Consequences of Criminality

Overview

Canada’s criminal justice and immigration systems are inextricably bound together. Moreover, the strong enforcement provisions within the IRPA allow for the refusal of entry or banishment and exile for those already here based on offences committed inside, upon entry, or outside Canada. There are numerous immigration consequences for Foreign Nationals, Refugees (and Claimants), Permanent Residents and even Canadian citizens for criminality; even a single pebble of criminality has far-reaching effects. Immigration jeopardy can flow from convictions in Canada and offences committed outside Canada.

Some examples:

For Permanent Residents and Foreign Nationals, criminality can result in loss of status and removal from Canada.
Criminality can impact family class sponsorships and stymie the hope of family reunification. A Permanent Resident or a Canadian Citizen convicted of an offence involving violence against a family member results in sponsor ineligibility for 2.
A criminal conviction by a sponsored family member, even accompanying dependents, could waylay a years old family class sponsorship and the dream of family reunification.
Even those recognized as Refugees in Canada can be removed and sent to a country where they fear persecution if there is sufficient concern regarding their (criminal) risk to Canadians.
Canadian criminality can result in lifetime inadmissibility to the United States even for a Canadian citizen. It can also delay the application by a Permanent Resident for citizenship in this country. Time spent in jail, on probation, or out on parole does not count for the calculation of residency for an application for a grant of citizenship.

Criminal inadmissibility usually means a conviction under the Criminal Code of Canada, or foreign offences that are equivalent to a threshold offence under the Criminal Code of Canada. However, criminal inadmissibility can also result from convictions in Canada or foreign offences that are equivalent to a threshold offence under other Parliamentary legislation, including the wide ranging offence provisions of the IRPA.

Criminality has always had repercussions for non-citizens. Over the years, the scope to address criminality has decreased. The IRPA, now approaching it’s twentieth year, prioritized security. The Supreme Court of Canada considered the objectives of the IRPA Medovarski in sum, the legislation indicates an intent to prioritize security and the IRPA objectives and provisions communicate a “strong desire to treat criminals … less leniently under the former act.” The most fundamental principle, as reaffirmed in Medovarski, is that noncitizens do not have an unqualified right to enter or remain in Canada.

The Federal Court of Appeal has also been clear as to the powers of the executive in removing and denying entry and status to non-citizens that have committed threshold offences:

Immigration is a privilege, not a right and non-citizens do not have an unqualified right to enter or remain;
Citizens are treated differently than Permanent Residents, who in turn are treated differently than Convention Refugees (and Protected Persons) who are in turn treated differently than other Foreign Nationals;
Section 36 also distinguishes between offences committed inside Canada and offences committed outside Canada

There are options:

Avoidance of a determination of guilt for an offence that results in immigration jeopardy; or avoidance of a sentence that results in immigration jeopardy.
Approaching and seeking an Officer’s discretion not to proceed with enforcement action.
Foreign convictions or acts need to be equivalent to an offence in Canada. That equivalency exercise needs to be done correctly and can be challenged.
A foreign pardon or expungement may alleviate concerns however, not all pardons are equal.
Depending on the maximum available sentence for an offence outside Canada or the length of sentence imposed for a conviction in Canada, a Permanent Resident has recourse to the Immigration Appeal Division, which can grant relief on humanitarian and compassionate grounds.
The Temporary Resident Permit can allow leave for a criminally inadmissible individual to remain or authorization to enter Canada.
The grant of Humanitarian and Compassionate relief can overcome criminal inadmissibility.
IRPA allows for rehabilitation in certain circumstances.

Contact one of the experienced lawyers at Stewart Sharma Harsanyi for assistance navigating the challenges posed by criminality or allegations of criminality.

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