Canadian immigration aims to facilitate entry into Canada for persons who meet the requirements set out in the Immigration and Refugee Protection Act (IRPA). Even if a person meets all eligibility requirements, they may still be refused if the Canadian Border Security Agency (CBSA) considers them to be inadmissible to Canada. This is best summed up by the principle enounced in Canada (Minister of Employment and Immigration) v Chiarelli that "non-citizens do not have an unqualified right to enter or remain in [Canada]." In this blog, we'll review reasons why someone may be considered inadmissible to Canada.
There are 10 general grounds of inadmissibility which can be found in sections 34 to 42 of the IRPA:
1. Security
2. Human Rights Violations
3. Criminality
4. Organized Criminality
5. Health
6. Financial Reasons
7. Misrepresentation
8. Cessation of Refugee Protection
9. Non-Compliance with the IRPA
10. Inadmissible family member.
Today let's look at reason number 3: Criminality
Denied Entry to Canada: Criminality
Section 36(2) of the Immigration and Refugee Protection Act explains the criteria for being found inadmissible to Canada due to Criminality:
(2) A foreign national is inadmissible on grounds of criminality for
(a) 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;
(b) 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;
(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 indictable offence under an Act of Parliament; or
(d) committing, on entering Canada, an offence under an Act of Parliament prescribed by regulations.
Application
It is worth noting that the wording of this section means that it only applies to foreign residents who are entering Canada to work, visit, or study, and not to individuals who are lawful Permanent Residents or Citizens of Canada. The question the immigration officers will ask in determining whether the act committed outside of Canada is equivalent to a criminal act had it been committed inside of Canada. To determine if this is the case, it is important to check the wording and elements of the offence from the originating country and compare it to that of the law in Canada. After comparing the definitions of the offence both in Canada and in the foreign jurisdiction, the office will then make an analysis as to whether it is or is not an offence in Canada. After making this analysis, if the officer determines that the applicant would have also committed a criminal offence in Canada, then the applicant will be considered inadmissible and denied entry to Canada.
Offences in Canada usually fall under one of three types: Summary, indictable, or hybrid. This is comparable to a misdemeanour (summary) or felony (indictable) in the United States of America. Hybrid offences are those that can be prosecuted as either a summary or indictable offence. If an applicant has been convicted of a summary/misdemeanour offence in a foreign country, but that same offence can be prosecuted as a hybrid offence in Canada, they will be deemed to have committed an indictable (or felony) offence in Canada. This is an important distinction and one that is important in determining whether the applicant will be denied entry to Canada.
If I was not sent to prison or convicted, can I still be considered inadmissible to Canada?
Yes. In cases of serious criminality (for example, a DUI, murder, or organized crime), a conviction may not be required. For example, in the case of Magtibay v Canada (Minister of Citizenship and Immigration), the charges against Magtibay were dropped. However, the immigration officer still considered the charges the applicant faced to be quite serious and therefore did not permit entry into Canada.
In addition, pre-trial detention and a conditional sentence of 6 months or longer can be considered a term of imprisonment. For permanent residents in particular, this is an important distinction to make as it can have a bearing on any potential citizenship applications. This is why it is important for permanent residents if they have committed a crime in Canada, to ensure that any conditional sentence received is below the 6-month threshold to avoid adverse immigration consequences.
Are there any circumstances where an applicant with a criminal record is not inadmissible?
Yes. You are not inadmissible if you have received a record suspension (pardon), a final determination of an acquittal, or an absolute or conditional discharge. Furthermore. If you have received a suspended sentence and then were discharged, you can also be found not to be inadmissible to Canada. However, it is good practice to ensure that if you do have a criminal record, you clear it with the consulate to avoid having any problems upon entry into Canada.
Criminal Rehabilitation
Where someone has been found to be rehabilitated, neither the conviction nor the criminal offence will be a cause of inadmissibility. This is an assessment made by Immigration Officers, based on factors particular to the individual. Officers will look at the nature of the offence, the circumstances under which it was committed, the length of time that has elapsed, and whether there were previous or subsequent offences. The question is whether the applicant is likely to commit any further offences in Canada based on their past behaviour.
Deemed rehabilitation periods vary, but in general, if the offence is punishable by a maximum term of 10 years or less, then an applicant is deemed to have been rehabilitated 10 years after the completion of all elements of sentencing, and they can apply for rehabilitation at the 5-year mark. However, simply because they have reached the threshold does not mean that rehabilitation will be automatically granted. This means that an applicant can still be refused at the border even if more than 20 years have elapsed from the time they committed the offence. To avoid being refused at the border, an application for criminal rehabilitation will need to be submitted to the consulate regardless of the amount of time that has elapsed since the criminal offence was committed.
I was pardoned in my home country. Am I still Inadmissible to Canada?
If you were convicted outside of Canada and have received the equivalent of a Canadian record suspension (i.e. a discharge or pardon), this may not be sufficient to demonstrate that you are not inadmissible. The immigration officer still retains the option to refuse admission depending on the severity of the offence.
What happens if I have a criminal offence on my juvenile (youth) record?
In general, offences committed when one was below the age of 18 will have no bearing on inadmissibility. However, if the applicant was treated as an adult for purposes of sentencing, then the offence will cause them to be inadmissible, and therefore criminal rehabilitation or a Temporary Resident Permit will be required.
I have a criminal record but have successfully travelled to Canada multiple times in the past. Do I still have to worry?
An applicant should not rely on the fact that after being convicted of an offence in the past they have been admitted to Canada multiple times without incident. Past decisions to permit entry into Canada are not a factor in the decision. Each entry to Canada is a new request for entry and the officer may still refuse entry based on the past criminal conviction.
What to do if you have been convicted of a criminal offence?
If denied, you will not be allowed to enter Canada until you have received approval from a Canadian consulate. If you are a citizen of a visa-exempt country, you will need to apply for a temporary resident permit based on the guidelines set out by your specific country. Refusals to Canada can be based on past criminal activity can have an impact not only on your personal travel plans, but on your employment if travelling for business purposes, and those in your travel group. Take for example the Zac Brown Band who had to cancel a tour in Canada due to the criminal record of their members. To avoid this, it is best to plan ahead and apply for a Temporary Resident Permit or Criminal Rehabilitation if required. As a previous criminal defence lawyer, I have experience navigating both Criminal and Immigration law and can ensure that your application process is smooth and trouble-free. Contact me today for your consultation and to see how I can help you navigate this tricky area of law.
Commentaires