Criminal Inadmissibility

Criminal inadmissibility in Canada refers to situations where a foreign national is not allowed to enter the country due to their criminal history. This is defined in Section 36(2) of the Immigration and Refugee Protection Act, which outlines several scenarios where someone may be considered criminally inadmissible:

To assess whether the offense you’ve been charged with may lead to criminal inadmissibility to Canada, please choose the specific offense from the provided list below:

 

 

 

 

• Assault Convictions

• Driving Convictions

• Drug Possession Convictions

• DUI Convictions

• False Presences Convictions

• Larceny Convictions

• Minor Offences

• Offences Against Law Enforcement and Justice Administration

Convictions in Canada

• If convicted of an offence in Canada under an Act of Parliament punishable by indictment, or

• Convicted of two offences under any Act of Parliament not arising from a single occurrence.

Convictions Outside of Canada

• Criminally inadmissible if convicted outside Canada for:
  • • One indictable offence, or
  • Two offences not arising from a single occurrence.

Acts Committed Outside of Canada

• Inadmissible if committing an act abroad:
  • That is an offence in the place committed, and
  • Would be considered an indictable offence in Canada.

Acts Committed Upon Entering Canada

• Criminal inadmissibility may apply if committing an offence under an Act of Parliament upon entering the country.

Categories of Criminal Offences in Canada

This fall into three categories:

Summary Convictions

1. • Least serious offences.
   • Result in lower fines and/or imprisonment terms.
   • Punished summarily without formal indictment.

Indictable Offences

1. • Most serious offences.
   • Carry severe penalties.
   • Require formal indictment and trial process.

Hybrid Offences

1. • Also known as Crown Elect Offences.
   • Maximum penalty determined if indicted.
   • Can be punished by summary conviction or indictment.
   • Deemed indictable offences for immigration purposes.

Common Offenses Leading to Inadmissibility

Offenses that could lead to criminal inadmissibility include:

• Assault

• Domestic violence

• Theft

• DUI offenses (including DWI, DWAI and related offenses

• Drug-related crimes

• Probation violations

• Weapons violations

Determining Criminal Inadmissibility in Canada

To ascertain whether you might be considered criminally inadmissible in Canada, consider the following:

1. • Have you been convicted of an offence? If yes, you may be criminally inadmissible.
   • Is the offence you committed considered a crime in Canada? If yes, regardless of its classification elsewhere, you may be criminally inadmissible.
2. When did you commit the offence?
   • • Less than five years since completing your sentence: Apply for a temporary resident permit.
       • More than five years since completing your sentence: Eligible to apply for rehabilitation.
         • More than 10 years since completing your sentence: May be deemed rehabilitated, particularly for non-serious offences.
3. How many offences have you committed, and what is their severity?
   • Inadmissible if you have committed one or more serious offences, or one indictable offence alongside any other conviction.

Overcoming Criminal Immigration Inadmissibility in Canada

If deemed criminally inadmissible to Canada, you have three potential avenues to address this assessment:

1. Criminal Rehabilitation

Criminal Rehabilitation is a legal process designed to assist individuals with a criminal record in overcoming their inadmissibility to Canada. It is essential for various purposes, including applying for permanent or temporary residence, or visiting Canada.

1. • Criminal Rehabilitation allows individuals to enter Canada if they meet specific eligibility criteria, such as completing their sentence and demonstrating rehabilitation.
   • Successful completion of this process can remove the legal barrier preventing entry to Canada for both current and future visits.

Eligibility for Criminal Rehabilitation:

Rehabilitation process involves demonstrating rehabilitation and low risk of reoffending.

if less than five years have passed since the end of your sentence	if it’s been more than five years since you completed your sentence.	IF THE SENTENCE ENDED MORE THAN 10 YEARS AGO
Having a Canadian equivalent for your offense under a Federal Act of Parliament could result in your criminal inadmissibility to Canada.	If your offense matches a Canadian law under a Federal Act of Parliament, you may be considered criminally inadmissible to Canada.	If your offense aligns with a Canadian law under a Federal Act of Parliament, you may be “Deemed Rehabilitated” without needing further action.
Criminal Rehabilitation is not available if less than five years have passed since the end of your sentence.	You’re eligible for Criminal Rehabilitation if it’s been more than five years since you completed your sentence.	“Deemed Rehabilitation” does not apply to multiple offences or serious criminality.
A Temporary Resident Permit might be an option.	A Temporary Resident Permit might be an option.

Rehabilitation for offenses inside of Canada

Convicted individuals in Canada must apply for a record suspension, formerly called a pardon, from the Parole Board of Canada (PBC) to gain admissibility into the country.

Eligibility for a record suspension under the Criminal Records Act is contingent upon the passage of a specified period following the completion of the imposed sentence.

The sentence could entail various forms of punishment, such as paying fines, undergoing probation, or serving time in prison.

Rehabilitation for offenses outside of Canada

Individuals seeking rehabilitation for offenses committed outside of Canada must meet specific eligibility criteria.

If an individual committed an act outside of Canada, at least five years must have passed since the act occurred to be eligible to apply for rehabilitation.

Similarly, if someone was convicted outside of Canada, they must wait five years after completing the imposed sentence before applying for rehabilitation.

For offenses outside Canada that would be considered indictable offenses in Canada with a maximum term of imprisonment of less than ten years, two scenarios exist:

• Deemed rehabilitation occurs at least ten years after completing the sentence imposed.

• Eligibility for rehabilitation begins five years after completing the sentence imposed.

• For offenses outside Canada that would be indictable offenses in Canada with a maximum term of imprisonment of less than ten years:

• Deemed rehabilitation takes place at least ten years after the commission of the offense.

• Eligibility for rehabilitation starts five years after the commission of the offense.

 

If the offense outside Canada would be punishable by a maximum term of imprisonment of ten years or more, an individual is not deemed rehabilitated, and eligibility for rehabilitation begins five years from completing the sentence or commissioning the offense.

 

If convicted for two or more offenses outside Canada that would constitute summary conviction offenses in Canada, deemed rehabilitation occurs at least five years after serving or to be served sentences, while eligibility for rehabilitation is not applicable.

Applying for Criminal Rehabilitation:

The process of applying for Criminal Rehabilitation in Canada can be complex and demanding. Adequate preparation and having the correct documentation are crucial for a successful application.

Preparing Documentation

1. • Gathering the necessary documentation is essential when seeking entry to Canada with a criminal record.
   • Required documents typically include valid identification, travel papers, court documents, letters of reference, and any supplementary paperwork requested by border authorities.

Preparing for Border Encounters

1. • Expect inquiries about your criminal record from Canadian immigration officials during the entry process.
   • Transparency and accuracy in providing information are vital to navigate these interactions smoothly.
   • Being prepared to answer questions about past criminal convictions can improve your chances of a favorable outcome.

2. Temporary Resident Permit:

If not yet eligible for rehabilitation (less than five years since end of sentence), or ineligible for record suspension (pardon) for Canadian convictions, you may request special permission to enter Canada. This option may be available under specific circumstances, such as urgent need or exceptional circumstances.

• A TRP is an authorization allowing entry into Canada for a specified duration, typically matching the intended visit’s length.
• It’s an option for individuals with criminal records who are deemed inadmissible to Canada due to offenses like DUI, assault, drug possession, theft, and others.
• The necessity of your visit must outweigh potential risks to Canadian society.

Eligibility:

• Eligibility for a TRP applies to individuals with no charges but a criminal record leading to inadmissibility, or those who have served their sentence for a crime committed outside Canada.
• TRPs are particularly suitable if the time since completing the sentence is less than five years.

Application Process:

• Applying for a TRP can be complex.
• Collecting accurate documentation, including identification and travel papers, is essential for a successful application.
• Being prepared for inquiries about your criminal record during border interactions is crucial.

Contrasting TRPs and Criminal Rehabilitation:

• The main distinction between Temporary Resident Permits (TRPs) and Criminal Rehabilitation lies in the timeframe related to the offense or completion of the sentence.
• Eligibility for a Temporary Resident Permit arises if less than five years have passed since the conclusion of the sentence, or in certain exceptional circumstances.
• Criminal Rehabilitation becomes an option when more than five years have elapsed since the conclusion of the sentence, offering a more permanent solution.
• Differences also exist in processing times and the duration of stay in Canada. TRPs are temporary permits, typically allowing entry for the duration of the visit, whereas Criminal Rehabilitation provides a more permanent resolution to inadmissibility.

Choosing Between TRPs and Criminal Rehabilitation

• For urgent and legitimate reasons to enter Canada, a Temporary Resident Permit may be the preferred choice. TRPs are often single-entry permits, allowing entry for a limited time, with no guarantee of re-entry.
• On the other hand, a successful Criminal Rehabilitation application offers re-entry to Canada similar to other American visitors, providing a more stable solution.

Timing and Strategy in the Application Process

• It’s important to recognize that Criminal Rehabilitation applications generally take longer than Temporary Resident Permit applications.
• A strategic approach often involves pursuing both avenues concurrently. Obtaining a TRP enables crossing the Canadian border while awaiting the outcome of the Criminal Rehabilitation application, balancing immediate and future travel needs.

TRP Application: Consulate vs. Border

You can apply for a Temporary Resident Permit (TRP) either at the Canadian border or through a consulate.

Applying ahead of time is recommended by the Canadian government, while border applications are typically reserved for emergencies.

Border TRP applications involve on-the-spot decisions and may risk denial, even with prior approvals for Study or Work Visas.

Consulate-based TRP applications generally have higher success rates and offer pre-approval before reaching a border crossing or embarking on air travel.

Individuals with a criminal record, like DUI, may consider a Criminal Rehabilitation Permit alongside their TRP application.

Past entry into Canada does not guarantee re-entry; each visit is assessed independently.

3. Requesting Humanitarian and Compassionate Grounds:

• Application for exemption from the law based on humanitarian and compassionate grounds.
• Consideration given to factors such as establishment in Canada, ties to the country, and the best interests of any affected children.

Section 25(1) of the Immigration and Refugee Protection Act allows exemptions from immigration law for foreign nationals on humanitarian and compassionate grounds.

The Minister may grant permanent resident status or exemption from criteria if deemed justified, considering factors like establishment in Canada, ties, children’s welfare, conditions in the country of origin, health, family violence, and more.

These factors are weighed together to determine if relief is appropriate.

FAQs

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