Immigration is a popular topic in politics these days, and it is also an important area of law for many legal practitioners. Under Canada’s immigration laws, foreign nationals may be barred from entering Canada on the basis of past criminal activity (Immigration and Refugee Protection Act, SC 2001, c 27, s 36 [IRPA]). The purpose of these prohibitions is to protect the safety of the Canadian public.
Several factors should be considered when assessing whether an individual is inadmissible based on past criminality: (1) Has the foreign national committed or been convicted of a crime? (2) Does the crime have a Canadian equivalent? (3) If committed in Canada, would the crime be punishable by a jail term of 10 or more years? (4) If committed outside of Canada, would the equivalent Canadian crime be punishable by a jail term of 10 or more years?
According to section 36(3) of IRPA, foreign nationals can overcome inadmissibility based on past criminality by applying for criminal rehabilitation, being deemed rehabilitated, or applying for a temporary resident permit.
Criminal and deemed rehabilitation both permanently remove a foreign national’s inadmissibility. To be eligible for criminal rehabilitation, a foreign national cannot have committed or been convicted of more than one indictable offence, and more than 5 years must have elapsed since the offence was committed or the sentence was completed. To be deemed rehabilitated, more than 10 years must have elapsed since the foreign national committed or completed a sentence for an indictable offence (or more than 5 years for two or more summary offences).
Alternatively, temporary resident permits act as temporary waivers of inadmissibility. These are available if a foreign national does not meet the eligibility requirements for rehabilitation. In order to obtain a temporary resident permit, a foreign national must have a compelling reason to come to Canada and demonstrate that they are not a danger to Canadian society. If successful, a temporary resident permit is issued, authorizing entry into Canada for a fixed period of time.
In certain circumstances, a foreign national with past criminality is considered admissible without having to undertake the necessary steps for criminal/deemed rehabilitation and temporary resident permits. This applies to foreign nationals who were convicted as young offenders, obtained a legal pardon, or have committed or been convicted of a single summary offence.
Ultimately, knowing potential client inadmissibility issues is imperative for immigration law practitioners, both to identify alternate avenues for admission into Canada and ensure a foreign national has all necessary paperwork in place before traveling to Canada.
To read more about criminal and medical inadmissibility in immigration law, you can find Susan Martyn’s full article, “Criminal and Medical Inadmissibilities”, online at: Criminal and Medical Inadmissibilities
