2021 Developments in Criminal Inadmissibility to Canada

There have been several developments on criminal inadmissibility to Canada throughout 2021. The Canadian visa offices who process immigration applications for permanent and temporary residence have explained their position on various Canadian inadmissibility issues. These are some of the most crucial developments. 

Cannabis Infractions

In 2018 Canada legalized possession of some types of marijuana. It is now no longer an offence to possess legal marijuana, however marijuana purchased from illicit sources, known as illegal possession, is still an offence that would render a person inadmissible to Canada. Under the prior law, possession of under 30 grams of marijuana was a simple summary offence and did not cause inadmissibility. Now the question has been asked, how should Canadian immigration officers approach convictions of cannabis possession between 31 and 50 grams? According to the Cannabis Act, cannabis possession between this range is a ticketable offence but should not render a client inadmissible. US states like New York and Los Angeles have had similar conversations about how to handle the section of the Cannabis Act on possession of illicit cannabis in the context of foreign convictions from jurisdictions where the cannabis is illegal. Possession of 30 grams and under is no longer an offence, except if the cannabis was obtained from an illicit source. Applying this to US convictions would mean that in the majority of states, the individual would remain inadmissible to Canada since the source of the cannabis is illicit. Los Angeles indicated that they do not look at whether the source of the cannabis was licit with regards to foreign convictions, as long as the quantity of cannabis was less than 30 grams. New York concurred they follow a similar protocol, but have noticed that the CBSA may find the individual inadmissible based on the fact that the source of cannabis was illicit. 

The Saini Test

The Saini Test is used to determine if pre-trial or other judicial measures such as expungements for offences committed outside of Canada should be considered equivalent to a Canadian record suspension. Although there is a common understanding of how to apply the Saini Test, there may be a need to adopt consistent messages or templates when answering questions from clients on whether a US record suspension is equivalent to a records suspension in Canada. A common scenario has to do with the period of time that has expired between the conviction and the record suspension. US courts often consider the time that has lapsed since the conviction whereas Canadian courts consider the time that has lapsed since the end of the sentence. This can lead to cases where suspension is granted as soon as the sentence is completed. Although many representatives are curious to know how this applies to their clients, states like New York have stated they do not respond to these specific requests and encourage them to submit an application for assessment. This has sparked questions on how to deal with cases that fall into the grey area where the suspension was granted soon after the end of the sentence but it has now been a number of years since the suspension was granted. Los Angeles indicated that they factor in how many years have now lapsed since the completion of the sentence and whether the applicant would now be eligible to apply for record suspension in Canada or for rehabilitation. 

Dangerous Driving (Criminal Code) vs. Negligent Driving (Provincial Traffic Offence) 

The mens rea for equivalency between dangerous driving and negligent driving is an important discussion, especially considering the legislative change in 2018 that made DUIs a serious criminality in Canada. As a result of this change, many applicants have sought to reduce their charges or avoid convictions of dangerous driving altogether. Offenders often try to reach a plea deal, but are unaware of how different offences may affect their admissibility to Canada. Therefore, the difference between charging someone for dangerous driving, which is a crime, as opposed to negligent driving, which is a traffic offence, has different penalties and plays a big outcome in whether the offender is admissible. A number of US states make clear differences in the severity of offences falling under ‘Reckless Driving’, resulting in some offences not meeting the mens rea of Dangerous Driving. New York stated that their office first evaluates whether these road offences have an equivalency to the Criminal Code. As it varies by US jurisdictions, this evaluation is done on a case-by-case approach. Therefore, it is necessary to consult with other states to ensure all offices adopt the same equivalency on these offences for TRP and Criminal Rehabilitation cases.

Conditional Discharge

A conditional discharge is a legal disposition in a criminal case where the court imposes a sentence on the defendant and upon successful completion of the requirements, no conviction is registered. Moreover, there are conditions set by the judge that the offender must follow. These conditions come in a probation order that can be in effect from 1-3 years. Conditional discharges have become more important in deciding criminal inadmissibility with the recent legislative change made in 2018 that classified DUIs as a serious criminality in Canada. Changing a DUI to a serious criminality has increased the penalties on first, second, and third offences with higher fines and more time spent in jail. As a result of these changes, many offenders with a DUI try to reduce their charges and avoid convictions by pursuing conditional discharges to ensure that no conviction is registered. Discussions on conditional discharge have raised questions about how to work around the case of Khan v Canada. Los Angeles agrees with New York’s position that a Conditional Discharge in the State of New York is a criminal sentence. However, Los Angeles stated that some consultants refer to the Khan decision to argue that their client is not inadmissible. Therefore, Los Angeles is looking for wording to use in case notes to explain the finding of inadmissibility in spite of the Khan decision. Los Angeles indicated that the provisions of Illinois are very similar to the provisions of New York which would be another example where the conditional discharge is a criminal sentence. New York would like to be informed when an officer in the network comes across other jurisdictions where a conditional discharge is a criminal sentence in order to add to criminality assessment guidelines.

Third Party Name Checks

Possibly due to the Covid-19 crisis, there have been a large number of applications for Criminal Rehabilitation and TRPs returned to applicants because they do not have the correct background checks included.  The visa office in New York reported seeing an increase in computer-generated name-based search reports in TRP and rehabilitation applications. These reports are quick and easy to obtain for clients, but are not official State police records. Because TRP and rehabilitation applications require in depth background checks including fingerprint tests to confirm the identity of the applicant, the use of computer-generated name search reports is unsuccessful. If a client submits an unacceptable name search report, New York has stated that they advise the client it is not acceptable and provide them one last opportunity for submission of the official state police record. Los Angeles indicated that they are not concerned with this risk since they are looking at the overall criminal history over the precise criminal history in evaluating a TRP. In providing a fake name, clients are ultimately self-declaring and providing evidence that they are inadmissible to Canada.