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When is Someone Criminally Inadmissible?

At BLG we have extensive experience in dealing with companies and individual clients who have criminal inadmissibility issues.

The cases we have worked on range from serious criminality to someone who has a compelling need to enter Canada for employment or family issues but has a driving while impaired offence from many years ago.

Understanding (In)Admissibility

To understand why, as a matter of practice, immigration lawyers may know a little more about criminal law than their criminal lawyer counterparts know about immigration law, we need look no further than the IRPA itself. The objectives of the Act evidence a balancing of interests that include, on the one hand, permitting Canada to pursue the maximum social, cultural and economic benefits of immigration to enrich and strengthen the social and cultural fabric of Canadian society, and on the other, protecting the health and safety of Canadians and maintaining the security of Canadian society whilst promoting international justice and security by fostering respect for human rights and – most importantly for present purposes – by denying access to Canadian territory to persons who are criminals or security risks.

It is also worth noting that the IRPA not only denies criminally inadmissible individuals entry Canada, but also authorizes the removal from Canada of foreign nationals and Canadian permanent residents who are deemed inadmissible.

We can now appreciate that the immigration lawyer’s exposure to criminal law is related to one of the main challenges in serving our clients, namely, understanding when a client is criminally inadmissible.

Assessing (In)Admissibility

After meeting with clients whose admissibility is questionable, immigration lawyers first look at the following:

  1. Were they convicted of an offence in Canada?
  2. Were they convicted of an offence outside of Canada that is considered an offence in Canada?
  3. Did they commit an act outside of Canada that is both punishable under Canadian law and is considered a crime under the laws of the country in which it occurred?

Next, a lawyer must ask whether the charges were withdrawn, dismissed, discharged or pardoned. If a client’s offence occurred in Canada and their charges have been withdrawn, dismissed, discharged (absolute or conditional), or pardoned under the Criminal Records Act, they are not considered criminally inadmissible. If a client is able to obtain a pardon, it will permanently erase their Canadian criminal record, “and any consequences of inadmissibility resulting from it” within the Canadian jurisdiction.

If a client’s offence occurred outside of Canada, they clearly may be inadmissible on criminal grounds. Counsel will need to assess whether they are inadmissible. In order to complete this assessment, a client “must provide . . . complete details of charges, convictions, court dispositions, pardons, photocopies of applicable sections of foreign laws(s), and court proceedings.”

As well, if a client was convicted as a juvenile, they may not be inadmissible. Unless your client received an adult sentence, was “convicted in an adult court in a country that has special provisions for young offenders”, or was “convicted in a country that does not have special provisions for young offenders” but the severity of their offence would lead to them being tried as an adult in Canada, they are not considered inadmissible on criminal grounds.

If you are not sure whether you are criminally inadmissible, please contact our office to schedule a consultation so we can assist you in ascertaining whether you are criminally inadmissible.

 


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