Law360 Canada (October 9, 2026, 10:30 AM EDT) --
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| Sergio R. Karas |
Canada’s refugee system exists to protect people fleeing persecution, not to provide an additional immigration process after an individual has been charged with a serious criminal offence in Canada.
Recent cases involving individuals facing criminal investigation or charges who subsequently seek refugee protection have exposed a weakness in the
Immigration and Refugee Protection Act (IRPA). The legislation includes extensive provisions on criminality, serious criminality, security and organized crime, but it does not generally prevent a person who has been charged — rather than convicted — from initiating a refugee claim.
Parliament should close that gap.
Parliament should amend the IRPA to make a refugee claim ineligible if the claimant first makes it after being formally charged in Canada with a prescribed serious criminal offence. The bar should be carefully confined to serious offences. But Parliament need not wait for a criminal conviction before deciding that an accused person should not be permitted to initiate a new refugee proceeding after serious charges have already been laid.
The gap in existing legislation
IRPA generally distinguishes between allegations and convictions.
Section 36 addresses serious criminality and criminality. For conduct in Canada, inadmissibility ordinarily depends upon a conviction. Section 101 governs eligibility to have a refugee claim referred to the Refugee Protection Division (RPD). Under s. 101(1)(f), a claim is ineligible where the claimant has been determined inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality. In cases of serious criminality, s. 101(2) imposes additional requirements tied to qualifying convictions.
Security and organized crime provisions operate differently. Sections 34 and 37 permit inadmissibility findings based upon conduct and associations without necessarily requiring a criminal conviction, subject to the evidentiary standard established by the IRPA.
The result is an important distinction: being charged with a serious offence does not, by itself, generally make a person ineligible to initiate a refugee claim.
Parliament has already recognized the problem created by unresolved criminal proceedings.
Sections 100(2)(b) and 103(1)(b) permit refugee proceedings to be suspended where a claimant has been charged under an Act of Parliament with an offence punishable by a maximum term of at least 10 years and an officer considers it necessary to await the criminal court’s decision.
That is useful, but insufficient.
Suspension assumes that the refugee claim should enter the system in the first place. A better approach would distinguish between a person who already had a refugee claim underway when charges were laid and someone who initiates a refugee claim only after serious criminal charges have been filed.
The latter situation deserves different treatment.
Timing matters
A person who sought Canada’s protection before becoming accused of an offence stands in a materially different position from someone who invokes the refugee system only after being charged with serious criminal conduct.
The first claimant has already asserted a need for protection. Subsequent criminal charges may justify suspending the refugee proceeding while the criminal case is resolved, but they should not retroactively invalidate the claim.
The second claimant presents a different policy concern. Once serious charges have been laid, a newly initiated refugee claim can create another layer of proceedings before removal can ultimately occur.
Parliament routinely establishes statutory conditions determining who may access immigration processes. The question is therefore not whether the accused should be presumed guilty. It is whether Canada must permit a person already facing serious Canadian criminal charges to initiate an entirely new refugee adjudication process before those charges are resolved.
It should not.
A narrow statutory bar
Parliament should amend s. 101 of IRPA to provide that a claim is ineligible for referral to the RPD where, before the claim was made, the claimant had been formally charged in Canada with a prescribed serious offence.
The existing 10-year maximum-sentence threshold in ss. 100 and 103 provides a starting point, but maximum punishment alone is an imperfect measure of seriousness. Parliament could prescribe categories involving offences such as terrorism, murder and serious violence, firearms trafficking, human trafficking, significant drug trafficking, extortion, fraud, breaking and entering, and criminal-organization activity.
Several safeguards would be essential.
First, the bar should apply only after a formal Canadian criminal charge has been laid. Police suspicion, an investigation or an allegation would not suffice.
Second, it should apply only where the charge predates the refugee claim. If the individual claimed refugee protection first and was charged later, the existing suspension mechanism could continue to govern.
Third, the legislation should address what happens if the charge is withdrawn, stayed or results in an acquittal. An individual who is no longer subject to the qualifying charge should not remain permanently barred solely because an accusation once existed.
Presumption of innocence is not a complete answer
The most obvious objection to barring claims made after criminal charges are laid is the presumption of innocence.
The proposed amendment would not declare the accused guilty, impose criminal punishment or establish inadmissibility on the basis of the alleged offence. It would establish a procedural eligibility rule based upon the timing of a refugee claim.
Canadian immigration law already attaches consequences to circumstances that do not require proof beyond a reasonable doubt. Sections 34 and 37, for example, address security and organized criminality through immigration-law standards rather than the criminal standard of proof.
Parliament should draw a clear line
IRPA already recognizes that serious criminal proceedings and refugee proceedings cannot always proceed independently. Sections 100 and 103 permit suspension of refugee matters involving qualifying charges. Section 105 goes further in the extradition context by expressly coordinating refugee proceedings with the extradition process.
Parliament should complete that framework.
Canada can protect genuine refugees without allowing the refugee determination system to become an additional procedural obstacle arising only after serious criminal charges have been laid.
The distinction Parliament should draw is straightforward: protection claimed before the charge may proceed, subject to existing suspension provisions; a claim initiated only after a serious Canadian criminal charge has been filed should be barred until the criminal justice system has determined the charge.
Sergio R. Karas, principal of Karas Immigration Law Professional Corporation, is a certified specialist in Canadian Citizenship and Immigration Law by the Law Society of Ontario, Division Chair of the ABA International Law Section, past chair of the Ontario Bar Association Citizenship and Immigration Section, past chair of the International Bar Association Immigration and Nationality Committee, and a fellow of the American Bar Foundation.
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