Criminally Inadmissible into Canada, what are my options?
If you are a foreign national and you have been found inadmissible into Canada on grounds of criminality there are several options that are available in order for you to be able to enter into Canada. Every case is different and one should always seek legal advice from a competent immigration lawyer but here is a brief overview of the Law regarding inadmissibility on grounds of criminality into Canada.
What is inadmissibility on grounds of criminality?
Section 36 (2) of the Immigration and Refugee Protection Act states that a foreign national may not enter Canada because of criminality for:
- having been 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;
- having been convicted outside 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;
- committing an act outside 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
- committing, on entering Canada, an offence under an Act of Parliament prescribed by regulations.
In Canada, criminal offenses fall into three categories Summary convictions, indictable offenses and hybrid offenses.
First, there are offences punishable upon summary conviction only (or “pure” summary conviction offences) (see section 787(1) of the Criminal Code). They are, generally speaking, the least serious offences and attract the lowest penalties fines of not more than 5000$ and/or a term of imprisonment not exceeding 6 months.
Second, there is Pure Indictable offenses, they are the most serious offences, and they carry with them the most severe penalties upon conviction. The sections creating “pure” indictable offences are always accompanied by a specific penalty provision.
Third there are hybrid offenses also called crown elect offenses they are either punishable by summary conviction or by indictment. All hybrid offences are accompanied by a specific penalty provision that sets out the maximum penalty available should the Crown proceed by way of indictment. For immigration purposes in Canada a hybrid offense will be deemed to be an indictable offense.
What can I do to enter Canada?
There are three possibilities if a foreign national is found to be inadmissible for criminality into Canada. First, there is the rehabilitation for persons who are inadmissible to Canada because of past Criminal Activity application. Second, if the person is not eligible for rehabilitation because five (5) years have not passed since the end of the sentence imposed or you are not eligible to apply for a record suspension (formerly a pardon) for convictions in Canada, you can request a special permission to enter Canada. Third, there is an application to request Humanitarian and compassionate grounds.
Rehabilitation for offenses inside of Canada
If you have a criminal conviction in Canada, you must seek a record suspension (formerly a pardon) from the Parole Board of Canada (PBC) before you will be admissible to Canada.
In order to be considered for a record suspension under the Criminal Records Act, a specified period of time must pass after the end of the sentence imposed. The sentence may have been payment of a fine, period of probation, or imprisonment.
Rehabilitation for offenses outside of Canada
You are eligible to apply for rehabilitation if you have:
- committed an act outside of Canada and five (5) years have elapsed since the act;
- been convicted outside of Canada and five (5) years have passed since the end of the sentence imposed.
If you were convicted of 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:
- You are deemed rehabilitated: at least ten years after completion of the sentence imposed.
- You are eligible to apply for rehabilitation: five (5) years after completion of the sentence imposed.
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:
- You are deemed rehabilitated: at least ten years after commission of the offence.
- You are eligible to apply for rehabilitation: five (5) years after commission of the offence.
If you were convicted of an offence or you committed an offence outside Canada that, if committed in Canada, would be punishable by a maximum term of imprisonment of ten years or more:
- You are deemed rehabilitated: not applicable.
- You are eligible to apply for rehabilitation: five (5) years from completion of the sentence or commission of the offence.
If you were convicted for two (2) or more offences outside Canada that, if committed in Canada, would constitute summary conviction offences:
- You are deemed rehabilitated: at least five (5) years after the sentences imposed were served or to be served.
- You are eligible to apply for rehabilitation: not applicable.
Humanitarian and compassionate grounds
section 25 (1) of the Immigration and Refugee Protection Act allows foreign national to seek an exemption from the law if they are found inadmissible on grounds of criminality:
25 (1) Subject to subsection (1.2), the Minister must, on request of a foreign national in Canada who applies for permanent resident status and who is inadmissible — other than under section 34, 35 or 37 — or who does not meet the requirements of this Act, and may, on request of a foreign national outside Canada — other than a foreign national who is inadmissible under section 34, 35 or 37 — who applies for a permanent resident visa, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.
Relevant Factors that officers consider when granting such relief are set in Guidelines and are not limited to:
- establishment in Canada;
- ties to Canada;
- the best interests of any children affected by their application;
- factors in their country of origin (this includes but is not limited to: Medical
- inadequacies, discrimination that does not amount to persecution, harassment or other hardships that are not described in A96 and A97);
- health considerations;
- family violence considerations;
- consequences of the separation of relatives;
- inability to leave Canada has led to establishment; and/or
- any other relevant factor they wish to have considered not related to A96 and A97.
The Guidelines provide that the relevant considerations are to be weighed cumulatively as part of the determination of whether relief is justified in the circumstances.
Conclusion
We have seen three possibilities for individuals who are found inadmissible on grounds of criminality. If you or someone you know is inadmissible for criminality and wishes to come to Canada contact Chaudhary Law Office.
