Neither the IRPA or IRPR permit for inadmissibility when the charges have resulted in a discharge (conditional or absolute), stay of proceedings, or a finding of not criminally responsible. Furthermore, s.36(3)(a) of the IRPA states that even where there is a conviction, a landed immigrant is not given a deportation order if a record suspension has been ordered and has not been revoked or ceased to have effect under the Criminal Records Act, or in respect of which there has been a final determination of an acquittal. However, because s.742.1 of the Criminal Code defines a conditional sentence as a sentence of imprisonment, it has inadmissibility consequences. Additionally, in Minister of Citizenship and Immigration v Atwal, [2004] FC 7, 245
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For example, in Dufour v Canada (Citizenship and Immigration), 2012 FC 580, Dufour’s deportation order was upheld by the Federal court of appeal because the judge found that the order was based on his conviction for a breaking and entering, an offence punishable by imprisonment for a term not exceeding ten years. An excellent application of these rules by the Immigration and Refugee Board of Canada (Immigration Division) is seen in Canada (Minister of Public Safety and Emergency Preparedness) v Zhao, 2017 CarswellNat 2955. This case concerned Mr. Zhao who was convicted for theft, contrary to subsection 333.1(1) of the Criminal Code which is punishable for an imprisonment for a term not exceeding ten years. He was sentenced to a Conditional Sentence Order of 90 days, 16 days Pre-sentence Custody, and a Probation Order of 12 months. There was no evidence provided to establish that Mr. Zhao received a pardon for the offence, or that he has successfully appealed against the conviction or the sentence received. Mr. Zhao was also thought to be inadmissible for being a member of an organization that engaged in criminal activities, namely, fraud and thefts of motor vehicles. The Minister of Public
For example, in Dufour v Canada (Citizenship and Immigration), 2012 FC 580, Dufour’s deportation order was upheld by the Federal court of appeal because the judge found that the order was based on his conviction for a breaking and entering, an offence punishable by imprisonment for a term not exceeding ten years. An excellent application of these rules by the Immigration and Refugee Board of Canada (Immigration Division) is seen in Canada (Minister of Public Safety and Emergency Preparedness) v Zhao, 2017 CarswellNat 2955. This case concerned Mr. Zhao who was convicted for theft, contrary to subsection 333.1(1) of the Criminal Code which is punishable for an imprisonment for a term not exceeding ten years. He was sentenced to a Conditional Sentence Order of 90 days, 16 days Pre-sentence Custody, and a Probation Order of 12 months. There was no evidence provided to establish that Mr. Zhao received a pardon for the offence, or that he has successfully appealed against the conviction or the sentence received. Mr. Zhao was also thought to be inadmissible for being a member of an organization that engaged in criminal activities, namely, fraud and thefts of motor vehicles. The Minister of Public