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!
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:
- Canada will judge if an act is “criminal" by Canadian legal standards, so you need advice from a Canadian lawyer.
- 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).
- “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."
- “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.
- 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.