Canadian Regulations

Canadian Admissibility Remains A Hurdle Despite New Policy

Article reprinted with permission of the author, Marisa Feil.

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The Canadian government announced a new policy last March regarding Temporary Resident Permits (TRP) for persons seeking entry into Canada who have a criminal record. The rule change does not, however, alter the rules for admissibility. It simply allows individuals who have been convicted of a DUI/DWI/OWAI (or certain other minor offences) to obtain a fee-exempt TRP (i.e., avoid the $200 processing fee) on a one-time basis, and only if they have a single conviction for which no jail time was imposed.

Before traveling to Canada, individuals with a criminal history should verify whether their entry might be prohibited. A foreign national is inadmissible on the grounds of criminality if convicted outside of Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament. Canadian Immigration and Refugee Protection Act § 36.

Canadian immigration law does not distinguish between misdemeanor and felony offences. Instead, offences are considered either summary or indictable, and if the offense can be treated as either (a "hybrid offense"), it is considered indictable for Canadian immigration purposes.

A foreign conviction, for which there is an equivalent offence in the Canadian Criminal Code, is deemed an indictable offence. With some convictions, it is possible to argue non-equivalence, or equivalence to a summary offense, in order to circumvent the inadmissibility regulations and allow the individual to enter without applying for permission.

"Operation While Impaired" is an indictable offence or an offense punishable on summary conviction. The statute reads as follows:

Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not,

(a) while the person's ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or

(b) having consumed alcohol in such a quantity that the concentration in the person's blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood.

Canadian Criminal Code § 253.

Canadian immigration generally considers any drug/alcohol related driving offence to be equivalent to this statute, no matter how it is treated in the state where it occurred. Furthermore, most foreign statutes for reckless driving offences are equivalent to Canada's "Dangerous Operation of Motor Vehicles" statute (Canadian Criminal Code § 249). Therefore, individuals who plead their cases down from a DUI/DWI/OWAI to some other alcohol related offence, or a reckless driving offence, usually still find themselves inadmissible to Canada.

Criminal inadmissibility can be overcome permanently by Criminal Rehabilitation, or temporarily with a Temporary Resident Permit (TRP). An individual may also be rehabilitated by the passage of time (more than 10 years have passed since the completion of all of the conditions of their sentence, including the term of probation, provided they have only one conviction on their record).

Applicants may apply for a TRP at a Canadian visa office or at a port of entry. The Canadian government encourages individuals to apply well in advance if they know they must enter Canada and are inadmissible. The main requirement for obtaining a TRP is to demonstrate a significant reason to be in Canada. Usually the government is looking for a reason related to one's work, or family, or an emergency situation. A TRP is required until such time as criminal inadmissibility has been removed.

Individuals who are eligible for criminal rehabilitation, but who have not yet applied for it, should not only apply for a TRP but for criminal rehabilitation as well. Criminal rehabilitation is a permanent solution to criminal inadmissibility, while a TRP is a temporary pass for it. In order to be eligible for criminal rehabilitation, five years must have passed since all sentencing terms have been completed (including the term of probation). It is therefore advisable to seek as short a term of probation as possible.

If less than ten years have elapsed since the completion of your client's sentence and/or they have more than one offence on their record, they will have to apply for criminal rehabilitation to overcome their inadmissibility. If ten years have passed from the date that they completed their sentence and there is only one conviction on their record, then they are likely to be deemed rehabilitated by the passage of time. Individuals with more than one conviction or who have been convicted of a serious offence (DUI causing bodily injury or death for example), will never be deemed rehabilitated by the passage of time.

Only a lawyer certified by one of the provincial bar associations, or a certified immigration consultant, is authorized to represent an individual in their Canadian immigration applications to the Canadian government, including Criminal Rehabilitation and Temporary Resident Permit (TRP) applications.

Attorney Marisa Feil a member of the Canadian Bar Association and the Barreau du Quebec. She specializes in Canadian immigration issues for FWCanada, Inc., and may be reached at (514) 316-3555 ext. 204, or [email protected] Additional information is available at her website: www.duicanadaentry.com.