Criminality vs serious criminality...do you know which side you fall on?

Section 36 Immigration and Refugee Protection Act gives us a break down for what is considered "Criminality" and "Serious Criminality," and while both of them may keep you from visiting or moving to Canada, do you know which side you fall on?

In order to understand the difference between the two, we first have to understand how criminal charges in Canada work. To begin with, unlike the United States, criminal charges fall under the federal law in a statute called the Criminal Code of Canada. This means that the Code applies equally to all ten provinces, and the definitions and penalties do not change.

Criminal charges in Canada fall into four categories: indictment, summary, super summary and hybrid.

Indictment: Indictments (or indictable offences) are the serious charges under the Criminal Code. An indictment is generally a charge that has a punishment of more than 18 months in prison, a fine of more than$5,000 CAD or a combination of both.

Summary: Summary offences are lesser charges under the Criminal Code and generally carry a sentence of 6 months or less, a maximum fine of $5,000, or a combination of both.

Super Summary: Super summary offences are between indictable offences and summary offences. They generally carry a maximum punishment of 18 months in prison.

Hybrid: Hybrid offences are ones where there are punishments listed in the Criminal Code for both summary and indictable offences. It is up to the Crown (a.k.a. the prosecutor) to decide which way they would like to charge the accused.

If you are charged with a crime and are inadmissible to Canada, the IRCC will consider your application under the Canadian equivalent, not what it is deemed to be in your country of residence or citizenship. Also, any charge that is classified as a hybrid will be considered to be an indictment for immigration purposes with no exceptions.

As you might have guessed, Criminality encompasses all lesser charges and only affects foreign nationals either in Canada or applying to enter Canada. Criminality includes:

• All convictions in Canada punishable by way of indictment or two summary charges (from two separate circumstances)

• All convictions outside of Canada that, if committed in Canada, would be punishable by way of indictment, or two summary charges (from two separate circumstances)

• Committing an act that, if committed in Canada, would constitute an indictable offence

• Committing an offence, upon entering Canada, that is an offence prescribed by regulations.

Applications for Criminal Rehabilitation and Temporary Resident Permits under Criminality have a $200 CAD application fee.

Serious Criminality, on the other hand, encompasses all of the more serious convictions:

• Having been convicted in Canada of an offence punishable by a maximum of at least ten years, or of an offence for which you received more than six months in prison;

• Having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence punishable by a maximum of at least ten years; or

• 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 punishable by a maximum term of imprisonment of at least ten years.

Applications under Serious Criminality have an application fee of $1000 CAD.

If you are a Permanent Resident of Canada, Serious Criminality can affect your status. Permanent Residents that are convicted of crimes that fall into the category of Serious Criminality can have their PR status revoked and be deported to their country of citizenship or origin. This does not apply for convictions that fall within the scope of Criminality.

It is important to remember that convictions and charges are only applicable to the Canadian equivalent - If it’s not a crime here, you are not inadmissible. However, the laws of Canada will apply at the time the offence was committed, so anyone charged with possession of Marijuana prior to July 2018 may still be inadmissible.

Contact NextGen today to find out more about your immigration options.