Northern Exposure

Issues When Entering Canada with a Criminal Record

Times have changed. Borders, too. Frequent business travelers know that and leave earlier to allow for longer security controls. But they are sometimes astonished when a border officer declares them inadmissible to Canada for criminality.

A new environment
Nowadays, border officers work in an enforcement environment. A much greater emphasis is now put on security controls and safety, without any consideration for the individual’s position or the purpose and duration of his visit to Canada. Where border officers in the past may have used their good judgment in assessing risks, they are now applying strict guidelines and a zero tolerance discipline toward visitors with any sort of criminal history.

In addition, exchange of information between Canada and the United States has substantially increased. A larger amount of data (which is sometimes incomplete) is now made available to examining officers. This is why a 15-year-old conviction for driving under the influence or a bad check may suddenly pop up on the border officer’s computer screen when it had never been an issue before.

In addition, officers are trained to more systematically question visitors about former problems with justice. More than ever, truthful and complete answers must be given. Misrepresentations can constitute an offense under the Immigration Act and may themselves be a ground for inadmissibility.

General rules
Under the Canadian immigration legislation, criminal inadmissibility is governed by very technical rules. Each situation involving one or several past convictions deserves a careful review to determine if a ground for inadmissibility exists and how to overcome it.

Even a single offense committed outside of Canada can be a bar to entry. This will occur if an equivalent offense exists in Canadian federal law that is punishable by way of indictment. Convictions to two minor offenses (also called “summary offenses” which can be prosecuted with a simpler process) will also trigger inadmissibility.

Several criteria will determine whether the case is one of criminality or serious criminality. This classification will have an impact on the duration of the inadmissibility period, on the procedure to be followed to regain admission, and on the evidence required to satisfy the minister that one has been rehabilitated.

How to “clean” your file
Depending on the nature, number, and age of the convictions, two options may be available with the passage of time. First, in some instances, the individual may be considered deemed rehabilitated. He will have to present the necessary documentation upon entry into Canada, namely conviction statements, proof of completion of sentence and a “clean record” over the five past years (for summary offenses) or the past 10 years (for indictable offenses).

Where deemed rehabilitation is not available, applying for a rehabilitation declaration may be another option. The process will usually be handled at a Canadian consulate. Evidence must be provided that the sentence was completed more than five years ago, that there is no subsequent conviction, and that the individual is rehabilitated and no longer represents a danger to society. Once declared rehabilitated, the inadmissibility will be deleted in the individual’s file and will no longer cause any admission issue. This process can take from a few months to one year or more.

Finally, when rehabilitation is not (or not yet) available, the traveler may apply for a temporary resident permit (TRP) to allow entries into Canada until he/she becomes eligible. A TRP could also be sought when urgent entry is required for serious business or compassionate reasons while an application for rehabilitation is in process.

Granting a TRP is a very discretionary and subjective decision. The officer will assess whether sufficient pressing and compelling reasons for entry do exist and will put them in balance with the potential risk posed by the applicant to Canadian security and safety. Again, the nature, number, and age of the convictions as well as the applicant’s behavior since then will be key factors in assessing the risk.

TRPs can be issued for a single entry for a few days or for multiple entries during periods of several months and up to a year based on the justification of the need for repeated admissions during a specific period.

Some general advice
To avoid the inconvenience of being found inadmissible upon landing in Canada, with the associated risk of being sent back home on the next flight, travelers with past convictions should have their situation assessed in advance. When necessary, travelers should obtain clearance (rehabilitation or a TRP) prior to traveling. If one can be considered deemed rehabilitated, the traveler should carry the relevant documentation in support of that claim.

Misrepresenting or withholding information during an examination is a bad idea. It may not only lead to the commission of an offense punishable by fines of up to $100,000 and/or imprisonment of up to five years but also be a ground for inadmissibility for an additional period of two years.

When an employee is sent to Canada for business and the employer is aware of a former conviction, the employer should definitely make sure that the situation is handled according to the law. Employers who go as far as suggesting to the person to misrepresent or withhold relevant information if questioned upon entry could also be found guilty of the same offense and subject to the same penalties.

Times have changed.

For more information, contact the author: Isabelle Dongier

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