Criminal Inadmissibility
Under Canada’s immigration law, you may not be allowed into Canada if you have committed or been convicted of a crime. This includes both minor and serious crimes. To determine if your conviction renders you inadmissible, you must first equate the crime to the Criminal Code of Canada.
What are the three types of offenses in Canada?
In Canada, there are three types of offences: summary, hybrid and indictable. Summary convictions are offences that are considered less serious under the Criminal Code of Canada, such as causing a disturbance, harassing phone calls, or trespassing at night. The maximum penalty for a summary offence is usually a $5,000 fine and six months in jail. Indictable offences are the most serious type of offence in Canada and can lead to a life sentence. Some examples of an indictable offence are murder or high treason. Hybrid offences under the criminal code, such as impaired driving, theft under $5,000.00, or sexual assault, meaning that the Crown may choose to proceed either by indictment or summary conviction.
If your offence falls under a hybrid offence, which covers the majority of the Criminal Code of Canada offences, it will always be considered as an indictable offence by Canadian Immigration and, therefore, render you inadmissible to Canada.
If you are inadmissible to Canada, there are two primary options available to you: Criminal Rehabilitation and Temporary Resident Permit. In most cases:
If five years have passed since the end of your criminal sentence, you may be eligible to apply for criminal rehabilitation, a permanent wipe of your criminal inadmissibility to Canada.
If less than five years have passed, and you have a valid reason to enter Canada, you can request a temporary resident permit; click here for more information on TRPs. An officer will decide if the reason for entry to Canada outweighs the safety risks to Canadians and Canadian society.
What is Criminal Rehabilitation?
Eligibility for Individual Rehabilitation will depend on how much time has passed since a crime was committed or the sentence was completed. To determine which scenario applies to you will depend on the seriousness of the crime. More specifically:
If convicted of an offence outside of Canada that would be considered an indictable offence in Canada that is punishable by a maximum term of imprisonment of less than ten years, you are eligible to apply for individual rehabilitation if at least five years have passed since the completion of the imposed sentence.
If you committed an offence outside of Canada that would be considered an indictable offence in Canada that is punishable by a maximum term of imprisonment of less than ten years, you are eligible to apply for individual rehabilitation if at least five years have passed since the offence date.
If you committed or were convicted of an offence outside of Canada that would be considered an indictable offence in Canada that is punishable by a term of imprisonment of ten years or more, you are eligible to apply for individual rehabilitation if at least five years have passed since the offence date or completion of the imposed sentence, whichever applies to your situation.
What is Deemed Rehabilitation?
In some cases, you may be deemed rehabilitated. Similar to individual rehabilitation, this will again depend on how serious the crime was and how much time has passed since the completion of the sentence requirements. More specifically:
If convicted of an offence outside of Canada that would be considered an indictable offence in Canada that is punishable by a maximum term of imprisonment of less than ten years, you may be deemed rehabilitated at least ten years after completion of the sentence imposed.
If you committed an offence outside of Canada that would be considered an indictable offence in Canada that is punishable by a maximum term of imprisonment of less than ten years, you may be deemed rehabilitated at least ten years after the commission of the offence
If you committed or were convicted of an offence outside of Canada that would be considered an indictable offence in Canada that is punishable by a term of imprisonment of ten years or more, you may never be deemed rehabilitated.
Though you do not have to apply for deemed rehabilitation (there is no processing fee), you should be sure you qualify before seeking an assessment or entry to Canada.
To be eligible for deemed rehabilitation, you must:
Have only one conviction or committed only one crime
At least ten years have passed
The offence you committed is not considered serious in Canada
The offence did not involve any serious property damage, harm to any person or any weapon
If you are not deemed rehabilitation, you will need to apply for Criminal Rehabilitation.
Looking to overcome criminal inadmissibility in Canada? We can help.
The murky waters of the “Committing an Act” provision.
Applicants are generally placed in this category if there is evidence a crime has been committed outside of Canada, but no conviction has resulted. It is important to recognize a conviction is not always necessary for an officer to determine if an applicant is criminally inadmissible to Canada.
Scenarios in which this provision may apply include:
The officer is in possession of intelligence or other credible information indicating a person has committed an offence outside of Canada
A foreign jurisdiction indicates charges would be or may be, laid
There is a warrant
Charges are pending
Charges have been laid, but the trial is not concluded
A person is fleeing prosecution
A conviction has been registered, but the certificate of conviction is not available
This provision is not intended to bar entry of persons who may have committed but not been convicted of an offence. It is used to deny entry to Canada to persons where there is evidence of criminal activity that could result in a conviction. This provision generally does not apply when foreign authorities are not intending to lay charges or wish to drop the charges or the trial is concluded and there is no conviction.
Preparing a Criminal Rehabilitation Application
The assessment undertaken by the officer will deal with the likelihood of an individual to commit another crime. As established by case law, the important principles of a rehabilitation application include that rehabilitation is forward-looking and that an officer commits a reviewable error if they attribute too much importance to the fact that an applicant has a criminal history as opposed to the likelihood the applicant would be involved in further criminal activity.
Applicants applying for criminal rehabilitation should ensure they meet the relevant criteria and timeframe applicable.