In Canada, a criminal conviction is considered final for immigration purposes the moment it is entered, even if you are actively appealing it in a criminal court. To prevent the Canada Border Services Agency (CBSA) from deporting you during your appeal, you generally must apply for an urgent Stay of Removal at the Federal Court of Canada.
Being convicted of a crime as a permanent resident or foreign national in Canada carries catastrophic consequences for your immigration status. The Immigration and Refugee Protection Act (IRPA) is exceptionally strict when it comes to criminality. If you are convicted of an indictable offence, or an offence punishable by a maximum term of at least 10 years, you can be deemed criminally inadmissible. This triggers a fast-paced enforcement process by the Canada Border Services Agency (CBSA), who will seek to remove you from the country.
A critical, and often devastating, misunderstanding among non-citizens is the belief that filing a criminal appeal automatically pauses their deportation. 📍 It does not. Canadian immigration law treats a trial court conviction as a finalized fact, regardless of whether your criminal defence lawyer has filed an appeal with a provincial Court of Appeal. The CBSA will not wait months or years for your criminal appeal to be heard. This guide explains the complex intersection of criminal appeals and immigration enforcement, and how to fight to stay in Canada while clearing your name.
Step-by-Step Process for Fighting Deportation During a Criminal Appeal
Fighting a two-front war-one in criminal court and one in immigration court-requires highly specialized legal strategies. You will likely need both a criminal defence lawyer and an immigration law firm working in tandem. Here is the general process.
Step 1: Understand the Severity of Your Conviction
First, you must determine exactly what you were convicted of. Under IRPA Section 36, “serious criminality” involves convictions for an offence punishable by a maximum of 10 years in prison, or where you actually received a sentence of more than six months. 📄 Even if the judge gave you no jail time, if the maximum possible sentence for the indictable offence is 10 years, you are inadmissible and subject to deportation.
Step 2: Receive and Respond to the Section 44 Report
Once convicted, the CBSA will draft a “Section 44 Report” outlining your inadmissibility. You will be called in for an interview. It is crucial to have legal counsel present. While the CBSA officer has very limited discretion for serious criminality, demonstrating that you have filed a bona fide criminal appeal might occasionally persuade an officer to delay writing the report, though this is rare.
Step 3: Attend the Immigration Division Hearing
If the Section 44 report is referred forward, you will attend an admissibility hearing before the Immigration and Refugee Board (IRB). 🗝 The IRB member has no power to consider your pending criminal appeal or your personal circumstances. If the conviction exists on paper, they are legally obligated to issue a Deportation Order against you right then and there.
Step 4: File for Judicial Review at the Federal Court
Because the IRB cannot help you, your immigration lawyer must elevate the fight to the Federal Court of Canada. You will file an Application for Leave and for Judicial Review, arguing that executing the deportation while a criminal appeal is pending violates your rights or administrative fairness.
Step 5: Apply for an Urgent Stay of Removal
This is the most critical step. Once CBSA gives you a flight itinerary for your deportation, your lawyer must file an urgent Motion for a Stay of Removal at the Federal Court. 📝 You must prove a three-part legal test (the Toth test): that there is a serious issue to be tried, that you will suffer irreparable harm if deported before your criminal appeal is heard, and that the balance of convenience favours letting you stay. If the Federal Court judge agrees, your deportation is legally paused until your criminal appeal concludes.
How Much Does it Cost to Fight a Deportation?
Litigating in federal and criminal courts simultaneously is incredibly expensive. Here are the typical costs associated with fighting a removal order in Canadian dollars (CAD):
- Federal Court Filing Fees: The government fee to file an Application for Leave and Judicial Review is exactly $50 CAD.
- Immigration Lawyer Retainers: Representing you at an admissibility hearing typically costs $2,000 to $4,500 CAD.
- Federal Court Litigation: Drafting and arguing an urgent Stay of Removal usually requires emergency legal work, costing between $5,000 and $10,000 CAD.
- Criminal Appeal Fees: Separate from immigration costs, hiring a criminal lawyer for a provincial Court of Appeal can easily range from $10,000 to $25,000+ CAD.
Comparing Criminal Law vs. Immigration Law
Understanding why CBSA ignores your appeal requires understanding the difference between the two systems.
| Feature | Canadian Criminal Court | Canadian Immigration (IRCC/CBSA) |
|---|---|---|
| Presumption of Innocence | Applies heavily until a final verdict is reached. | Does not apply. Administrative efficiency is prioritized. |
| Effect of an Appeal | May pause sentences (like jail time) via bail pending appeal. | Has zero automatic effect on deportation orders. |
| Standard of Proof | Guilt must be proven beyond a reasonable doubt. | Reasonable grounds to believe a conviction occurred. |
| Pardons (Record Suspensions) | Seals the record from public view. | A valid Canadian pardon cures the inadmissibility entirely. |
How Long Does the Process Take?
The timeline for immigration enforcement is ruthlessly fast compared to criminal courts. 🕑 While a criminal appeal in Ontario or British Columbia can take 12 to 24 months to be heard, the CBSA can issue a Deportation Order and schedule a flight within 3 to 6 months of your initial conviction. An urgent Stay of Removal is typically argued at the Federal Court just 48 to 72 hours before your scheduled deportation flight.
Frequently Asked Questions (FAQ)
What happens to my immigration status if I win my criminal appeal?
If the Court of Appeal overturns your conviction and enters an acquittal, the legal basis for your deportation is destroyed. Your immigration lawyer can then use the acquittal to have the Deportation Order quashed and your status fully restored.
Can I appeal my deportation to the Immigration Appeal Division (IAD)?
Permanent residents can usually appeal to the IAD based on humanitarian and compassionate grounds. However, if you were sentenced to 6 months or more in prison for your crime, you are stripped of your legal right to appeal to the IAD.
Does a summary conviction lead to deportation?
Generally, a single summary conviction does not trigger serious criminality for permanent residents. However, two or more summary convictions arising out of different occurrences can make a foreign national inadmissible.
Will IRCC renew my PR card while I am appealing my conviction?
No. If you have an active inadmissibility report or a Deportation Order against you, IRCC will pause or refuse any application to renew your Permanent Resident card or apply for Canadian citizenship.
Can I return to Canada if my criminal appeal is successful after I am deported?
Yes, but it is extremely difficult. If you are deported and later acquitted, you must apply for an Authorization to Return to Canada (ARC) and prove that the sole reason for your removal (the conviction) no longer exists.
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