Foreign nationals with a criminal history may be denied entry or removed from Canada if criminal inadmissibility is established. This can impact the foreign national if they have family, friends, job prospects, or assets in Canada. The only remedy is to establish rehabilitation.
Criminal inadmissibility is based on the offences committed inside or outside of Canada. Even acts committed that did not result in a conviction that are considered criminal in Canada can result in inadmissibility.
Types of Criminal Inadmissibility:
1) Criminality; 2) Serious Criminality; 3) organized criminality; and 4) criminal acts that violate human or international rights. We will focus on 1 and 2 for this paper. Criminality only applies to foreign nationals (workers, students, visitors). While serious criminality applies to foreign nationals and permanent residents.
To determine the difference between criminality and serious criminality you must look at whether the offence committed. Is the crime summary or indictable – from a Canadian standpoint. Hybrid offences will be considered indictable for immigration purposes. Also, the length of sentence imposed or potential length of sentence are other factors that are considered. Foreign nationals who are found to have criminality or serious criminality renders them inadmissible to enter Canada, but permanent residents become inadmissible only if serious criminality is found. While one summary offence does not render a foreign national inadmissible. Foreign nationals who are convicted of two or more summary offences will be inadmissible based on criminality.
Different types of offences:
- Indictable offences
- These are more serious offences such as: theft over $5,000, break and enter, aggravated sexual assault and murder. Maximum penalties for these offences vary but can include life in prison
- Finding of serious criminality or criminality for indictable offences depend on:
- The maximum penalty for that particular indictable offence; and
- The penalty actually imposed
- Summary offences
- These are less serious offences. The maximum penalty for a summary offence is usually $5,000 fine and/or less than six months in prison
- Hybrids
- These offences allow the crown to decide whether to pursue the offence as indictable or summary.
Organized crime is less common than criminality or serious criminality because it is harder to prove. It must be proven that the person concerned is a member of an organization and that the organization is reasonably believed to be involved in criminal activity. Consequently, rehabilitation does not overcome this finding. However, the person could present a case that admission is not detrimental to national interest of Canada.
Is a conviction necessary?
Short answer no. Immigration officers may deem a foreign national inadmissible without a conviction. This is to prevent criminals who are awaiting prosecution or fleeing their country. The Immigration Act does not require a conviction for the crime but simply its commission. While this is rare, it is possible to receive inadmissibility status under these circumstances.
Criminal Equivalency
What matters for Canada is the determination of the crime with respect to Canadian standards not foreign. Therefore, Officers will look at the Canadian equivalency of the crime under the criminal code. To determine inadmissibility to Canada there must be a comparison of the terms of the foreign crime under Canadian terms. However, the Officer is not required to establish perfect equivalency, similarities could deem foreign nationals inadmissible.
Equivalency can be determined in three ways. First, by comparing the exact words in the corresponding statutes, either by documents or expert evidence. Second, by examining the evidence before the Officer both oral and documentary, to determine if the evidence is sufficient to establish whether the essential ingredients of an offence in Canada has been proven. Third, by a combination of one or the other. See Hill v Canada,1987 para 16 for more information. Therefore, once equivalency is established an Officer can deem the foreign national to be criminally inadmissible.
Rehabilitation
Rehabilitation is required to enter Canada if one is found to be criminally inadmissible. Immigration Canada defines rehabilitation as “leading a stable lifestyle and that you are unlikely to be involved in any further criminal activity”. The purpose of rehabilitation is to help foreign nationals outside of Canada. in other words, rehabilitation is required for foreigners it is not for offences committed in Canada.
There are two types of rehabilitation: Deemed rehabilitation and rehabilitation by application.
Eligibility for Rehabilitation:
- If you were convicted of an offence outside of Canada that, if committed in Canada, is punishable by a maximum term of imprisonment of less than 10 years.
- Year are deemed rehabilitated – at least ten years after completion of the sentence is imposed.
- You are eligible to apply for rehabilitation – 5 years after completion of the sentence.
- If you committed an offence outside Canada that, if committed in Canada would be an indictable offence punishable by a maximum term of imprisonment of less than ten years.
- Year are deemed rehabilitated – at least ten years after completion of the sentence is imposed.
- You are eligible to apply for rehabilitation – 5 years after completion of the sentence.
- If you were convicted of an offence or you committed an offence outside of Canada that, if committed in Canada would be punishable by a maximum term of imprisonment of ten years or more.
- You are not eligible for deemed rehabilitation.
- You are eligible to apply for rehabilitation 5 years from the completion of the sentence of commission of the offence.
- If you were convicted for 2 or more offences outside Canada that, if committed in Canada, would constitute summary conviction offences.
- You are deemed rehabilitated at least 5 years after the sentences imposed were served.
- You do not have to apply for rehabilitation.
- If you have a criminal conviction in Canada, you must seek a record suspension from the Parole Board of Canada before you will be admissible to Canada.
Evidence that can support rehabilitation determination:
Not one of these is determinative but the factors taken together and weighed against the offence
- Probation or parole reports.
- Certificates of rehabilitation.
- If suspended license, evidence of re-instalment.
- Letters of character reference from public officials and respected private citizens (must know of the offence).
- Letters from family members that recognize the previous offence and note observed changes in character.
- Evidence of steady employment.
- Evidence of educational upgrading.
- Documentation of accumulation of assets.
- Evidence of remorse or restitution.
- Evidence of the assumption of responsibility, such as payment of child support, repayment of debt or engagement in voluntary charitable activities.
- Medical evidence, particularly if substance abuse was an issue.
- Reports confirming completion of rehabilitative programs.
- If necessary and affordable, a psychological risk assessment demonstrating low risk for future offending.
Have you been charged, discharged or pardoned?
For charges withdrawn or dismissed:
- If the offence occurred in Canada, you are not inadmissible.
- If the offence occurred outside Canada, you may be inadmissible.
For an absolute or conditional discharge:
- If the offence occurred in Canada, you are not inadmissible
- If the offence occurred outside Canada, you may be inadmissible
Pardon Granted:
- If the offence occurred in Canada, you are not inadmissible if you were pardoned under the Criminal Records Act in Canada
- If the offence occurred outside Canada, you may be inadmissible
Furthermore, if you are inadmissible you will have to provide an office with complete details of all charges, convictions, court dispositions, pardons and photocopies of applicable sections of foreign law(s), and court proceedings to allow the officer to determine whether or not you are inadmissible to Canada