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.