Tag: Inadmissibility

The Consequences of a Criminal Record on your Immigration Process in Canada

To determine the issues related to your immigration status following a criminal charge, the first step is to determine your immigration status. There are several types of statuses in Canada, the main ones are:

  • Citizens: These are individuals who hold Canadian citizenship.
  • Permanent Residents: individuals who have received permission from the government to reside permanently in Canada. A resident can apply to become a Canadian citizen if they meet all the required conditions; this is the last “step” before obtaining Canadian citizenship.
  • Temporary Residents: individuals who have received permission to reside in Canada for a limited period. Temporary residents include those holding a visitor visa, a study permit, or a work permit. Once the authorized stay period expires, temporary residents must leave the country (unless they have initiated new procedures).
  • Asylum Seekers: individuals who have applied for protection as refugees and are awaiting a decision on their application.
  • Protected Persons: asylum seekers who have received a positive decision from the Immigration Section and are thus considered protected persons.
  • Foreigners: any person in Canada not included in the previous categories.

Except for citizens, all the above categories are subject to the Immigration and Refugee Protection Act (IRPA) and particularly to the provisions of Section 36 and subsequent sections.

Types of Criminal Offenses:

In Canada, the Criminal Code provides for several types of offenses: purely summary, purely indictable, and hybrid. Hybrid offenses can be prosecuted either summarily or by indictment, depending on the prosecutor’s choice (the Crown attorney).

Section 36(3) of the Immigration and Refugee Protection Act states that in the case of a hybrid offense, it is treated as an indictable offense regardless of the chosen mode of prosecution. Thus, regardless of the mode of prosecution, when an offense is hybrid, it will be presumed, for immigration purposes, to have been prosecuted by indictment even if, in reality, the chosen mode of prosecution was summary. This has significant impacts on your immigration status.

Consequences of a Criminal Conviction Depending on Your Status in Canada:

The consequences of a criminal conviction depend based on your status in Canada. The following is a detailed explanation of the consequences of a conviction for depending on your status.

Temporary Residents:

Section 36(2)(a) of the Immigration and Refugee Protection Act states that a temporary resident becomes inadmissible to Canada for criminality if:

  • 36(2) A foreign national is 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

Thus, a temporary resident will be inadmissible following a conviction for a purely criminal or hybrid offense under the Criminal Code or a conviction for two offenses (even purely summary) not arising from the same set of facts.

Additionally, Section 36(1)(a) of the IRPA states that a temporary or permanent resident becomes inadmissible to Canada for serious criminality in two scenarios:

  • 36 (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

The term “punishable by a maximum term of imprisonment of at least 10 years” refers to any offense for which a person is “liable to imprisonment” for 10 years or more.

This first criteria is not based on the actual sentence imposed by the court but rather on the maximum sentence the offender is liable to.

The second criteria of Section 36(1)(a) states that a temporary or permanent resident will be inadmissible for serious criminality if the imposed sentence, regardless of the offense, is more than six months of imprisonment.

Permanent Residents:

Permanent residents are subject, like temporary residents, to Section 36(1)(a) of the IRPA regarding inadmissibility to Canada for serious criminality.

A conviction for an offense punishable by a term of imprisonment of 10 years or a sentence of more than six months of imprisonment will result in the inadmissibility of the permanent resident.

Unlike temporary residents and asylum seekers, permanent residents have the right to appeal the removal order before the Immigration Appeal Division to present humanitarian grounds, such as the degree of establishment or the best interests of the child.

However, if a sentence of 6 months or more is imposed on a permanent resident for an offense with a maximum sentence of 10 years or more, they will have no recourse to contest the removal order before the Immigration Appeal Division.

Asylum Seekers:

Asylum seekers are subject, like permanent residents, to Section 36(1)(a) of the IRPA regarding inadmissibility to Canada for serious criminality.

Section 101 of the IRPA states that an asylum claim is inadmissible for criminality if:

  • 101 (1) A claim is ineligible to be referred to the Refugee Protection Division if:
    • (f) the claimant has been determined to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality.
  • 101 (2) A claim is not ineligible by reason of serious criminality under paragraph (1)(f) unless
    • (a) in the case of inadmissibility by reason of a conviction in Canada, the conviction is for an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years.

Accordingly, an asylum claim will be considered inadmissible if the claimant is convicted of an offense with a maximum sentence of 10 years or more. An asylum seeker will not be able to be heard by the Refugee Protection Division to determine if they are a protected person.

In case of a conviction, the asylum seeker will be inadmissible, and a deportation order will be issued against them.

Furthermore, proceedings before the Refugee Protection Division are suspended when an asylum seeker is charged with a serious criminal offense pending the outcome of the criminal proceedings.

Example:

If a person is charged with impaired driving, they will be charged under Section 320.14 of the Criminal Code for driving a vehicle while their ability to operate it is impaired to any degree by alcohol, a drug, or a combination of both.

Section 320.19 of the Criminal Code provides the applicable mode of prosecution:

320.19 Punishment

  • (1)  Every person who commits an offence under subsection 320.14(1) or 320.15(1) is guilty of,
    • (a) an indictable offence and liable to imprisonment for a term of not more than 10 years and to a minimum punishment of,
      • (i) for a first offence, a fine of $1,000,
      • (ii) for a second offence, imprisonment for a term of 30 days, and
      • (iii) for each subsequent offence, imprisonment for a term of 120 days; or
    • (b) an offence punishable on summary conviction and liable to a fine of not more than $5,000 or to imprisonment for a term of not more than two years less a day, or to both, and to a minimum punishment of,
      • (i) for a first offence, a fine of $1,000,
      • (ii) for a second offence, imprisonment for a term of 30 days, and
      • (iii) for each subsequent offence, imprisonment for a term of 120 days.

The offense of impaired driving by alcohol is thus a hybrid offense that could, depending on the circumstances, be prosecuted either summarily or by indictment. The IRPA specifies that such an offense is treated as an indictable offense regardless of the chosen mode of prosecution. Thus, regardless of the actual mode of prosecution in your case, when an offense is hybrid, for immigration purposes, it will be presumed that you are prosecuted by indictment even if, in fact, the chosen mode of prosecution was summary.

In the case of the offense of impaired driving, under Section 320.19 of the Criminal Code, the penalty for the offense prosecuted by indictment is a maximum term of imprisonment of 10 years.

It is therefore an offense of serious criminality referred to in Section 36(1) of the IRPA.

A conviction for impaired driving will result in inadmissibility for permanent residents, temporary residents, and asylum seekers, as it is an offense punishable by a maximum term of imprisonment of 10 years.

Conclusion:

Each case is unique, and our team of experienced criminal and immigration law lawyers possesses the expertise and qualifications to assist and advise you in a often stressful process.

We invite you to contact our firm to obtain information that may be relevant to your situation.

En savoir plus

Inadmissibility in Canadian Immigration Law

The Immigration and Refugee Protection Act (IRPA) lists several bases upon which a permanent resident or foreign national may be declared inadmissible to Canada. Inadmissibility means that a permanent resident or foreign national is not legally admissible to enter or remain in Canada. A declaration of inadmissibility may result in the foreign national or permanent resident being denied entry to Canada or being required to leave Canada and losing their permanent resident status.  

The IRPA lists fourteen grounds of inadmissibility:  

  • Security grounds (section 34(1));  
  • Human or international rights violations (section 35(1);  
  • Sanctions (section 35.1(1));  
  • Serious criminality (section 36(1));  
  • Criminality (section 36(2));  
  • Transborder criminality (section 36(2.1));  
  • Organized criminality (section 37(1));  
  • Health grounds (section 38(1));  
  • Financial reasons (section 39);  
  • Misrepresentation (section 40(1));  
  • Cessation of refugee protection for a foreign national (section 40.1(1));  
  • Cessation of refugee protection for a permanent resident (section 40.1(2));  
  • Non-compliance with the IRPA (section 41);  
  • Inadmissible family member (section 42(1)). 

Importantly, the facts constituting inadmissibility under sections 34 to 37 include facts arising from acts and omissions, and include facts for which there are reasonable grounds to believe that they may have occurred, are presently occurring, or may occur in the future (section 33). 

The inadmissibility process commences when an officer of the Canada Border Services Agency (CBSA) prepares a report alleging that a permanent resident or a foreign national is inadmissible on one or more of the above grounds. The report must set out the relevant facts upon which the finding of inadmissibility is based and must then be forwarded to the Minister of Public Safety and Emergency Preparedness.  

If the Minister (or their delegate) is of the opinion that the report is well-founded, and if inadmissibility is alleged to be based on the permanent resident’s failure to comply with the residency obligation under section 28 of the IRPA, the Minister or their delegate may – but is not required to – make a removal order. The Minister may also make a removal order against a foreign national deemed inadmissible on grounds of serious criminality or criminality, misrepresentation, cessation of refugee protection, failing to comply with various provisions of the IRPA, sanctions, and inadmissible family member. 

If the Minister (or their delegate) is of the opinion that the report is well-founded, and if inadmissibility is alleged to be based on any grounds other than those listed in the previous paragraph, the Minister may – but is not required to – refer the report to the Immigration and Refugee Board’s Immigration Division (ID) for an admissibility hearing.  

A CBSA officer or the Immigration Division may impose any conditions deemed necessary on a permanent resident or a foreign national who is the subject of a report or an admissibility hearing. CBSA officers are also required to impose particular conditions on permanent residents and foreign nationals who are not detained after a report on inadmissibility on security grounds has been referred to the Immigration Division. 

An admissibility hearing is a quasi-adjudicative proceeding in which submissions are made on behalf of the Government, and on behalf of the permanent resident or foreign national, respectively. Members of the Immigration and Refugee Board are independent and impartial and render decisions based on the established facts and applicable law. 

At the end of the admissibility hearing, the Immigration Division must either recognize the permanent resident’s right to enter Canada; grant permanent resident status or temporary resident status to the foreign national; authorize the permanent resident or foreign national to enter Canada for further examination, with or without conditions; or make a removal order against that person. There are three types of removal orders: departure orders, exclusion orders, and deportation orders. 

A removal order issued by the Immigration Division may be appealed to the Immigration Appeal Division (IAD). However, the IRPA does not provide for appeals regarding removal orders issued against foreign nationals or permanent residents deemed inadmissible for reasons of security, violations of human or international rights, sanctions, and organized criminal activities. Regarding removal orders issued for reasons of serious criminality and/or misrepresentation, there are limited rights of appeal. In the case of misrepresentation, however, an appeal may be made to the IAD by a foreign national who is the spouse, common-law partner or child of a sponsor. Note, however, that the Minister’s right of appeal extends to inadmissibility on any ground. 

The IAD may affirm or overturn a decision to issue a removal order made by the Immigration Division. The IAD may also stay a removal order if it satisfied that this is justified by sufficient humanitarian and compassionate considerations, in light of all the circumstances of the case. Amongst others, these circumstances include the best interests of any child directly affected by the decision. The result of a stay is to prevent the removal order from entering into force such that the permanent resident or foreign national against whom it was issued may enter Canada or is not required to leave Canada, as applicable.  

Whether or not the IRPA provides them with a right of appeal, a permanent resident or foreign national dissatisfied with the decision of the ID or IAD, as applicable, may apply for a review of that decision in the Federal Court of Canada. The Minister of Public Safety may also apply for judicial review of a decision the Minister disagrees with. Removal orders directly issued by the Minister may also be reviewed in the Federal Court, without prior adjudication in the IRB or IAD. 

The decision of the Federal Court in judicial review proceedings may affirm or set aside the decision of the IAD or the removal order issued by the Minister. Depending on the identity of the successful party, this may mean that the removal order is maintained, reinstated, set aside, or confirmed as stayed. The removal order and loss of permanent resident status comes into force when all avenues of appeal or other legal processes have been exhausted. 

Note that at least two forms of relief are available when the decision in an application for judicial review confirms that the permanent resident or foreign national is inadmissible. The first is known as humanitarian and compassionate relief, under which the Minister may, upon application or at their own discretion, grant a foreign national permanent resident status or otherwise grant an exemption from any applicable criteria or obligations of the IRPA. This includes inadmissibility.  

Another form of relief arises when the foreign national establishes that they are a person in need of protection by demonstrating that their removal from Canada to their country or countries of nationality or habitual residence would subject them to a danger of torture, a risk to their life, or to a risk of cruel and unusual treatment or punishment. 

In certain cases, and if justified in the circumstances, a CBSA officer may issue a temporary resident permit to enable a person who is inadmissible to Canada to become a temporary resident. 

Note that a removal order cannot be enforced against a person who made an asylum claim before the removal order is delivered.

We invite you to contact our firm for more particularized information specific to your situation. 

En savoir plus

Updated Rules for Temporary Resident Visas and Electronic Travel Authorizations for Mexican Nationals

24-5-24  Immigration,News

On February 26, 2024, the Regulations amending the Immigration and Refugee Protection Regulations (Electronic Travel Authorization): SOR/2024-0034 were adopted on the recommendation of the Minister of Citizenship and Immigration pursuant to subsection 5(1) and articles 14 and 26 of the Immigration and Refugee Protection Act.

Coming into force on March 13, 2024, the Regulations do three things, namely:

  1. Removing Mexico from the schedule of countries whose nationals are exempt from the Temporary Resident Visa (TRV) requirement to travel to Canada.
  2. Adding Mexico to the list of countries whose nationals may be eligible to travel to Canada with an Electronic Travel Authorization (eTA) if they are travelling by air and have held a Canadian TRV in the last 10 years or hold a valid U.S. nonimmigrant visa; and
  3. Specify that eTAs of Mexican nationals remain valid for those who hold a valid work or study permit when the regulations come into force.

We invite you to contact our firm for more particularized information specific to your situation.

En savoir plus

Link Placeholder - © Hasa Avocats 2024 - Website Tatianalab