Section 36 of the Immigration and Refugee Protection Act (IRPA) is the foundational provision governing criminal inadmissibility to Canada. It determines whether a foreign national's criminal history bars them from entering Canada and classifies the inadmissibility into two tiers: serious criminality (s.36(1)) and criminality (s.36(2)). The tier matters enormously — it controls which pathways are available to overcome inadmissibility, how much it costs, and how long you have to wait. This guide covers every aspect of s.36: the text of the law, how equivalency works, what "hybrid offences" mean, the maximum sentence rule, the multiple offences rule, and all four pathways to resolve inadmissibility.
The Text of IRPA Section 36
IRPA s.36 reads (paraphrased from its current form — always consult the official legislation):
s.36(1) — Serious Criminality
A permanent resident or 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 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.
s.36(2) — Criminality
A foreign national is inadmissible on grounds of criminality for:
(a) having been convicted in Canada of an indictable offence, or of two offences not arising out of a single occurrence, that are punishable on summary conviction;
(b) having been convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable offence, or of two offences not arising out of a single occurrence, that would constitute offences punishable on summary conviction;
(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; or
(d) committing, on entering Canada, an offence under any Act of Parliament prescribed by regulations.
s.36(3) — Exceptions and Rehabilitation
(a) the Minister may waive the application of subsection (1) or (2) in cases of Canadian citizens or permanent residents;
(b) subsection (1) and (2) do not apply in the case of a foreign national who satisfies the Minister that they have been rehabilitated or who meets the prescribed conditions [deemed rehabilitation];
(c) the following provisions govern the determination of whether a foreign national has been rehabilitated [applied criminal rehabilitation].
Serious Criminality (s.36(1)) vs Criminality (s.36(2)) — Why It Matters
The tier of inadmissibility controls everything: which pathways are available, how long you wait, and how much it costs to resolve. This is the most important distinction in all of Canadian criminal inadmissibility law.
| Factor | Serious Criminality (s.36(1)) | Criminality (s.36(2)) |
|---|---|---|
| Canadian equivalent max sentence | 10 years or more | Less than 10 years (indictable), or summary conviction offence |
| Deemed rehabilitation available? | ❌ Never | ✓ After 10 years (single offence) |
| CR government fee | Higher fee tier | Lower fee tier |
| TRP available? | ✓ Yes (higher bar to meet) | ✓ Yes |
| Applies to permanent residents? | ✓ Yes (s.36(1)(a)) | Limited — only for certain offences |
| Record suspension resolves? | No — separate CR required | In some cases (s.36(3)) |
Your tier depends on your specific equivalency. The classification of your foreign conviction — and which fee tier and waiting period applies — is determined by the Criminal Code equivalency analysis. Use the free Admissibility Screener for an initial risk level, or get your full Admissibility Report ($49.99) for the complete equivalency analysis.
How Equivalency Works — The Dual Criminality Principle
When a foreign national with a conviction from another country seeks entry to Canada, CBSA officers and IRCC do not assess inadmissibility based on the foreign offence name, the foreign penalty, or the foreign legal classification. They apply the dual criminality principle:
- 1
Identify the foreign offence
What was the specific charge? What did the conduct involve? Convictions for the same offence name can have very different elements in different jurisdictions.
- 2
Map to the closest Canadian Criminal Code equivalent
CBSA maps the foreign offence to the Canadian offence whose elements most closely match the conduct for which the person was convicted. The name of the offence doesn't matter — the conduct matters.
- 3
Determine the Canadian maximum penalty
The maximum penalty for the Canadian equivalent offence (not the actual penalty received for the foreign offence) determines the inadmissibility tier. If the Canadian equivalent carries 10+ years maximum — serious criminality. Less than 10 years — criminality.
- 4
Apply IRPA s.36(1) or s.36(2)
Based on the Canadian maximum penalty, the CBSA officer or IRCC applies the appropriate tier of inadmissibility and determines what pathways are available.
Important: The actual sentence received for the foreign offence (e.g., a $500 fine, 30 days, probation) does not determine the Canadian equivalency tier. Only the maximum penaltyof the Canadian equivalent offence matters. A US misdemeanor DUI that resulted in a $300 fine still maps to serious criminality in Canada because the Canadian equivalent carries a 10-year maximum.
Hybrid Offences — The "Maximum Sentence Rule"
Many offences in the Canadian Criminal Code are hybrid offences — the Crown can proceed either by indictment (more serious procedure, higher potential penalties) or by summary conviction (less serious procedure, lower penalties). How are hybrid offences treated under IRPA s.36?
The Maximum Sentence Rule:
For the purposes of IRPA s.36 equivalency, hybrid offences are treated as indictable offences. This means the maximum penalty on indictment is used — not the lower summary conviction maximum. Even if the foreign equivalent offence would have proceeded summarily in Canada, the maximum indictment penalty controls the inadmissibility tier assessment.
Practical example: Two assault charges that sound similar in the US may map to different Canadian offences with different maximum penalties — placing one in the non-serious tier and the other in the serious tier. The specific facts of the conduct matter, not just the charge name.
Whether your specific offence falls under s.36(1) serious criminality or s.36(2) criminality depends on the equivalency analysis. The Admissibility Report provides this analysis for your specific charge.
Indictable vs Summary Conviction — What It Means for s.36
Canadian criminal law has three categories of offences:
- •
Indictable offences
The most serious — jury trials available, higher maximum penalties. Under IRPA s.36(2)(b), a single foreign conviction that maps to an indictable offence in Canada triggers criminality inadmissibility. A foreign conviction mapping to an indictable offence with 10+ year maximum triggers serious criminality under s.36(1).
- •
Summary conviction offences
Less serious — tried by a judge alone, lower maximum penalties. Generally 2-year maximum under the current Criminal Code (raised from 6 months in 2019 by Bill C-75). Under IRPA s.36(2)(a)/(b), a single summary conviction offence alone may NOT trigger inadmissibility — you need two or more summary conviction offences to trigger s.36(2) inadmissibility.
- •
Hybrid offences (dual procedure)
Can be tried either way. For IRPA equivalency purposes, always treated as indictable — use the indictment maximum penalty. This is the "maximum sentence rule" described above.
Key insight: A single minor foreign conviction that maps to a Canadian summary-only offence (rare) may not create inadmissibility at all — IRPA s.36(2)(b) requires the foreign offence to map to an indictable offence OR requires two or more summary conviction offences. This is a nuanced point that requires careful legal analysis of the specific charges.
The Multiple Offences Rule
Multiple convictions are treated more harshly under IRPA s.36 in several ways:
Two or more summary conviction offences (s.36(2)(a)/(b))
While a single foreign offence mapping to a Canadian summary conviction might not trigger inadmissibility, two or more such offences (not arising from a single occurrence) do. This is the "two minor offences" rule under IRPA.
Multiple offences disqualify deemed rehabilitation (IRPR s.18(2))
Deemed rehabilitation — the automatic 10-year rule — is not available if you have more than one conviction. Even two minor, decades-old offences will disqualify you from deemed rehabilitation. Applied Criminal Rehabilitation (after 5 years) is the appropriate pathway.
Multiple offences trigger more rigorous Criminal Rehabilitation review
A Criminal Rehabilitation application involving multiple convictions receives heightened scrutiny. The officer must assess the pattern of criminal behaviour and the overall risk of reoffending. Approval is not automatic even after the 5-year waiting period.
"Single occurrence" exception
Multiple convictions arising from a single criminal act/occurrence — for example, charges of both possession and trafficking arising from the same transaction — may be treated as a single offence for some IRPA purposes. This is narrowly interpreted and requires legal analysis.
All Four Pathways to Overcome Criminal Inadmissibility
Deemed Rehabilitation (IRPR s.18(2))
Automatic — no application, no fee. Available when: (a) the foreign conviction maps to a Canadian offence with less than a 10-year maximum (non-serious criminality only); (b) 10 or more years have elapsed since completion of the entire sentence; and (c) only one offence was committed.
Best for: Single old minor conviction, 10+ years clean. No cost, no paperwork.
Full deemed rehabilitation guide →Applied Criminal Rehabilitation (IRPA s.36(3)(c))
Permanent resolution. Requires a formal application to IRCC after 5 years have elapsed since completion of the entire sentence. Available for all inadmissibility types (serious and non-serious) and multiple convictions. Government fees vary based on your inadmissibility classification. Processing: 6–18 months. Once approved, you can enter Canada freely for life.
Best for: Anyone with 5+ years since sentence completion who wants a permanent solution.
Full Criminal Rehabilitation guide →Temporary Resident Permit (IRPA s.24(1))
Temporary permission to enter Canada despite inadmissibility. No minimum waiting period — available immediately after conviction. Valid for up to 3 years. Does not resolve the underlying inadmissibility — must be renewed or replaced with Criminal Rehabilitation. Available at port of entry or from a Canadian visa office.
Best for: Urgent/immediate travel needs, or as a bridge while waiting for CR eligibility.
Full TRP guide →Record Suspension / Pardon (Limited Application)
A Canadian Record Suspension (formerly called a Pardon) under the Criminal Records Act can resolve criminal inadmissibility for Canadian convictions — but not for foreign convictions. A US pardon, UK spent conviction, or Australian spent conviction does NOT resolve Canadian IRPA inadmissibility. The record suspension must be from the applicable Canadian authority.
Best for: People with Canadian convictions only. Does not help with foreign conviction inadmissibility.
Common Offences — How Classification Works
The IRPA tier for any given offence depends on mapping your specific foreign charge to the closest Canadian Criminal Code equivalent — then checking that equivalent's maximum penalty. General patterns:
- • Typically serious criminality (s.36(1)): DUI/impaired driving (post-2018), assault causing bodily harm, aggravated assault, robbery, larger theft/fraud, drug trafficking, most weapons offences, sexual assault
- • May be non-serious criminality (s.36(2)): Simple assault, minor theft/shoplifting, mischief, drug possession (personal use), minor fraud
- • Every case is different: The specific statutory elements of your offence, the amount involved, the nature of injury — all affect the analysis.
Your specific classification requires an equivalency analysis. The Criminal Equivalency Engine maps your exact charge to Canadian law — or get the complete analysis with your IRPA tier, fees, and rehabilitation timeline in the Admissibility Report ($49.99).
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View ReportsFrequently Asked Questions
What is IRPA section 36?+
IRPA section 36 is the provision of Canada's Immigration and Refugee Protection Act that governs criminal inadmissibility. It has two main tiers: s.36(1) — serious criminality (foreign offence maps to Canadian equivalent with 10+ year maximum), and s.36(2) — criminality (foreign offence maps to Canadian equivalent with less than 10-year maximum, or two summary conviction equivalents). Section 36(3) provides the exceptions and rehabilitation pathways.
What is the difference between serious criminality and criminality under IRPA?+
Serious criminality (IRPA s.36(1)) applies when your foreign conviction maps to a Canadian Criminal Code offence carrying a 10-year or greater maximum imprisonment. Criminality (s.36(2)) applies when the Canadian equivalent carries less than 10 years. The distinction controls: whether deemed rehabilitation is available (only for s.36(2) convictions), the Criminal Rehabilitation fee tier, and the overall difficulty of the TRP assessment.
Does IRPA s.36 apply to permanent residents?+
Yes, but more narrowly. IRPA s.36(1) applies to both foreign nationals AND permanent residents for serious criminality — a PR convicted of a serious criminality offence in Canada can be found inadmissible and potentially removed. Section 36(2) (criminality) generally only applies to foreign nationals seeking entry, not to established permanent residents (though there are exceptions). The PR inadmissibility regime is complex and requires specific legal advice.
Does my US misdemeanor create IRPA s.36 inadmissibility?+
It depends on the Canadian equivalent of the specific misdemeanor. Many US misdemeanors map to Canadian indictable offences (hybrid offences treated as indictable for IRPA purposes). The US "misdemeanor" label does not determine your Canadian inadmissibility tier — the Canadian equivalent's maximum penalty does. Use the Criminal Equivalency Engine for your specific offence.
If I got a pardon in my home country, does that help my IRPA s.36 inadmissibility?+
A foreign pardon does not automatically resolve Canadian IRPA inadmissibility. IRPA s.36 requires the Canadian equivalent analysis regardless of foreign domestic rehabilitation. A foreign pardon is a positive factor in a TRP or Criminal Rehabilitation application, but it does not by itself make you admissible to Canada.
Is criminal inadmissibility to Canada permanent?+
No. Criminal inadmissibility is not permanent — it can be overcome through: (1) deemed rehabilitation (automatic after 10 years, for single non-serious convictions); (2) applied Criminal Rehabilitation (formal application after 5 years, permanent approval); (3) a Temporary Resident Permit (temporary permission for specific travel); or (4) a Canadian record suspension (for Canadian convictions only). There is no offence that creates absolute, permanent inadmissibility that cannot be overcome through one of these pathways.
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Use our Criminal Equivalency Engine to map your specific foreign conviction to the correct Canadian Criminal Code provision and IRPA section — or run a free admissibility screen to understand your options.
Important: This tool provides general information based on publicly available Canadian immigration law (IRPA). Results are not a determination of admissibility. Only a CBSA officer at a port of entry can make admissibility decisions. For complex legal situations, professional guidance may also be beneficial.