Deemed Rehabilitation

As a cross-border immigration lawyer based in Windsor, Ontario, Christina Loebach helps individuals overcome criminal inadmissibility issues that may prevent them from entering or remaining in Canada. This post was created as a response to many frequently asked questions related to eligibility and processes for deemed rehabilitation.

What is criminal inadmissibility?

Canada’s Immigration and Refugee Protection Act details numerous grounds under which a permanent resident or foreign national may be inadmissible to Canada, including criminal inadmissibility. A person who is criminally inadmissible is not allowed to enter or stay in Canada because they have committed or been convicted of a crime for which they have not received a record suspension or been rehabilitated.

Does it matter that my conviction occurred outside of Canada?

Criminal inadmissibility encompasses both crimes committed inside and outside of Canada. If the crime was committed inside of Canada, the only way to overcome inadmissibility is to apply for a record suspension from the Parole Board of Canada. If the crime was committed outside of Canada, inadmissibility is overcome through rehabilitation.

Criminality vs. Serious Criminality

There are two distinct grounds of criminal inadmissibility: (1) criminality, and (2) serious criminality. This distinction is important, because only crimes with criminality attached may qualify for deemed rehabilitation. If the conviction was for serious criminality, you will need to submit a criminal rehabilitation application.

For crimes committed outside of Canada, what matters is how the offence would have been treated had it been committed in Canada. For most offences, this means looking at the Canadian version of the crime as detailed in the Criminal Code of Canada. 

It doesn’t matter how much prison time (if any) the person actually received. For crimes committed outside of Canada, whether a conviction constitutes serious criminality or criminality depends on the maximum potential penalty for the particular offence. If the maximum potential penalty for the offence is at least 10 years of imprisonment, it is considered serious criminality. 

Impaired Driving Convictions

Generally speaking, Canada treats impaired driving offences much harsher than the United States does. On December 18, 2018, Canada passed Bill C-46. Under this law, which passed around the time the Government of Canada legalized marijuana for recreational purposes, the maximum penalty for impaired driving was increased from 5 years of imprisonment to a term of not more than 10 years. This means that impaired driving is now considered to be a crime with serious criminality attached. 

Impaired driving is also a good illustration of the rule that the maximum term of imprisonment available at the time of the commission of the offence is what officers should consider when assessing criminal inadmissibility. This was confirmed by the Supreme Court of Canada in Tran v. Canada, [2017] 2 SCR 289. So, if a person committed the impaired driving offence before Bill C-46 passed on December 18, 2018, the earlier, more lenient penalty of 5 years imprisonment would apply - meaning the person is inadmissible for general criminality, but not for serious criminality. If they committed the impaired driving offence on or after December 18, 2018, they would be inadmissible for serious criminality.

If you would like Christina to provide legal advice tailored to your situation, please schedule a consultation.