Old offences can cause fresh headaches at the Canadian border

Stephen Sherman
Published: May 11, 2018

Nobody is perfect.

This universal truth is particularly true when you take into account peoples’ pasts. Life is a journey and many get off to a rocky start before they find their footing and choose their path in life. Many now successful, family-oriented, and wholesome people have checkered pasts that are by no means representative of the lives they currently lead.

When it comes to entering Canada, this past unfortunately can come back to haunt such individuals. In fact, criminal inadmissibility to Canada has the potential to affect anyone who has ever had a run-in with the law or a brush with the court system in their home country.

Criminal inadmissibility does not always dissipate with the passage of time, a concept called deemed rehabilitation. This holds that an individual is no longer inadmissible once 10 years have elapsed from the completion of his sentence.

Criminal rehabilitation applications

Previous offences, depending on their number and nature, can have far-reaching consequences that are not subject to any time constraints or statute of limitations. In most cases, they can eventually be addressed through an application called criminal rehabilitation, the approval of which is at the discretion of Canadian immigration authorities, but resolution through the simple passage of time might never take place.

The most common example of this is when an individual has more than one offence on their criminal record. In such cases, unless one or both of the offences are very minor in nature, deemed rehabilitation will never take place. So, an individual that has a record consisting of either two DUI offences, two reckless driving offences, two petty theft offences, or any combination of these and many other offences, will never be eligible for deemed rehabilitation. In these cases, no matter how much time elapses or to what extent the individual has bettered himself since the commission of the offences, an application for criminal rehabilitation must be submitted in order to resolve the criminal inadmissibility.

This is also the case for an offence that would be considered serious if committed in Canada, meaning it would have the potential of being punishable by 10 years or more in prison. For these types of offences, it does not matter what the individual was actually convicted of, nor how the offence is viewed in the country where it was committed. If a Canadian judge could have handed down a sentence of incarceration for 10 years or more, the offence will be considered serious. Common examples of such offences include theft over $5,000, assault that resulted in bodily harm or in which a weapon was used, and trafficking of certain narcotics. In these cases, criminal inadmissibility will never be resolved through deemed rehabilitation and an application for criminal rehabilitation will be necessary.

Legal opinion letters

Even convictions that do not fall into the two aforementioned categories can impact one’s ability to enter Canada unhindered by a previous offence. In many instances, individuals with a single non-serious conviction on their record can be denied entry, in spite of the requisite time period for deemed rehabilitation having elapsed. This is due to the wide discretion bestowed upon Canadian immigration officers in carrying out their duties, which means even if an individual is technically no longer inadmissible they can still be turned away.

In certain situations, a particular immigration officer might still believe a given individual is still a threat, in which case they will be denied entry regardless of whether they meet the criteria for deemed rehabilitation. In other cases, the immigration officer might not be intimately familiar with the concept of deemed rehabilitation or certain of its eligibility criteria. Even if their assessment in such a scenario is potentially incorrect, the immigration officer would be acting completely within the bounds of the law in denying the traveller entry. Whether denied as a result of a perceived security risk on the part of the immigration officer, or their uncertainty with regard to the concept of deemed rehabilitation and its application, the officer is acting perfectly within their rights in denying entry to the individual in question.

In situations such as these, where deemed rehabilitation should apply, a legal opinion letter could avoid an issue at the border. This is a letter drafted by an immigration attorney that explains the concept of deemed rehabilitation, as well as how it applies to the individual in possession of the letter. This serves to minimize the discretion of the immigration officer, including their discretion to deny the traveler because the officer believes they do not qualify for deemed rehabilitation. It is very difficult for an immigration officer to refute a letter written by a Canadian immigration attorney that explains why, according to the letter of the law, an individual should be permitted to enter Canada.

In conclusion, the fact that one’s criminal record might have only very old offences, or even a single very old offence, is by no means a guarantee that a traveller will not encounter an issue upon attempting to enter Canada. Even if the offence(s) happened a lifetime ago and the individual considers them to be ancient history, inadmissibility to Canada remains a possibility. Even in cases where deemed rehabilitation could and even should apply, the discretion of the immigration officer can work to a traveller’s disadvantage and result in a denial of entry.

Stephen Sherman is a Canadian immigration attorney with the Campbell, Cohen Immigration Law Firm in Montreal. He specializes in resolving issues relating to criminal inadmissibility to Canada.

If you have any questions about gaining entry to Canada, please send a detailed email to crim@canadavisa.com.

© 2018 CICNews All Rights Reserved

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