Inadmissibility based on Serious 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 serious criminality. For a summary of inadmissibility based on criminality, check out our previous blog post.

Inadmissibility based on Serious Criminality

Both foreign nationals and permanent residents are inadmissible to Canada for serious criminality if any of the following apply:

1. They are convicted IN Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than 6 months has been imposed;

2. They are convicted of an offence OUTSIDE of Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; or

3. They have 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 offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years.

All three grounds for serious criminality contemplate indictable offences only. Indictable offences are the most serious type of offence in Canada and typically involve violent crimes or significant property damage or loss. In addition, all grounds for serious criminality are expressly applicable to only Acts of Parliament. This means that if it is not a crime under federal legislation in Canada, it will not result in serious criminality.

The easiest way to understand serious criminality vs. criminality is by looking at what the possible prison sentence would be if the crime were committed in Canada. What’s important here is the possible sentence that could be imposed under the Criminal Code of Canada, not the sentence that is actually imposed. If the crime carries a potential maximum prison sentence of less than 10 years, it is considered criminality. Crimes that are non-violent are usually in this category. Seriously criminality is assigned to those crimes that are punishable by a prison sentence of 10 years or more. Many of the crimes that fall into this category are violent in nature or involve a weapon. 

As a result of Bill C-46, the maximum penalty for impaired driving was increased from 5 years of imprisonment to a term of not more than 10 years. 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 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.

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.