Overcoming Criminal Inadmissibility in Canadian Immigration
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 consider options for overcoming criminal inadmissibility in Canada.
Criminal inadmissibility means that a person may be inadmissible to Canada for committing a crime, either inside or outside of Canada. Under the formal definition, 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 (formerly known as a pardon) or been rehabilitated under the Immigration and Refugee Protection Act.
Crimes Committed Inside of Canada
If the crime was committed within Canada, the way to overcome inadmissibility is to apply for a record suspension with the Parole Board of Canada. In order to be eligible, you must have completed all of your sentences, including full payment of all fines, surcharges, costs, restitution, and compensation orders. All sentences of imprisonment and conditional sentences, including parole and statutory release, must be completed. As well, any term of probation must have concluded.
Further, you must have completed the appropriate waiting period, which is based on when you committed the first offence and whether the offence you were convicted of was prosecuted summarily or as an indictable offence. For offences committed on or after March 13, 2012, the waiting period is 10 years for an offence prosecuted by indictment, and 5 years for an offence punishable on summary conviction. These waiting periods are notably longer than they once were. For offences committed before June 29, 2010, the waiting period is only 5 years for offences prosecuted by indictment and 3 years for offences punishable on summary conviction. For offences committed between June 29, 2010 and March 12, 2012, the waiting period depends on more technicalities - for example, whether it is a serious personal injury offence or an offence referred to in Schedule 1 - but the range is between 3 - 10 years.
Does Canada Recognize Foreign Pardons?
What if you received a record suspension or a discharge for your conviction in another country? Canada v. Saini is the leading case that considers the recognition of foreign pardons in Canada. In this case, 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.
Crimes Committed Outside of Canada
If the crime was committed outside of Canada and you do not have a foreign pardon that is recognized by Canada, the question is whether you may be deemed rehabilitated or if you need to file an application for criminal rehabilitation.
Deemed Rehabilitation
Deemed rehabilitation means that enough time has passed since you were convicted that your crime may no longer bar you from entering Canada. Whether you may be deemed rehabilitated depends on a few factors:
The amount of time that has passed since you completed the sentence imposed for your crime. For one indictable offence, the waiting period is 10 years. For two or more summary convictions, the waiting period is 5 years.
The crime you committed. The crime itself must not be considered one with serious criminality, AND the crime must not have involved any serious property damage, physical harm to any person, or any type of weapon.
How many crimes you committed. If you only had one indictable conviction in total or committed only one indictable crime, you are eligible for deemed rehabilitation.
If the crime was one of general criminality (punishable in Canada by a maximum term of imprisonment of less than 10 years) or serious criminality (punishable in Canada by a maximum term of imprisonment of 10 years or more).
Criminal Rehabilitation
An approved application for criminal rehabilitation means that the Minister, or their delegate, believes that you are not likely to be involved in any further criminal activity. In order to apply, you must demonstrate that you meet the criteria, that you have been rehabilitated, and that you are highly unlikely to take part in further crimes. You are eligible to apply for rehabilitation if you have committed an act outside of Canada and five years have elapsed since the act, or you were convicted outside of Canada and five years have passed since the end of the sentence imposed.
Temporary Resident Permits
What if you need to come to Canada, but you aren’t eligible to apply for rehabilitation or a record suspension because the waiting period hasn’t ended? There is a mechanism to request special permission to enter or remain in Canada - a temporary resident permit. To be eligible for a temporary resident permit, your need to enter or stay in Canada must outweigh the health or safety risks to Canadian society, as determined by an immigration or a border services officer. A temporary resident permit is usually issued for the length of your visit to Canada, and is generally no longer valid once you leave Canada, unless you have specifically been authorized to leave and re-enter.
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.