Getting a Foreign Pardon Recognized in Canada
As a cross-border immigration lawyer based in Windsor, Ontario, Christina Loebach supports businesses, families, and professionals in Canada and the U.S. Inadmissibility due to a criminal conviction is a frequent issue that impacts those seeking to live, study, visit, or work in Canada. This blog post will discuss getting a foreign expungement (pardon) recognized in Canada.
In Canada (Minister of Citizenship and Immigration) v. Saini, the Federal Court of Appeal established a three-pronged test to determine whether Canadian law will recognize a foreign pardon:
The foreign legal system as a whole must be similar to the Canadian one;
The content, aim, and effect of the foreign law in question must be similar to Canadian law; and
No other valid reason exists that would compel Canadian authorities not to recognize the effect of the foreign law.
The onus is on the applicant to demonstrate that their foreign expungement should be recognized by Canada.
The Foreign Legal System as a Whole Must Be Similar to the Canadian One
Foreign law is a question of fact, and the applicant has the burden of proving that the legal system where they received their conviction and subsequent expungement is similar to Canada’s. Some countries, such as the United States and the United Kingdom, have been recognized to have legal traditions that reflect the system in Canada. For other countries, a deeper analysis of legal systems will need to be advanced in order to effectively meet this test.
How is criminal law structured in the country in question? Does the country have common law traditions? This must be explained to the officer so that they can make a determination.
The Content, Aim, and Effect of the Foreign Law in Question Must Be Similar to Canadian Law
In Canada, a record suspension is issued by the Parole Board of Canada (PBC). The aim of a Canadian record suspension is to eliminate the adverse effects and future disqualifications of a conviction for those who have demonstrated themselves to be rehabilitated. Under this prong of the Saini test, the applicant must be able to demonstrate that the aim of expunging a criminal conviction in their jurisdiction is similar to that in Canada. An argument under this section will also consider the process behind obtaining an expungement in both jurisdictions. For example, are expungements automatic or does the applicant have to apply to a judge or tribunal to have their record expunged? What factors are assessed in determining whether to set aside the conviction?
There Must Be No Valid Reason Not to Recognize the Effect of the Foreign Law
The third and final step of the Saini test is to determine whether there is some valid basis not to recognize the effect of the foreign pardon. As the Court explicitly recognized in Saini, the gravity of the offence can and should be considered when deciding whether or not to give effect to a foreign pardon. The application of the third branch of the Saini test therefore involves a measure of discretion in its application and requires an examination of the particular facts of each case. As stated in IRCC’s 2021 United States Criminality Assessment Guide, “[P]rovided there is no reason not to recognize the foreign expungement in the circumstances, the expungement should be considered equivalent to a Canadian record suspension”.
A finding of inadmissibility can have a serious impact on the lives of people who want to visit, work, study, or live in Canada. If you are dealing with potential inadmissibility issues, schedule a consultation with Christina.