Criminal Inadmissibility Explained

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Under the Immigration and Refugee Protection Act, SC 2011, c. 27  (“IRPA”), a non-citizen of Canada may be considered “inadmissible” to Canada due to past criminal convictions or the commission of certain criminal acts. Anyone planning to enter Canada to seek permanent residency, to study, work, or simply visit may be denied entry if he/she has been charged or convicted of a criminal offence. Anyone living in Canada as a permanent resident or foreign national may be forced to leave due to criminality. Even minor offences may render a person inadmissible to Canada.

If you have been found criminally inadmissible to Canada, or are concerned that you may be, the Immigration Law Group at Perley-Robertson, Hill & McDougall LLP/s.r.l. can help. This article offers a brief outline of the circumstances in which a person will be considered criminally inadmissible, and the options available for overcoming a finding of criminal inadmissibility. For legal advice specific to your case, please contact us to arrange a consultation.

 

How to determine whether you are criminally inadmissible

Determining whether a criminal offence will render a person inadmissible to Canada is not always an easy task. There are three (3) types of crimes in Canada: summary offences, indictable offences, and hybrid offences. Summary offences are the least serious criminal offences while indictable offences are considered serious crimes. Hybrid offences are those punishable by either summary conviction or by indictment. For the purposes of Canadian immigration law, a hybrid offence is treated as indictable.

A person convicted of only one (1) summary offence will not be considered inadmissible for reasons of criminality. If convicted of one or more indictable offences, or more than one summary offence, then a person may be considered criminally inadmissible and should consider the options for overcoming that inadmissibility—preferably prior to seeking entry to Canada.

Note that a foreign national can be considered criminally inadmissible even for minor offences, whereas the offence(s) must be more serious for a permanent resident of Canada to be rendered inadmissible. A permanent resident of Canada can only be rendered inadmissible on the grounds of serious criminality under the provisions of s. 36(1) of IRPA, whereas a foreign national (i.e. a person with no permanent status in Canada) can be rendered inadmissible on the grounds of serious criminality under s. 36(1) or criminality alone under s. 36(2).

Those charged as young offenders (under 18 years) generally will not be rendered criminally inadmissible.

The types of criminality that can lead to inadmissibility can be grouped into the following four categories:

1)      Convicted in Canada;

2)      Convicted outside Canada;

3)      Committed an “act” outside Canada; and,

4)      Committed an “act” upon entering Canada.

 

(a) Convicted In Canada

Under s. 36(1)(a) of the IRPA, a permanent resident or a foreign national will be considered inadmissible if he or she has been convicted (in Canada) of an offence:

  • carrying a maximum term of imprisonment of at least 10 years; OR
  • for which a term of imprisonment of more than six months has been imposed.

S. 36(2)(a) applies only to foreign nationals. Under this section, a foreign national is inadmissible if convicted (in Canada) of:

  • An offence punishable by way of indictment; OR
  • Any two offences not arising out of a single occurrence.

 

(b) Convicted Outside Canada

A conviction for a crime committed outside of Canada triggers ss. 36(1)(b) and 36(2)(b) of the IRPA. A permanent resident or foreign national may be found inadmissible if an officer has “reasonable grounds to believe” that he or she was convicted of one or more offences outside Canada.

In order for the foreign conviction to render a person inadmissible, the activity must be a crime both in the place where it was committed and in Canada. An offence committed abroad that is considered serious in a foreign country may be considered a summary offence in Canada or, in some cases, may not be considered a crime in Canada at all. It does not matter how serious the crime is considered in the country where it was committed; what matters is how the crime is classified under Canadian law. To determine this, a careful study of the crime in the context of Canadian criminal law must be undertaken. Even if the offence is a crime in Canada, a foreign pardon may be recognized where it is similar to the record suspension (i.e. pardon) process in Canada.

To summarize, in order to be considered inadmissible under these provisions, the offence committed abroad must be equivalent to an offence in Canada, and:

  • For both permanent residents and foreign nationals,
    • The offence must be punishable by a maximum term of imprisonment of at least 10 years (in Canadian law);
  • For foreign nationals only,
    • The offence must constitute an indictable offence (in Canadian law); OR
    • The offence must constitute two offences not arising out of a single occurrence (in Canadian law).

 

(c) Committed an “Act” Outside Canada

The intent of sections 36(1)(c) and 36(2)(c) of the IRPA is to deny entry to Canada to those fleeing a criminal proceeding in a foreign jurisdiction. However, it is only applicable if that criminal activity could result in a conviction under Canadian law.

These provisions may also be used where an offence was committed but no conviction was registered.  They cannot be used where the person has been acquitted.

In order to be considered inadmissible under these provisions, the act committed outside Canada must be an offence under the law in the jurisdiction where it occurred, and:

  • For both permanent residents and foreign nationals,
    • The offence must be punishable by a maximum term of imprisonment of at least 10 years (in Canadian law);
  • For foreign nationals only,
    • The offence must constitute an indictable offence (in Canadian law); OR
    • The offence must constitute two offences not arising out of a single occurrence (in Canadian law).

 

(d) Committed an “Act” Upon Entering Canada

Where an offence occurs at the port of entry (airport or border crossing) but charges have not been laid, Canadian officials maintain the authority to find a person inadmissible pursuant to section 36(2)(d) of IRPA.

In order to be considered inadmissible under this provision, there must be reasonable grounds to believe that an offence was committed upon entry to Canada, and the offence must be indictable.

 

Overcoming a Finding of Criminal Inadmissibility

Criminal inadmissibility is not necessarily an absolute or permanent bar to entering and/or remaining in Canada. In many cases, there are means of overcoming inadmissiblity.

(a) Rehabilitation

The IRPA’s “rehabilitation” provisions are the primary means by which inadmissibility can be overcome. There are two available types of rehabilitation:

1)      deemed rehabilitation; and,

2)      rehabilitation by way of a formal application process.

In certain cases, you will automatically be considered absolved of your crime after a certain amount of time has passed. In other words, you are “deemed” rehabilitated. Deemed rehabilitation applies in the following situations:

–         after five (5) years have elapsed for a person who has committed two or more summary offences; or

–         after ten (10) years have elapsed for a person who has committed only one indictable offence carrying a maximum penalty of less than 10 years

The deemed rehabilitation provisions are not applicable if the prescribed time periods have not elapsed, or if the person committed subsequent indictable offences. Further offences committed after the date of any deemed rehabilitation would void the effect of the deemed rehabilitation.

Where deemed rehabilitation does not apply, a person may apply for individual rehabilitation. At least five (5) years must have passed since the completion of all sentences (including the payment of any fine, restitution, and/or probation), and an application must be submitted to the responsible Canadian visa office. Processing times can be lengthy (up to one year).

(b) Record Suspensions or Discharge

Where a record suspension (formerly a pardon) or discharge is obtained for a conviction in Canada, that conviction will no longer lead to inadmissibility. The Parole Board of Canada issues record suspensions. A request to purge an absolute or conditional discharge should be directed to the RCMP.

A foreign pardon may have the same effect on inadmissibility, but it must be recognized in Canada.

(c) Temporary Resident Permit

Those not eligible for rehabilitation, a pardon or a discharge may still be permitted to enter on a Temporary Resident Permit. This document allows an applicant to enter or remain in Canada in spite of the inadmissibility. For more details on Temporary Resident Permit applications, see our article on this subject.

(d) Application for Permanent Residence on Humanitarian & Compassionate Grounds

If you are seeking permanent entry despite inadmissibility, an application for an exemption on humanitarian and compassionate grounds can be made. If your humanitarian & compassionate request is granted, inadmissibility will no longer act as a barrier to achieving permanent status in Canada. There must be exceptional circumstances to justify granting such an application. Succeeding in these applications is very difficult, but they do provide a last-resort option for those who are established in Canada and lack other means of overcoming their criminal inadmissibility.

 

Conclusion

Criminal inadmissibility is a hurdle for those who wish to enter or remain in Canada, but it is not necessarily an insurmountable hurdle. Our team of immigration law professionals can help determine your options, and provide strategic advice that often overcomes inadmissibility.