Travelling to Canada with pending criminal charges is possible, but you must prove that you are fighting the charges and should be allowed into the country. As you may be aware, individuals with a criminal conviction on their record are generally inadmissible to Canada. However, since pending charges are not an official conviction, they do not automatically make you inadmissible. It is your responsibility to provide evidence of your admissibility, since border officers can turn you away if they have reason to believe you committed a crime. Read on to find out how to boost your chances of travelling to Canada with pending criminal charges.
Am I Inadmissible with Pending Charges?
You will be considered inadmissible to Canada if you have committed an offence that is equivalent to an indictable offence under Canadian law. While it is clear how inadmissibility applies to convictions, it is less clear how it affects pending charges.
Under s.36 of Canada’s Immigration and Refugee Protection Act, an individual is inadmissible to Canada not only for a criminal conviction, but for “committing an act” that would be an indictable offence in Canada. This implies that no official conviction is necessary; border officers simply need a reason to believe that you have committed a crime in order to deny you entry to Canada.
The rationale behind this clause is specifically so that Canada does not provide an avenue for people to evade their criminal proceedings. For this reason, you are considered inadmissible if your trial is still underway.
If you have pending charges, however, the situation is more complex. Admissibility depends on how you present your case and the discretion of the individual border officer. If you provide no information or make an admission of guilt, you will be inadmissible. Don’t jeopardize your admissibility by making one of the 3 common mistakes below!
Common Mistakes to Avoid
1. Flagging Yourself Prior to Entry
Since inadmissibility can be confusing, many individuals call the Canada Border Services Agency to ask if they will be allowed into Canada with pending charges. This is generally not advantageous to your case, since it will only draw attention to the fact that you have been arrested. Your name may be flagged, which will ensure that you will be stopped next time you try to cross the border. Furthermore, in this scenario many people are innocently asked if any of the allegations against them are true and inadvertently make an admission that is then held against them, resulting in their inadmissibility.
2. Admitting to a Crime
Since you have not been found guilty of an offence, don’t admit to committing one. This includes admitting to circumstances that would lead the border officer to believe you committed a criminal act. For example, if you have pending charges for a DUI, do not say: “well I did have a couple of beers” (even if you don’t believe you were impaired). Regardless of the lack of official conviction, you can be denied entry for “committing an act”.
3. Providing no Information
Another common mistake is showing up to the border empty-handed. The onus is on you to prove that you do not have a conviction and are not inadmissible; otherwise, the officer can interpret your pending charges as proof of “committing an act” and turn you away. Unlike in criminal court, where the burden is on the prosecution to prove beyond a reasonable doubt that you are guilty, for immigration purposes, the burden is on you as the applicant to show you are admissible. With the help of your lawyer, you should travel with the right documentation to prove that you are fighting your charges and have not been convicted.
What Are my Best Chances at Entry?
In addition to avoiding the common mistakes above, it is best to acquire the relevant documents from your local attorney, and consult a Canadian immigration lawyer for expert advice on your case. Obtaining a Legal Opinion Letter from a Canadian attorney can help to explain to border officers why you are admissible to Canada. Further, it is advised to request a Legal Opinion Letter from your local attorney, who can explain why they are fighting to dismiss your charges and that you have not been convicted of any offence that would render you inadmissible.
I Received a Different Ruling, am I Inadmissible?
The following rulings are not convictions, meaning you are admissible to Canada:
- Acquittal contemplating dismissal
- Deferral of prosecution
- Deferral of judgement
- Deferral of conviction
- Nolle prosequi
The following rulings are considered convictions, meaning you are inadmissible to Canada:
- Deferral of sentence
- Suspended sentence
- Nolo contendere
At FWCanada, we are happy to offer free consultation to promptly provide honest assessment of your case and assist with travelling with pending charges. As one of the leading immigration law firms in the country specializing in criminal inadmissibility, we have extensive experience handling a wide range of cases. We prioritize detailed review of each client’s case to optimise 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.