1)(a), which does not depend on the sentence at all.

How Immigration Consequences Affect Sentencing

A sentencing judge can take immigration consequences into account, within limits. The governing authority is the Supreme Court of Canada's decision in Pham. It holds that collateral immigration consequences are a relevant personal circumstance of the offender. They are not, strictly speaking, aggravating or mitigating factors; their relevance flows from the principles of individualization and parity and from the goal of rehabilitation. A judge may take them into account, provided the sentence remains proportionate to the gravity of the offence and the offender's degree of responsibility under section 718.1 of the Criminal Code.

Pham also sets the boundaries. The flexibility of sentencing must not be used to impose artificial sentences that avoid a consequence and so circumvent Parliament's will, and immigration consequences must not skew the process for or against deportation, or create a separate sentencing scheme. The further a sentence is adjusted from the otherwise-appropriate range, the less likely it is to remain proportionate; and a judge may conclude that even a one-day reduction would make the sentence inappropriate.

Alberta courts apply Pham in a settled, two-step way. The principles that have emerged are these:

• The judge first fixes a fit and appropriate sentence without regard to immigration consequences, and then considers their impact, if any (R v Lopez-Orellana, 2018 ABCA 35; R v Sandhu, 2022 ABQB 332).
• Possible deportation can be considered, but it does not override proportionality. A small adjustment to a fit sentence to avoid an immigration consequence is permitted; an entirely different kind of sentence is not (R v Bandesha, 2013 ABCA 255; R v Mbachu, 2016 ABCA 270).
• Immigration consequences are not, on their own, enough to justify a discharge. A discharge must independently fall within the range of a proportionate sentence (Bandesha; R v Gittens, 2019 ABCA 406; R v Al-Mashwali, 2015 ABPC 240).
• A removal order — even one with no right of appeal — does not mean the person will be deported. It means there is a risk, and it is an error to treat deportation as a certainty (R v Faulkner, 2019 ABCA 352; Al-Mashwali).

The "less a day" approach in Pham concerned the two-year line; the same reasoning now operates at the six-month line. In R v Belakziz, 2018 ABCA 370, the Alberta Court of Appeal restored a joint submission of "six months less one day," holding that the Crown and defence were entitled to factor in the serious immigration consequence that would follow a sentence of six months or more, and that doing so did not bring the administration of justice into disrepute under the joint-submission framework in R v Anthony-Cook, 2016 SCC 43.

Gebremariam shows the other side. There, a conditional discharge was sought to avoid immigration consequences, but it was refused as contrary to the public interest. With no evidence filed on how likely deportation actually was, the court treated removal as a risk rather than a certainty. Immigration exposure is a real consideration at sentencing, but it does not, by itself, dictate the outcome.

How Removal Proceedings Work

A finding that someone is inadmissible does not automatically produce a removal. The IRPA sets out a sequence, and there is discretion at the front of it. An immigration officer who is of the opinion that a permanent resident or foreign national is inadmissible may prepare a report (section 44(1)). If the Minister considers the report well-founded, the Minister may refer it to the Immigration Division for an admissibility hearing (section 44(2)). At the conclusion of that hearing, the Immigration Division shall make a removal order if it is satisfied that the person is inadmissible (section 45(d)).

Note the discretionary "may" at the report and referral stages, and the mandatory "shall" once the Immigration Division is satisfied of inadmissibility. A finding of inadmissibility is serious, but it is not the same thing as a removal order, and a removal order is not the same thing as an actual removal.

Discharges, Peace Bonds, and Your Record

Two outcomes that are not convictions are often important for non-citizens: discharges and peace bonds.

Under section 730 of the Criminal Code, a court can grant an absolute or conditional discharge. It is a finding of guilt, but the person is "deemed not to have been convicted." Because section 36 of the IRPA is built around a conviction, a discharge generally falls outside serious-criminality inadmissibility. A court will only grant one where it is in the best interests of the accused and not contrary to the public interest (R v MacFarlane, 1976 ALTASCAD 6).

Two cautions apply, even to a discharge:

• A discharge is not invisible. A record of it is kept on the Canadian Police Information Centre (CPIC) for a period — about one year for an absolute discharge and about three years for a conditional discharge under the Criminal Records Act — and a record that has been removed in Canada is not necessarily erased from systems in other countries that may already have recorded it.
• For United States purposes, a discharge may not help at all. As explained below, U.S. law can treat a person as inadmissible on an admission of the conduct that makes up an offence, not only on a conviction — so a Canadian discharge can still found U.S. inadmissibility through that route.

A peace bond under section 810 of the Criminal Code is a promise to keep the peace and be of good behaviour. It is not a conviction and involves no finding of guilt, so it is not a trigger under section 36. It is, however, a court order — the Government of Canada describes a section 810 peace bond as a protection order made by a court — and it may have to be disclosed on United States applications that ask about protection or restraining orders, and may bear on a decision at the border.

Travelling to the United States After a Charge

A Canadian criminal record can affect entry to the United States under U.S. immigration law. That law is separate from Canadian immigration law and is administered by U.S. authorities. The main criminal grounds of inadmissibility are crimes "involving moral turpitude" and offences related to controlled substances. U.S. law can treat a person as inadmissible on a conviction or on an admission of the essential elements of the offence.

There are narrow exceptions for some minor crimes involving moral turpitude — a "petty offence" exception and a youthful-offender exception — but these do not apply to controlled-substance grounds. Controlled substances are treated more strictly: there is no petty-offence exception, an admission alone can be enough, and cannabis remains a controlled substance under U.S. federal law regardless of its legal status in Canada.

This is general information about how U.S. law works, not advice about any particular situation. For advice about your own record, or about a waiver application, you should consult a United States immigration lawyer.

Telling the Truth at the Border

Misrepresentation is itself a ground of inadmissibility to the United States. A false statement, or the concealment of a material fact, made to a U.S. officer to gain entry or a benefit can be a serious and long-lasting bar — in some cases harder to overcome than the underlying criminal inadmissibility — and the relief available for it is narrow.

The practical point is straightforward: honesty matters, and it is worth getting advice about your record before you travel rather than improvising at the border. Neither this page nor our firm advises anyone on what to say in a particular encounter with a border officer; the right course depends on your own circumstances and, for U.S. questions, on U.S. legal advice.

The U.S. Entry Waiver (Form I-192)

A person who is inadmissible to the United States can apply for advance permission to enter temporarily — a discretionary waiver applied for on Form I-192. Because Canadians are generally visa-exempt, the usual route is an I-192 application made to U.S. Customs and Border Protection.

A complete application generally includes:

• a current RCMP criminal record based on fingerprints;
• the court record for each offence;
• a personal statement; and
• evidence of rehabilitation.

It is filed in person at a designated port of entry or online, and processing takes several months. If the waiver is granted, it is for a limited period and can be renewed; it can also be revoked. An I-192 application is a matter of U.S. law, and a United States immigration lawyer should prepare it or advise on it.

At the Border: Officer Discretion and Record Access

The Canadian Charter of Rights and Freedoms applies at the border, but the reasonable expectation of privacy there is reduced, and border officers have broad authority and wide discretion. The Supreme Court of Canada recognized this in R v Simmons. That is not the same as saying the border is a zone without rights — it is not.

Searches of phones and laptops have changed. The old rule that allowed a Canadian border officer to examine a personal device with no threshold at all has been struck down: the Alberta Court of Appeal held the relevant provision of the Customs Act unconstitutional for device searches in R v Canfield, 2020 ABCA 383, and the Ontario Court of Appeal reached the same conclusion in R v Pike, 2024 ONCA 608. A threshold is now required. Parliament proposed a new standard, but that bill was not enacted; in practice the Canada Border Services Agency examines devices on a suspicion-based threshold and for border-enforcement purposes, setting privileged material aside. This is an evolving area, and the position described here is current as of June 2026.

United States authorities apply their own rules. U.S. Customs and Border Protection distinguishes a "basic" device search, which an officer may conduct without suspicion, from an "advanced" search using external equipment, which requires reasonable suspicion or a national-security concern and supervisory approval. Officers examine information stored on the device itself, not data held remotely.

Border officers can also see criminal-history information. A Canadian officer can access records at secondary inspection, and U.S. authorities can access certain Canadian police information under information-sharing arrangements. A record that has been sealed or removed in Canada is not necessarily gone from a system that has already recorded it. Outcomes vary, and officer discretion is significant.

Where We Appear

We act for permanent residents and foreign nationals facing criminal charges in Alberta, in the Alberta Court of Justice, the Court of King's Bench of Alberta, and the Court of Appeal of Alberta. From our Calgary office we travel to court in Airdrie, Cochrane, Canmore, Okotoks, Diamond Valley, Strathmore, Drumheller, Hanna, Brooks, Medicine Hat, Lethbridge, Fort Macleod, Taber, Pincher Creek, and Cardston, and we appear in matters arising on the Tsuut'ina, Siksika, and Kainai (Blood Tribe) Nations.

We defend the criminal charge with these consequences in mind. Representation before the Immigration Division or the Immigration Appeal Division, and applications under United States law, are separate matters handled by immigration counsel.

Get Advice Before You Resolve a Charge

If you are not a Canadian citizen and you are facing a criminal charge in Alberta, the decisions made in your criminal case can affect your status and your ability to travel. The earlier you raise your situation, the more fully it can be taken into account. We are glad to talk it through with you.

Initial consultation at no charge. Scope is limited to an initial assessment of your matter and is subject to a conflict check. GST does not apply to a no-charge consultation.

📞 Call us today at 587-583-2808 for a strictly confidential consultation.