UNDERSTANDING CRIMINALITY:
Section 36 of the IRPA:
Section 36 of the IRPA provides for inadmissibility on the grounds of criminality and serious criminality for foreign nationals and permanent residents.
“Criminality” – Foreign National:
Subsection 36(2) of the IRPA deals with inadmissibility on the grounds of Criminality:
“(2) A foreign national is inadmissible on grounds of criminality for
- (a)having been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment, or of two offences under any Act of Parliament not arising out of a single occurrence;
- (b)having been convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, or of two offences not arising out of a single occurrence that, if committed in Canada, would constitute offences under an Act of Parliament;
- (c)committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an indictable offence under an Act of Parliament; or
- (d)committing, on entering Canada, an offence under an Act of Parliament prescribed by regulations.”
“Serious Criminality” – Permanent Resident or Foreign National:
Section 36(1) of the IRPA deal with inadmissibility on the grounds of Serious Criminality:
“36. (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for
(a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed;
(b) having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; or
(c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years.”
Moreover, the Refugee claims of Applicants found inadmissible for Serious Criminality under subsection 36(1) will be suspended as provided under Subsection 103(1)(a) of the IRPA.
Criminal Equivalency:
In Hill v Canada (Minister of Employment and Immigration), the Court established that the equivalency of a foreign offence with an offence in Canada is determined in one of three ways:
(i) by a comparison of the precise wording in each statute through documents and, if available, expert evidence, and by determining the essential ingredients of the respective offences;
(ii) by examining the oral and documentary evidence to ascertain whether or not the evidence is sufficient to establish the essential ingredients of the offence in Canada has been proven in the foreign proceedings; and
(iii) a combination of (i) and (ii).
Moreover, in Li v. Canada (Minister of Citizenship and Immigration), the Federal Court of Appeal provided that the purpose of criminal equivalency is “to exclude from Canada persons who have done things abroad, for which they have been convicted there, which Canada regards by its laws as constituting serious misconduct.”
Consistent with this purpose is to assess whether there is “essentially the similarity of definitions of offences” including related defences, in order for criminal equivalency to be made out. A definition of offences is similar if both involve similar criteria for establishing that an offence has occurred irrespective of whether those criteria are manifested in elements or defences in the two sets of laws. It is an examination of how two offences compare and not a comparison of possible convictions in two countries. Nor is it an exercise of retrying the case by applying Canadian rules of evidence, or an examination of the validity of the conviction abroad.
Justice Gascon summarized the applicable law in Nshogoza v Canada (Minister of Citizenship and Immigration:
“The Court must further look at the similarity of definition of the two offences being compared and the criteria involved for establishing the offences (Li v Canada (Minister of Citizenship and Immigration), 1996 CanLII 4086 (FCA), [1996] FCJ No 1060 (FCA) [Li] at para 18). As explained by Mr. Justice Strayer, “[a] comparison of the “essential elements” of the respective offences requires a comparison of the definitions of those offences including defences particular to those offences or those classes of offences” (Li at para 19). In Brannson v Canada (Minister of Employment and Immigration), [1981] 2 FC 141 (FCA) at para 38, the Federal Court of Appeal further stated that the essential elements of the relevant offences must be compared, no matter what are the names given to the offences or the words used in defining them.”
Exceptions for Juvenile Offenders:
Individuals who are convicted of a crime, at the commission of which they were under the age of 18 years, may still have an opportunity to enter Canada.
OPTIONS FOR OVERCOMING CRIMINAL INADMISSIBILITY
Depending on factors such as the type of offense, the time that has elapsed since its commission, and your behavior in the intervening period, there remains a possibility for you to gain entry into Canada. This could be achieved through various avenues, including convincing an immigration officer that you meet the legal conditions for deemed rehabilitation, successfully applying for rehabilitation, obtaining a record suspension, or holding a temporary resident permit. Each of these options require careful consideration and adherence to specific legal processes, offering individuals different paths to address and potentially overcome their criminal inadmissibility in the context of Canadian immigration.
1. Deemed and Individual Rehabilitation:
Deemed rehabilitation signifies that sufficient time has passed since the conviction, making the individual eligible to enter Canada. Subsection 36(3)(c) provides for deemed rehabilitation, for which, one must satisfy the Minister that they have rehabilitated upon the lapse of the period of 5 years (as per section 17 of the IRPR), or if they are deemed rehabilitated as a member of one of the classes prescribed under section 18 of the IRPR.
Individual rehabilitation involves applying to enter Canada, demonstrating personal growth, and proving a low likelihood of reoffending. Criteria include meeting specific rehabilitation standards, being rehabilitated, and exhibiting a high probability of not engaging in further criminal activities. A minimum of five years must have passed since completing the criminal sentence and the day of commission of such offence.
Application Process for Rehabilitation:
- For concurrent temporary resident applications (visitor visa, study permit, or work permit), applicants can submit rehabilitation applications together at the nearest Visa Application Centre.
- For foreign national Electronic Travel Authorization (eTA) applicants, a separate rehabilitation application must be submitted before the eTA application. The processing time for these applications can extend beyond a year, therefore advanced planning is advisable.
2. Record Suspension or Discharge:
Individuals convicted in Canada seeking a record suspension (pardon) should consult the Parole Board of Canada. A Canadian record suspension removes inadmissibility. For convictions outside Canada, validation in Canada should be confirmed through the relevant visa office.
For this purpose, the Court in Canada (Minister of Citizenship and Immigration) v. Saini (C.A.) provided three elements that must be established before a foreign discharge or pardon may be recognized:
“(1) the foreign legal system as a whole must be similar to that of Canada;
(2) the aim, content and effect of the specific foreign law must be similar to Canadian law; and
(3) there must be no valid reason not to recognize the effect of the foreign law.”
3. Temporary Resident Permit (TRP):
A TRP is an option for individuals to temporarily overcome their inadmissibility, seeking entry or stay in Canada within five years of completing their sentence or for those with valid reasons for visiting. It is issued based on an evaluation by immigration or border services officers by weighing the individual’s need against potential risks to Canadian society. Even seemingly minor inadmissibility reasons require a valid justification for the visit.
4. Appeal to the Immigration Appeal Division (IAD)
If one has received a removal order based on Criminal inadmissibility for a conviction in Canada, they may bring an appeal before the IAD and show that:
- They were not convicted of a serious crime; or
- There are Humanitarian and Compassionate grounds for your appeal.
LEGAL REPRESENTATION
Obtaining legal help is crucial when addressing criminal inadmissibility in Canadian immigration due to the intricate nature of immigration law and the specific requirements associated with overcoming such inadmissibility. Legal professionals specializing in immigration matters possess a comprehensive understanding of the legal framework, ensuring applicants are aware of the latest regulations and requirements. They play a pivotal role in navigating the various pathways, such as rehabilitation, record suspension, and temporary resident permits, by conducting a thorough assessment of individual circumstances, preparing strong applications, and providing legal representation during interviews or hearings. Legal assistance minimizes risks, helps in staying updated on changes in immigration laws, and manages complex cases, ultimately increasing the chances of a successful outcome and addressing potential delays or denials effectively.
CONCLUSION
In conclusion, the admissibility determination process is rigorous, with a focus on the nature of criminal convictions and their potential risks to Canadian society. Fortunately, avenues exist for overcoming such inadmissibility, ranging from deemed rehabilitation to individual rehabilitation, record suspension, temporary resident permits and appeal to the IAD. Each option requires careful consideration of the type of offence, time elapsed since the conviction, and individual behaviour during the interim period. Moreover, the application processes for rehabilitation and temporary resident permits demand meticulous attention to detail and adherence to specific legal requirements.
Seeking professional legal assistance is highly advisable, as it ensures a nuanced understanding of the legal framework, guidance on navigating complex processes, and increased chances of success in overcoming criminal inadmissibility. Ultimately, this journey underscores the significance of strategic planning and expert support to successfully navigate the complexities of Canadian immigration law.
At Kozyrev Law, we are dedicated to offering comprehensive legal services tailored to individuals seeking to overcome criminal inadmissibility in the context of Canadian immigration. Our experienced team understands the complexities of the legal framework and provides strategic guidance to navigate rehabilitation processes, whether through deemed rehabilitation, individual rehabilitation, record suspension, or temporary resident permits. We prioritize a meticulous approach, ensuring all required documents are accurately prepared and submitted, while advocating for our clients’ unique circumstances. Kozyrev Law is committed to providing professional, client-focused assistance, leveraging our expertise to help individuals successfully address and overcome criminal inadmissibility, facilitating their journey towards a positive immigration outcome in Canada.
Note: The information presented in this article is not intended to constitute legal advice. It is recommended to refer to official government publications and guidelines for accurate and up-to-date information. For obtaining legal advice tailored to the specific circumstances of your case, it is advised to consult with a qualified professional.
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