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Criminal Inadmissibility

   

  

The Act makes inadmissible any person who has: 

     

(a) committed or been convicted of an offence in Canada, or 

(b) who has committed or been convicted of an offence abroad that would also be considered an offence in Canada. 

    

If the activity for which the person was convicted abroad would not be considered an offence in Canada, it is not a ground of inadmissibility. However, if it would be considered an offence in Canada, the offence is then considered according to the maximum punishment that could be received in Canada for an equivalent offence. 

       

An individual need not have been convicted of an offence to be inadmissible to Canada as a visitor or immigrant on criminal grounds. The Immigration Act designates certain convictions and acts or omissions (therefore an actual conviction is not even needed) which are equivalent to offences in Canada. It depends upon the minimum punishment which might have been imposed in Canada had the conviction occurred here or if the act or omission may have resulted in such a conviction with these minimum requirements.   

     

If an individual is only convicted of one offence which may only be prosecuted by summary procedures then such an individual is not inadmissible, however, two summary convictions not arising out of a single event will render an individual inadmissible. The majority of offences in Canada are indictable or may be proceeded with by way of indictment at the opinion of the Crown prosecutor.     

  

This page is limited to the most common grounds of criminal inadmissibility and does not consider individuals who are inadmissible for reasons of being engaged in organized crime, espionage, subversion, terrorism, organized violence, war crimes or crimes against humanity, a danger to the security of Canada or senior government officials involved in state terrorism.      

   

Serious Criminality Inside/Outside Canada

The following persons are inadmissible to Canada because of serious criminality (indictable offences) punishable by imprisonment of ten years or more:

  • those convicted for an offence committed in Canada, unless pardoned under the Criminal Records Act [19(1)(c)].

  • those convicted outside Canada of an offence that, if committed in Canada, would constitute an offence that may be punishable under any Act of Parliament by a maximum term of imprisonment of ten years or more unless granted rehabilitation by the Governor in Council and at least five years have elapsed since the expiration of any sentence imposed for the offence [19(1)(c.a(1)]*; and

  • those convicted outside Canada of an act or omission that constitutes an offence under the laws of the place where the act occurred, and that if such act were committed in Canada it would constitute an offence that may be punishable under an Act of Parliament by a maximum term of imprisonment of ten years or more, unless granted rehabilitation by the Governor in Council and five years have elapsed since the commission of the act or omission [19(1)(c.1)(ii)].

Less Serious Criminality (Hybrid Offences)

The following individuals are inadmissible for crimes punishable by imprisonment of less then ten years but for which an offender may be prosecuted on indictment:

  • those convicted in Canada of an indictable offence, or of an offence for which the offender may be prosecuted by indictment or for which the offender is punishable on summary conviction, that may be punishable by way of indictment under any Act of Parliament by a maximum term of imprisonment of less than ten years, unless granted a pardon under the Criminal Records Act [19(2)(a)]; or

  • there exist reasonable grounds to believe that the person has been convicted outside Canada of an offence, or has committed an act or omission that constitutes an offence under the laws of the place where the act or omission occurred, and that, if committed in Canada, would constitute an offence that may be punishable by way of indictment under any Act of Parliament by a maximum term of imprisonment of less than ten years, unless the person satisfies the Minister of Immigration that he or she is rehabilitated and that at least five years have elapsed since the expiration of any sentence imposed for the offence or since the commission of the act or omission, as the case may be [19(2)(a.1)].

Minor Criminality

The following persons are inadmissible because they have committed minor, but repeated, summary conviction offences:

  • those convicted in Canada under any Act of Parliament of two or more summary conviction offences not arising out of a single occurrence, where any part of the sentences imposed for the offences was served or to be served at any time during the five-year period immediately preceding the day on which they seek admission to Canada [19(2)(b)(i)]

  • there exist reasonable grounds to believe that the person has been convicted outside Canada of two or more offences, not arising out of a single occurrence, that if committed in Canada would constitute a summary conviction offences under any Act of Parliament, where any part of the sentences imposed for the offences was served or to be served at any time during the five-year period immediately preceding the day on which he or she seeks admission to Canada [19(2)(b)(ii)].

Foreign Pardons and Criminal Rehabilitation

According to Canadian case law, an  immigrant is considered rehabilitated if they have been granted a pardon in a jurisdiction where the law and legal system is respected by Canada and where its rehabilitation legislation is similar in purpose and effect to Canada's, the effect of the foreign law should be recognized and such persons should not be considered "convicted" for Canadian immigration purposes. 

     

However, Citizenship and Immigration Canada does not automatically recognize foreign pardons.  Visa officers are given the discretion to determine whether a foreign country's legal system and legislation are based on similar legal values.  Visa officers are instructed to consider whether the immigrant can satisfy either the Governor in Council or the Minister of Immigration that he or she is rehabilitated.

        

Applying for a Pardon for Convictions in Canada  

Persons who have been convicted in Canada, can not apply for Criminal Rehabilitation, they must apply for a pardon under the Federal Criminal Records Act.  The Act provides that a person convicted of an offence under a federal Act or Regulation may apply to the National parole Board for a pardon.

  

The following periods must have elapsed before an application can be considered:

  • five years for an offence prosecuted by indictment or a service offence within the meaning of the National Defense Act, and

  • three years in the case of an offence punishable on summary conviction or a service offence within the meaning of the National Defense Act.

For an offence prosecuted by indictment, the Board may grant a pardon if it is satisfied that the applicant during the five year period has been of good conduct and has not been convicted of a federal offence or Regulation. For an offence prosecuted by summary conviction, a pardon shall be issued if the offender has not been convicted of a federal offence or Regulation during the three year period.

  

Applying for Criminal Rehabilitation for Convictions outside of Canada  

Applicants described in sections 19(1)(c.1) and 19(2)(a.1) may apply for Criminal Rehabilitation.  The statutory five year waiting period must have passed before an application will be considered.  

       

The purpose of the application is for the applicant to establish that efforts have been made to re-establish himself or herself as a law-abiding person.  The applicant must demonstrate the risk of further criminal activity is unlikely and therefore that the person is rehabilitated.

   

An applicant who is criminally inadmissible under section 19 may apply for a Minister's Permit to overcome the inadmissibility.  The Permit would allow the person to come into and remain in Canada for a specified period.

         

Usually a Minister's Permit is issued to a person who represents a minimal risk to Canadian society and has a compelling need to come into or remain in Canada.  Permits are more likely to be issued in family class cases and where there are national interest considerations. Rarely will a Minister's Permit be issued in the case of serious criminality or in a non-family class case unless there are compelling national interest considerations outweighing any potential risk to Canadian society.

  

 

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