Are you inadmissible as a result of a criminal conviction?
Could a certificate of rehabilitation or deemed rehabilitation apply to your case?
At Bellissimo Law Group PC we can help!
Section 36 of the Immigration and Refugee Protection Act sets out when a permanent resident and/or foreign national may be found to be inadmissible to Canada as a result of criminality, as follows:
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.
(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.
(3) The following provisions govern subsections (1) and (2):
(a) an offence that may be prosecuted either summarily or by way of indictment is deemed to be an indictable offence, even if it has been prosecuted summarily;
(b) inadmissibility under subsections (1) and (2) may not be based on a conviction in respect of which a record suspension has been ordered and has not been revoked or ceased to have effect under the Criminal Records Act, or in respect of which there has been a final determination of an acquittal;
(c) the matters referred to in paragraphs (1)(b) and (c) and (2)(b) and (c) do not constitute inadmissibility in respect of a permanent resident or foreign national who, after the prescribed period, satisfies the Minister that they have been rehabilitated or who is a member of a prescribed class that is deemed to have been rehabilitated;
(d) a determination of whether a permanent resident has committed an act described in paragraph (1)(c) must be based on a balance of probabilities; and
(e) inadmissibility under subsections (1) and (2) may not be based on an offence
(i) designated as a contravention under the Contraventions Act,
(ii) for which the permanent resident or foreign national is found guilty under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, or
(iii) for which the permanent resident or foreign national received a youth sentence under the Youth Criminal Justice Act.
Pursuant to subsection 36(3)(c) above, inadmissibility to Canada or for commission of an act outside of Canada for which rehabilitation has been granted by the Minister, or where the applicant has been deemed rehabilitated.
Please note that in determining whether or not an offence renders a migrant inadmissible to Canada pursuant to subsection 36(1)(b) or 36(2)(b), thus requiring a certificate of rehabilitation, an equivalency assessment will need to be conducted. Determining equivalency to properly assess admissibility to Canada is a challenging task. Please call our office for further information on how we can assist with equivalency assessments.
Eligibility for rehabilitation and/or deemed rehabilitation
Section 17 and 18 of the Immigration and Refugee Protection Regulations sets out the prescribed periods for rehabilitation. For ease of review, a summary of eligibility requirements for rehabilitation and deemed rehabilitation based on various types of offences and convictions is provided below current to the time of posting. Please consult with Bellissimo Law Group PC or another authorized representative to determine if these provisions remain current and/or any applicability of these provisions to your case.
Please note that the eligibility date differs depending on the type of sentence imposed. The below list provides general guidance when assessing the eligibility date for the five- or ten-year waiting period.
- With respect to a suspended sentence, count five or ten years from the date of sentencing;
- With respect to a suspended sentence accompanied by a fine, count five years from the date the fine was paid, or the date of last payment;
- With respect to imprisonment without parole, the eligibility date is five or ten years from the end of the term of imprisonment;
- With respect to a sentence of imprisonment with parole, count five or ten years from the completion of parole;
- With respect to probation only, the eligibility date will be five or ten years from the end of the probation period; and,
- With respect to a driving prohibition, count five or ten years from the end date of the prohibition. This last point is arguable as to its applicability. To learn more contact Bellissimo Law Group PC
Application Process for Rehabilitation and Deemed Rehabilitation
If eligible, a person may submit a formal application for rehabilitation. A $200 processing fee is required for those who are inadmissible for criminality only. For individuals who are inadmissible for serious criminality, the processing fee is $1000. In comparison, when applying to be deemed rehabilitated there is no processing fee, no formal application package and no discretionary decision – although a legal submission is still recommended. If the foreign national or permanent resident meets certain requirements, they will be deemed rehabilitated.
The following factors are considered in determining whether a foreign national or permanent resident has been rehabilitated or deemed rehabilitated:
- They appear unlikely to commit further offences;
- They lead a stable lifestyle; and,
- They do not have a pattern of offences indicating a criminal lifestyle.
A number of additional considerations will assist in the officer’s assessment, including:
- Whether the individual has a minimal offence history;
- Social and vocational skills;
- Counseling or therapy to attain rehabilitation;
- Establishment in the community;
- Whether the individual displays a fair degree of comfort with a criminal lifestyle;
- Whether the individual displays a pattern of long-term involvement with criminal activities;
- Whether the crimes are generally motivated towards material gain;
- Whether the individual has had numerous changes in residence and inability to provide consistent financial support; and
- Whether the individual has instability in employment, family life, and living situation.
Further, those with the following convictions or exhibiting the following behavioural traits may require an interview and a thorough assessment of their background:
- Pattern of offences that suggests a criminal lifestyle;
- Use of weapons or explosives;
- Violence or hostage-taking;
- Sexual assault;
- Substance or alcohol abuse;
- Use of force;
- Trafficking of narcotics; and,
Review of applications for rehabilitation often involves a two-stage review and the ultimate decision-maker is not obliged to accept the recommendation of the immigration officer who first reviewed the application. The final decision will be communicated in writing. Where a negative decision has been rendered, an application for leave may be submitted to the Federal Court of Canada.
Contact Bellissimo Law GroupPC today for further information on how we can assist with your rehabilitation or deemed rehabilitation application.