How to Navigate Semantic Minefields of ETA Questions for Air Travellers to Canada #2: Interpreting the Criminality Question

How to Navigate Semantic Minefields of ETA Questions for Air Travellers to Canada #2: Interpreting the Criminality Question

In our continuing series on the still freshly minted and creating so much hassle for air travellers to Canada but here to stay ETAs, today we deal with the confounding question: “Have you ever committed, been arrested for, been charged with or convicted of any criminal offence in any country/territory?” Might seem simple at first glance, but wait. They’re asking if you’ve ever done anything, anywhere in the world that no one other than you knows about! 

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The Creeping Expansion of “Criminality” Questioning for Immigration Admissibility

Canada has experienced a troubling creeping expansion of the wording of criminal inadmissibility immigration screening questions over the past few years in all Immigration, Refugee, and Citizenship Canada (IRCC) application documents. In the good old days you were only asked if you have ever been CONVICTED of any criminal offence in any country or territory. That’s consistent with the wording of s. 36 of the Immigration and Refugee Protection Act which rules foreign nationals inadmissible for certain types and degrees of criminality based on actual “convictions.” 

Having “committed” or been “arrested” or “been charged with” thus become of questionable relevance to legitimate immigration screening. True, there are some other vaguer immigration inadmissibility provisions in Canada’s laws concerning associations with organized crime, terrorism or war crimes, but these are going to be much less common skeletons in the closet for the vast majority of the world’s population than is a shoplifting or impaired driving conviction. However, now Canada seems to be demanding you disclose that pack of gum you stole from the corner store and no one found out about when you were 12 years old. 

Immigration Questions as Semantic Minefields

Canadian law doesn’t impose some subjective “good character” screen on everyone who wants to enter. You aren’t applying to be called to the bar! But the committed-arrested-charged wording nonetheless potentially poses a semantic minefield. 

To a lawyer, there is a huge difference between actually being “arrested” and only being “detained.” And what amounts to having been “charged” with an offence that is quickly dropped and expunged? And "committed," what does that even mean? 

It gets even worse, because no one can agree on what “criminal” even means. Is the criminalness to be measured by the standards where you are coming from, or by the standards of the place you are travelling to? In Canada, it certainly means anything found in the Criminal Code. But also usually includes offences in the Controlled Drugs and Substances Act. But does NOT include all entires appearing in a CPIC (Canadian Police Information Centre) printout, as those include federal regulatory offences, even though it is commonly referred to as a “criminal record.” 

Is it safest to err on the side of providing too much information in your ETA, and admitting to that chewing gum theft that no one else knows about? Or are you better to play dumb and coy, and not disclose those 3 impaired driving convictions because under Australian law they aren’t considered “criminal"?

Even as a lawyer who spends a lot of time thinking about these questions, I don’t have any ready answers other than to say everyone’s situation needs to be carefully evaluated on a case by case basis, according to both Canadian law and the current state of Government of Canada policy. 

Say “yes” too readily, and you’re likely to get denied entry for something that should not have excluded you from Canada. Say “no” too quickly, and you may be accused of a misrepresentation which could get you prosecuted and barred from future entry to Canada, even if the thing you said “no” for would not in itself have excluded you. 

Confused? I know I am. Thus my case by case approach to how these questions should be answered.

Top 5 Lawyer Tips Answering ETA Criminality Question

Overall tips I can offer:

  1. Canada will judge if an act is “criminal" by Canadian legal standards, so you need advice from a Canadian lawyer.
  2. Even if your “conviction” has been expunged under your own law, and thus in theory never existed, the legal concept of expungement doesn’t exist in Canadian law. We only do pardons, and we don’t even call them pardons anymore (they’re now record suspensions).
  3. “Charged” is a dangerous terms, because it potentially requires you to disclose all sorts of unjust accusations that never went anywhere. Here it is probably best to focus on its linkage to the word “criminal” as if it wasn’t a “criminal” charge, you don’t need to disclose it. But if it was criminal, and it was a “charge” in the sense of an official document that brought you before a court, you’ll likely need to say "yes."
  4. “Arrested” means different things in different countries. Although the English term derives from the French word to stop, the English term has taken on a strictly legal formal meaning that goes far beyond mere stopping someone from leaving. So if the police grabbed you, slapped cuffs on you, and threw you in the back of a cruiser, yelling “you’re under arrest” then yes, you were probably arrested. But if they just stopped you to talk to you, even telling you you weren’t free to leave, and then asking you to accompany them to the station to give a statement, at least under Canadian law that all might have been a detention. 
  5. Asking about “committed” I find downright offensive. You could in fact have been arrested for, charged and convicted of an offence, and never “committed” it. 

We're not likely to get much tribunal or court direction on ETA questions, as those excluded from Canada because of ETAs will rarely be before an independent decision maker to contest the process. So instead we all need to rely on what are proper grammatical interpretations, backed up judicial precedent formed in other contexts. 

Claiming Birthright Canadian Citizenship: Top 3 Application Errors to Avoid

It might not be all that surprising in the current climate, but my law firm continues to see a surge of applicants seeking to confirm their own or their children's Canadian citizenship. Confirmation of citizenship is quite different from applying to become a citizen. For those seeking confirmation they're already all citizens, but have never previously had a reason to seek out official confirmation from the Government of Canada that they have a right to work, study and live in Canada on an unlimited basis, including carrying a Canadian passport and voting in Canadian elections if they've reached the age of 18.

A lot of the people who retain us to help them with Canadian citizenship confirmation have already tried to apply for confirmation, but the government returned their applications unapproved because of failure to fulfill the requirements. Sometimes those applications have been returned multiple times, leading to many months - perhaps even years - of frustration.

Yes, there's a DIY guide to citizenship confirmation. And yes, you can do it yourself. But if speed, an error free application, and lack of frustration is important to you, you should give serious consideration to using a citizenship lawyer. The cost is pretty reasonable as compared to some other legal services, and is less expensive even than many other immigration law services.

The top three citizenship confirmation errors we've lately seen in our practice relate to birth certificates, translation of documents, and photographs. All seem deceptively simple things to provide to the government. And yet, the government finds fault again and again with what is submitted because the government won't hold your hand, won't coach you through the standards, and applies a standard of perfection. 

1. BIRTH CERTIFICATE ERRORS

a. Not understanding what is a certified copy

A certified copy isn't just a photocopy. And you can't take a copy into someone qualified to make certified copies without also bringing along the original, so that person can compare the original to the copy. That's what certified means: someone trustworthy has seen the original, carefully compared it to the copy, and then stamped and written on the copy, in the customary manner applicable in the territory the certification is being made in, that the copy is "true" to the original.

In Canada, notaries, commissioners of oaths and lawyers can usually create certified copies wherever your live. There may also be other officials like bank managers or school principals who are authorized to do so.

Overseas you should probably stick with a notary who can create a "Notarial Copy" which is generally even better than a certified copy.

Family members can't certify other family members' copies.

b. Attempting to use documents issued in Quebec prior to 1994

In Quebec, you might need to apply for a new birth certificate prior to applying for citizenship confirmation, even if you've already got a birth certificate or baptismal certificate. The Federal Government doesn't like those Quebec documents if they were issued prior to 1994.

Who knows why. I did two law degrees in Quebec, and I don't know why, though I suppose I could find out. You've just got to accept that that's the way it is, and apply for a more recent document. 

2. TRANSLATION ERRORS

In Canada we all know there are only two official languages: English and French. Other than those pesky documents from Quebec mentioned above, the Government of Canada does not have any firm rules on document standards from a country which has produced the documents you might be submitting, but it does require that they be in English or French, otherwise the Canadian government worker processing them won't be able to read them. The government won't translate your documents for you, you've got to pay to do it yourself.

The documents can be translated either in Canada or overseas. Probably in Canada is easiest, since then it's easier to prove you've used a certified translator; make sure you submit that proof. If done by someone who isn't certified in Canada, you'll need to submit a separate affidavit from that person attesting to not only the accuracy of the translation, but also the fluent proficiency of the translator in both the language being translated from and the language being translated to.

The government will NOT take your word on the accuracy of translations without an official translation.

3. PHOTOGRAPH ERRORS

You'd think photos would be the easiest thing of all to provide. We've all now got camera phones that take great pictures. I often try to justify my overpriced new phone to myself by thinking that I actually bought a really great camera, with a phone thrown in for free. But the Government of Canada has yet to enter the digital photo age.

When I went to get my United Kingdom passport (I'm a dual citizenship), they were more than happy to accept the $3 mall photo booth strip of photos I had procured. Not so with Canada. Mess up the photos, and your application will get returned, sometimes with little explanation as to what went wrong.

Photos have a mere 15 requirements to qualify as acceptable (as quoted from the IRCC website):

  • Photographs must be printed on quality photographic paper.
  • Provide the name of the photographer or the studio, the studio address and the date the photos were taken on the back of the photos
  • Print the name of the person on the back of the photos.
  • The photographs must be identical and taken within the last six months. They may be either black and white or colour.
  • The photographs must be clear, well defined and taken against a plain white or light-coloured background.
  • If the photographs are digital, they must not be altered in any way.
  • Your face must be square to the camera with a neutral expression, neither frowning nor smiling, and with your mouth closed.
  • You may wear non-tinted prescription glasses as long as your eyes are clearly visible. Make sure that the frame does not cover any part of your eyes. Sunglasses are not acceptable.
  • A hairpiece or other cosmetic accessory is acceptable if it does not disguise your normal appearance.
  • If you must wear a head covering for religious reasons, make sure your full facial features are not obscured.
  • The frame size must be 50 mm x 70 mm (2″ x 2 ¾″).
  • The photographs must show the full front view of the head, with the face in the middle of the photograph, and include the top of the shoulders.
  • The size of the head, from chin to crown, must be between 31 mm (1 1/4″) and 36 mm (1 7/16″).
  • Crown means the top of the head or (if obscured by hair or a head covering) where the top of the head or skull would be if it could be seen.
  • If the photographs do not meet the specifications, you will have to provide new photographs before your application can be processed.

Don't staple the photo to the application - a paperclip is the most severe form of attachment tolerated.

So to avoid errors, especially as to size, just go to a passport photo place. Drug stores often do this. For about $10 or $15 dollars, you'll get your two photos. The Government of Canada is really picky about its photos.

Succeeding in your citizenship confirmation application involves not just adhering to the letter of the law, or the letter of government policy, but also the letter of the minute application instructions. Misinterpret those instructions, and you'll be receiving a return to sender envelope from Immigration, Refugees and Citizenship Canada. 

Electronic Travel Authorization (eTA) Confidential: An Immigration Lawyer Tells You What You Need to Know to Not Be Refused Entry to Canada

Shocked you’ve suddenly got to fill out something called an Electronic Travel Authorization (eTA) in order to come to Canada by air, even though you’ve entered many times before Visa-free? Not sure how to answer the eTA questions? Refused entry to Canada because of an eTA, even though you've been welcomed many times before? You’re not alone.

What is an Electronic Travel Authorization (eTA)?

It’s been less than a year since the Government of Canada in November 2016 imposed the eTA requirement on nationals of all Visa-free entry countries (over 50 states), other than Americans. Although the Government seems to have promoted eTAs as not a big deal, in many ways these are mini-Visas, with all the attendant risks, hassles and delays that Visas entail. Supposedly 3.5 million people a year will be applying for eTAs. Previously, only a tiny fraction of those were asked the eTA's probing questions after arriving at a Canadian air port of entry. 

Canada Border Services Agency Officers have the right to ask foreigners seeking entry to Canada all manner of probing questions, but airports are busy places, and most people never were asked questions about things like prior arrests. Now, all foreigners (other than Americans) get asked through the eTA.

While you don’t need to apply for an eTA if arriving in Canada by land or sea, how many people actually do that other than Americans? Canada is not an easy place to get to unless you fly. 

What's the Difference Between a Visa & an eTA?

The main difference between an eTA and a Visa, other than cost and waiting period, is that the eTA is a self-reporting tool that is computer screened. Only if an applicant answers YES to particular questions, or is otherwise flagged in an electronic database, will the eTA application be escalated to human review. By comparison, all Visas supposedly get some human attention (some more than others). 

What's Risks Do eTAs Pose for Travellers?

While the Government of Canada rightly points to the fact that eTAs are only screening for the admission criteria that always applied to any foreigner seeking entry to Canada and which were already tested for in Visa applicants, detailed screening of another 3.5 million people a year is sure to result in thousands of additional refused entries to Canada.

While the government touts the huge numbers of eTAs successfully issued, what is not focussed on is the number of people refused entry because of an eTA. The most common reason for refusal is likely because of disclosure of minor criminal records that the Government of Canada would not otherwise have known about were it not for the eTA questioning. But refusal for health reasons, for being unable to financially support yourself while in Canada, or for being unlikely to leave Canada all also pose refusal risks.

How Should I Answer the eTA Questions?

If you only had to fill out your name, birthdate, address and purpose of visit, the eTA would be easy. But instead, you’re faced with questions like “Do you have a serious health condition for which you are receiving regular medical treatment?”

ou might be wondering, what qualifies as “serious” and what is meant by “regular” or even “treatment"? Good question! There are a lot of important nuances in that one question alone. You don't want to minimize a condition, and then be accused of lying. But you don’t want to unjustifiably exaggerate a condition, and then be refused entry when in fact your condition wasn’t all that serious, and your treatment wasn’t particularly regular. 

In future blog posts, I’ll deconstruct the ways to approach each questions. 

The Government of Canada has produced a 22 page guide on how to fill out the ETA: 

http://www.cic.gc.ca/english/pdf/eta/english.pdf

While the guide is helpful, in some ways it raises more questions than it answers, like in response to the medical question it states: "Select YES if you are receiving regular, ongoing medical treatment for any mental or physical condition.”

But note that the guide's "clarification" isn’t using the same question that was asked in the eTA. The word “serious” has disappeared. The word “ongoing” has appeared.” And mental as well as physical conditions have now been added, leaving one to wonder does taking a low dose anti-depressant need to be disclosed? To me, it certainly doesn’t qualify as “serious health condition” and “regular medical treatment,” but it might qualify as ongoing treatment for a mental condition, especially if some psychotherapy in thrown in. My take would be to follow the wording of the actual question, and not the wording of the guide. But you can hopefully see how confusing this can get, and how easily it might lead to misunderstandings leading to entry to Canada problems.

Three Guiding Principles for Filling out eTAs

For now, I offer you three guiding principles for completing an eTA:

  1. Don’t Lie - a "misrepresentation" can bar you from visiting, working or studying in Canada. The misrepresentation may be considered to be far more serious by the Government of Canada than the thing you were trying to hide. Even if you think the government will never find out, you can't be sure about what database access the government might have. I worked for the government for years, and I was never sure. You can be sure that eTA applicants home countries will share more data with Canada than will Visa-required countries, because the eTA countries tend to be close allies of Canada.
  2. Don’t Answer Yes Without First Obtaining Legal Advice - these are all loaded, legal questions. If you're asked one of them in person at an airport, you aren't going to be able to have the opportunity to obtain legal advice. But with an eTA, you can talk to a lawyer. A lawyer local to where you live won't be much good to you, because it's unlikely he or she will be qualified to give advice on Canadian law. 
  3. Don’t Book Travel Prior to Obtaining an eTA - they’re good for five years, and only cost 7 dollars. So this should be the first step of your trip planning. 

We offer “eTA Quick Legal Consults” (eTA QLC) for those faced with filling out an eTA, and who have concerns about how questions should be answered based upon their personal facts. And on how to resolve eTA refusals. 

The Government of Canada hasn’t changed any of the entry rules to Canada. Reasons for refusal remain the same as they have been. But with eTAs they’ll now have a lot more information on everyone, so you need to treat the eTA document as seriously as you would a Visa application to another country or a passport application in your own country. 

Why You Should Care About Jus Soli & Jus Sanguinis if You Want to Claim Canadian Citizenship

Why You Should Care About Jus Soli & Jus Sanguinis if You Want to Claim Canadian Citizenship

In 2017 I’ve seen a huge uptake in potential client enquiries, especially from Americans, about confirming their proof of Canadian citizenship.

Canada has one of the world’s more liberal citizenship regimes, where you can be eligible for Canadian citizenship and acquire proof of that citizenship primarily by way of: (1) location of birth in Canada; (2) at least one parent being a Canadian citizen; or (3) by a naturalization application process after being accepted as a permanent resident.

The Simplicity of Canadian Birthright Citizenship - Jus Soli (Right of Soil)

Lawyers love Latin, and citizenship law is no exception. Jus Soli is the technical legal term for citizenship acquired through birth. Only about 30 countries in the world - almost all of which are in North and South America - unconditionally grant citizenship to anyone born within their territories.

Lex Soli is the term used for the body of law governing if and how Jus Soli applies. Canada does have a narrow exception to Jus Soli in that if neither parent is a Canadian citizen or permanent resident, and either was employed at the time of birth by a foreign government or international organization in Canada, then you’re not entitled to Canadian citizenship even if you’re born in Canada. This is more than a theoretical exception, as Canadian-born Deepan Budlakoti found out when he was effectively rendered stateless through this process. 

A certified copy of your birth certificate from a Canadian province or territory is the main document you’ll need to submit with your application to claim Canadian Birthright Citizenship.

The Complexity of Canadian Citizenship by Descent - Jus Sanguinis (Right of Blood)

Citizenship by Descent - also known as Jus Sanguinis for Latin lovers - gets more complicated than Birthright Citizenship. There are several exceptions to Jus Sanguinis in Canada, and not just who you were born to but also your date of birth can be very important.

Generally the Citizenship Act grants Canadian citizenship to those born outside Canada to at least one Canadian parent, but the Act was recently changed to limit that citizenship by descent to one generation, meaning the children of children who so acquired citizenship by decent won’t also become Canadians automatically. Thus you’re a Canadian if one parent was a Canadian, but not if only a grandparent was a Canadian. 

However, and this is a BIG however, the "first generation rule" only came into force on 17 April 2009 and is not retroactive. So if you were born prior to 17 April 2009 when the new rule came into effect, you’re in luck and can still claim Canadian citizenship regardless of how many generations back your Canadian direct ascendents were born in Canada (subject unfortunately again to some exceptions). This is especially important for Americans, who may be descended from Canadians who moved to the United States for economic reasons a number of generations ago.

For proof of citizenship by descent, in addition to a copy of your birth certificate from the country in which you were born listing the names of your Canadian parent(s), you’ll also need proof of at least one of them being Canadian such as their own birth certificates or their citizenship certificates. If you’re hoping to prove a higher generation of descent, you’ll need birth certificates and proof of citizenship up the chain of descent. 

You’ll also need certified translations of any documents in languages other than French or English. 

Unlike Birthright Citizenship, Citizenship by Descent can get very complicated. I often recommend a consultation with an immigration lawyer for those hoping to claim Citizenship by Descent in order to avoid frustration and disappointment over (mis)assumptions and the proof required.

Why You Need to Apply as Soon & as Completely as Possible for Proof of Canadian Citizenship

Current Government of Canada processing times for proof of citizenship range from five months to a year, depending on the complexity of your application. Even the slightest error in the documents you submit can result in your application being returned and you having to completely restart the process. Thus you should apply as soon and as completely as possible. You’ll find all the required government application forms online, including an estimate calculator for current processing delay times.

Obtaining proof of citizenship is something I tell my clients they can do for themselves. But if success on the first try and in as rapid a means as possible is important to you, consider using an immigration lawyer. Our fees (and the fees of most other lawyers who handle citizenship) aren’t especially high as compared to other kinds of more complicated immigration processes.

Another option most lawyers will offer is a consultation on eligibility for citizenship, when you are thinking that you may or may not want to undertake the application yourself, but wish to definitely confirm before doing so whether or not you’ll qualify. Canadian citizenship through birth or descent isn’t discretionary - either you’ll qualify, or you won’t. 

Top 5 Solutions to Being Declared Inadmissible for Immigration to Canada

Top 5 Solutions to Being Declared Inadmissible for Immigration to Canada

While Canadians have lately been hearing lots of anecdotal refused entry stories concerning those travelling to the United States, we don’t hear as often about all the foreign nationals who are turned away at Canada’s borders after being declared inadmissible.

No, we’re not talking about arch-criminals or terrorists here. We’re speaking of regular people. People with jobs. With children. With dreams. But for whom past or current issues in their lives have led to Canada shutting its doors on them. 

The Five Main Types of Immigration Inadmissibility to Canada

This door slamming affects both those trying to enter temporarily, and more commonly those seeking to immigrate on a permanent basis. There are primarily five bases for inadmissibility:

  1. Criminal Inadmissibility;
  2. Medical Inadmissibility;
  3. Financial Inadmissibility;
  4. Misrepresentation Inadmissibility;
  5. Security Inadmissibility.

Everyone wanting to come Canada for a holiday, temporary work, to study, or to settle permanently needs to reflect on whether anything in their backgrounds might lead to Canada refusing entry. Even permanent residents already able to freely come and go from Canada can get trapped by criminal and misrepresentation inadmissibility, and wind up permanently barred from their country of choice!

How to Know if You Might Be Inadmissible to Canada

How do you know you might have an inadmissibility problem before the Canada Border Services Agency or Immigration, Refugees and Citizenship Canada tells you? Follow the following self test questions:

Q: Have I ever been convicted of a “criminal offence,” or an offence that even if it isn’t “criminal" in my own country, might fall into the criminal category somewhere else? For Canada, this generally does NOT include driving offences, unless alcohol, death or serious injury to another was involved. It does include anything to do with drugs (even very small quantities of “soft” drugs), theft, fraud, dishonesty to law enforcement or the courts, and violence.

Q: Do I have a medical illness that could require significant medical treatment - now or in the future. This usually won’t apply to those only seeking to come to Canada as visitors for a few months, but can be a major impediment for long term residency because of the free availability of publicly funded health care.

Q: Do I have enough funds (with proof) to support me while I am in Canada, or have I obtained authorization to work where that employment income would support me? 

Q: Have I lied or made a misstatement at any time in dealing with the Government of Canada concerning my immigration? This can be a tricky problem to diagnose, as you might have been truthful and the government thinks you were lying, or you might have inadvertently misstated something that you believed to be true at the time you said it. 

Q: Could I be considered a security threat to Canada? This is one you really shouldn’t worry about, as very few people will fall into this category, and making such a determination falls on the government. 

How to Solve Your Canadian Immigration Inadmissibility Problems

So what’s to be done? If you’ve got a potential or actual inadmissibility problem, you definitely need a lawyer. There are some forms of immigration that you might be able to do yourself, but inadmissibility qualifies as “complex immigration” with all sorts of convoluted policies and case precedents; get a professional to help you.

Each type of inadmissibility has its own fix, all of which depend on presenting strong factual evidence to the government that you aren’t in fact inadmissible, or should be excused from your inadmissibility because of your personal circumstances. 

  1. For criminal inadmissibility, you may have already been “deemed rehabilitated” if the crime(s) was minor and in the distant past. Or you might need to submit a formal application for rehabilitation. You may need to gather criminal record checks from every place you have lived, as well as court records concerning every criminal incident. An opinion from a foreign lawyer might even be required if there is debate over how to translate the offence you were convicted of to an equivalent offence in Canada, since offence severity has a significant impact on rehabilitation potential. 
  2. For medical inadmissibility, securing expert opinions from medical doctors may be required.
  3. For financial inadmissibility, producing bank account and investment statements and income tax returns could be necessary. 
  4. For misstatement inadmissibility, you might need to convince the government that you never really made a misstatement. 
  5. For security inadmissibility, you might need to convince the government that you are not the person the government thinks you are, or that the information the government has received about you is unreliable. 

Some of these fixes might be accomplished through negotiations, others by going to the Immigration & Refugee Board, and some might require recourse to the Federal Court. 

How to Overcome Criminal Inadmissibility to Canada & Avoid Ruining Your Work, Family or Tourist Trip

We all make mistakes. Occasionally, for some of us, a mistake leads to some sort of “conviction.” A conviction could be the consequences of parking too long in a one hour parking zone, exceeding a highway speed limit, getting in a bar fight, shoplifting some sunglasses, up through more serious offences. 

I’ve had clients enter Canada dozens of time, only to be told by the Canada Border Services Agency (CBSA) on their 57th arrival after landing at a Canadian airport, or crossing at a land border, that they’re inadmissible due to criminality. They’re put back on the next return flight from where they just arrived, or told to head their vehicles back in the opposite direction and not return. These are clients who might mostly earn their livelihoods in Canada as sales reps, or have close family in Canada. They’re understandably shocked at being refused entry, especially because some of them have been previously welcomed to Canada so many time with open arms. The thing they all share in common is one or more “convictions” somewhere in their pasts, sometimes decades previously, and sometimes for acts that aren’t even considered “criminal” where they come from.

THE LAW

Section 36 of the Immigration and Refugee Protection Act governs criminal inadmissibility, explaining rather cryptically: 

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;

(b) having been convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, or of two offences not arising out of a single occurrence that, if committed in Canada, would constitute offences under an Act of Parliament;

(c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an indictable offence under an Act of Parliament; or

(d) committing, on entering Canada, an offence under an Act of Parliament prescribed by regulations.

The problem is that it can be very difficult for those visiting (or moving to) Canada to know: (1) whether the thing(s) they’ve done in the past are caught within the criminal inadmissibility drag net, and (2) even if they are caught up in inadmissibility, can they be considered to be rehabilitated?

One of the most problematic offences is impaired driving (DUI). In some countries, it's considered a regulatory highway traffic offence, and not a criminal offence. And even where it is a criminal offence, a person might not have been formally “convicted” of it. And further confusingly, while DUI is usually prosecuted in Canada as a summary conviction offence, because at the Crown’s election it can also be prosecuted by indictment it means that a single DUI can make you criminally inadmissible. 

THE FIX

But there is a fix to all of these problems: criminal rehabilitation. It’s an application process which demonstrates to the Canadian government that because of the passage of time since your conviction, and because of your having stayed out of trouble since that time, you shouldn’t be excluded from Canada. It’s akin to an immigration criminal pardon! I’ve also found that unfortunately sometimes the CBSA makes mistakes, and declares criminally inadmissible people who don’t at all fall within that category, but you may still need a lawyer to correct that mistake.

While there are certainly some immigration procedures that you might try to undertake yourself, I urge you to retain a lawyer to assist with criminal rehabilitation. You might even need two lawyers - one from your home jurisdiction where the offence was committed and one in Canada - to deal with the translation of the foreign conviction into Canadian legal terms. This isn’t always necessary for countries having similar legal systems to that of Canada, like the United States, but your Canadian immigration lawyer can discuss the precise procedure with you depending on your circumstances. 

THE PROCESS

Generally the rehabilitation process involves you gathering together your prior conviction information, having criminal record checks done in every jurisdiction you’ve lived for a significant time, and then a Canadian lawyer will present your rehabilitation application to the Canadian government. Some applications are more straight forward than others, depending on the number and severity of prior convictions, and how much time has passed since those convictions. You’ll usually be barred from Canada until your application has been reviewed, so the sooner you undertake the rehabilitation process, the faster you’ll have a chance of reentering Canada. 

And don’t wait until you’ve been barred from Canada to start this process. If you have an upcoming visit to Canada, and have prior convictions, consult a Canadian immigration lawyer prior to your visit about whether a criminal rehabilitation application might be necessary. Even if you've been entering Canada repeatedly without a problem, don’t be lulled into a false sense of security as I’ve had clients who haven’t had entry problems for years who suddenly are banned from Canada for a year or more while we sort out the inadmissibility issue. Just because the CBSA hasn’t stopped you yet doesn’t mean that a new officer won’t take a different view of your past, and doesn’t mean that the CBSA won’t sign a new information sharing agreement giving it greater access to foreign criminal background data which might include your name. 

Neither the CBSA nor the Department of Immigration, Refugees and Citizenship can give you legal advice on criminal inadmissibility. It’s one of the most complicated areas of immigration law because of the need to compare two different legal systems to see how a conviction in one system might match up with available offences in another system. So I do urge you to consult a lawyer prior to travelling to Canada so that you aren’t frustrated in work, family or tourism trip where you will have invested lots of time, planning and money. I likewise frequently refer Canadians to U.S. immigration lawyers to deal with criminal admissibility when travelling south.

Three Reasons to Get Excited about Ontario's Entrepreneur Stream Immigration Program

Three Reasons to Get Excited about Ontario's Entrepreneur Stream Immigration Program

The Government of Canada has now effectively killed off all of its Investor and Entrepreneur immigration programs. Business immigration programs are very cyclical, and occasionally have an almost flavour of the month nature. So old programs getting shut down and new programs opening up isn't really huge news. But because federally speaking we're not seeing any new business programs on the horizon in the immediate future - likely because of the new government's commitment to reduce what have become horrific immigration application processing backlogs for all types of programs - one needs to look to what are known as provincial nominee programs (PNP) for open investor and entrepreneur immigration doors. 

Not so long ago, only Quebec ran a PNP program. Manitoba was the first of the other provinces and territories to realize that attracting quality immigrants who were a good "fit" with provincial economic and social requirements could be greatly in the public interest. Ontario is one of the last provinces to move into the PNP world, likely because it already received the lion's share of Canadian immigration without its own PNP programs. But it now seems to have realized that having some control over immigration policy at a provincial level would better enable implementation of provincial economic and social priorities.

Although there's currently no Investor PNP immigration program in Ontario taking new applications, there is an interesting Ontario Immigrant Nominee Program (OINP) Entrepreneur Stream that was announced in 2015. I recently chatted with the friendly folks running the program at the Ontario Ministry of Citizenship, Immigration and International Trade, who informed me that it has yet to make its first selection "draw" inviting those who have submitted expressions of interest to make formal applications, but that multiple periodic draw are contemplated in the future once the program had worked out any growing pains, including the possibility of applying online (currently paper is still required). 

Ontario's Entrepreneur Stream follows a growing trend in PNP programs where prospective immigrants need to first submit an "expression of interest," there is then a "draw" from amongst the best point scored expressions of interest where the winners are invited to submit formal official applications to the Ontario Government, and upon approval of those applications the potential immigrants have a couple of years to fulfill all of the business establishment conditions. Once an approved business is sufficiently established, Ontario recommends the immigrant to the Federal government, who then undertakes its own application and review process possibly leading to permanent residency status be granted. The reason to start with expressions of interest appears to be to avoid getting overwhelmed by wholly inadequate applications that still must be completely processed to the bitter end. 

There are lots of strings attached to Ontario's Entrepreneur Sream, but it remains one of the few currently viable options for business immigration in Canada, and truly the only option if the business is planned to be in Ontario. There are very few limitations on the type of business to be established. Particularly notable features are that personal net worth and value of investment to be made in the business requirements are only at 50% levels outside the Greater Toronto Area as they are within Toronto. This program is for true businesspeople who are interested in running a business hands on in day to day operations, not for passive investors. Business experience is required. And working knowledge of English or French (at an intermediate level) is also needed.

Reasons to get excited about the program include: 

1. Only 2 new full time jobs need to be created in the business. 

2. Very few types of businesses are excluded from the program - an odd assortment of tire orscrap recycling, pawnbrokers, laundromats, car washes, and payday loans. If you're in Toronto, you also can't have an existing franchise, a gas station or a bed and breakfast. 

3. For businesses outside of Toronto, only a quite reasonable personal net worth of $800,000 and business investment of $500,000 is required (in Toronto, $1.5 million net worth and $1 million business investment is needed). 

As a private practice lawyer who used to practice in the GTA, but is now happily based in Eastern Ontario, I can anecdotally suggest that there are lots of economically healthy regions of Ontario in which to start businesses that don't include Toronto. Indeed, being outside Toronto might even mean your business has a comparative advantage, because it will be starting in a less competitive environment, with lower overhead costs, and sometimes a greater available pool of skilled labour. Rural and small urban communities throughout Ontario should particularly be thinking about the Entrepreneur Stream program as an aid to their economic development if they're able to partner with immigrant entrepreneurs.

 

Will Getting Married Help Me Immigrate to Canada as a Sponsored Spouse?

Common law spouses have in Canada and elsewhere acquired many of the rights and duties previously enjoyed only by legally married spouses. However, living common law does still not amount to the same legal existence as being married, be it where family law, tax law or immigration law is concerned.

For immigration to Canada purposes, spouses might both be trying to come to Canada, or one spouse might already be a Canadian citizen or permanent resident, and thus be potentially eligible to sponsor the other spouse as a Canadian immigrant. This post is only about the pros and cons of marriage where one spouse is eligible to sponsor.

Canadian immigration law has now extended similar rights of sponsorship to common law spouses as were previously only available to married spouses. However, being considered common law spouses requires that you have been continuously living together for at least one year prior to your immigration application. This proof of cohabitation can be a hassle. And for the spouse from a country where Canada doesn't like to issue visitor visas, because of what it may perceive as the risk that people of that nationality won't depart Canada after their visitor status expires, common law spousal status may be an impossibility unless the Canadian spouse wants to move abroad in order to co-habitate so that a common law spousal sponsorship application can happen.

Getting legally married means you don't need to prove to the Canadian government that you've lived together for even one day. You might need to show some evidence about the legitimacy of the marriage, but that's a lot easier to do than proving the legitimacy of a common law relationship. Show you had a wedding ceremony, show that your families know about the marriage, show that you care about each other through your communications/gifts/visits/children, and you're probably good to go as far as the Department of Immigration, Refugees and Citizenship Canada is concerned.

But in order to demonstrate common law status, the government usually wants proof of joint bank accounts, life insurance policies, property ownership or leases, and affidavits from yourselves, family, friends and neighbours, in addition to your being able to precisely prove that you've been living together for a year prior to applying. Start co-habitating in Canada, then get called back to your homeland for 3 months because of a sick relative, and you've likely wrecked your chances at common law status. Brief times apart are acceptable, but it's a matter of government discretion to as how much of a separation will be considerable permissible. 

You should also be aware that with same sex couples finally having the same rights to marry in Canada as opposite sex couples, the get married or don't get married for immigration debate is now as relevant for them as it is for all other couples.

To be clear, a sham marriage is not going to go over any better with CIC than a sham living together common law relationship. But the bottom line is that marriage will likely make your immigration application process go more smoothly.

If you're committed to never getting married, and can eventually qualify for common law status, the desire for immigration shouldn't make you violate your no marriage principles. But if you're like a lot of my newer couple immigration law clients who have been living together for around a year, are keen to be permanently united in Canada, and are thinking about eventually getting married but are putting off marriage for a couple of years until they are more settled, I always suggest that they carefully consider their position.

If the nature or newness of your relationship means that marriage isn't even on the horizon, then by all means proceed with a common law spousal sponsorship application. But if you have been talking about marriage anyway over the last year, and are thinking it is something you want to take care of very soon after the immigration process is finalized, you should think about whether it might be possible to get married prior to applying for immigration.

Marriage won't cure a shaky immigration application, and common law spousal status won't wreck a solid application, but marriage may make things easier. Just some food for your collective wedding cake sweet tooth.

Demystifying Immigrating to Canada

You'd think it would be simple. You send in some personal details. The government looks them over. Then gives you a yea or a nay. But life always seems to be a bit more complicated than it should be.

The national immigration systems of the world were all established with essentially the same aim: permanently let into your country those whom you believe will make good lasting contributions to your society, temporarily admit those who are unlikely to do any harm (perhaps giving some of them study or work permits), and keep out those whom you deem undesirable. 

The challenge for immigrating permanently to Canada or even for coming temporarily as a visitor, student or worker is that instead of one simple form on which you write some personal details, and check off a couple of boxes for what kind of status you are seeking in Canada, there are reams of forms with obscure numbers, names which aren't self-explanatory, and a host of choices that must be made for the best application type and route. But it is possible to distill down the process to the basics. 

1. The three main factors that keep people out of Canada relate to: (a) criminal history, (b) health condition, and (c) financial capacity. If you haven't committed criminal offences in the past, are healthy, and have money, Canada will probably let you inside its borders - at least on a temporary basis. Though there unfortunately remains unjustifiable discrimination against certain source countries, or personal circumstances, even when the previously mentioned three criteria aren't problems.

If you do have a shortcoming on one or more of those three grounds, you need to carefully study the Department of Immigration, Refugees and Citizenship Canada website and perhaps speak with an immigration lawyer to determine whether you will be excluded from Canada, and if there are any ways to get around that exclusion.

2. The three main ways to temporarily enter Canada are as a (a) visitor; (b) student; (c) temporary worker. 

Citizens of a small number of preferred countries don't need visas to enter Canada as visitors, and can just show up at the border - passport in hand - and usually get a stamp permitting a stay of six months. It's then possible to apply to extend that stay for additional time. You'll still be subject to those three factors which exclude people from Canada, but they won't be as strictly applied if you're only a visitor.

Everyone else in the world will need to apply for a visitor visa in advance. From some places, these visas are very fast and easy to get. From other places, they are almost impossible to obtain. The difference largely rests on how many people want them, how much staff is devoted to issuing them, and Canada's assessment of how likely you are to return home at the end of your visitor period.

You'll need to be able to qualify as a visitor in order to additionally get a study or work permit. Study permits aren't too difficult to obtain if you are able to prove admission to a legitimate education institution in Canada (you need to carefully check out in advance the status of the school and program you will be attending - there is lots of misinformation out there) and the financial means to support yourself while studying in Canada.

Work permits are more difficult to obtain because of the way employers who wish to employ foreign workers must demonstrate that they can't find a Canadian for the job. Clients frequently come to our firm who are legitimately in Canada on visitor visas, want to work legally here, but have become very frustrated when employers who are favourably disposed towards them can't obtain foreign worker authorizations because they don't understand the system for obtaining what's known as a favourable Labour Impact Market Assessment.

3. There are two main ways to permanently enter Canada: (a) through an independent/economic/business application or (b) through a family class application.

Although there are various schemes going by different names where independent/economic applications are concerned, and increasingly the provinces have their own schemes (though provincial program applications are still largely processed through the federal government with the exception of Quebec) the fundamental distinction in permanent resident routes is between these two classes.

The family class is mostly for spouses and dependent children. There are a few exceptions that could extend sponsorship to other relatives, but generally this class has been getting more and more narrow - for instance, sponsoring parents and grandparents is now extremely difficult, and instead the government promotes a 10 years SuperVisa for them, which permits stays of up to 2 years at a time. 

The independent/economic classes generally require that you have work or business skills that are in demand in Canada, or money to invest in starting a business in Canada. There are lots of options here, and even if you don't qualify when you first examine the possibility of coming to Canada independently, it's worth checking again in a year or two to see if there might be new programs that you could more easily fit into.

4. As a Canadian immigration lawyer, the best tip I can offer to anyone reading this post who's interested in spending an extended time in Canada (or who wishes to enable a relative to do so), is don't become overly fixated on obtaining permanent residence at the cost of ignoring much quicker and easier temporary residency routes.

For example, sometimes foreign student or temporary foreign worker programs in Canada can offer an easier path to permanent residency. You'll get to Canada much more quickly than waiting years for a permanent residency application to be processed, you'll be able to learn whether Canada really suits you before you making a permanent commitment to it, and your permanent residence application may receive preferential treatment after you've worked or studied for a number of years in Canada (depending on the type of work and level of completed studies).

The same goes for bringing parents or grandparents to Canada. If they're already in their 70's, obtaining a ten year temporary residence SuperVisa for them, where they can continuously remain in Canada for up to two years a a time, might have a much better practical outcome than waiting years for a permanent residence sponsorship application to be processed.