Criminal Inadmissibility

Criminal Convictions

A foreign national may be inadmissible to Canada for having a criminal conviction record, regardless of where the offence is committed.  However, it is important to note that, except for crimes against humanity, the alleged activity must be a crime both in the place where it is committed and in Canada.  For offences outside Canada, a conviction is not necessary.  It is sufficient if the essential elements of an offence can be proven.  However, only an actual conviction in Canada will make a person inadmissible on criminal grounds.

Not every type of sanctioned criminal activity will render a person inadmissible to Canada.  Moreover, depending on the seriousness of the crime, different consequences may follow. Canada, unlike the US, does not make a distinction any more based on whether a crime is a crime of moral turpitude. The penalty for the offence or the foreign category of the offence is unimportant. If there is a Canadian equivalent, it is the category of the Canadian equivalent which is relevant, what prospective maximum punishment may be faced under prosecution of that offense. In Canada we use the terms Indictable and Summary to characterize the seriousness of offenses. Equivalent US terminologies are Felony and Misdemeanor, respectively. However, please note that not all US Felonies are Indictable offenses in Canada. Similarly, not all US Misdemeanors are Summary offenses in Canada.

A person is inadmissible if he or she has been convicted of an offence, in Canada, or elsewhere in the world, of an equivalent Canadian offence – that would be at least a dual procedure (hybrid) offence in Canada. In Canada, a dual procedure offence is one that may be prosecuted by indictment or by summary conviction. Most offences in Canada are in fact dual procedure. According to IRPA, if a foreign offense is equated to a Canadian offense and it is found to be a dual procedure offense, it is deemed to be an Indictable offense, regardless if there is a Crown election to proceed summarily. A person convicted of an offense that is equated to a straight summary conviction in Canada will not subsequently be inadmissible.

Equating foreign offences to Canadian Acts of Parliament, such as the Canadian Criminal Code, is a determination made by an Immigration Officer. The Officer will first determine whether there is a criminal conviction record that renders the applicant inadmissible. If there is a properly constituted conviction record, the offense which renders the offender inadmissible to Canada under the Immigration and Refugee Protection Act (IRPA) and the subsequent regulations enacted there under will be the focus of the officer.  When examining foreign statutes in relation to Canadian statutes, Officers will examine the differences between the two, including how broad or narrow the foreign statute in relation to the Canadian equivalent. This is critical considering that criminal statutes vary from one jurisdiction or country to another. While similarities exist such that virtually all countries have essentially the same core offences, the great majority of laws differ. Thus, it is the substance of those offences that will be compared to a Canadian equivalent and not the precise wording.

Drunk driving or impaired driving convictions (even if they are recorded as a traffic offence) where the blood alcohol reading is 0.081% or above – or a breath reading of 0401mgms/L or above, will make you inadmissible to Canada. While generally less serious in the US, DUI convictions in Canada are much more serious offenses under the Canadian Criminal Code.

Other common convictions that may make a person inadmissible to Canada are: reckless or dangerous driving, common assault, street racing, hinder or resist a police officer in the execution of duty, possession of a banned sustance, supply, trafficking of drugs/banned substance (including cannabis) and shoplifting (theft), fraud or criminal damage, to name a few.  Some offenses, such as murder, home invasions/burglary, armed robbery, rape, etc., are categorized as Serious Criminality when evaluating Canadian inadmissibility. When such is the case, the decision to grant admission into Canada cannot be made solely by an examining officer, but they must refer the case to a Manager/Supervisor for determination.

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Overcoming Criminal Inadmissibility

Before determining what extent you may seek to overcome your criminal inadmissibility to Canada we first evaluate if/how the provisions under Canadian Immigration legislation will operate to exclude you based upon criminal conviction(s).

The starting point of any analysis is to determine if in fact any prohibative conviction record actually exists.  Many people are charged with criminal offenses, but we must look to the judicial disposition of these charges to determine if there is a recognizable conviction under Canadian law. There must be a conviction as defined by Canadian law, failing which, you are otherwise admissible to Canada. Judicial sentencing in a foreign context that equates to a Canadian disposition such as an Absolute or Conditional Discharge does not result in a Criminal Conviction.

If the conviction took place in Canada, we follow the procedure available for Canadian offenses to obtain a pardon once eligible. Once a pardon is obtained for a Canadian conviction, you will no longer be inadmissible to Canada.

The analysis of a foreign conviction begins with the evaluation of the foreign offense, including the enabling statute and all judicial dispositions. We must then analyze the essential elements of the foreign offense to determine a Canadian equivalent offense. Depending on how the foreign offense is equated to a Canadian Criminal Code offense, we will be able to ascertain the seriousness of the criminal conviction and the likley means of overcoming the effects of the conviction(s) for the purposes of seeking entry into Canada.

There is a major distinction that must be made that will determine the process and extent to which an individual who is inadmissible to Canada may overcome the same and gain lawful entry to Canada.  This distinction centers on whether or not your criminal conviction history when equated to a Canadian Criminal Code offense(s) will be regarded as Serious Criminality or Criminality under IRPA.

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Inadmissibility on Grounds of Serious Criminality:

36. (1) A permanent resident or a 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 under an Act of Parliament 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.

If a Canadian equivalent offense calls for a maximum term of imprisonment of 10 years or more, then the offense is regarded as Serious Criminality. If such is the case, you no longer are eligible to make an application for Deemed Rehabilitation at any period of time. However, after 10 years of conviction free living, you may be eligible to apply for Administerial Approved Rehabilitation. Such requires a more comprehensive process in order to obtain a permanent rehabilitation order.   

Inadmissibility on Grounds of Criminality

Subsection 36(2) of the IRPA provides the circumstances that would render a foreign national inadmissible on grounds of Criminality:

  1. having been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment, or of two offences under any Act of Parliament not arising out of a single occurrence;
  2. having been convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, or of two offences not arising out of a single occurrence that, if committed in Canada, would constitute offences under an Act of Parliament;
  3. 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 under an Act of Parliament; or

The following provisions govern subsections (1) and (2):

  1. an offence that may be prosecuted either summarily or by way of indictment is deemed to be an indictable offence, even if it has been prosecuted summarily;
  2. inadmissibility under subsections (1) and (2) may not be based on a conviction in respect of which a pardon has been granted and has not ceased to have effect or been revoked under the Criminal Records Act, or in respect of which there has been a final determination of an acquittal;
    1. the matters referred to in paragraphs (1)(b) and (c) and (2)(b) and (c) do not constitute inadmissibility in respect of a permanent resident or foreign national who, after the prescribed period, satisfies the Minister that they have been rehabilitated or who is a member of a prescribed class that is deemed to have been rehabilitated;
    2. a determination of whether a permanent resident has committed an act described in paragraph (1)(c) must be based on a balance of probabilities; and
    3. inadmissibility under subsections (1) and (2) may not be based on an offence designated as a contravention under the Contraventions Act or an offence for which the permanent resident or foreign national is found guilty under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985 or the Youth Criminal Justice Act

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How Can We Help You Overcome Inadmissibility

Even those considered criminally inadmissible to Canada may be allowed to enter Canada under certain limited circumstances if Citizenship and Immigration Canada (CIC) considers them criminally rehabilitated under either of the following:

Deemed Rehabilitation

Persons who are inadmissible for Canadian immigration on grounds of criminality may still be permitted to enter Canada if they qualify for Deemed Rehabilitation.

Persons Qualify for Deemed Rehabilitation if they have:

  1. Been convicted outside Canada of an act that, if committed in Canada, would be equivalent to an indictable offence punishable by a sentence of less than ten years, and they meet the following requirements:
    1. Ten years have elapsed since the completion of their sentence;
    2. They have not been convicted of any indictable offence or summary offence in Canada in the last ten years, or more than one summary conviction in the ten years before that; and
    3. They have not been convicted outside Canada of an offence in the last ten years that, if committed in Canada, would constitute an indictable offence, or of more than one summary conviction in the ten years before that.
  2. Been convicted outside Canada of two or more acts that, if committed in Canada,would be equivalent to summary offences, and they meet the following requirements:
    1. Five years have elapsed since the completion of their sentences;
    2. They have not been convicted of any indictable offence or summary offence in Canada in the last five years, or more than one summary conviction in the five years before that; and
    3. They have not been convicted outside Canada of an offence in the last five years that, if committed in Canada, would constitute an indictable offence, or of more than one summary conviction in the five years before that.
  3. Committed an act outside Canada that, if committed in Canada, would be equivalent to an indictable offence punishable by a sentence of less than ten years, and they meet the following requirements:
    1. Ten years have elapsed since the completion of their sentence;
    2. They have not been convicted of any indictable offence or summary offence in Canada in  the last ten years, or more than one summary conviction in the ten years before that; and
    3. They have not been convicted outside Canada of an offence in the last ten years that, if committed in Canada, would constitute an indictable offence, or of more than one summary conviction in the ten years before that.

Ministerial Approved Rehabilitation

Persons who are inadmissible for Canadian immigration on grounds of Serious Criminality cannot qualify for Deemed Rehabilitation; These persons who fall under the serious criminality classification, as well as others who do not qualify for Deemed Rehabilitation may still overcome their inadmissibility but must do so by making an Application for Ministerial Approved Rehabilitation.

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Temporary Resident Permits (TRP)

If the applicable rehabilitation requirements have not been met, or circumstances are such that an applicant seeks immediate entry to Canada, a CBSA/CIC issued TRP may be the more immediate way to overcome a criminal inadmissibility. This is a discretionary matter and will only be granted in exceptional circumstances and often for compelling reason. Such cases where serious consideration is given can be to reunite family members who are citizens or permanent residents of Canada, or to facilitate international employment transactions or business obligations, specifically where it can be shown to be a benefit to Canada. In any event, strong evidence of rehabilitation must be adduced. While TRP’s are generally reserved for less serious criminal offense(s), where significant time has passed since the sentence has been completed, they can be used for serious criminality but in very limited instances.  When applying for a TRP, the offender must have remained arrest/charge/conviction free for an extended period of time prior to the application.

I can advise from extensive experience in the practice that the interpretation of sec. 36 of IRPA dealing with criminal inadmissibility has been subject to conflicting interpretation by CIC/CBSA officers. While one officer may feel the circumstances warrant favourable consideration, a different officer is just as likely to find you criminally inadmissible and return you to the US absent an approved TRP. Also, given the nature of your conviction record and the sensitivity/seriousness, officers will consider all the evidence to determine if there are any “mitigating” or “aggravating” factors that may determine how they will evaluate your criminally inadmissibility and if they will have any reservation to admit you into Canada.

As you can appreciate, hiring the right professional to deal with your legal issues is critical in the sense that we have both the knowledge and the experience to assess each situation in the proper prospective. Not only must we prepare the best possible application, but we seek to give your matter its due consideration, optimizing success by accounting for various intricacies reflected in our deep understanding of how the legal process works. In this respect, our success rate in similar applications speaks for itself.

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Processing Times

Generally, the TRP Application is processed at the Canadian Consulate in Detroit – which takes upwards of six (6) to eight (8) months to process. Consular processing is the preferred method of adjudication by CIC/CBSA given the length of time available to scrutinize the application. However, a more expedient avenue is available for US citizens through the CBSA port of entry offices. There is jurisdiction for the adjudication of TRP cases before a CIC/CBSA Officer, and while sometimes reluctant to assert this jurisdiction, there is sufficient legal precedent to overcome this with a properly constituted application.

Once we examine the full extent of your circumstances together with your supporting documentation, we can advise as to the optimal course of action. If appropriate, we can submit a TRP application directly to the CIC/CBSA at a port of entry office. We will personally attend with you as your legal represent while  making this TRP application. If CIC/CBSA renders a favourable decision and grants a TRP at the Port of Entry, you will be admitted to Canada on the terms and conditions stipulated in the permit. However, if CIC/CBSA declines to issue a TRP, jurisdiction will be directed to the Canadian Consulate located outside of Canada, where processing times will take upwards of 6-8 months.

Where applications for Rehabilitation are concerned, processing times at Consulates can take anywhere from 6 months to 2 years.

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