Minor criminality can be a major headache

Immigration law makes it more difficult for business trips into Canada for employees with past convictions, even for small offences

Since the Immigration and Refugee Protection Act (IRPA) came into force in 2002, a “foreign national” applicant with a criminal record, even a minor one, can be denied entry to Canada. For example, a business person who was convicted in the United States, sometime in the past, of driving under the influence of alcohol and pled guilty, paid a small fine and put the matter behind her, could, until recently, easily obtain a permit at the Canadian Port of Entry, meet customers and drive back after her work was done. In fact, sometimes the minor offence was not even noticeable at the border. However, with the advent of the IRPA, it is no longer so easy for an applicant with a conviction to enter Canada.

Turned away at the border due to criminal conviction

Under section 36(2) of the IRPA, a foreign national can be deemed “inadmissible” and be refused entry into Canada if she has been:

•Convicted of an offence punishable by way of indictment.

•Convicted of two summary offences not arising out of a single occurrence.

•Convicted of a “hybrid offence,” one which could be prosecuted either summarily or by indictment.

An indictable offence is generally more serious, carries a longer sentence and is more or less similar to felonies in the U.S. Summary offences are generally less serious, carry shorter sentences or smaller fines and are somewhat similar to misdemeanors in the U.S.

Hybrid offences in Canada are those that can be prosecuted either through indictments or through summary convictions, depending on the nature and circumstances of the offence. Driving under the influence of alcohol is an example of such an offence. However, under the IRPA a hybrid offence is considered an indictable offence even if it has been prosecuted summarily.

Canadian equivalency of the offence

Immigration officers determine the inadmissibility of an applicant convicted of an offence in a foreign country by equating the offence with its Canadian equivalent. In Wang v. Canada (Minister of Citizenship & Immigration), the Federal Court found the visa officer is under an obligation to conduct an equivalency analysis to show that the act “if committed in Canada, would constitute an indictable offence under an Act of Parliament,” as set out in the IRPA, before deeming a person “criminally inadmissible.”

For example, the offence of driving under the influence of alcohol is a criminal offence in most countries. In the U.S., the different offences which constitute “driving under the influence” are generally considered a misdemeanor and are punishable by a range of sentences varying from small fines to significant jail terms. Such an offence may become a felony with a longer sentence only if it causes serious injury or other aggravating factors and the punishment varies widely from state to state.

Under Canadian criminal law, however, a drinking and driving charge or conviction is considered a hybrid offence, potentially indictable and is sufficient to render an applicant inadmissible by reason of criminality.

What must be considered as the governing principle is what would be the status of the offence if committed in Canada. A lenient or harsh treatment of the offence in a foreign country is irrelevant for the purposes of equivalency, while the nature of the offence and penalty range under Canadian law dtermines its equivalence.

How to overcome ‘inadmissibility’

An applicant barred from entering Canada for a past conviction has a number of options to overcome inadmissibility. She can apply for a Temporary Resident Permit at the border or at a Canadian consulate in her host country. Generally, the former is dependent on the border officer’s discretion and the latter takes a considerable amount of time to process at a visa post abroad.

If more than five years have passed since the completion of the applicant’s sentence, payment of fine or conclusion of probation, the applicant can apply for “criminal rehabilitation,” which removes the question of inadmissibility. The decision to grant rehabilitation can be dependent on other factors, the documentation involved is extensive and processing can take time.

If more than 10 years have passed since the completion of an applicant’s sentence for an indictable or hybrid offence, or five years for a summary conviction, rehabilitation does not happen automatically, but the IRPA allows immigration officials leeway to deem applicants rehabilitated at a port of entry to Canada. It must be noted that “deemed rehabilitation” does not apply to those who have been convicted of “serious criminality,” which requires a formal rehabilitation application.

Thousands of U.S. citizens and other foreign nationals have been turned away from the border since the IRPA came into force. This has become a serious problem for individuals who have minor convictions dating back several years. Businesses that have customers or operations in Canada who want their employees to travel to Canada will find the practical effects of this provision frustrating if their employees have ever been convicted of an offence. It is advisable to obtain the necessary documentation to overcome inadmissibility before seeking to enter Canada. See Wang v. Canada (Minister of Citizenship & Immigration), 2007 CarswellNat 4536 (F.C.).

Sergio R. Karas is a Certified Specialist in Canadian citizenship and immigration law by the Law Society of Upper Canada and is current Chair of the Ontario Bar Association Citizenship and Immigration Section. He can be reached at (416) 506-1800 or [email protected]

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