If you’re not a Canadian citizen, you may be denied entry to Canada if you have a criminal record.
If you plan ahead, you may be able to overcome criminal inadmissibility and gain entry to Canada depending on factors such as the nature of your offence(s) and how much time has passed since you’ve completed your sentence(s).
Schedule a Free Inadmissibility Consultation with the Cohen Immigration Law Firm
In this article, we will delve into how Canada determines who is criminally inadmissibleas well as the options available to you for overcoming criminal inadmissibility.
How do I know if I’m criminally inadmissible?
If you are not a Canadian citizena past criminal record could get you flagged as criminally inadmissible, leading to you being denied entry into Canada.
Canadian citizens are the only ones with the legal right to enter Canada, maugre any criminal history.
Border officials screen every individual attempting to enter the country, and a prior criminal record suggests you pose a potential risk to Canadian society.
For an offence to lead to criminal inadmissibility, it must have been considered a crime in the jurisdiction in which it occurred and correspond to a similar offence under Canadian law.
You may be considered criminally inadmissible to Canada for
- Having committed an offence (whether or not you were charged or convicted);
- Having been charged with an offence (even without being having been prosecuted or convicted);
- Having pending charges (regardless of whether you committed the offence or not); or
- Having been convicted of an offence.
Inadmissibility in Canada hinges on understanding “criminality” versus “serious criminality,” which are determined by the gravity of the offence under Canadian law at the time the offence was committed.
Criminality
You may be deemed inadmissible due to criminality if you
- Have been convicted (in any country) of a crime classified as an indictable offence under Canadian law, or of two separate offences considered summary offences; or
- Committed an act abroad that is illegal in that country and an indictable offence under Canadian law.
Indictable offences are classified as more serious crimes (and are akin to felonies in the US), whereas summary offences are less serious—like US misdemeanors.
You will typically not be deemed criminally inadmissible if you have a single minor offence.
Serious criminality
For serious criminality, you may be considered inadmissible if
- You were convicted of an offence within Canada that carries a maximum penalty of 10 years or longer in prison, or you received a prison sentence of over six months; or
- You were convicted of (or committed) an offence abroad that in Canada is punishable by 10 or more years in prison.
Theft or fraud over $5,000, forgery, or driving under the influence (DUI)* are all examples of offences that would be considered serious criminality and typically result in inadmissibility to Canada.
*Canadian immigration authorities treat DUIs differently based on whether they occurred before or after December 18, 2018 (when the law changed to make them more serious offences).
Of note is that Canada also has hybrid offenceswhich for immigration purposes count as indictable offences—despite their differences in the criminal justice system. This means that if your foreign conviction corresponds to a hybrid offence under Canadian law, immigration officials will consider it as an indictable offence.
Schedule a Free Inadmissibility Consultation with the Cohen Immigration Law Firm
I’m inadmissible—what are my next steps?
You may be able to enter Canada despite having a criminal record if you can overcome criminal inadmissibility.
The three primary ways to overcome criminal inadmissibility include
Apply for a Temporary Resident Permit
A TRP can grant you entry to Canada, temporarily and for a particular reason, even if you are criminally inadmissible to the country.
Your reason for requiring entry must be compelling and outweigh the risk you pose to Canadian public safety.
TRPs are issued at the discretion of a Canadian immigration official, who evaluates whether your need to enter Canada is justified.
Compelling reasons can include
- Significant events such as the funeral or wedding of a family member;
- Medical family emergencies—illness, death, or medical emergencies; and
- Conducting essential business, like attending a conference or networking.
TRPs can be issued for a single entry or for multiple entries and can allow you to remain in Canada for as little as one day or as long as three years.
If you need a visa to visit Canada, you can apply for a Temporary Resident Permit (TRP) at the same time as your visitor visa—just submit both applications to the Canadian consulate where you live.
For those that require an Electronic Travel Authorization (eTA) to enter Canada, you can apply for a TRP at a Canadian visa office in your country of residence.
American citizens or US permanent residents (green card holders) can submit a TRP application at
- A Canadian consulate; or
- Port of entry (land, sea, or air).
The forms you will need to submit vary depending on the country from which you are applying, as do processing times.
Typically, you can expect your TRP application to be processed within three to six months. Applying well in advance is wise to avoid unnecessary travel expenses, time, and potential disappointment.
The processing fee for a TRP application is $239.75.
See if you qualify for deemed rehabilitation
You may be able to overcome criminal inadmissibility based on the passage of time depending on the type, severity, and number of offences on your record.
Deemed rehabilitation is only applicable for non-serious criminality; it does not apply in cases of serious criminality.
For single indictable offences, a minimum of 10 years must have passed since the completion of your sentence in its entirety.
For summary offences, at least five years need to have passed.
You do not apply for deemed rehabilitation—it is applied automatically if enough time has passed since the offence was committed, and you did not commit any further offences since completing your sentence.
A legal opinion letter can help strengthen your case for deemed rehabilitation, as it provides immigration officers with more clarity and context about your case.
If you are uncertain about whether you qualify for deemed rehabilitation, you can apply to be assessed (free of charge) by the Canadian embassy, high commission, or consulate in your area.
Those living in the United States can be assessed at a Canadian port of entry (fee-dependent).
Apply for criminal rehabilitation
Criminal rehabilitation, also referred to as individual rehabilitationmay be the right choice for you if you do not meet the criteria for deemed rehabilitation.
If successful when applying for criminal rehabilitation, your existing criminal record gets permanently cleared for the purpose of entering Canada.
This means you will no longer be classified as inadmissible to Canada due to the crimes for which you have been rehabilitated—and won’t require a TRP to enter Canada.
Both criminality and serious criminality can be overcome with criminal rehabilitation.
To apply for criminal rehabilitation, at least five years must have passed since you’ve finished your sentence in its entirety.
This may include jail time, probation, fines, parole, and/or community service requirements.
When you apply for criminal rehabilitation, you must be able to provide evidence that you maintain a stable lifestyle and are not likely to relapse into criminal behaviour.
It can take the immigration department over a year to process such applications, so submitting an application as soon as you are able is advisable.
Application processing fees vary depending on the categorization of your offence(s):
- Criminality: $239.75.
- Serious criminality: $1,199.
Obtaining a legal opinion letter
A legal opinion letter can prove beneficial for those who want to enter Canada but have a criminal record.
This document, drafted by an immigration lawyerprovides a legal analysis of your criminal record and how it relates to Canadian immigration law.
The lawyer will assess and outline how your offence(s) equate to those committed under Canadian law, highlight mitigating factors, and present a well-reasoned argument for why you should be granted entry into Canada.
A legal opinion letter provides no guarantee that you will be admitted into Canada. The final decision is in the hands of the immigration officer assessing your case.
A legal opinion letter is most effective when combined with a TRP or criminal rehabilitation application, as well as for satisfying Canadian officials that you qualify for deemed rehabilitation.
Schedule a Free Inadmissibility Consultation with the Cohen Immigration Law Firm
