Expungements, Sealed Records, and Suspended Sentences
Types of Offences in Canada
Temporary Resident Permit
A: When you are considered criminally “inadmissible” to Canada, it means that you are not allowed visitation or travel into the country, due to a past criminal conviction. It also poses problems for people who want to immigrate to Canada permanently. A criminal record will prevent a person and their family from immigration opportunities, regardless of if the conviction is of a misdemeanor or felony category. Committing an offence of a certain severity, or having numerous offences, will deem you inadmissible, or not allowed, into Canada. Criminal inadmissibility due to a driving impaired conviction such as driving under the influence (DUI) or driving while impaired (DWI) is one of the most common reasons for refused entry at the border. For a free consultation about DUI or DWI Canada entry, click here
Q: Can I travel to Canada with a Criminal Record?
A: In some circumstances travel to Canada with a criminal record is possible. Most of the time, either a Temporary Resident Permit or an application for Criminal Rehabilitation (see FAQs below) is required to make such visitation possible. Whether one is driving across the border, flying into a Canadian airport, or entering the country via waterway, an individual with a criminal record will be stopped and questioned. The ability to visit Canada with a criminal record is based on many factors such as the specifics of the criminal record and the reasons for travel. It is important to note that if your criminal record is comprised of an offence that does not equate to a federal offence under Canadian law, you are not inadmissible.
Q: Can I travel to Canada with a Non-Conviction?
A: Yes. If an arrest results in a non-conviction, you are innocent and should not be denied entry to Canada on that basis. In cases where an individual is arrested but found not-guilty, Canadian entry should not be a problem, however mistakes still happen and people are wrongly refused. FWCanada generally recommends a legal opinion letter to explain precisely why an individual in this situation is not criminally inadmissible, despite the entry on their arrest record.
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A: If you only have one driving under the influence (DUI) or driving while intoxicated (DWI) conviction, or other less serious offences on your record, and no other convictions, you will be deemed rehabilitated after a period of ten years have passed from the completion of all sentences, fines and probationary periods. If you have one conviction that is of a very serious nature, deemed rehabilitation will not be possible. Similarly, if you have two or more convictions, even if they are from a very long time ago, deemed rehabilitation will not apply for you. FWCanada always recommends the use of a legal opinion letter whenever a conviction has been entered on record. For more information on DUI/DWI Canada entry, click here
Q: How do I apply for Deemed Rehabilitation?
A: You do not actually have to apply to be deemed rehabilitated. That being said, it is very important to make sure you qualify for deemed rehabilitation before you attempt to enter Canada, to avoid the potential of being turned around at the border. FWCanada can help assess your situation and ensure you get the most pertinent information and options regarding entering Canada. Contact FWCanada for a free consultation
Q: What do I need to be Deemed Rehabilitation?
A: In order to be Deemed Rehabilitated, you need to review your criminal history reports (FBI or State Reports: see below). Additionally, it is useful to access your court records to make yourself aware of the exact date that all the conditions of your sentence were completed, whether they be fines, jail time, or probationary periods. In the case of driving offences such as a driving under the influence (DUI) or driving while intoxicated (DWI) conviction, this also includes any required alcohol evaluation, attendance at a Victim’s Impact Panel, or required Alcoholics Anonymous (AA) meetings. You also need to make sure that your conviction translates into a conviction in Canadian law that is not too severe. The best way to make sure you are truly deemed rehabilitated is to contact a law firm, and/or to receive a legal opinion letter for the border agents to prove your deemed rehabilitation.
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Expungements, Sealed Records, and Suspended Sentences
A: It is very possible to still be considered inadmissible to Canada even with an expungement. The reason for this is because the law concerning expungements in every state varies considerably. Therefore, not all expungements translate into an expungement in Canadian law. It is always recommended to verify with legal experts regarding how your expungement translates. Visit our helpful page on expungements here, or contact us with any questions you may have.
Q: I received a withheld/deferred adjudication. Am I inadmissible?
A: Since the laws in every state vary significantly, there is no guarantee that your withheld or deferred adjudication will count as what Canada would consider an absolute or conditional discharge. In some cases, such adjudication will not make you inadmissible, while in others, it still will. The best course of action is to get a legal opinion letter to argue for the validity of your adjudication, and your admissibility to Canada.
Q: I received a suspended sentence. Is that considered a conviction?
A: Yes. Even though your sentence is suspended, usually contingent on successfully completing probation, you still had to have pleaded guilty of the offence. The moment there is a “guilty” or “convicted” offence on your record, you are rendered inadmissible to Canada and will require additional steps to be able to visit the country.
Q: I had my record sealed. Do I have to disclose my conviction in my immigration application?
A: Yes. A sealed record is considered a criminal record for the purposes of IRPA. Having a sealed record itself does not in and of itself constitute inadmissibility, however, a border agent or officer will question the person concerned to determine the circumstances of the sealed record. A sealed record is usually a process used for young offenders. In such cases, it would most likely equate to an offence under the Young Offenders Act, which does not render one inadmissible to Canada. Sealed records can also be used after an agreement between the prosecutor and the defendant, or in security cases. For example, if a person abides by terms and conditions imposed by the court, their record may be sealed in Vermont. The record cannot be made public without a court order, however, will appear on a person’s “rap sheet.”
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Types of Offences in Canada
Note that Canadian immigration does not distinguish between misdemeanor and felony convictions for the purpose of travelling to Canada.
A: Summary offences encompass the most minor offences, and the conviction for a single summary offence would not render a person inadmissible. They are typically punishable by a fine of up to $5,000 and up to six months jail time. An example would be ‘possession of marijuana’ (up to 30 grams).
Q: What is an indictable offence?
A: Indictable offences are much more serious and have much harsher penalties. Having just one indictable offense will automatically render a person inadmissible. Examples of these types of an indictable offence are aggravated assault, or dangerous driving that results in death or serious injury. In regards to considering if you have serious or non-serious criminality, border agents will always see indictable offences as serious criminality, especially for the purposes of a Criminal Rehabilitation application.
Q: What is a hybrid offence?
A: A hybrid offence is one that can be prosecuted either summarily, or as an indictable offence. The decision usually rests with the prosecution. Most offences in Canada are hybrid offences. It is important to note that when Canadian immigration understands your particular offence as “hybrid”, they will automatically consider it an indictable offence, making you inadmissible. One summary offence will not render you inadmissible, yet one hybrid one will. Any driving offence, such as a driving under the influence (DUI) or driving while intoxicated (DWI) offence, is considered a hybrid offence in Canada, therefore a DUI or DWI requires a Temporary Resident Permit or Criminal Rehabilitation to overcome.
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Temporary Resident Permit
A: A Temporary Resident Permit allows an individual to overcome their criminal inadmissibility for entry into Canada for a specified reason and for a specific period of time. For more information on TRPs click here.
Q: How do I apply for a TRP?
A: To apply for a Temporary Resident Permit, you submit an application at a Canadian Visa Office or to a border agent at a Port of Entry. Applications at Port of Entry can be processed whether the individual is driving, flying, or travelling via water.
Q: How long are TRPs valid for?
A: TRPs have a maximum validity of three years. The amount of time that your TRP will be issued for depends on the nature of your stay, and on the border agent. Sometimes, TRPs will only be valid for a week, while others can be valid for the full three years. Additionally, TRPs can be single entry or multiple entry.
Q: How much does a TRP application cost?
A: The choice of location may impact the likelihood of your success, as well as the processing time. If you choose to submit a TRP application at a Port of Entry, the applications can be processed on the spot. However, the processing time at a consular office can take anywhere from 4-6 months.
Q: Do I need to apply for an eTA and a TRP?
A: The documents that are required to be included in your TRP application can be found here.
Q: My TRP application is still processing, but I need to visit Canada. What should I do?
A: There is no guarantee that you will obtain advanced permission from the government in time for your desired entry into Canada. However, you can apply directly at the Port of Entry with another TRP application, and show proof to the border agent that you have already sent one to the consulate.
Q: What can/can’t I do with a TRP?
A: As a Temporary Resident permit holder, you:
- Must comply with the conditions imposed on your TRP;
- Must not work or study without a work or study permit;
- Cannot re-enter Canada without prior authorization;
- Must leave Canada at the end of your authorized period of stay.
A: If you have been deemed criminally inadmissible and are seeking entry into Canada, you will need to apply for Criminal Rehabilitation. Criminal Rehabilitation is defined as a request for absolution from the Government of Canada for a crime(s) committed in the past. If your Criminal Rehabilitation application is approved, this will clear your record for Canada immigration purposes. You are only eligible for the application if 5 years have passed since the completion of your most recent sentence. This is a permanent solution to criminal inadmissibility if approved, and will mean you no longer require TRPs when seeking entry to Canada. Read here for more information.
Q: How do I apply for Criminal Rehabilitation?
A: To apply you must send an application via the post to a Canadian consulate for review by an immigration officer. Unlike a Temporary Resident Permit, you cannot apply for Criminal Rehabilitation with a border agent at the port of entry. Additionally, you must have Canadian legal representation if you seek legal help with the application. A crucial part of the application process is having the ability to demonstrate that you have a stable lifestyle, harboring no potential risk of committing another crime in the future. As an applicant, you must focus on proving your capacity for rehabilitation, as well as providing in as much detail as possible, the process by which you will achieve rehabilitation.
Q: How much does it cost to apply for Criminal Rehabilitation?
A: The processing fees for Criminal Rehabilitation involving Non-Serious Criminality is 200$ CAD, while the processing fees for an application involving Serious Criminality is 1000$ CAD. A driving under the influence (DUI) or driving while intoxicated (DWI) conviction is considered non-serious criminality. Contact us for a free consultation to determine which type of criminality your criminal record constitutes!
Q: What documents do I need to include in my Criminal Rehabilitation application?
A: You’ll be expected to provide detailed records of your criminal history and employment history. Your documents must detail how many offenses you have, the nature of your offense(s), and the amount of time that has passed since the completion of your sentence(s). The most important factor in assessing your application’s potential for success lies in the documents detailing the circumstances of your crime, as well as the process by which you’ve sought and achieved rehabilitation. These documents will play host to the best chance you have to state your case, and demonstrate to those reviewing your application that you are worthy of being granted Criminal Rehabilitation. More information can be found here
Q: How long does it take to process a Criminal Rehabilitation application?
A: Current processing times are from between 9-12 months, but depending on circumstance it can potentially take longer.
Q: I’m not yet eligible for Criminal Rehabilitation. Is there another way for me to enter Canada?
A: If 5 years have not yet passed since the completion of your sentence, but you have an urgent need to enter Canada, you can apply for a Temporary Resident Permit either at the border or in advance at a consulate. See the questions above regarding TRPs for more information.
Q: My Criminal Rehabilitation application is still processing, but I need to visit Canada. What should I do?
A: If you need to visit Canada while your Criminal Rehabilitation application is still processing, you need to apply for a Temporary Resident Permit. Full details about what the application entails is included in the above questions. It is usually helpful for a border agent to see that you are applying for Criminal Rehabilitation while you attempt to enter with a TRP. They can verify that you have an application in process.
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A: A police clearance certificate is essentially a background check from a specific place that provides a trusted account of your criminal activity, or inactivity, in a given area over a given period of time. To acquire state police clearances individuals must make requests through the individual states. For your convenience, all state websites, prices and application forms (for certain states) can be found here. Temporary Resident Permit applications and Criminal Rehabilitation applications need these clearances so it’s important to familiarize yourself with how to acquire yours.
Q: What is FBI Clearance?
A: This particular clearance is found by sending a request to the Federal Bureau of Investigation, and it includes all of the criminal history of an individual throughout the entire United States of America. When your passport is scanned at the border, your FBI criminal history is what shows up; therefore it’s extremely important for your applications, and even before beginning your applications, to acquire this document to be aware of exactly what will appear. For accurate and up to date information about how to submit a request, visit the FBI website here.
Q: I’m applying for a TRP or Criminal Rehabilitation. At what point do I submit a PCC/FBI Clearance?
A: For Criminal Rehabilitation applications, police clearances and FBI clearances are required for the application and must be submitted before your application is sent to the consulate. State clearances must be provided for every state you have lived in for more than 6 months, since the age of 18. All clearances, FBI and state included, must be as up to date as possible to heighten the probability of a successful application. For TRP applications at the port of entry, police clearance certificates and FBI reports are not absolutely required, but will greatly help your application to include. Sometimes due to time restraints it can be difficult to receive the clearances, but including them is worth the effort. TRP applications sent to the consulate, similar to Criminal Rehabilitation applications, must contain the clearances before they are completed.
Q: What happens if I cannot receive a PCC?
A: For TRP applications at the port of entry, it is not the end of the world if you have not had the chance to receive your PCC. That being said, everyone has the right to access their criminal history, so the likelihood of getting denied is large when you send an application to the consulate without your PCCs. Check out the table here to verify the processing times and fees for receiving a PCC from different states.
FWCanada is a Montreal-based immigration law firm that provides professional legal services on Canadian immigration. For more tips and updates on Canadian immigration follow FWCanada on Facebook, Twitter, and Linkedin.