Catherine Sas, K.C.As an immigration lawyer in Vancouver B.C., I have encountered many travelers who have tried to enter Canada but found themselves turned away at the border when a CBSA officer discovered they had a criminal record. In the post 9/11 world of continuously enhanced border security, CBSA officers are able to access an individual’s criminal history with a swipe of a passport. How can you be permitted to Canada if you have a criminal conviction in your past? The Immigration and Refugee Protection Act (IRPA) provides both permanent and temporary solutions.
Canada’s immigration laws stipulate that an individual will be criminally inadmissible to Canada for the following:
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- having a criminal conviction from within Canada;
- having a criminal conviction from outside of Canada that equates to a criminal offence in Canada; or
- having committed an offence from outside of Canada that if it had been
Committed in Canada would constitute a criminal offence.
The most common criminal conviction that bars people from entry is a Driving Under the Influence ( DUI) conviction. In many jurisdictions, a DUI may be treated as a driving offence rather than a criminal offence. However, in Canada we provide criminal sanction for impaired driving. The third provision captures situations where the activity of the offence itself could be prosecuted criminally in Canada notwithstanding that the matter was dealt with in a non-criminal fashion in the foreign jurisdiction.
In order to permanently overcome being criminally inadmissible, you must make an application for Criminal Rehabilitation. A person is only eligible to apply for Criminal Rehabilitation after five years have elapsed from the completion of their sentence. This requires proof that a person has completed ALL the provisions of their sentence. In the case of a DUI, this often includes a driving suspension, payment of fines, community service, driving school or an alcohol or drug treatment program. You will also need to provide a detailed explanation of the incident, how your life has changed such that you are not likely to commit such an offence in the future as well as several character references.
A criminal rehabilitation is a permanent acknowledgement by the government of Canada that your past criminal record is no longer a bar to your entry to Canada and it can take many months, if not years to be reviewed and approved.
IRPA also provides for a temporary means to overcome criminal inadmissibility – a Temporary Resident Permit (TRP). This application is virtually identical to the Criminal Rehabilitation however, where you are not yet eligible to apply for the rehabilitation as you have not met the five year threshold, or your application for rehabilitation is still in process, this provides for temporary entry to Canada. Not all convictions are treated equally nor are all purposes for coming to Canada likely to result in you being allowed to enter.
The more serious the conviction the more likely that you will be prohibited from temporary entry. The purpose of your entry to Canada is also relevant – are you coming to Canada for a ski vacation or for work purposes or are you immigrating to Canada? It is up to you to satisfy a CBSA officer that the reason that you are coming to Canada is valid enough to warrant the issuance of a TRP in the circumstances.
Border officials are tasked with the role of prohibiting the entry of convicted criminals to Canada. The tools for screening for a person’s criminal history are becoming more sophisticated day by day. If you know that you have a criminal record in your past, it is best to take a proactive stance and deal with the matter up front. A CBSA officer is more likely to demonstrate generosity of spirit where an individual has demonstrated candor and responsibility from the outset.
