No. Being arrested in Canada—whether by local police for a criminal charge or by the Canada Border Services Agency (CBSA)—does not lead to immediate deportation. An arrest is a procedural action, not a final legal determination of your immigration status. Under Canadian law, there is a clear, multi-step process separating an arrest, an allegation, a criminal conviction, a finding of inadmissibility, and the actual execution of a removal order. At Pax Law Corporation, we frequently assist individuals navigating the intersection of criminal justice and immigration enforcement, ensuring that due process rights are fully respected.

“If you are facing charges, it is crucial to consult an experienced criminal defence lawyer in Canada before entering any plea.”

Understanding Key Legal Distinctions

To understand why an arrest does not result in automatic expulsion, one must examine how Canadian courts and statutes define criminal allegations versus administrative immigration findings.

• Arrest and Charge: An assertion by law enforcement that an offence may have been committed. As stated by the Federal Court in Valdez v. Canada (Public Safety and Emergency Preparedness), 2016 FC 377 (at paragraph 33):

  “the fact that someone has been charged with a criminal offense proves nothing: it is simply an allegation.”

• Inadmissibility Finding: An administrative determination under the Immigration and Refugee Protection Act (IRPA) that a person cannot legally remain in Canada. In Revell v. Canada (Citizenship and Immigration), 2019 FCA 262 (at paragraph 38), the Federal Court of Appeal confirmed that

  “an inadmissibility finding is distinct from effecting removal”

  and

  “does not automatically or immediately result in deportation.”

• Enforceable Removal Order: A formal legal directive that has come into force, allowing CBSA officers to lawfully execute deportation.

Impact of an Arrest Based on Immigration Status

The legal consequences of an arrest depend heavily on your formal status in Canada under the IRPA:

1. Canadian Citizens

Under Section 2 of the IRPA, a foreign national is defined as a person who is not a Canadian citizen or a permanent resident. Furthermore, Section 19 of the IRPA codifies that every Canadian citizen has the absolute right to enter and remain in Canada. A citizen may face arrest, trial, and imprisonment under the Criminal Code, but cannot be deported through the immigration system.

2. Permanent Residents

Permanent residents enjoy significant statutory protections, though these rights are not absolute. Under Section 36(1)(a) of the IRPA, a permanent resident or foreign national may be found inadmissible on grounds of serious criminality for:

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

Crucially, an arrest or pending charge alone generally does not satisfy this conviction requirement. However, if a qualifying conviction occurs, a separate immigration administrative process may begin. Note that under Section 64(1) and Section 64(2) of the IRPA, no appeal may be made to the Immigration Appeal Division (IAD) if the person is inadmissible for serious criminality that was punished in Canada by a term of imprisonment of at least six months.

3. Temporary Residents (Students, Workers, Visitors)

Holders of study permits, work permits, or visitor visas are classified as foreign nationals. Section 36(2)(a) of the IRPA states:

“A foreign national is inadmissible on grounds of criminality for having been convicted in Canada of an indictable offence…”

While an arrest heightens scrutiny and may initiate an investigation, it does not bypass the statutory requirement for proper legal procedures before removal can occur.

Summary Matrix: Status vs. Deportation Risk

Important Exceptions: Inadmissibility Without a Canadian Conviction

The general rule that a Canadian conviction is required is not absolute. Certain sections of the IRPA permit inadmissibility findings based on behaviors, organized crime, or international acts under a lower evidentiary threshold:

• Reasonable Grounds Standard: Section 33 of the IRPA provides that facts regarding inadmissibility (unless provided otherwise) shall be assessed on the basis of “reasonable grounds to believe” that they have occurred, occur, or may occur.
• Organized Criminality: Section 37(1)(a) addresses membership in an organization that is believed on reasonable grounds to engage in organized criminal activity.
• Extraterritorial Acts: Sections 36(1)(c) and 36(2)(c) allow for inadmissibility based on criminal acts committed outside Canada without requiring a domestic Canadian conviction.

In Durkin v. Canada (Public Safety and Emergency Preparedness), 2019 FC 174, a case involving an alleged extraterritorial conspiracy, the Federal Court clarified that during subsequent proceedings, the fundamental issue remains whether the statutory grounds of inadmissibility are actually proven, rather than the mere existence of an unproven accusation.

Immigration Detention Is Not Deportation

It is vital not to confuse being held in CBSA custody with being deported. Under Section 55(1) and 55(2) of the IRPA, an officer may arrest and detain a person if there are reasonable grounds to believe they are inadmissible and present a danger to the public or are unlikely to appear for immigration proceedings or removal.

Detention is subject to strict judicial control:

• Mandatory Reviews: Under Section 57 of the IRPA, the Immigration Division must review the reasons for continued detention within 48 hours, then within 7 days, and at least every 30 days thereafter.
• Presumption of Release: Section 58(1) dictates that “The Immigration Division shall order the release” of the detainee unless specific statutory grounds (such as public danger or flight risk) are established.
• Supreme Court Mandate: As affirmed in Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29 at paragraph 48,

  “Release is the default”

  under Canada’s immigration detention regime.

How a Removal Order Is Issued and Enforced

The legal mechanism for removal is governed by a defined statutory chain:

1. Section 44(1) Report: If an officer forms the opinion that a permanent resident or foreign national is inadmissible, they may prepare a report.
2. Ministerial Referral: Under Section 44(2), the Minister (or delegate) may refer the report to the Immigration Division for an admissibility hearing.
3. Streamlined Orders: For certain foreign nationals inadmissible on straightforward criminal grounds, Section 228(1)(a) of the Immigration and Refugee Protection Regulations (IRPR) allows a Minister’s delegate to issue a deportation order directly.

Even under streamlined procedures, natural justice applies. As held in Cha v. Canada (Minister of Citizenship and Immigration), 2006 FCA 126 (at paragraph 52), the individual must at a minimum be informed of the report, allegations, potential consequences, interviewed, and provided an opportunity to present evidence.

Enforceability of Removal Orders

Section 48(1) of the IRPA explicitly distinguishes between the issuance and execution of an order:

“A removal order is enforceable if it has come into force and is not stayed.”

Only when an order becomes enforceable does Section 48(2) require the person to leave Canada “immediately” and CBSA to execute it “as soon as possible.”

Orders may be delayed or stayed by operation of law (Section 49(1) for pending appeals, Section 49(2) for refugee claimants), or statutory stays during criminal imprisonment or judicial reviews (Section 50). Furthermore, under IRPR Section 240(1), actual removal requires formal administrative steps, including foreign entry clearances and certificates of departure.

Recommended Protocol After an Arrest

If you or a family member face an arrest in Canada:

• Determine immediately whether the custody is under police authority (criminal) or CBSA authority (immigration).
• Obtain written copies of any Section 44 reports, deportation orders, or charge sheets.
• Consult qualified legal counsel before entering criminal pleas, as criminal dispositions directly impact immigration status under IRPA Section 36.
• If held in immigration detention, ensure immediate preparation for the mandatory 48-hour review hearing.

At Pax Law Corporation, our team provides comprehensive representation across criminal defense and immigration law to safeguard your legal rights in Canada.

Frequently Asked Questions (FAQ)