Not a Canadian citizen and about to plead or be sentenced: why an immigration opinion letter matters

By Sundeep S. Grewal, lawyer at Lawgical Law Corporation · Reviewed November 11, 2026

Published November 11, 2026

Sundeep S. Grewal is a lawyer at Lawgical Law Corporation, called to the BC bar in 2018, and a member of the Law Society of British Columbia.

Updated November 11, 2026: sections 36 and 64 of the Act, sections 730 and 810 of the Criminal Code and the Supreme Court of Canada’s decisions in Pham (2013) and Tran (2017) checked that day.

If you are not a Canadian citizen, the outcome of a criminal case can follow you into immigration law. The Supreme Court of Canada has said that “A sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, provided that the sentence ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender” (R. v. Pham, 2013 SCC 15). That only helps if the judge knows the consequences. An immigration opinion letter sets them out: your status, what a conviction, discharge or particular sentence would mean, and which outcomes keep your appeal rights. It gives your criminal lawyer and the court the facts they need.

Lawgical Law Corporation, an immigration law firm in Surrey, Abbotsford and Vancouver, BC, writes immigration opinion letters for accused persons and their criminal lawyers; this guide is by Sundeep S. Grewal.

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Which outcomes matter most?

• Conviction or discharge: an absolute or conditional discharge means the offender “shall be deemed not to have been convicted of the offence” (Criminal Code s.730(3)). Withdrawn charges, stays and acquittals are not convictions either.
• Peace bond: a peace bond under section 810 of the Criminal Code is an order to enter into a recognizance “to keep the peace and be of good behaviour”. It is not a finding of guilt, so it is not a conviction.
• Serious criminality for permanent residents: a conviction for an offence with a maximum of at least 10 years, or one where more than six months’ imprisonment is imposed (IRPA s.36(1)(a)).
• The appeal line: there is no appeal to the Immigration Appeal Division for a crime “punished in Canada by a term of imprisonment of at least six months” (IRPA s.64(2)).
• Conditional sentences: in Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, the Supreme Court held that a conditional sentence served in the community is not a “term of imprisonment” under section 36(1)(a).
• Temporary residents and visitors: a single conviction for an offence that can be prosecuted by indictment is enough for criminality (IRPA s.36(2)(a)), and an offence that may be prosecuted either way is treated as indictable “even if it has been prosecuted summarily” (s.36(3)(a)).

Why this needs a lawyer

One lawyer, one file, every step:

• confirming your exact immigration status and history;
• a written opinion on each realistic plea and sentence;
• working with your criminal lawyer before negotiations and sentencing;
• the immigration process afterwards: a section 44 report, an appeal or a humanitarian application.

Immigration lawyers are members of a provincial law society (in our case, the Law Society of British Columbia), and only lawyers can appear for you in the Federal Court.

What has the Supreme Court said?

One day that mattered: sentence reduced. In R. v. Pham, 2013 SCC 15, a non-citizen received a two-year sentence on a joint submission. Neither lawyer had told the judge that, under the law at the time, a sentence of two years cost him his appeal against removal. The Crown agreed two years less a day was still a fit sentence, and on March 14, 2013 the Court gave its reasons for reducing it by one day. It also said immigration consequences “must not be allowed to skew the process either in favour of or against deportation,” and that a sentence cannot go outside the fit range to avoid them. Since 2013, the appeal line in section 64(2) has been six months, not two years.

The lesson I take from this case is that the immigration consequences have to be in front of the judge before sentencing. The best time to raise them is before the plea, when the options are widest.

What are my options?

1. Tell your criminal lawyer your status at the first meeting, including any pending immigration application.
2. Get a written immigration opinion on each realistic outcome before any plea or joint submission.
3. Ask your criminal lawyer to raise the immigration consequences at sentencing, within the range of fit sentences.
4. If you have already been sentenced without this being raised, ask a criminal lawyer whether a sentence appeal is possible, and get immigration advice on what comes next.

Criminal outcomes and immigration at a glance

Worked example: the joint submission

Example. A permanent resident in Surrey is charged with assault with a weapon, an offence with a maximum of 10 years (Criminal Code s.267), so a conviction would be serious criminality whatever the sentence. The Crown proposes a joint submission of six months in jail. On Wednesday, December 2, 2026, before he agrees, his criminal lawyer gets an immigration opinion: a jail term of six months or more would also remove his appeal to the Immigration Appeal Division, while a shorter sentence would keep it. The lawyer uses the opinion to negotiate, and to put the consequences before the judge at sentencing.

Mistakes I have seen

• I have seen people agree to a joint submission without anyone checking the immigration effect.
• I have seen permanent residents assume they could not be removed because they have lived here for years.
• I have seen people take a quick plea to get out of custody and lose their appeal rights.

Frequently asked questions

Who asks for the opinion, me or my criminal lawyer?

Either. Usually the criminal lawyer asks, and we write to them so the opinion can be used in negotiations and at sentencing.

Will the judge reduce my sentence because of immigration?

Not automatically. The judge may take it into account, but the sentence must still be fit for the offence and the offender.

I’m a refugee claimant. Does this apply to me?

Yes. A claim is ineligible if the claimant has been found inadmissible for serious criminality (IRPA s. 101(1)(f)). For a conviction in Canada, that means an offence under a federal Act with a maximum of at least 10 years (s. 101(2)(a)). A sentence of more than six months is serious criminality for other purposes (s. 36(1)(a)), but it does not on its own make a refugee claim ineligible. If your claim is already before the Refugee Protection Division, an officer’s notice that it is ineligible ends those proceedings (s. 104(1)(b) and (2)(a)). Get advice before you plead.

I’m already a protected person. Can a conviction take that away?

A conviction is not one of the grounds for ending refugee protection (IRPA s. 108). But the protection against removal in section 115(1) does not apply to someone who is inadmissible for serious criminality and who, in the Minister’s opinion, is a danger to the public in Canada (s. 115(2)(a)). Get advice before you plead.

Related guides

See our guides on a pending criminal charge and your immigration application, an impaired driving charge on a work or study permit and a CBSA section 44 report.

What should I do right now?

Tell your criminal lawyer your immigration status today. Don’t agree to a plea or joint submission until you have an immigration opinion. Keep copies of all your immigration documents for the lawyer.

Book a consultation with our immigration lawyers in Surrey, Abbotsford or Vancouver, or online from anywhere.

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Sources (official)

• Immigration and Refugee Protection Act, s. 36, s. 64, s. 101, s. 104, s. 108 and s. 115 (current to October 19, 2026)
• Criminal Code, s. 730 and s. 810
• R. v. Pham, 2013 SCC 15 (reasons March 14, 2013)
• Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50

This article is general information, not legal advice. Every case depends on its own facts.