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Introduction to Post-Conviction Travel to Canada

Every year, millions of travellers enter Canada to visit relatives, check out the sights, and engage in international business. No matter your reason for visiting, every traveller must be processed by immigration authorities upon arrival. Border Services Officers are responsible for conducting examinations and deciding on admissibility into the country. Examinations can be as simple asking a couple of questions or as rigorous as an in-depth investigation.
There are many reasons why a person may be inadmissible to Canada. Canadian federal law, titled the Immigration and Refugee Protection Act (IRPA), outlines these reasons, including risks to national security, misrepresentation, and previous criminal behavior. The most common reason to be refused entry into Canada is due to previous criminal convictions. Canadian and American authorities have entered into data-sharing agreements authorizing both countries to share information about each other’s citizens. For example, Border Services Officers have access to the FBI’s National Crime Information Center. It is also important to note that travellers are compelled by law to answer an officer’s questions truthfully, and lying or failing to do so can make one inadmissible due to misrepresentation or non-compliance.

Border Services Officers assess an offense committed outside of Canada to its equivalent offense under Canadian federal law. In some cases, there may be no Canadian equivalent, in which case the conviction does not make the traveller inadmissible. In other cases, the Canadian equivalent may be considered more serious than the offense where it actually occurred. For example, Driving under the Influence (DUI) is only a misdemeanor in some states, but is considered a hybrid offense in Canada. Hybrid offenses are crimes the prosecutor can elect to treat as a summary offense, similar to a misdemeanor, or as an indictable offense, similar to a felony. For this reason, being convicted of DUI will make a person inadmissible to Canada.

The Immigration and Refugee Protection Act distinguishes two types of criminality due to which a traveller will be inadmissible. Firstly, having committed a “serious offense” will make a traveller inadmissible due to serious criminality and is generally very difficult to overcome; a serious offense is defined as a crime punishable with a maximum sentence of at least ten years. Secondly, having committed what equates to one indictable offense (including any hybrid offense) or two summary offenses will make a traveller inadmissible due to criminality. However, depending on the facts of the case and its disposition, the traveller’s criminal record since the offense, and the reasons for travel, criminal inadmissibility can be overcome.

There are two ways to overcome inadmissibility. A temporary solution to inadmissibility is obtaining a Temporary Resident Permit (TRP), allowing the holder to enter and reside in Canada for the permit’s duration regardless of their inadmissibility. TRPs can be one-entry, meaning the permit may only be valid for one entry into Canada, or the permit may be multi-entry, allowing the traveller to enter and exit Canada countless times without obtaining a new permit. In either case, the maximum duration of validity is three years. Border Services Officers are often cautious about issuing TRPs and need to be satisfied that the applicant is not a threat to Canada. A permanent solution to inadmissibility is criminal rehabilitation. Criminal rehabilitation effectively removes a criminal conviction from consideration by Border Services Officers permanently. Persons inadmissible due to criminality or serious criminality are eligible to apply for criminal rehabilitation after five years from the end of the sentence; in addition, persons inadmissible due to criminality (but not serious criminality) may be eligible for automatic rehabilitation after ten years. Note, the five or ten year waiting period begins after the person finished the last component of their sentence, such as the last day of imprisonment, the day the fine was paid in full, or after probation has ended.
Finding out you are inadmissible at the border can be embarrassing, expensive, and potentially lead to future problems. As a result, it is very important to determine in advance whether you may be inadmissible, so that you can plan accordingly. It is always recommended to find a lawyer specializing in Canadian immigration law to assess your circumstances and offer their expertise.

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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.

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