The challenges of inadmissibility for “Serious Criminality”

by Michael Scott

How well informed are you about the immigration consequences of criminal processes inside and outside of Canada? The purpose of the article is to provide the reader with a background to the impact of criminal proceedings and determinations of inadmissibility to Canada. It may come as a surprise to many, but criminality may not only refer to criminal prosecutions in Canada and overseas but also the actual commission of such offences. Or, in simpler terms, if you commit an action that you may not have been prosecuted for. It is important to understand that if you are declared inadmissible, you are not legally entitled to enter Canada.

The Canadian criminal justice system distinguishes between lesser or summary offences and major offences of indictable offences. The immigration Act defines “Serious criminality” IRPA s.36(1)(a) as “(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.”

An applicant can also be deemed inadmissible for serious criminality for equivalent offences prosecuted overseas under IRPA s.36(1)(b) or offences committed overseas under IRPA s.36(1)(c).

The definition of “criminality” applies only to foreign nationals who may be: “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.”

The commission of offences or acts is also grounds for inadmissibility under “serious criminality,” IRPA s.36 (1) (c). You don’t have to be prosecuted to be declared inadmissible; the commission of the offence is enough. A permanent resident or foreign national is inadmissible on grounds of serious criminality for, “(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.”

The offence committed or prosecuted overseas will be judged by immigration officials against the Canadian Criminal Code to determine what the Canadian equivalent is for the commission or prosecution of the crime. The process is challenging because Canadian law may be very different from the first country of the applicant. There are foreign convictions with no equivalence under Canadian law, such as spitting on the street in Singapore or for adultery in the Philippines. If you committed an offence and five years have passed since your sentence was completed, you may be eligible to apply for rehabilitation. However, rehabilitation is not open to persons declared inadmissible for an indictable federal offence punishable “by a maximum term of imprisonment of at least 10 years” or “for a term of imprisonment of more than six months has been imposed,” IRPA s.36(1)(a)(b) and (c).

The options open to those inadmissible under IRPA s.36 for “serious criminality’ are limited. Their best action is to wait for the requisite five years from the completion of the sentence and then submit an application to the visa post abroad asking them for an opinion on whether or not the applicant qualifies for an individual rehabilitation based on an appeal to the Minister. The longer you wait the stronger your request will be potentially.

The applicant must demonstrate more than a clean record for the minimum five years or longer. He or she must show that they have taken positive steps to rehabilitate themselves such as explaining the offense they committed, their deep remorse in hurting the victims of their actions and the circumstances of their rehabilitation such as anger management, or alcohol or drug rehabilitation if applicable, testimonials from fellow employees or community involvement. It is highly advisable for the applicant to provide a personal statement explaining why they committed the offence and the events leading up to their conviction or the circumstances surrounding the commission. It is important to take personal responsibility for the offence and express how sorry they are for the victim of their crime and to show that their offence was an isolated event that will not be repeated. Their petition will be judged by a higher standard of “a balance of probabilities,” under IRPA s.36 (3). They must convince the Minister that they are a changed person and 51 per cent less likely to reoffend.

If you have a friend or family member who is inadmissible for serious criminality, you should consider engaging an immigration lawyer or licensed immigration consultant because the process is not straightforward. You need to make the strongest representation possible to show that the applicant is no longer a risk to reoffend and should be given a chance to enter Canada. It may appear to be a daunting task, but Canada and its immigration system have checks and balances to ensure that justice and compassion prevail, such as discretionary justice. The sinner who has repented and changed is entitled to a fair break.

Michael Scott is a Regulated Canadian Immigration Consultant (RCIC, R525678) who has 30 years of experience with Immigration Canada and the Manitoba Provincial Nominee Program. He currently works as a licensed consultant with Immigration Connexion International Ltd. Contact him at 204-691-1166 or 204-227-0292. E-mail: mscott.ici@gmail.com.