Applying to come to Canada is no simple feat. What can make it harder is if foreign nationals or permanent residents have a criminal record. Now, not all criminal records mean that an applicant is going to be found inadmissible to enter Canada. This blog post will help you understand the concept of criminality and serious criminality as it relates to immigration law in Canada.
What does it mean to be "inadmissible"?
Before discussing criminality and serious criminality, it's important to understand what it means to be found inadmissible in the course of the immigration process in Canada. Simply put, to be "inadmissible" is to have had your application to Canada rejected by the immigration authorities at Immigration, Refugees and Citizenship Canada. There are different types of inadmissibility, such as medical inadmissibility and criminal inadmissibility. Criminal inadmissibility is divided into two grounds: criminality and serious criminality.
What is criminality?
The Immigration and Refugee Protection Actdefines criminality on the basis of the details of a foreign national's criminal record. Section 36(2) explains that foreign nationals are inadmissible for criminality when they:
- Have been convicted in Canada of an indictable offence, or of two offences under a federal law arising out of more than one occurrence.
- Have been convicted outside Canada of what would constitute an indictable offence under Canadian federal law, or of two offences equivalent to Canadian federal law arising out of more than one occurrence.
- Committed an act outside of Canada that is an offence in the place it was committed. The offence is also an indictable offence in Canada.
- On entering Canada, committed an offence under Canadian federal law.
What is serious criminality?
Section 36(1) of the Immigration and Refugee Protection Act describes serious criminality. The main difference between criminality and serious criminality is the consequences on conviction. While criminality merely entails, more or less, the conviction of an indictable offence or the equivalent thereof either inside or outside of Canada, serious criminality is more precise on the requisite penalty. It also applies to permanent residents in addition to foreign nationals. Serious criminality is when a permanent resident or foreign national:
- Has been convicted in Canada of an offence under Canadian federal law that is punishable by a maximum term of imprisonment of at least 10 years, or where a term of imprisonment of more than six months has been imposed.
- Has been convicted of an offence outside of Canada that would constitute an offence in Canada punishable by a maximum term of imprisonment of at least 10 years.
- Committed an act outside of Canada that is an offence in the location the act was committed and would constitute an offence in Canada. That offence must also be punishable by a maximum term of imprisonment of at least 10 years.
What can I do if I've been determined inadmissible for serious criminality?
There are a few things to consider if you've been determined inadmissible on the basis of serious criminality. Some of your options include record suspensions, a foreign pardon if you were convicted outside of Canada, criminal rehabilitation, temporary residence permits and Humanitarian & Compassionate Grounds.
Record suspensions are an option for those who were convicted of an offence under Canadian federal law. These are provided by the Parole Board of Canada. The Immigration and Refugee Protection Act provides, at section 36(3)(b), that inadmissibility for both criminality and serious criminality cannot be based on a conviction that has been acquitted or for which a record suspension has been ordered.
While foreign pardons are a potential avenue to remedy serious criminality for those convicted of offences outside of Canada, it is not guaranteed to work. The test for foreign pardons is the following:
- The legal system of the foreign jurisdiction must be similar to Canada;
- The foreign law must be similar to Canadian law in its aim, content and effect; and
- There is no valid reason not to recognize the result of the foreign law.
Foreign nationals and permanent residents may also apply to the Minister of Public Safety and Emergency Preparedness for criminal rehabilitation 5 years after their sentence has been completed.
Alternative immigration programs
Finally, for access to Canada sooner, temporary resident permits allow entry to Canada to those who are inadmissible if there are compelling reasons to do so. Humanitarian & Compassionate Grounds are also available on application to foreign nationals who are subject to a removal order that has not yet been enforced.
Recent developments to serious criminality
In recent years, the Supreme Court of Canada has clarified some of the rules around criminality and serious criminality. In the 2017 decision Tran v Canada, it was determined that:
- Conditional sentences are not considered terms of imprisonment under section 36(1) describing serious criminality.
- The reference to "maximum term of imprisonment" in section 36(1) describing serious criminality applies to the maximum term at the time the offence was committed, not at the time of sentencing or when the immigration application is assessed.
If You've Been Deemed Inadmissible, the Skilled Lawyers at Garson Immigration Law in Toronto Can Help
At Garson Immigration Law, we are exclusively dedicated to the practice of immigration law. We understand that waiting for your immigration application to be processed can be stressful. Our immigration lawyers can help successfully guide you through the immigration process and find solutions for your individual immigration needs.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.