How do I know if I am Criminally Inadmissible?

Quick Assessment:

For a quick summary of entering Canada with a conviction, visit: Entering Canada with a Conviction

For a summary of entering Canada with a DUI conviction, visit: Entering Canada with a DUI

Quickly assess your inadmissibility through these 5 simplified questions:

  1. Were you convicted of an offence?

–       If yes, you may be inadmissible to Canada

  1. Is your offence a crime in Canada?

–       If yes, you may be inadmissible to Canada

**note that whether the offence is classified a misdemeanor or a felony is irrelevant, as the crime is judged under Canadian law**

  1. How long ago was your offence?

–       Less than 5 years since the completion of your sentence: you must apply for a temporary resident permit to enter Canada

–       More than 5 years since the completion of your sentence: you must apply for rehabilitation to enter Canada

–       More than 10 years since the completion of your sentence: you may be deemed rehabilitated if you only have one, non-serious offence

  1. How many offences do you have and what is the severity of your offence?

You are inadmissible if you have committed:

–       One or more serious offence

–       One indictable offence and any other conviction

A summary of your options based on how long ago your last offence occurred:

TRP- reason for travel is considered for a TRP:

–       For business purposes or family emergencies: you are likely to be permitted to enter Canada

–       For leisure purposes: TRP for leisure activities are unlikely to be granted

Rehabilitation- rehabilitation does not depend on reason for travel. It is based on the time since the completion of sentence.

For detailed information, please refer to the in-depth assessment.

In-Depth Assessment:

How do I know if I am Criminally Inadmissible?

Non-Canadian citizens may be denied entry into Canada for, among other reasons, criminal convictions and criminal records.

In order for an offence to render someone inadmissible, it (1) must be an offence under Canadian law, and (2) must be of a certain severity.

Section 36 of the Immigration and Refugee Protection Act (IRPA) outlines the grounds for criminal inadmissibility. Having committed any of the offences described by s. 36, the applicant is inadmissible to enter Canada.

How do I know if it is an offence under Canadian law?

Foreign convictions and laws are equated to Canadian law for the purposes for determining inadmissibility. There is no one standard formula for determining equivalency between Canadian and foreign law.

The determination often requires several considerations, including:

Text analysis – comparing the wording of the two statutes (i.e. the Canadian Criminal Code and the foreign legislation) with a view to determining the “essential elements” of the respective offences.

Examining the facts of the case – considering the circumstances and context surrounding the offence in relation to the Criminal Code provisions.

Contact Our Office for a free consultation to determine how your offence is classified under Canadian law.

Step 1- Type of Offence

Acquittals and Non-convictions

An individual is admissible to Canada if:

–       They have an arrest record for being charged, but never convicted of a crime;

–       They were acquitted of a crime;

–       They participated in a pre-trial intervention program;

–       They had a conditional discharge

Pardons and expungements

Foreign discharges, expungements, or pardons are not always recognized in Canada. You may also remain inadmissible if your charges were withdrawn or dismissed, or you have an absolute or conditional discharge.

Deferred and suspended Adjudication

Deferred adjudication and Suspended adjudication are not considered convictions for the purposes of Canadian immigration law, therefore, do not result in inadmissibility.

Suspended Imposition and deferred sentence

Suspended imposition of a sentence and deferred sentences are still considered convictions, for the purposes of Canadian immigration law, and therefore, they would lead to inadmissibility and require criminal rehabilitation or a TRP in order to enter Canada.

Federal vs Provincial

Provincial offences tend to be minor and regulatory. Federal offences are not considered criminal acts and do not go on your criminal record.

Youth offenders

For those between age of 12 and 18. Juvenile convictions typically do not lead to criminal inadmissibility.

They are admissible if:

–       They were convicted in Canada under the Youth Criminal Justice Act or the Young Offenders Act (repealed), or

–       Treated as a young offender in a country which has special provisions for young offenders, or

–       Convicted in a country which does not have special provisions for young offenders, but the circumstances of the conviction are such that they would not have received an adult sentence in Canada.

They are however, inadmissible if:

–       They were convicted in adult court in a country that has special provisions for young offenders, or

–       Convicted in a country which does not have special provisions for young offenders but the circumstances of your conviction are such that you would have been treated as an adult in Canada.

Step 2- Severity of Offence

Once you have determined the Canadian equivalent of your offence, you will then be able to determine how its severity under Canadian law.

Non-Serious Criminality

  • Any offence under a Federal Statute that is punishable by a maximum jail sentence of less than 10 years
  • For example: theft under $5,000.00, simple assault, fraud under $5,000.00

Serious Criminality

  • Any offence with a maximum prison sentence of 10 years or more
  • For example: offences involving bodily injury and/or use of a weapon

**note that whether the offence is classified a misdemeanor or a felony is irrelevant, as the crime is judged under Canadian law**

Step 3- Number of offence

Serious Criminality– Any serious criminality will result in inadmissibility

Non-serious criminality- offence if committed in Canada, would constitute an indictable offence under an Act of Parliament, or two or more offences that would constitute offences under an Act of Parliament not arising out of a single occurrence

Step 4- Offence in Canada vs Offence outside Canada

Convictions or Offences in Canada

You must seek a record suspension, formerly known as a pardon, from the Parole Board of Canada to become admissible

Both convictions in Canada and convictions or offences outside of Canada

Both an approval of rehabilitation and a record suspension are required to be able to enter Canada. You must first obtain a record suspension then request rehabilitation, unless if you have only one summary conviction in Canada. In such cases, you can apply for rehabilitation with proof that you have applied for a record suspension to the PBC.

Convictions or Offences outside Canada: refer to step 5

Step 5- Criminal rehabilitation and deemed rehabilitation for convictions or offences outside of Canada

Criminal Rehabilitation is an application process whereby an individual petitions the Canadian government to disregard their criminal history, for the purpose of Canadian immigration. Rehabilitation does not depend on reason for travel. It is based on the time since the completion of all sentence.

Convicted of an offence that would be an indictable offence punishable by a maximum term of imprisonment of less than ten years

–       If 5 years has not passed after completion of sentence: you must apply for a temporary resident permit to enter Canada

–       If 5 years has passed after completion of sentence: you are eligible to apply for rehabilitation

–       If 10 years has passed since the completion of sentence: you are deemed rehabilitated

Convicted of an offence that would be an indictable offence punishable by a maximum term of imprisonment of ten years or more

–       If 5 years has not passed after completion of sentence: you must apply for a temporary resident permit to enter Canada

–       If 5 years has passed after completion of sentence: you are eligible to apply for rehabilitation

–       If 10 years has passed since the completion of sentence: you will not be deemed rehabilitated by passage of time and must apply for rehabilitation
Convicted for two or more offences that would constitute summary conviction offences in Canada

–       If 5 years has not passed after completion of sentence of offence: you must apply for a temporary resident permit to enter Canada

–       If 5 years has passed after completion of sentence of offence: you are deemed rehabilitated

Step 6- Calculate the five year wait period

–       Suspended sentence: five years since the date of sentencing

–       Suspended sentence with a fine: five years from the date the fine was paid. For varying payment dates, since the date of the last payment

–       Imprisonment without parole: five years from the end of the term of imprisonment

–       Imprisonment and parole: five years from the completion of parole

–       Probation: five years since the end of the probation period

–       Driving prohibition: five years since the end date of the prohibition

Step 7- Reason for Entry to Canada-Temporary Resident Permit for those ineligible for rehabilitation

A Temporary Resident Permit allows those with a specific and reasonable purpose but who would have been deemed inadmissible to the country to enter Canada. Applications for require that the applicant give relevant and significant reasons why it is essential that they enter the country despite their criminal offence with supporting documentations.

–       For business purposes or family emergencies: you are likely to be permitted to enter Canada if you apply for a TRP

–       For leisure purposes: TRP for leisure activities are unlikely to be granted

 

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 FacebookTwitter, and Linkedin.