Why does Canada deem that certain individuals are “inadmissible” to enter the country?
Canada’s immigration laws and regulations must balance the nation’s interest in permitting immigration to maximize social, cultural and economic benefits for Canada as a whole while at the same time protecting the health and safety of Canadians and ensuring the security of Canadian society.
Last week I wrote about medical inadmissibility and individuals who may be prevented from entering Canada because they may endanger the health of other Canadians. In this article, I will outline who may be deemed criminally inadmissible: the group of people who may not be allowed to enter Canada because they have committed a crime or been convicted of a crime inside or outside of Canada.
Canada’s immigration laws and regulations make it clear that a foreign national or permanent resident who is convicted of an offence under any act of Canada’s parliament is deemed criminally inadmissible.
The most common offences are found under the Criminal Code of Canada and the Controlled Drugs and Substances Act and include manslaughter, assault, theft, dangerous driving and driving under the influence of drugs or alcohol, and possession of or trafficking in drugs or controlled substances.
However, it is possible that someone may be convicted under the Immigration and Refugee Protection Act (“IRPA”) of an offence such as possessing false documents in order to contravene IRPA or direct or indirect misrepresentation.
Compared to medical inadmissibility, it is important to note that criminal inadmissibility can apply to those who are already permanent residents of Canada. In some cases, IRPA authorizes the removal from Canada of permanent residents (as well as foreign nationals) that are deemed to be criminally inadmissible.
Who is criminally inadmissible?
In order to determine if you are criminally admissible we need to know what offence you were convicted of and where the conviction occurred. Except in cases of crimes against humanity, the activity you are convicted of must be a crime in both the place it was committed and in Canada.
Interestingly, for offences outside of Canada a conviction is not necessary while for an offence in Canada you must have an actual conviction to be considered criminally inadmissible.
The seriousness of the crime that was committed and the consequences that follow your conviction determine if the crime you committed makes you inadmissible. In Canada the terms used to describe difference in severity of an offence are “Indictable” (more serious) and “Summary” (less serious) offences.
Some offences are “Hybrid” offences where you may be prosecuted by indictment or summary conviction.
A person is generally inadmissible if convicted of an offence in Canada, or elsewhere in the world, that would be at least a hybrid offence in Canada.
Immigration officers are charged with determining the equivalency of foreign conviction compared to Canadian laws, such as the Criminal Code. Based on this, the immigration officer will determine if the criminal conviction will render the applicant inadmissible.
In many cases this determination is very difficult because the criminal laws of each country are different in terms of how they define the elements of the crime and the consequences of a conviction.
In cases where the crime is more serious, such as murder, armed robbery or burglary, the decision to grant admission to Canada cannot be made by the immigration officer but must be referred to a Manager or Supervisor for determination.
Is there any way to overcome criminal inadmissibility?
In some cases, there may be a compelling reason for you to enter Canada for either employment or family issues despite having a criminal record. In some cases you may be able to overcome your criminal convictions and enter Canada, and in the case of permanent residents who are convicted of a crime, it may still be possible to overcome the criminal record and apply for citizenship.
Next week I will write about rehabilitation and temporary resident permits that may allow a person with prior convictions to enter Canada.
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Zeynab Ziaie is a graduate of the Faculty of Law at the University of Toronto and a lawyer licensed to practice in Ontario and New York. Her legal practice focuses on immigration and business law. She often works with clients to find suitable solutions in complex immigration and citizenship cases and represents clients at all levels of court.