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. As we have seen in Part I, it is important to establish whether or not the individual is a Canadian citizen, whether the conviction is relevant to Canadian immigration authorities, and whether the offence equates to Canadian federal law. There are also three further considerations that will affect whether someone will be criminally inadmissible.
Step 4: How severe is this offence in Canada?
Firstly, the Immigration and Refugee Protection Act makes a distinction between offences that are punishable with a maximum term of imprisonment of ten years or more and offences with a lower maximum sentence. If the equivalent offence in Canada is punishable with a maximum sentence of at least ten years, then the applicant can be inadmissible due to serious criminality.
Secondly, for offences with a lower maximum sentence, there is a distinction between indictable and summary offences. Indictable offences are offences that are considered more serious in Canada, similar to felonies, whereas summary offences are those less serious, similar to misdemeanors. In addition, an offence can be considered a hybrid offence, which is treated by immigration authorities as an indictable offence.
It is important to note that there are many differences between the classification of offences in Canada and the United States, and thus it is important to only look at the classification of the Canadian equivalent offence. For example, in many states a DUI is considered a misdemeanor, while it is a hybrid offence in Canada; as a result, a DUI can make the applicant criminally inadmissible.
Step 5: How many convictions are on the applicant’s record?
If the Canadian equivalent offence has a maximum sentence of at least ten years imprisonment, then just one conviction is enough to make the applicant inadmissible. Similarly, if the Canadian equivalent offence has a shorter maximum sentence but is classified as an indictable offence, then just one conviction will make the applicant inadmissible to Canada. Lastly, if the applicant has at least two convictions that equate to summary offences, not arising from the same incident, then the applicant may be inadmissible as well. For example, if the applicant has only one summary offence on their record, they would not be inadmissible.
Step 6: When did the conviction occur?
Canadian immigration law includes a process called Deemed Rehabilitation, in which a person may no longer be considered criminally inadmissible if a significant amount of time has passed since their conviction. This process does not apply to anyone inadmissible due to serious criminality, only to those inadmissible due to one indictable offence or two summary offences.
If the applicant has only one indictable offence on their record, no more than one summary offence on their record, and ten years have passed since they completed all terms of their sentence, then they may be deemed rehabilitated and be able to enter Canada. It is important to note that the ten year period only starts once they have finished the last component of their sentence, which may include serving time in jail, paying fines, serving probation, and completing any court-ordered classes.
If the applicant has only two or more summary offences on their record, five years have passed since completing all terms of their sentence, and they have not been convicted of any further summary offences, then they may be deemed rehabilitated.
If deemed rehabilitated, the applicant will no longer be considered criminally inadmissible. However, if the applicant is ineligible for deemed rehabilitation, there are two ways inadmissibility may still be overcome: by obtaining a Temporary Resident Permit or applying for criminal rehabilitation.
In general, it is recommended to consult with a Canadian immigration lawyer to confirm whether you are inadmissible and how you may be able to overcome it.