CRIMINAL INADMISSIBILITY TO CANADA
A foreign national may be inadmissible for immigration to Canada on the grounds of criminality.
Criminal inadmissibility may affect the following individuals:
For convictions outside Canada, if he or she has:
been convicted outside Canada of an act that, if committed in Canada, would be equivalent to an indictable offence of less than ten years; or
been convicted outside Canada of two or more acts that, if committed in Canada, would be equivalent to summary offences; or
been convicted outside Canada of an act that, if committed in Canada, would be equivalent to a hybrid offence punishable by a sentence of less than ten years.
For criminal acts committed outside Canada, if he or she has:
committed an act that, if committed in Canada, would be equivalent to an indictable offence of less than ten years.
For convictions within Canada, if he or she has:
been convicted in Canada of an indictable offence of less than ten years; or
been convicted in Canada of two or more summary offences.
Individuals who have an offence on their record could be inadmissible to Canada and require special permission to enter.
This is the case when an individual performs an act that constitutes an offence in both Canada and the country in which the offence took place. Although the foreign equivalent of a Canadian criminal code infraction is the most common cause of inadmissibility, an offence that equates to a violation of any Canadian Federal law also results in inadmissibility.
Examples of such laws include the drugs and controlled substances act, and the income tax act.
What an individual must do in order to overcome this inadmissibility and gain entry to Canada will depend on the classification of the offence and the length of time that has elapsed since the completion of the sentence.
Sentences can consist of many possible sanctions a judge might institute to punish the commission of an offence. These can include jail time, probation, fines, license suspension, deportation, and others. When more than one such measures is imposed, it is the date of completion of the final one that is taken into account for the purposes of Canadian inadmissibility.
Less than five years since completion of a sentence
During this time frame, the individual must apply for a Temporary Resident Permit (TRP) in order to enter Canada legally. This is a temporary waiver of inadmissibility that allows an individual who would otherwise be inadmissible to enter Canada for a specific reason and for a specific amount of time, up to a maximum of three years. In order to be granted a TRP, the individual must have a reason for coming to Canada, and immigration authorities must not determine him or her to be a threat to Canadian society. Because this determination involves a subjective component, it is important for individuals to submit a well prepared and compelling TRP application package.
More than five years, but less than 10 years, since completion of a sentence
After the five-year benchmark has been reached, an individual may be eligible to apply for criminal rehabilitation. Upon approval of this application, he or she will have a clean slate as it concerns the ability to enter Canada legally. There will no longer be any hindrances relating to the previous conviction(s), and the individual will be able to enter and leave Canada, provided, of course, that he or she doesn’t commit another offence and complies with any applicable visa requirements. In order to be considered criminally rehabilitated, it must be demonstrated that an inadmissible individual has ‘turned over a new leaf’ since the conviction(s) and is not likely to re-offend. The approval of this application is also dependent on the subjective assessment of immigration authorities. For this reason, applicants are well served to prepare an application that conforms to what they are looking for in a rehabilitated individual.
10 years or more since completion of a sentence
Once ten years have elapsed, an inadmissible individual could be deemed rehabilitated, meaning that he or she is no longer criminally inadmissible, simply as a result of the passage of time. This is only possible in cases where the individual has a single, non-serious conviction on his or her record. Even in such a scenario, however, it is nonetheless possible that the individual may encounter an issue when crossing the border. This is because border authorities have a significant amount of discretion in the exercise of their duties and, as a result, can refuse entry to individuals, even though they are no longer inadmissible as a result of deemed rehabilitation. A Legal Opinion Letter, written by an experienced Canadian immigration attorney, can be helpful in avoiding this situation.
A legal opinion letter is also useful to clear up uncertain immigration situations, particularly charges or incidents that give the impression of inadmissibility, but do not in fact make you inadmissible. These situations also have the potential to lead to the denial of an application or refusal of entry to Canada.