Refusals for Criminal Inadmissibility Reasons
What is Criminal Inadmissibility?
Criminal inadmissibility means that a person is not admissible in Canada. This means that he or she cannot enter or remain in Canada because of a criminal conviction.
Consequences of Criminal Inadmissibility
Entering Canada
Having a criminal record can make international travel and immigration a challenging endeavour. This is no less true in the context of Canadian immigration. For those applying to enter Canada on a temporary or permanent basis, having a criminal record can potentially result in criminal inadmissibility and consequently, an unsuccessful application. Essentially this means that the person with a criminal record would be barred from entering Canada.
Remaining in Canada
For individuals already in Canada with temporary or permanent resident status, being convicted of a crime in Canada can result in status revocation and removal from the country. If this occurs, the individual will be unable to return until the convictions have been removed from their record or a Temporary Resident Permit (TRP) is obtained. The latter is an application made to Immigration Canada in an effort to seek written authorization for temporary entry into Canada.
The Interplay between Immigration Law and Criminal Law
The Immigration and Refugee Protection Act (IRPA) is the legislation that governs immigration laws in Canada. The IRPA has established two levels of criminal convictions, both of which it defines by reference to the Criminal Code. The first level is termed “criminality” and the higher level is termed “serious criminality.” Both levels can lead to a person’s criminal inadmissibility.
Inadmissible based on Serious Criminality
Section 36(1) of the IRPA outlines the conditions that may cause a permanent resident or a foreign national to inadmissible to Canada on the grounds of serious criminality. Specifically, s.36(1) of the IRPA states as follows:
Section 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.
A person can be considered criminally inadmissible to Canada on the basis of “serious criminality” if any one or a combination of the above applies to his or her case.
Inadmissible based on Criminality
Section 36 (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
A person can be considered criminally inadmissible to Canada on the basis of “criminality” if any one or a combination of the above applies to his or her case. Our lawyers can help you overcome your criminal inadmissibility, which facilitates your entry into Canada.
Drinking and Driving Offences and the IRPA
As of December 18, 2018 new laws became in effect in Canada with respect to drinking and driving offences that has a serious impact on non-Canadian citizens; specifically, with respect to admissibility to Canada. Drinking and driving offences used to be classified as “criminality” under the IRPA. However, under the new laws, this offence is now classified as “serious criminality,” which therefore triggers harsh immigration consequences. These are either a deportation, a loss of immigration status and/or inadmissibility to Canada.
