August 26, 2015

Criminal Inadmissibility & Equivalency – It’s Worse Than You Think!

Our office is consulted by individuals who seek to enter Canada – either temporarily or permanently – yet, the individual or a close family member has a criminal record. Often the individual is surprised that one conviction, even one that took place ten years ago, can make them inadmissible to Canada. It can. This can have serious implications for those who have been offered temporary employment in Canada, and may even affect the ability of an entire family to immigrate to the country.

Many individuals who find themselves in this position only have one or two convictions, and oftentimes from years ago. It is easy for many to think that the conviction(s) was not serious – perhaps it was only an incident of shoplifting when he or she was 18 years old. In the United States, for example, such an offence would be a misdemeanour offence (not a felony). Yet it is important to keep in mind that – for the purpose of the Immigration and Refugee Protection Act – it does not matter how the foreign jurisdiction treated the offence or even the sentence received. For the purpose of evaluating admissibility and equivalency, Canadian visa officers look to see how the offence could be treated in Canada. If it could be prosecuted by indictment – even if it would have been prosecuted summarily in Canada, had the offence occurred in Canada – then it is equated to the indictable offence in Canada and the maximum sentence that Canada could impose for such an offence.

So, for a shoplifting conviction, this would be equivalent to “theft under $5,000” in Canada. Under section 334 of the Criminal Code of Canada, this offence could be prosecuted by indictment or summarily. For Canadian visa officers, they would look at the punishment for indictment, which is a term of imprisonment not exceeding two years. So, even if a fine was the only punishment in the United States, it is equated to a conviction for which a term of imprisonment could be imposed for Canadian purposes.

This person is inadmissible to Canada for “criminality” under subsection 36(2)(b) of the Immigration and Refugee Protection Act. If this person was seeking entrance for a short period of time, then a Temporary Resident Permit could overcome this admissibility for that temporary period. If the person was seeking to immigrate, an application for rehabilitation could be made to permanently overcome the inadmissibility. If this was the individual’s only conviction – one indictable offence – then ten years after the completion of the foreign sentence (in this example, the payment of the fine), an application could be made for “deemed” rehabilitation, which implies that rehabilitation has occurred as the individual has not committed another offence in ten years; this would also permanently overcome the inadmissibility.

There are broader consequences still – using this same example, what if the individual with the conviction from shoplifting was the spouse of the principal applicant? For the purpose of a temporary visit to Canada, the principal applicant could be approved but the spouse remains inadmissible and would need the Temporary Resident Permit. If the couple was seeking to immigrate to Canada, the spouse’s criminal record would make the entire family (spouse and any dependent children) inadmissible to Canada. It is not possible to state that only the principal applicant spouse would immigrate to Canada and the spouse with the criminal record would not; the principal applicant is inadmissible because he or she has an inadmissible family member. The only way to overcome this would be for the spouse to be approved for rehabilitation (or for the couple to legally divorce).

Criminal convictions, even those that are years old, can have a significant impact on an individual’s ability to enter Canada. The shorter the period of time since the last conviction, the more convictions a person has, and the more serious in nature the convictions are, the more challenging this form of inadmissibility is to overcome. If you or a family member has a criminal record, it is important to consider this admissibility concern before applying for entrance to Canada.

For more information on criminal inadmissibility, please click here.