Some foreign nationals and permanent residents are denied entry into Canada or are required to leave Canada on the basis that they are criminally inadmissible. This type of inadmissibility is rooted in whether the person committed or have been convicted of an offence inside Canada or overseas. For immigration purposes, criminal inadmissibility encompasses two types of criminality: serious criminality and criminality. In order to ensure a thorough understanding of criminal inadmissibility, it is necessary to understand how offences in Canada are classified. Under the Criminal Code, offences are classified as summary conviction, indictable, and hybrid offences. 

 

Categorizing Offences

Summary conviction offences are less serious offences and generally carries a fine of not more than $5,000 or a term of imprisonment of not more than two years less a day, or both. Indictable offences are those which has sentences up to life; the penalty for each indictable offence is set out in the Criminal Code. Hybrid offence, on the other hand, may be prosecuted either summarily or by way of indictment, but is deemed for immigration purposes to be an indictable offence even if it has been prosecuted summarily.

 

Grounds for Inadmissibility

 

Serious Criminality

Serious criminality is a ground of inadmissibility for both foreign nationals and permanent residents. For a person to be deemed inadmissible under this ground, the following must be satisfied:

 

Convicted in Canada: The person was convicted in Canada of an offence, punishable by a maximum term of imprisonment of at least 10 years, or of an offence for which a term of imprisonment of more than six months has been imposed;

 

Convicted outside Canada: The person was convicted of an offence outside Canada that, if committed in Canada, would constitute an offence punishable by a maximum term of imprisonment of at least 10 years;

 

Committed an act outside Canada: The person committed an act outside Canada which is an offence in the place where it was committed and if committed in Canada, would constitute an offence punishable by a maximum term of imprisonment of at least 10 years

 

Criminality

Criminality, unlike serious criminality, is of a lower threshold and is applicable only to foreign nationals. The four subcategories for this ground are as follows:

 

Convicted in Canada: The person was convicted in Canada of an offence punishable by way of indictment, or of two offences not arising out of a single occurrence.

 

Convicted outside Canada: The person was convicted outside Canada of an offence that if committed in Canada would constitute an indictable offence, or of two offences not arising out of a single occurrence that if committed in Canada would constitute offences.

 

Committed an act outside Canada: The person committed 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.

 

Committed an act upon entering Canada: The person committed an act upon entering Canada which is an offence under an Act of Parliament prescribed by regulations.

 

A person who is found have engaged in any of the activities listed above may be exempted from inadmissibility where they have received a record suspension that has not been revoked, or an acquittal of the offence. Additionally, those who committed an offence designated as a contravention under the Contraventions Act or where a guilty finding was made under the Youth Criminal Justice Act, are also exempt.

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Overcoming Criminal Inadmissibility

The Immigration and Refugee Protection Act provides that a permanent resident or foreign national may permanently overcome being criminally inadmissible if they have been deemed rehabilitated or alternatively, applied for rehabilitation. If the person wants to visit Canada temporarily, they may apply for a Temporary Resident Permit (TRP).

 

Deemed Rehabilitation

If 10 years have elapsed since the completion of a sentence or any other condition imposed to satisfy the completion of said sentence (e.g., payment of all fees, jail time completed, restitution paid, etc.) for an offence committed outside Canada, a person may be deemed rehabilitated which would render them no longer criminally inadmissible to Canada. The related offence should be punishable in Canada for a maximum of less than 10 years and did not involve any serious property damage, use of weapons, or resulted in physical harm. A request for deemed rehabilitation can be submitted to the visa office located in one’s country to prevent any issues that may arise regarding such offence upon entry.

 

Individual Rehabilitation

Where a person is not deemed rehabilitated, they may be able to apply for individual rehabilitation if it can be shown that 5 years have elapsed since the commission of an offence or since the completion of a sentence imposed. In deciding a criminal rehabilitation application, IRCC considers key factors such as: the nature of the offence, the circumstances under which it was committed, the length of time which has lapsed, and whether there have been previous or subsequent offences. Rehabilitation means that a person is able to lead a stable lifestyle and  is unlikely to be involved in any further criminal activity.

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If a person has a criminal conviction in Canada, a record suspension (formerly a pardon) must be sought from the Parole Board of Canada (PBC) before being deemed admissible to Canada. Those not eligible for deemed rehabilitation nor individual rehabilitation may apply to enter Canada temporarily on a Temporary Resident Permit (TRP) in special circumstances.