Spotlight on Criminal Inadmissibility: What It Is, What It Means, and What To Do About It
The ongoing process of vaccinating Canadian and U.S. populations gives hope that the Canada-U.S. border will open for non-essential crossings sometime this summer. It is worthwhile then, to understand criminal inadmissibility, which can affect your trip to Canada.
The Immigration and Refugee Protection Act (IRPA) identifies several factors which can make a person inadmissible to Canada. These elements include: not meeting various requirements of Canada’s immigration programs; health reasons; and criminality grounds.
This article concerns itself with criminal inadmissibility. It is a reality that many individuals wishing to come to Canada have some kind of criminal history. It is also a reality that Canada has strict rules for such individuals. A prospective traveler to Canada — be it someone who wishes to visit temporarily, or settle permanently — needs to understand the criminal inadmissibility rules, how they operate, and what resources exist.
To understand criminal inadmissibility, you need to understand the concept of double criminality. Double criminality occurs in situations where a person was convicted of an act that is a crime both in the foreign country where it was committed and in Canada. An immigration officer will compare the foreign law with Canadian law to find if an equivalent offence exists. Generally, the Canadian offence will be found in Canada’s Criminal Code. A Canadian immigration attorney can assist a client in navigating this process.
Canadian immigration law divides criminal inadmissibility into two categories: criminality, and serious criminality.
Here are some of the factors that may make you criminally inadmissible without ever having set foot in Canada:
- If you were convicted in a foreign country of an act that Canadian law also recognizes as a criminal offence. You could be considered criminally inadmissible if Canada would consider your crime an “indictable offence,” which generally refers to a more serious crime. In the U.S. it is comparable to a felony.
- If you have two non-indictable offences from separate acts, you may also be inadmissible. As the name suggests, these are less serious than indictable offences, and are generally comparable to misdemeanors in the U.S.
For the next part, you need to understand that there’s a difference between being “convicted” and “committing” an offence. If you are convicted, it means you went through the judicial process and were determined to have committed that crime. By contrast, committing or being charged with an offence basically means authorities suspect you of committing a crime, but nothing has been definitively proven in court. An example is pending charges.
If you have been determined to have committed an act in a foreign country that is both an offence in that country, and an indictable offence in Canada, you may also be criminally inadmissible. All that is required is credible evidence that you committed the act. This category is meant to catch individuals with unresolved criminal charges.
Finally, you may be inadmissible if you have been found to have committed a violation of Canadian federal regulations in the process of entering Canada.
Much like the aforementioned offences, you can be inadmissible for being charged, or convicted of a more serious crime. You may be inadmissible for serious criminality if you:
- Were convicted in a foreign country of a crime that Canadian law also recognizes as a criminal offence and for which the maximum sentence in Canada is ten years in or more in prison, or;
- committed an act in a foreign country that Canadian law also recognizes as a criminal offence and for which the maximum sentence in Canada is ten years or more in prison.
In summary, Canada determines the distinction between criminality and serious criminality by examining three factors: the nature of the crime, the process used to prosecute, and the sentence imposed.
If any of these situations apply to you, there are oftentimes options to overcome inadmissibility. The one that works best for you will vary from case to case. Here are possible avenues to pursue:
Legal Opinion Letter
Legal Opinion Letters are prepared by lawyers. They contain arguments as to why a person with a criminal record should be allowed into Canada. This letter can support a challenge to a conviction or a finding that you committed a criminal act. The lawyer may argue in the letter that: the client is deemed rehabilitated; the client’s offence was singular or of a less serious nature; or, the crime the client allegedly committed or for which was convicted has no equivalent in Canadian law. A legal opinion letter can support a Temporary Resident Permit (TRP) or rehabilitation application.
Even if you are not immediately planning to come to Canada, a consultation with a lawyer can also be useful if you are facing charges and want to understand the potential impact of any plea or conviction on your ability to enter Canada.
Temporary Resident Permit (TRP)
The TRP is designed for people who are inadmissible and require temporary access into Canada. TRPs are typically granted to individuals who demonstrate compelling reasons for entry – that the benefits of their visit to Canada outweigh any risks. If successful, an applicant for a TRP will receive one valid for up to three years. They can then seek renewal of it. US citizens and permanent residents can apply for a TRP at a Canadian port-of-entry, or at a Canadian for pre-approval. Non-Americans must apply at a consulate. The processing fee is $200 CAD.
There are two kinds of rehabilitation, deemed rehabilitation and individual rehabilitation.
Factors in rehabilitation could include: the nature of the crime; the amount of time that has passed since the sentence was completed; or subsequent behaviour.
Individual rehabilitation is for people with criminal records who are not currently eligible for deemed rehabilitation (see below), but where it has been more than five years from when the act was committed or the end of the sentence – which ever came later.
It is important to understand that the sentence is any judicial consequence of a crime, including: jail time; probation; and payment of a fine. Individual rehabilitation involves an application in which the individual or their representative argues that, at least five years have passed since they completed their sentence; that they are no longer a risk for criminality; and that their criminal conviction was an isolated event. In the event a person’s record contains more than one offence, the person may have to supply further explanations to show the Canadian government the person does not pose a risk.
An application for individual rehabilitation costs $200 for criminality and $1000 for serious criminality. The advantage of rehabilitation, either individual or deemed is that, once a person obtains it, they have its benefits forever, rather than for a limited time, as in the case of a TRP.
Deemed rehabilitation can be automatic, based on the nature of the crime and the time that has passed since conviction or commission.
If a person has been convicted of, or found to have committed a crime that, in Canada, is an indictable offence, but 10 years have elapsed since completion of sentence, with no intervening criminal offences, that person is deemed rehabilitated and eligible to come to Canada. The exception is in cases where the person was convicted of a crime that in Canadian law is an indictable offence and that has a potential punishment of more than ten years. In that case, there is no deemed rehabilitation.
Deemed rehabilitation also applies to some individuals who were convicted for two or more crimes, if both of these would be summary offences in Canada. In this situation, at least five years need to have elapsed.
Although deemed rehabilitation can occur automatically, an individual can still include a legal opinion letter with this application. This document would help ensure an immigration officer has a full and accurate understanding of the individual’s record and admissibility to Canada.
Each person with a criminal record presents a unique situation in which Canada must weigh security and compassion. Understanding how your criminal history translates into Canadian law is the first step in overcoming inadmissibility. A Canadian immigration attorney can help you identify the relevant law, recognize its impact, and explain which options best match your situation.
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