Inadmissibility based on Criminality

As a cross-border immigration lawyer based in Windsor, Ontario, Christina Loebach supports businesses, families, and professionals in Canada and the U.S. Inadmissibility is a frequent issue that impacts those seeking to live, study, visit, or work in Canada. This blog post will primarily focus on inadmissibility based on criminality. The second type of criminality, called serious criminality, will be the topic of a subsequent blog post.

Inadmissibility Based on Criminality

In the context of Canadian immigration, there are two types of criminality. The first type of criminality is simply called criminality, or sometimes general criminality. The criminality ground only applies to foreign nationals - for example, people living in Canada on student visas, temporary work permits, visitor visas, etc. 

Foreign nationals may be inadmissible for criminality under the following four circumstances:

1. If they were convicted IN Canada of an offence under an Act of Parliament punishable by way of indictment, or of two offences under any Act of Parliament not arising out of a single occurrence;

2. If they were convicted OUTSIDE of Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, or of two offences not arising out of a single occurrence that, if committed in Canada, would constitute offences under an Act of Parliament;

3. If they committed an act outside of Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an indictable offence under an Act of Parliament; or

4. If they committed, on entering Canada, an offence under an Act of Parliament prescribed by regulations.

Indictable Offences

Indictable offences are the most serious type of offence in Canada. Note that most of the offences within the Criminal Code of Canada are hybrid offences, meaning the Crown may elect to prosecute either as a summary offence or an indictable offence. For purposes of criminal inadmissibility in an immigration context, all hybrid offences are deemed to be indictable offences - even when the Crown prosecutes it summarily.

Summary Offences

Summary offences are the least serious offences in the Code. These are generally non-violent offences that often result in minimal or no jail time. Section 787 of the Code provides for a standard minimum penalty of six months of imprisonment and/or a fine of up to $5,000 for these offences. 

A single summary conviction does not make a foreign national inadmissible. However, two or more summary convictions that do not arise out of the same occurrence will result in inadmissibility based on criminality. 

Federal Offences Trigger Inadmissibility

All of the references to an “Act of Parliament” mean that only offences arising from federal legislation will result in admissibility. Additionally, offences under a few pieces of federal legislation are excluded under the Immigration and Refugee Protection Act. Specifically, offences that fall under the following three federal Acts will not result in inadmissibility: 

1. An offence that is designated as a contravention under the Contraventions Act Canada. Essentially, contraventions are regulatory offences where a ticketing procedure applies.

2. An offence where the person is found guilty under the former Young Offenders Act, or

3. An offence for which the person received a youth sentence under the Youth Criminal Justice Act. This means that juvenile offences that are prosecuted under the Youth Criminal Justice Act or the former Young Offenders Act will not result in inadmissibility.

“Convict” vs. “Commit”

The grounds for criminality distinguish between “convicting” and “committing” an offence. Whenever there is a reference to a “conviction”, that means that an actual conviction must occur before inadmissibility will result. Being charged with a crime is not the same thing as being convicted, and any disposition that does not result in a conviction will not cause a person to be inadmissible for immigration purposes. 

The grounds for criminality also state that a person may be found inadmissible if they commit a prescribed offence upon entering Canada. Again, the prescribed offences must come from federal legislation, such as the Criminal Code of Canada or the Firearms Act. When charges are laid, officers are to wait for the disposition of those charges before alleging inadmissibility.

It is evident that 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.