Criminal Inadmissibility to Canada: Options if You Have a Record

How the law divides criminal inadmissibility

Section 36 of the Act has two main categories. Serious criminality (section 36(1)) applies to permanent residents and foreign nationals. A person is inadmissible for serious criminality if they were convicted in Canada of an offence punishable by a maximum term of imprisonment of at least 10 years, or an offence for which a term of imprisonment of more than six months was imposed. A conviction outside Canada counts if the same act would be punishable in Canada by a maximum of at least 10 years. Committing such an act outside Canada can also count, even without a conviction.

Criminality (section 36(2)) applies to foreign nationals, such as visitors, students, workers and permanent residence applicants. A foreign national is inadmissible for a conviction in Canada of an offence punishable by way of indictment, or of two offences that did not arise out of a single occurrence. The same idea applies to convictions or acts outside Canada, judged by how the offence would be treated in Canada.

Under section 36(3)(a), an offence that can be prosecuted either summarily or by indictment (a hybrid offence) is treated as an indictable offence, even if the Crown proceeded summarily. That surprises many people. A first-time shoplifting conviction under $5,000, for example, can have immigration consequences even if the sentence was a small fine.

Why the 10-year maximum matters

Many common charges carry a maximum penalty of 10 years or more, which is what puts them in the serious criminality category. Examples under the Criminal Code include impaired driving (section 320.19: up to 10 years on indictment), theft over $5,000 (section 334: 10 years), assault causing bodily harm (section 267: 10 years) and fraud over $5,000 (section 380: 14 years). The maximum penalty, not the sentence actually given, decides whether the first limb of serious criminality applies. A second limb applies where a prison term of more than six months is imposed.

This is why the outcome of a criminal case matters so much for a person who is not a citizen. Our page on criminal charges and immigration status explains why a plea that looks minor can be serious for immigration purposes.

What does not count as a conviction

Inadmissibility under section 36 is based on convictions and, in some cases, acts. Some outcomes do not count:

• A withdrawn or stayed charge, or an acquittal. Section 36(3)(b) says inadmissibility cannot be based on a conviction that resulted in a final acquittal.
• A discharge. Under section 730(3) of the Criminal Code, a person who receives an absolute or conditional discharge is deemed not to have been convicted.
• A peace bond, which is not a conviction.
• A conviction for which a record suspension was ordered and has not been revoked (section 36(3)(b)).
• Offences dealt with under the Youth Criminal Justice Act, which generally do not create inadmissibility in the way an adult conviction can.

You still have to answer immigration forms truthfully. Not disclosing a charge or an arrest when a form asks can lead to a misrepresentation finding, which carries its own five-year inadmissibility period. See misrepresentation.

Offences committed outside Canada

For an offence outside Canada, an officer compares what you did or were convicted of with the equivalent offence in the Criminal Code. If the foreign offence would be a Canadian offence punishable by at least 10 years, it can be serious criminality. If it would be an indictable offence, or you have two offences, it can be criminality. The officer looks at the law and the facts, not just the label the foreign country used. Obtaining certified court records and an opinion on the Canadian equivalent is often the first step.

Option 1: Deemed rehabilitation

Section 36(3)(c) of the Act says that offences outside Canada do not make a person inadmissible if the person satisfies the Minister they have been rehabilitated, or if they belong to a class of people deemed to be rehabilitated. Section 18 of the Regulations defines that class. For example, a person convicted outside Canada of no more than one offence that would be an indictable offence in Canada, punishable by less than 10 years, may be deemed rehabilitated if at least 10 years have passed since the sentence was completed and other conditions are met, such as no other convictions in the meantime. A separate rule with a five-year period applies to two or more offences that would be summary offences in Canada.

IRCC says you do not have to apply to be deemed rehabilitated, but you should be sure you qualify before trying to enter Canada, because a wrong self-assessment can lead to refusal at the border. IRCC recommends being assessed by the visa office responsible for your area.

Option 2: Individual criminal rehabilitation

If you are not deemed rehabilitated, you may apply for individual rehabilitation. IRCC says you must show that you have been rehabilitated and are highly unlikely to take part in further crimes, and that at least five years must have passed since the end of your sentence (including probation) and since the day you committed the act. Section 17 of the Regulations sets the same five-year period.

IRCC warns that these applications can take over a year to process, so planning matters. A person who needs an electronic travel authorization (eTA) must submit the rehabilitation application first and wait for the result before applying for the eTA.

Option 3: Record suspension for Canadian convictions

Rehabilitation and deemed rehabilitation address offences committed outside Canada. For a conviction in Canada, the usual route is a record suspension (formerly a pardon) from the Parole Board of Canada. IRCC says that if you get a record suspension, you are no longer inadmissible on that basis. Waiting periods under the Criminal Records Act are generally five years for summary offences and 10 years for indictable offences, counted after the sentence is completed. See our guide to record suspensions and waiting periods.

Option 4: Temporary resident permit

A temporary resident permit (TRP) under section 24 of the Act lets an officer allow an inadmissible person to enter or stay in Canada if the officer thinks it is justified in the circumstances. IRCC says a TRP is issued for a limited time, may be cancelled at any time, and does not permanently overcome inadmissibility. It is a short-term tool, for example for an important trip or a work contract. See our page on temporary resident permits.

Permanent residents: removal and appeals

A permanent resident found inadmissible for serious criminality can face a removal order. Under section 64 of the Act, there is no appeal to the Immigration Appeal Division where the finding is serious criminality in relation to a crime punished in Canada by a term of imprisonment of at least six months. Where an appeal is available, the Division can consider humanitarian factors, including the best interests of any child and the person's establishment in Canada. This is why the sentence imposed in the criminal case matters, and why immigration advice should come before a plea.

Decisions can also be challenged in the Federal Court by an application for leave to commence judicial review, which must be filed within 15 days for a matter arising in Canada or 60 days for a matter arising outside Canada (section 72(2)(b)).

Before you travel

• Do not assume that an old or minor offence will not matter. Check your situation first.
• Do not leave Canada while charges are outstanding without advice, especially if you are a permanent resident or hold a temporary permit.
• If you have a conviction abroad, collect the court record, proof that the sentence was completed, and police certificates.
• If you are asked at the border about your record, answer truthfully.

How we can help

We assess how a Canadian or foreign offence is treated under the Act, explain which options may apply, prepare rehabilitation, record suspension and temporary resident permit applications, and represent clients in appeals and in the Federal Court. We meet clients in English, Urdu, Hindi and Punjabi. We cannot promise that IRCC or the court will agree with our position.