Eight Common Myths About Criminal Admissibility to Canada

 


The Canadian Government implements stringent practice in determining whether an individual with a criminal history should be granted entry to Canada. Though overcoming criminal inadmissibility to Canada is possible, several myths surround the process.

  1. I was allowed to enter Canada last time, so I should be allowed to this time.   

Despite this being a reasonable assumption, in practice, it is not sufficient. An individual’s admissibility is at the full discretion of the immigration officer encountered at the port-of-entry (POE) to Canada. As such, even if on a previous trip to Canada an officer deemed you admissible and granted entry, it is not safe to make the assumption that this will continually be the case. Under the Canadian Immigration and Refugee Protection Act, anyone with even a minor infraction on their record, or who has had any interaction with the court system, can be denied entry to Canada.

  1. I’m not staying in Canada.  I just need to pass through to get my flight/ cruise, I will be there for less than 24 hours

Even under the circumstance that an individual needs to enter Canada simply to embark on a departing cruise, or has a short-term transit layover amid an international flight, criminal inadmissibility can still prevent entry and cause travel problems.

Within the context of both situations, border officers are required to strictly ensure that the traveler poses no security risk to Canadian citizens. Therefore, the standard rules of Canadian inadmissibility apply – even if the final destination is not on Canadian soil.  For example, if you are an American citizen booked on a cruise that is scheduled to embark from Vancouver to go to Hawaii or Alaska, you must still travel in accordance with Canadian law and therefore need to be granted admissibility to enter the country. Frequently, cruise lines neglect to brief their passengers about these potential travel hazards, meaning many individuals get turned away at the border. Moreover, if the passenger misses their departure as a result, it is not likely that the cruise line will refund the fare.

Equally, when catching a connecting flight at one of Canada’s airports, travelers are often requiring to pass through Canadian customs. Consequently, problems arise, as in the eyes of the Canadian border authorities there is no difference between the entry for transit through Canada, and entering Canada to stay.  

  1. I am admissible because I am an American citizen

The United States is Canada’s closest neighbor; however, being an American citizen does not beneficially influence admissibility when a criminal record is held. In fact, an information sharing agreement exists between the US and Canada, allowing immigration authorities to have easy access to any recorded criminal history of citizens from either nation. In practice, when a passport is swiped, the criminal history of the passport holder appears on the immigration officers screen, clearly presenting any criminal history on record without doubt. Subsequently, criminal inadmissibility to Canada of US citizens is easily determinable and will lead to refused entry.  

  1. I have been allowed into other countries around the world

Each country has its own criteria for determining whether an individual with a criminal history should, or should not, be permitted entry. Though Canadian immigration authorities may view positively that an individual holding an offense record has been allowed to enter other countries, this in itself does deem them admissible to Canada.

  1. My offense was considered a misdemeanor where it was committed

Unlike in the united states, Canadian criminal law does not distinguish between misdemeanor and felony offenses. In practice, even a misdemeanor can result in criminal inadmissibility to Canada.

How an offense is classified in a foreign jurisdiction does not matter. In order to determine if your offense makes you inadmissible, you must find its Canadian equivalent. An offense will render someone inadmissible to Canada if it (1) is an offense under Canadian law, and (2) is of a certain severity. For example, adultery is an offense in the Philippines but not in Canada, thus this charge would not lead to criminal inadmissibility. Additionally, an offense labeled under Canadian law as a summary offense, encompassing the most minor offenses in the criminal code, would not render criminal admissibility if there is only a single conviction. Summary offenses are typically punishable by a fine of up to $5,000 and up to six months’ jail time; for example, being found in a bawdy-house (section 210 (2) (b) Criminal Code).  If more than one summary offense has been committed, a period of five years must have passed since the completion of all sentencing in order for the individual to be deemed rehabilitated and gain admissibility to Canada.

On the other hand, indictable offenses encompass more serious offenses in the criminal code, are subject to harsher punishments and lead to a criminal inadmissibility status. An example of an indictable offense is aggravated sexual assault (Section 273(1) Criminal Code). However, most offenses under the criminal code are hybrid offenses (also known as “dual process offenses”), meaning they can be prosecuted either by summary conviction or indictment; for example, driving while disqualified (Section 259 (4) Criminal Code). It is important to note that hybrid offenses are always considered indictable for Canadian immigration purposes.

Individuals with any criminal history are advised to always verify their entry status before attempting to enter Canada, regardless of the offense.

  1. I wasn’t convicted for my offense

Many people are aware that having a prior conviction on your record may prevent you from crossing the Canadian border.  However, few people are aware of the existence of the rule known as Committing an Act which may render individuals inadmissible to Canada even without a conviction on their record. The practical application for the Committing an Act provisions is to deny entry to persons with which there is evidence of criminal activity, that could result in a conviction if prosecuted in Canada. For instance, this would apply in circumstances where stoning someone to death is excused in the foreign country because of adultery but would be considered murder if it occurred in Canada. It is important to note that these provisions apply only to offenses that are considered to be indictable offenses.

The Committing an Act provision is also applicable for pending charges or convictions, i.e. where there is a warrant out for a person’s arrest, the trial is pending or ongoing, or where foreign authorities have indicated that charges may be laid. Such provisions are not applicable where the individual has been acquitted, or where a court has made a finding of not guilty.

  1. I have completed my sentence and all terms imposed  

Though it may be reasonable to think that after completing your sentence you would no longer be associated with the negative consequences of your offense, unfortunately, this is not the case. Canadian immigration law imposes milestones and conditions which must be satisfied before admissibility is granted; such impositions will depend on the severity and number of offenses in question.

Overcoming criminal inadmissibility to Canada after completion of sentence can be addressed by methods of:

Record suspension

A person who is technically inadmissible to enter Canada due to a criminal offense committed in Canada may relieve the restriction by obtaining a pardon or record suspension. This process allows individuals who were committed for a criminal offense, but have completed their sentence, to demonstrate that they are law-abiding citizens and have their record set aside. A record suspension is available three years after completion of the sentence. The parole board of Canada is the federal agency responsible for ordering record suspensions under the criminal records act. If you get a Canadian record suspension, your record will no longer be searchable in the Canadian police information center (CPIC) database and you will no longer be inadmissible on criminal grounds.

Temporary Resident Permit

Individuals may apply for a Temporary Resident Permit which grants temporary entry to Canada for specific work, family or emergency reasons. The permit is granted at the discretion of Canadian Immigration, with consideration as to whether the individual’ reason for needing to enter Canada outweighs the health or safety risks to Canadian society. Applications can be completed at the Canadian visa office or at the POE; however, it is best to prepare a well-documented application and apply as early as possible prior to the required date of entry.

Criminal Rehabilitation

Through the process of Criminal Rehabilitation, the individual’s record according to the Canadian government can be permanently cleared, removing the issue of inadmissibility. Individuals can be eligible to apply for Criminal Rehabilitation 5 years after completing all sentencing for their conviction, this includes conditions such as fines and probation.

Deemed Rehabilitation

In cases where two or more very minor offenses (equivalent of a Canadian summary offense) were committed, the individual may be deemed rehabilitated once five years have passed since the completion of all sentencing.

Under certain circumstances where only one non-serious criminality offense was committed, the passage of 10 years since all sentencing was completed may be enough to remove an individual’s inadmissibility status.

For individuals convicted of a serious criminality offense, admissibility can never be achieved by the passage of time, only by applying for criminal rehabilitation.

  1. My offense is from more than 10 years ago

Within Canadian immigration law there is the concept of ‘Deemed Rehabilitation’, which dictates that an individual typified as having committed a criminality offense (punishable by indictment in Canada with a maximum sentencing of fewer than 10 years, or with a conviction in Canada that led to a served prison sentence of fewer than 6 months), can be considered no longer inadmissible to Canada simply as a result of the passage of time. The requisite period of time is 10 years from the completion of all sentencing. However, when an individual is typified as having committed a serious criminality offense (punishable by indictment in Canada with a maximum sentencing of at least 10 years, or has a served prison sentence of six months or more), or multiple offenses, this elapse of time will not resolve inadmissibility.

Notably, even if an individual should qualify for Deemed Rehabilitation, the ultimate determinant is at the discretion of the border officer. If the border officer has reason to believe that the traveler could pose a security risk to Canadian citizens, they are still within their rights to deny entry to the individual. It may also be possible that the border officer is unfamiliar with the concept of Deemed Rehabilitation (they are not lawyers), this is a common situation whereby individuals are denied entry to Canada.

Under such circumstances where an individual is applying to enter Canada within the grounds of Deemed Rehabilitation, a ‘Legal Opinion Letter’ may be particularly beneficial. This letter will provide the opinion of a legal representative regarding an individual’s grounds for entering Canada due to their change in admissibility status; this will help to prevent confusion at the border which could delay entry.

At FWCanada, we are happy to offer a free consultation to promptly provide an honest assessment of questioned admissibility cases and subsequent chances of success. As one of the leading immigration law firms in Canada specializing in criminal inadmissibility, we have extensive experience handling a wide range of cases. We prioritize detailed reviews of each client’s case to optimize application approval.

Please call on our toll-free number: 1.855.316.3555 to ask all your burning questions and remedy confusions because providing honest and accurate advice is our ethos.

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.

 

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