Thursday , September 21 2017
Home / U.S. DUI News / Part I: Is your Client Inadmissible to Canada? A 6-step checklist

Part I: Is your Client Inadmissible to Canada? A 6-step checklist

Criminal Inadmissibility                 

The best way to determine whether an individual is criminally inadmissible to Canada under Canada’s Immigration and Refugee Protection Act (IRPA) is by breaking down the statute that establishes inadmissibility into six steps. For your reference, here is the text of S. 36 of IRPA:

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.

                 

Step 1: What is the applicant’s legal status in Canada?

                  Canadian citizens (including dual citizens) can never be found inadmissible or refused entry because they have a right to enter Canada. Lawful permanent residents (PRs) can be found inadmissible for serious criminality, but not for general criminality. On the other hand, foreign nationals do not have a right to enter Canada and can be refused entry if they are found to be inadmissible under either section. The term “foreign national” refers to tourists, business people, students, temporary workers, or any other person without Canadian citizenship or permanent residency.

Step 2: Was the applicant convicted of anything?

A foreign national can be inadmissible if they have been convicted of a crime or have committed an offence in any jurisdiction. For example, a person with charges pending in a foreign jurisdiction may be considered inadmissible for having committed an act, despite not yet being convicted. According to the enforcement manual of Citizenship and Immigration Canada, the government will only enforce criminal inadmissibility due to having committed a crime in the case of individuals subject to unresolved charges, i.e. if court proceedings have yet to be finalized. As a result, criminal inadmissibility of foreign nationals typically stems from foreign convictions.

Canadian immigration authorities have access to the FBI’s National Crime Information Center databases documenting American criminal arrests and convictions. As a result, if the applicant’s NCIC file includes outdated or incorrect information, this can be problematic to entering Canada.

It is also important to note that Canada generally does not recognize foreign record expungements. On the other hand, deferred or suspended adjudications are not considered convictions for the purposes of Canadian immigration officials, and thus do not cause inadmissibility on their own. However, suspended imposition and deferred sentences are considered convictions, and can lead to inadmissibility. Similarly, a plea of nolo contender, or no contest, is also considered a conviction.

Step 3: Is this offence a federal crime in Canada?

                  Canadian immigration authorities compare an offence committed outside of Canada to Canadian law to determine whether there is a comparable criminal offence in Canada. The offence must correspond to Canadian federal law, such as the Criminal Code of Canada and the Controlled Drugs and Substances Act, and not provincial law. For example, driving under the influence (DUI) is a federal crime in Canada (s. 253 of the Criminal Code) and can result in inadmissibility, while drinking underage is a provincial offence and would not result in inadmissibility.

Canadian courts have determined that in order for offences to be considered comparable, they must share the essential ingredients. The essential ingredients of an offence generally consist of the actus reus and mens rea, which are the physical act of the crime and the mental intent, respectively. In addition, there should be a comparison of the possible defences to each offence in their jurisdiction. For example, if the essential ingredients of two offences are equivalent, but the foreign offence is “narrower” than the Canadian offence, then the offences can be considered equivalent unless the applicant can demonstrate the Canadian offence has defences available that were not available in the foreign jurisdiction. On the other hand, if the foreign offence is “broader”, there is no equivalency unless all of the elements of the Canadian offence were contained in the acts committed during the offence.

Summary

Criminal inadmissibility can lead to a foreign national being refused entry into Canada. Whether a person is inadmissible to Canada is dependent on a number of factors, including their legal status, whether they have a conviction on their record, and whether the offence equates to Canadian federal law. However, although someone may be inadmissible, they may be able to overcome their inadmissibility.

Please check out Part II for Steps 4-6!

About Marisa Feil

Marisa Feil
McGill & University of Montreal educated Marisa Feil holds both a Bachelor & Master’s of Law. Marisa is the principal and founder of FWCanada, a Canadian law firm specializing in travel waivers for individuals with previous convictions and has become a respected authority on matters of Canadian immigration. Besides being frequently contacted to offer her expertise in lectures, conferences, and webinars, she has also been asked to be a contributor in various publications, including her own book “Inadmissible to Canada” available on Amazon.

If you would like to contact the author, please visit: http://www.duicanadaentry.com


Leave a Reply

Your email address will not be published. Required fields are marked *

*