Section 36 — Serious criminality and criminality
Text of provision
(1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for
(a) 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;
(b) having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; or
(c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years.
(2) A foreign national is inadmissible on grounds of criminality for
(a) having been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment, or of two offences under any Act of Parliament not arising out of a single occurrence;
(b) having been convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, or of two offences not arising out of a single occurrence that, if committed in Canada, would constitute offences under an Act of Parliament; or
(c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an indictable offence under an Act of Parliament.
(d) [Repealed, 2023, c. 32, s. 53]
(2.1) A foreign national is inadmissible on grounds of transborder criminality for committing, on entering Canada, a prescribed offence under an Act of Parliament.
(3) The following provisions govern subsections (1) to (2.1):
(a) 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;
(b) inadmissibility under subsections (1) to (2.1) may not be based on a conviction in respect of which a record suspension has been ordered and has not been revoked or ceased to have effect under the Criminal Records Act, or in respect of which there has been a final determination of an acquittal;
(c) the matters referred to in paragraphs (1)(b) and (c) and (2)(b) and (c) do not constitute inadmissibility in respect of a permanent resident or foreign national who, after the prescribed period, satisfies the Minister that they have been rehabilitated or who is a member of a prescribed class that is deemed to have been rehabilitated;
(d) a determination of whether a permanent resident has committed an act described in paragraph (1)(c) must be based on a balance of probabilities; and
(e) inadmissibility under subsections (1) to (2.1) may not be based on an offence
(i) designated as a contravention under the Contraventions Act,
(ii) for which the permanent resident or foreign national is found guilty under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, or
(iii) for which the permanent resident or foreign national received a youth sentence under the Youth Criminal Justice Act.
Plain English
Section 36 creates two levels of criminal inadmissibility:
Serious criminality (s 36(1)) applies to both permanent residents and foreign nationals. A person is inadmissible for serious criminality if they have been convicted in Canada of an offence punishable by a maximum term of imprisonment of at least 10 years, or convicted outside Canada of an offence that, if committed in Canada, would constitute such an offence.
Criminality (s 36(2)) applies to foreign nationals (not permanent residents). A foreign national is inadmissible for criminality if they have been convicted in Canada of an indictable offence, convicted outside Canada of an equivalent offence, committed an act outside Canada that is an offence in the place where it occurred, or committed two or more summary conviction offences not arising out of a single occurrence.
Practical effect
Criminal inadmissibility has significant consequences. A permanent resident found inadmissible for serious criminality may be removed from Canada. A foreign national with even a single conviction for a minor offence may be refused a visa or refused entry at the border.
Canadian equivalency is key — the Canadian equivalent of a foreign conviction determines whether inadmissibility applies. This assessment is fact-specific and considers the essential elements of the foreign offence.
Options for persons with criminal inadmissibility include: rehabilitation (deemed or applied for), a temporary resident permit, a record suspension (formerly pardon), and — in limited circumstances — an s 25 H&C exemption.