Many individuals wishing to travel to Canada are upset to discover that a previous criminal conviction may result in their being deemed ‘inadmissible’ to Canada.
How is Criminal Inadmissibility Addressed?
There are a number of ways to address criminal inadmissibility for the purposes of coming to Canada on either a temporary or permanent basis. Depending on individual circumstances, criminal inadmissibility may be dealt with in a number of ways:
1. Not all prior convictions make a person inadmissible. Certain minor offenses may be ignored for Canadian immigration purposes. For example, a single conviction of disorderly conduct will not normally keep someone out of Canada.
2. There may be no equivalent under Canadian federal law for the foreign offense that is the subject of conviction. This is often a technical argument based on the fact that the Canadian offense has a more narrow interpretation than the foreign offense in question.
3. It may be possible to have the foreign conviction expunged, which may negate the inadmissibility to Canada.
4. The passage of enough time since the completion of the sentence, in the absence of subsequent convictions, may in certain circumstances be considered as deemed rehabilitation and the offender would no longer be inadmissible to Canada.
5. A person may meet certain conditions and submit an application for rehabilitation to Citizenship and Immigration Canada. Even when an individual is not eligible to submit a rehabilitation application, there is always the possibility of apply for a Temporary Resident Permit, where the applicant’s need to be in Canada will be weighed against his or her danger to Canadians.
In addition to the above options, a person may meet the conditions to apply for Criminal Rehabilitation.
What is Criminal Rehabilitation?
Criminal Rehabilitation is a process by which a person who is inadmissible to Canada on the basis of security submits a request that to the Canadian government that they be absolved of their criminal inadmissibility. If approved, assuming no further offenses are committed, the past conviction(s) will no longer be a barrier to Canadian temporary or permanent residency.
Canadian Criminal Rehabilitation can only be pursued for convictions outside of Canada. If convicted of an offense while in Canada, depending on the circumstances, an individual may have to seek a Pardon from the appropriate Canadian authorities.
Who Needs Criminal Rehabilitation?
An individual may be eligible for Criminal Rehabilitation if they meet the following three criteria:
- They have committed an act outside of Canada that is considered an offense in Canada;
- They were convicted or admitted to committing the act; and
- At least five years have passed since the completion of sentencing (if any)
Applicants for Canadian Permanent Residency who have a prior conviction must be considered rehabilitated in order to receive Permanent Resident status. Applicants wishing to stay in Canada temporarily may have the option to pursue a Temporary Resident Permit (TRP) instead of Rehabilitation. However, a TRP must be renewed, whereas successful rehabilitation permanently resolves the problem of criminal inadmissibility for future stays in Canada.
How Do I Pursue Criminal Rehabilitation?
The application process for Criminal Rehabilitation will vary from person to person. However, all applicants must first determine if their offense is considered ‘serious’ or ‘non-serious’ by Canadian standards. This requires a close reading of the Canadian criminal code in relation to the laws of the country in which the offense was committed.
Individuals who committed a single non-serious offense and more than 10 years have passed since the completion of any sentencing may be “deemed rehabilitated”. In such cases they do not have to pursue a formal application for Criminal Rehabilitation. However, many wish to obtain a letter from a legal expert that explains their “deemed rehabilitated” status to Canadian border officials, thus offering peace of mind.
If sentencing for an offense was completed less than 10 years ago, individuals will have to pursue an application for Criminal Rehabilitation. A serious criminal offense, where the maximum sentence in Canada would be ten years or more, will always require a Rehabilitation application regardless of when sentencing was completed.
Once an offense’s equivalency in Canada has been determined, applicants must decide how to best demonstrate that they are no longer at risk to commit further criminal activity. This can be done in a variety of ways, such as demonstrating a stable lifestyle, community ties, social and professional skills, and the outstanding nature of their conviction. If the Canadian official reviewing the application is convinced by the arguments set forth, s/he will issue an official approval of the request for Criminal Rehabilitation.
What is the First Step?
Determining equivalency is a difficult task. It requires analyzing both the Canadian Criminal Code or other federal statute as well as the laws of the country in which the offense took place.
“Preparing an application for Criminal Rehabilitation can be tough, but thankfully it should only have to be done once,” says Attorney David Cohen. “As an immigration lawyer, I enjoy helping people move past their prior convictions to begin a new life in Canada.”
If you think you may be eligible for Criminal Rehabilitation, a good first step to take is to read more about criminality issues in Canada to learn how your unique situation should be addressed.
If you would like to learn more about Criminal Rehabilitation or other aspects of Criminal Inadmissibility to Canada, please contact us today.
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