Inadmissibility And detention

Criminality

Criminal Inadmissibility Canada

Foreign nationals may be deemed inadmissible to Canada for certain reasons. Some foreign nationals may not be permitted to enter or stay in Canada because they have either committed or have been convicted of a crime. This is called criminal inadmissibility, and it can apply to crimes that occur in or outside Canada.

If you are a foreign national and you are not permitted to enter the country because of a criminal record, you do have some options available so that you can enter Canada. Though each case is different, those with criminal records may gain entry to Canada in various ways under Canadian law.

What is criminal inadmissibility?

Criminal inadmissibility in Canada is defined in Section 36 (2) of the
Immigration and Refugee Protection Act. The Act defines certain reasons a foreign national may not be allowed to enter Canada due to criminality. You may not be permitted to enter Canada following this immigration law if you:

Have been convicted of an offence in Canada: Criminal inadmissibility may apply if you have either been convicted of an offence under an Act of Parliament punishable by way of indictment, or you have been convicted of two offences under any Act of Parliament that do not arise out of one single occurrence.
Have been convicted of an offence outside of Canada: Criminal inadmissibility may also apply if you have been convicted outside of the country of offences that would be considered offences under an Act of Parliament had you committed the act in Canada. This applies if you have been convicted outside of Canada for either one indictable offence, or you have been convicted of two offences not arising out of one single
Commit an act outside of Canada: You may be inadmissible to Canada if you commit an act outside of the country that is an offence in the place where you commit the act and that would also be considered an indictable offence under an Act of Parliament in Canada.
Commit an act on entering Canada: Criminal inadmissibility may also apply if you commit an offence under an Act of Parliament, as prescribed by regulations, upon entering the country.

Criminal offences in Canada fall into three categories:

Summary convictions: These are usually the least serious offences, attracting the lowest fines and/or imprisonment terms.
Indictable offences: Pure indictable offences are the most serious offences, carrying the most severe penalties and always accompanied by specific penalty provisions.
Hybrid offences: Also called crown elect offences, these offences are accompanied by specific penalty provisions that set out the maximum penalty should the Crown proceed by way of indictment. These offences can be punished by summary conviction or indictment. For immigration purposes, the offences are deemed indictable offences.

How to know if you are criminally inadmissible?

You can ask yourself a few simple questions to determine if you may fall under the regulations for criminal inadmissibility in Canada:

Have you been convicted of an offence? If you have been, you may be criminally inadmissible.
Is the offence you committed considered a crime in Canada? Again, if you answer yes to this question, you may be criminally inadmissible. Keep in mind that your crime will be judged under Canadian law, so whether the offence is considered a misdemeanor or felony where you committed it is not relevant.
When did you commit the offence? How long ago you committed an offence determines your next steps to enter Canada. If it has been less than five years since you completed your sentence, you will need to apply for a temporary resident permit. If it has been more than five years since you completed your sentence, you may apply for rehabilitation. Finally, if it has been more than 10 years since you completed your sentence, you may be deemed rehabilitated, but only if you have just one non-serious offence.
How many offences do you have, and what is the severity of these offences? You will be inadmissible if you have committed either one or more serious offence, or one indictable offence in addition to any other conviction.

How can you overcome criminal immigration inadmissibility?

If you are found to be inadmissible to Canada because of criminality, you may have three possibilities to overcome this assessment. These possibilities are:

Rehabilitation: You may be eligible to apply for rehabilitation because of past criminal activity.
Requesting special permission to enter Canada: You may not be eligible for rehabilitation if five years have not yet passed since the end of your sentence. At other times, you may not be eligible to apply for a record suspension (formerly known as a pardon) for convictions in Canada. In these cases, you may request a special permission to enter the country.
Request Humanitarian and compassionate grounds: There is also an application for this type of request.

Rehabilitation for offenses inside of Canada

If you have a criminal conviction in Canada, you must seek a record suspension (formerly a pardon) from the Parole Board of Canada (PBC) before you will be admissible to Canada.

In order to be considered for a record suspension under the Criminal Records Act, a specified period of time must pass after the end of the sentence imposed. The sentence may have been payment of a fine, period of probation, or imprisonment.

Rehabilitation for offenses outside of Canada

You are eligible to apply for rehabilitation if you have:

If you were convicted of an offence outside Canada that, if committed in Canada, would be an indictable offence punishable by a maximum term of imprisonment of less than ten years:

If you committed an offence outside Canada that, if committed in Canada, would be an indictable offence punishable by a maximum term of imprisonment of less than ten years:

If you were convicted of an offence or you committed an offence outside Canada that, if committed in Canada, would be punishable by a maximum term of imprisonment of ten years or more:

If you were convicted for two (2) or more offences outside Canada that, if committed in Canada, would constitute summary conviction offences:

Humanitarian and compassionate grounds

section 25 (1) of the Immigration and Refugee Protection Act allows foreign national to seek an exemption from the law if they are found inadmissible on grounds of criminality: 25 (1) Subject to subsection (1.2), the Minister must, on request of a foreign national in Canada who applies for permanent resident status and who is inadmissible — other than under section 34, 35 or 37 — or who does not meet the requirements of this Act, and may, on request of a foreign national outside Canada — other than a foreign national who is inadmissible under section 34, 35 or 37 — who applies for a permanent resident visa, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.

Relevant Factors that officers consider when granting such relief are set in Guidelines and are not limited to:

establishment in Canada;
ties to Canada;
the best interests of any children affected by their application;
factors in their country of origin (this includes but is not limited to: Medical
inadequacies, discrimination that does not amount to persecution, harassment or other hardships that are not described in A96 and A97);
health considerations;
family violence considerations;
consequences of the separation of relatives;
inability to leave Canada has led to establishment; and/or
any other relevant factor they wish to have considered not related to A96 and A97.

The Guidelines provide that the relevant considerations are to be weighed cumulatively as part of the determination of whether relief is justified in the circumstances.

How do we help?

You are not alone if you need help overcoming criminal inadmissibility in Canada. The experienced lawyers of Chaudhary Law can provide personalized advice if you are found inadmissible on the grounds of criminality. Contact us today to get started.

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