Criminal Inadmissibility

As per IPRA

Serious criminality
36  (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for

(a) having been 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 six months has been imposed;
(b) having been convicted of an offence outside 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
(c) 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 offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years.

Criminality

(2) A foreign national is inadmissible on grounds of criminality for

(a) 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;
(b) 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;
(c) 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
(d) committing, on entering Canada, an offence under an Act of Parliament prescribed by regulations.

SENTENCES ENDING LESS THAN 5 YEARS AGO THE SENTENCE ENDED MORE THAN 5 YEARS AGO BUT LESS THAN 10 YEARS AGO THE SENTENCE ENDED MORE THAN 10 YEARS AGO
If your offence is found to have a Canadian equivalent under an Act of Parliament (Federal), it could mean you’re criminally inadmissible to Canada If your offence is found to have a Canadian equivalent under an Act of Parliament (Federal), it could mean you’re criminally inadmissible to Canada If your offence is found to have a Canadian equivalent under an Act of Parliament (Federal), you may be “Deemed Rehabilitated”, with little or no further action required
Since 5 years have not passed, Criminal Rehabilitation is not an option Since 5 years have passed, you are eligible for Criminal Rehabilitation. *“Deemed Rehabilitation” does not apply in cases of:

  • Multiple offences
  • Serious criminality
Temporary Resident Permit could be an option Temporary Resident Permit could be an option

Criminal Rehabilitation and Temporary Resident Permit Applications

If you have been convicted of a crime – including a DUI – after your 18th birthday, you may be criminally inadmissible to Canada. In fact, the moment an arrest is made the burden of proof shifts as far as Canadian immigration is concerned; from innocent until proven guilty, to guilty until proven innocent. Once arrested, it is up to the accused to demonstrate that a favourable court disposition was reached, before entry to Canada will be granted.

When an individual is Criminally Inadmissible to Canada, they are prohibited from entering Canada for any reason. There are two remedies for those who are criminally inadmissible to Canada – a permanent and a temporary solution

Criminal Rehabilitation – Permanent Solution

  • Criminal rehabilitation is an application process, in which an individual petitions Canadian immigration to forgive their offences and give them a clean slate
  • Once an individual has successfully undergone the Criminal Rehabilitation application process, their prior offences are no longer grounds to deny them entry to Canada.
  • In order to be eligible for Criminal Rehabilitation, 5 years must have passed from completion of all sentences, fines and/or probationary periods.
  • If 5 years have not passed, or if your require entry to Canada before your Criminal Rehabilitation application is processed, a Temporary Resident Permit (TRP) may be a good option for you.

Temporary Resident Permit (TRP) – Temporary Solution

  • A Temporary Resident Permit is a document that temporarily bridges Criminal Inadmissibility.
  • A Temporary Resident Permit should only be applied for with excellent reason
  • A Temporary Resident Permit can be issued for multiple entries to Canada, and can be valid for up to 3 years.  The duration of a Temporary Resident Permit depends on the merits of the application and is at the discretion of the assessing Canadian immigration officer.
  • There is no prescribed time period that must elapse before an individual may apply for a Temporary Resident Permit.  However, it is important to be strategic when applying for a Temporary Resident Permit, as Canadian immigration authorities will maintain a record of application that could affect future petitions.

When Canadian immigration authorities suspect someone of being criminally inadmissible they will:

Prior to issuing a formal decision

When in-person at a port of entry (airport, seaport, border crossing), Canadian immigration authorities will conduct an interview.  This allows the individual the opportunity to explain him or herself, but also provides the interviewing officer an opportunity to gather statements that can be used against them.

OR

Otherwise provide the applicant an opportunity to reply to the allegations of Criminal Inadmissibility in writing.

When rendering a final decision

If in person at a port of entry, Canadian immigration authorities will refuse that person entry to Canada.

OR

Reject the application based on the Canadian immigration officer’s opinion that the candidate is inadmissible.

Non-Serious Criminality and Serious Criminality

Non-serious criminality and serious criminality are two separate designations Canadian immigration authorities use when assessing a foreigner’s criminal record. It does not matter how seriously the offence is treated in the foreigner’s home country.  Canadian immigration authorities are only concerned with the offence’s equivalent as per Canadian law. There are different ramifications, depending on whether or not the foreign offence has a Canadian equivalent rooted in non-serious or serious criminality.

Non-Serious Criminality  

  • If more than ten years have elapsed since the retirement of all sentences, fines and probationary periods, you are “Deemed Rehabilitated” (Single Offence)
  • If more than ten years have elapsed since the retirement of all sentences, fines and probationary periods, you are NOT “Deemed Rehabilitated” (Multiple Offences)
  • If more than 5 years have passed since the retirement of all sentences, fines and probationary periods, you are eligible to apply for Criminal Rehabilitation
  • If less than 5 years have passed since the retirement of all sentences, fines and probationary periods, you are NOT eligible for Criminal Rehabilitation
  • Temporary Resident Permit (TRP) is an option if you have a compelling reason to request access to Canada

Non-serious Criminal Rehabilitation application processing times are generally faster than serious criminality.

Serious Criminality

  • The sole factor used to determine serious criminality, is the consideration of the maximum possible sentence for the Canadian equivalent, of that foreign offence
  • “Deemed Rehabilitation” is not applicable in instances of serious criminality.
  • If more than 5 years have passed since the retirement of all sentences, fines and probationary periods, you are eligible to apply for serious Criminal Rehabilitation
  • If less than 5 years have passed since the retirement of all sentences, fines and probationary periods, you are NOT eligible for serious Criminal Rehabilitation
  • Temporary Resident Permit (TRP) may be an option if you have a compelling reason to request access to Canada

The serious Criminal Rehabilitation application procedure is the same as non-serious. What distinguishes the two is the manner in which they are treated.  Processing times for serious Criminal Rehabilitation are typically longer than those relating to non-serious criminality. The government processing fees are also higher.

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