Equivalency is the comparison a Canadian decision-maker makes when the offence happened somewhere else: the foreign offence is measured against Canadian law to work out what it would have been had it been committed in Canada. Section 36 of the Immigration and Refugee Protection Act asks that question in four separate places, and the answer decides whether a permanent resident or a foreign national is inadmissible on grounds of criminality or serious criminality.
Angelina Shuster is a paralegal licensed by the Law Society of Ontario, and representation before Immigration and Refugee Board tribunals, including the Immigration Division, falls within a licensed paralegal's scope. What follows is general information about procedure in Canada and is not legal advice; reading it does not create a paralegal-client relationship, and every equivalency finding turns on its own record.
What does equivalency mean in Canadian immigration law?
It means matching the essential elements of the foreign offence to the essential elements of a Canadian one. The Act never uses the word. What it says, four times over, is that the person was convicted of or committed an offence that, if committed in Canada, would constitute an offence under an Act of Parliament — and the work of turning that conditional into a finding is what everyone involved calls equivalency.
Two consequences follow, and both surprise people reading their own file for the first time. The name the foreign statute gives the offence decides nothing: a charge called theft abroad may or may not line up with theft under the Criminal Code. And once a Canadian counterpart is identified, the penalty that matters is the Canadian maximum for that counterpart, not the sentence a foreign court actually handed down.
Which parts of section 36 depend on equivalency?
Four paragraphs, two of which do not require a conviction at all. Where the conviction happened in Canada — paragraphs 36(1)(a) and 36(2)(a) — there is nothing to compare, and the analysis is a straight reading of the Canadian offence and the sentence imposed.
| Paragraph | What has to be shown | The Canadian threshold |
|---|---|---|
| 36(1)(b) | Convicted of an offence outside Canada | The Canadian equivalent is punishable by a maximum term of imprisonment of at least 10 years |
| 36(1)(c) | Committing an act outside Canada that is an offence where it was committed — no conviction needed | The Canadian equivalent is punishable by a maximum term of imprisonment of at least 10 years |
| 36(2)(b) | Convicted outside Canada of one offence, or of two offences not arising out of a single occurrence | The Canadian equivalent is an indictable offence; for the two-offence branch, any offence under an Act of Parliament |
| 36(2)(c) | Committing an act outside Canada that is an offence where it was committed — no conviction needed | The Canadian equivalent is an indictable offence |
Subsection 36(1) reaches both permanent residents and foreign nationals. Subsection 36(2) reaches foreign nationals only, which is why a permanent resident with an older or less serious foreign record is often outside section 36 altogether. The neighbouring grounds are set out in an earlier article on the classes of inadmissibility.
One paragraph in this family has since moved. What was paragraph 36(2)(d) became subsection 36(2.1) in 2023 — transborder criminality, for a prescribed offence committed on entering Canada. It concerns conduct at the border itself, so no comparison with foreign law arises.
How is equivalency established?
In one of three ways, set out by the Federal Court of Appeal in Hill and applied ever since. The first is a comparison of the precise wording of each statute, through the legislative texts themselves and, where it is available, the evidence of an expert in the foreign law, to identify the essential ingredients of each offence.
The second route is used where the wording will not line up neatly. The decision-maker examines the evidence that was actually put before it, oral and documentary, to see whether that evidence establishes that the essential ingredients of the Canadian offence were proven in the foreign proceeding — whether or not the foreign charging document or statute described them in the same words. The third route is a combination of the first two.
The standard of proof sits in section 33 for the grounds in sections 34 to 37: the facts include those for which there are reasonable grounds to believe that they have occurred, are occurring or may occur. There is one carve-out inside section 36 itself. Under paragraph 36(3)(d), whether a permanent resident committed an act described in paragraph 36(1)(c) is decided on a balance of probabilities — a higher bar than reasonable grounds, and the only place in the section where that applies.
What the comparison looks at, and what it ignores
It looks at essential elements, and the Federal Court of Appeal has held that this includes the defences that go to those elements. An element that exists in the foreign offence but has no Canadian counterpart, or a defence available in Canada that is unavailable abroad, is part of the comparison rather than a detail outside it.
Several things the reader might expect to matter do not.
- The wording need not be identical. Since Brannson it has been settled that the two statutes will rarely read alike, and that what is compared is the ingredients of the offences, not their drafting.
- The offence names are irrelevant. A foreign label carries no weight in either direction.
- The sentence imposed abroad is not the measure. Under paragraph 36(1)(b) the question is the Canadian maximum for the equivalent offence. A light foreign sentence attached to conduct that is punishable by ten years or more in Canada still falls inside serious criminality.
- The foreign proceeding is not retried. The tribunal is not asking whether a Canadian court would have convicted; it is asking what the conduct, as established, amounts to under Canadian law.
Where the offence has no obvious Canadian analogue at all, the analysis becomes a study of two legal systems rather than two sections. That comparison is a substantial piece of work on its own, and it is the subject of a separate page on the Criminal Code of Canada set against other jurisdictions.
Why a hybrid offence counts as indictable
Because paragraph 36(3)(a) says so, without exception. An offence that may be prosecuted either summarily or by way of indictment is deemed to be an indictable offence, even if it has in fact been prosecuted summarily.
That single line does a great deal of work in equivalency findings. A large share of the Criminal Code is hybrid, so a foreign offence whose Canadian counterpart is a hybrid offence is treated as indictable for the purposes of paragraph 36(2)(b) or 36(2)(c) — and criminality under subsection 36(2) is made out — regardless of how lightly the matter was handled abroad or how it would likely have been prosecuted here.
The deeming rule works on the Canadian side of the comparison: a foreign system's own split between minor and serious categories does not import itself into the analysis.
Which convictions cannot form the basis of a finding
Subsection 36(3) closes several doors, and each is worth knowing before a record is assumed to be fatal.
Paragraph 36(3)(b) prevents inadmissibility being based on a conviction for which a record suspension has been ordered under the Criminal Records Act and has not been revoked or ceased to have effect, or on a matter in which there has been a final determination of an acquittal. What a record suspension does and does not reach is covered in an earlier article on record suspensions and waivers.
Paragraph 36(3)(e) excludes three further categories outright: an offence designated as a contravention under the Contraventions Act, an offence for which the person was found guilty under the former Young Offenders Act, and an offence for which the person received a youth sentence under the Youth Criminal Justice Act. A youth matter dealt with as a youth matter is not a foundation for a section 36 finding.
Paragraph 36(3)(c) is the rehabilitation provision. The matters in paragraphs 36(1)(b) and (c) and 36(2)(b) and (c) — precisely the equivalency paragraphs — stop constituting inadmissibility for a person who, after the prescribed period, satisfies the Minister that they have been rehabilitated, or who belongs to a prescribed class deemed to have been rehabilitated. Section 17 of the Regulations sets that prescribed period at five years, running from the completion of the imposed sentence for the conviction paragraphs and from the commission of the offence for the act paragraphs. Section 18 then defines the deemed classes, which turn on how serious the Canadian equivalent is and on how much time has passed. An application to satisfy the Minister is filed with IRCC rather than heard by a tribunal.
Where a foreign pardon or discharge fits
Not automatically, and not on the strength of the foreign label. Paragraph 36(3)(b) is written around a record suspension ordered under the Canadian Criminal Records Act, so a measure granted under another country's law reaches the analysis by a different path.
The Federal Court of Appeal in Saini set out a three-part approach for deciding whether a foreign discharge or pardon should be recognised in Canada: the foreign legal system as a whole has to be similar to Canada's; the aim, content and effect of the specific foreign law has to be similar to Canadian law; and there has to be no valid reason not to recognise the effect of that foreign law. Each part is a factual question, established on evidence about the foreign system rather than asserted.
What happens after an equivalency finding
It travels the ordinary inadmissibility route. An officer who is of the opinion that a permanent resident or foreign national is inadmissible may prepare a report under section 44, the Minister may refer that report to the Immigration Division, and the Division decides the matter at an admissibility hearing. Where a person is found inadmissible, section 229 of the Regulations prescribes which of the three removal orders follows the ground.
The appeal consequences differ sharply between the two subsections. Section 64 removes the right of appeal to the Immigration Appeal Division for a person found inadmissible on grounds of serious criminality, defined for that purpose as a crime punished in Canada by a term of imprisonment of at least six months or one described in paragraph 36(1)(b) or (c). A finding under subsection 36(2) does not carry that bar, which is one reason the ten-year threshold inside the equivalency analysis matters as much as it does.
Karb Law works on criminal inadmissibility matters and appears at admissibility hearings before the Immigration Division. Anyone who has received a section 44 report or a hearing notice can contact the office to discuss representation.
