If you have a criminal record, you may face restrictions when attempting to enter Canada. Canadian citizens have an automatic right to enter the country, but non-citizens can be deemed inadmissible due to criminal activity. This can result in the denial of a visa or electronic travel authorization (eTA), refusal of entry, or even removal from the country. To avoid complications, anyone with a criminal record should address potential inadmissibility issues before planning to travel to Canada.
What Is Criminal Inadmissibility?
Criminal inadmissibility refers to the legal status where a person is not allowed to enter or remain in Canada because they have committed or been convicted of a crime, either inside or outside Canada. When determining if someone is criminally inadmissible, Canadian authorities take into account several factors:
- The seriousness of the offense.
- The sentence imposed.
- How long ago the offense occurred or how much time has passed since the sentence was completed.
How Is the Severity of an Offense Determined?
For immigration purposes, Canadian authorities classify offenses into two categories: "criminality" and "serious criminality." These distinctions affect how criminal inadmissibility is determined.
To assess the seriousness of an offense, you must compare it to equivalent Canadian offenses under federal law, primarily the Criminal Code of Canada. Offenses in Canada are categorized as summary, indictable, or hybrid.
1. Summary Offenses
Summary offenses are less severe and similar to misdemeanors in other countries. They often carry lighter penalties and faster processes. Examples include causing a disturbance, loitering, or indecent exhibition. If your foreign offense is equivalent to a summary offense in Canada and it is your only conviction, you may still be considered admissible.
2. Indictable Offenses
Indictable offenses are more serious, akin to felonies. Examples include robbery, drug trafficking, and aggravated assault. Some indictable offenses may not constitute "serious criminality," which depends on the maximum penalty under Canadian law. An offense punishable by a prison term of 10 years or more in Canada is classified as "serious criminality."
3. Hybrid Offenses
Hybrid offenses can be treated as either summary or indictable, depending on the prosecutor's choice. However, for immigration purposes, all hybrid offenses are treated as indictable offenses when assessing inadmissibility.
Who Is Considered Criminally Inadmissible?
Foreign nationals can be deemed inadmissible if they have:
- Been convicted of an offense in Canada that is punishable by indictment.
- Been convicted of an offense outside Canada that would be an indictable offense under Canadian law.
- Committed an act outside Canada that is an offense in that country and would also be indictable under Canadian law.
It is important to note that you can be considered inadmissible even if you were not convicted but arrested and awaiting charges or a verdict. Additionally, two or more summary convictions not related to the same incident can lead to inadmissibility.
How Does Canada Access Foreign Criminal Records?
Canada and the U.S. share criminal history information through travel documents like passports and visas. Border agents at Canadian entry points can access this data, potentially leading to questioning or denial of entry. Travelers from visa-exempt countries applying for an eTA may also face issues if they have a criminal record.
Applicants for permanent residency or temporary status (like work or study permits) must disclose their criminal history. This involves submitting police certificates from their home country and any other country they have lived in for six months or longer after the age of 18.
Inadmissibility for Permanent Residents
Permanent residents can also be deemed inadmissible, but only for "serious criminality." Offenses like theft over $5,000 CAD or impaired driving after December 2018 may jeopardize their status and result in removal from Canada.
How to Compare Foreign Offenses to Canadian Law
To determine if a foreign offense would be considered a crime in Canada, compare it with Canadian federal laws, particularly the Criminal Code of Canada. If you're unsure how to interpret the laws, consulting an immigration lawyer may be helpful.
Overcoming Criminal Inadmissibility
If you have a criminal record, you can take several steps to overcome inadmissibility and potentially enter or immigrate to Canada:
1. Apply for a Temporary Resident Permit (TRP)
A TRP grants temporary access to Canada, even if you are inadmissible due to criminality. To obtain one, you must demonstrate a compelling reason to enter Canada and show that the benefits of your visit outweigh the risks to Canadian society. TRPs can be issued for the duration of your stay, up to a maximum of three years, but approval is not guaranteed.
2. Check Eligibility for Deemed Rehabilitation
You may be considered "deemed rehabilitated" if Canadian authorities determine that you no longer pose a threat. Factors include:
- Number and type of offenses: Deemed rehabilitation is usually possible if you have a single conviction, but multiple summary offenses may disqualify you.
- Severity of the offense: Serious offenses are not eligible for deemed rehabilitation.
- Time since sentence completion: For an indictable offense, 10 years must have passed since sentence completion; for summary offenses, the waiting period is five years.
- No further criminal activity: You must not have committed additional crimes.
If you qualify, you are automatically deemed rehabilitated and no longer considered inadmissible.
3. Apply for Criminal Rehabilitation
If you are inadmissible due to serious criminality or multiple indictable offenses, you must apply for criminal rehabilitation. To be eligible, at least five years must have passed since you completed your last sentence. Once approved, this waiver permanently removes your inadmissibility, provided no further offenses occur.
4. Obtain a Legal Opinion Letter
A legal opinion letter from a Canadian immigration lawyer can clarify whether your foreign offense makes you inadmissible under Canadian law. It can be useful if you're unsure about your status or need to understand the implications of pending charges or convictions.
Other Grounds for Inadmissibility
Inadmissibility to Canada is not limited to criminality. Other reasons include:
- National security concerns.
- Human rights violations.
- Violations of international law.
- Sanctions.
- Financial reasons.
- Medical conditions.
- Misrepresentation.
Misrepresentation, such as providing false information or failing to disclose necessary details, typically results in a five-year ban from entering Canada.
Conclusion
Traveling to Canada with a criminal record can pose challenges, but various pathways exist to address inadmissibility. Whether applying for a TRP, seeking rehabilitation, or consulting legal experts, understanding the process is essential to resolving any issues and ensuring a smooth entry to Canada.
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