Criminal inadmissibility to Canada is majorly trending right now in the immigration law world. Why? Two three letter acronyms: ETA and DUI.
The still relatively recent introduction of mandatory Electronic Travel Authorizations (ETAs) for nationals of about 50 visa-exempt countries travelling to Canada didn’t magically make any more of them criminally inadmissible than before, but it flagged admissibility problems upfront for the Canada Border Services Agency (CBSA) whereas very few of the visa-exempt in the past were ever questioned about criminality upon arrival in Canada. It’s understandably a shock to those who have previously visited Canada many times for business, family or tourism to now be told they’re no longer welcome.
The very recent upping of Impaired Driving (DUI) offence penalties under Canada’s Criminal Code to a maximum of 10 years imprisonment means an offence is now considered “serious criminality” under the Immigration and Refugee Protection Act, and thus no longer qualifies for “deemed rehabilitation” 10 years post-sentence completion and has even triggered criminal inadmissibility problems for Permanent Residents who might acquire a DUI conviction. Now, a criminal rehabilitation application will be required every time for a DUI, and won’t even be possible until 5 years have passed from the end of sentence.
But there are ways to fix all of this. As a lawyer practicing both immigration law and criminal law in Canada for the past 24 years, here are my top 5 things you need to know to minimize the chances you’ll be flagged as criminally inadmissible, or fix inadmissibility if you are ever called out on it.
1. Obtain all Your Court Documents Prior to Applying for an ETA or Showing Up at the Border
As soon as you click “YES” to that ever committed, arrested, charged or convicted of a criminal offence question in Canada's online ETA form, you’re going to receive back a request to upload court documents. If you take too long to upload, Canada is going to reject your ETA. So be ready in advance for the request.
If you are in the United States and planning to show up at a Canadian land border crossing where an ETA isn’t a requirement, you should still plan to have court records in hand. You should also obtain a legal opinion in advance from a Canadian immigration lawyer on your admissibility, and carry that with you. Don’t run the risk of showing up at the border and being deemed inadmissible on the spot, as then you might be banned for life from Canada for having attempted to enter while being inadmissible. If inadmissible, the best cure is a paper/electronic application from a distance prior to attempting entry.
Most don’t realize when you receive a request for court documents that Canada doesn’t want just one scrap of paper with some cryptic acronym entires in the national language of the place of arrest, charge or conviction detailing a person’s criminal record (or lack thereof). Canada ideally wants EVERYTHING to do with your entire criminal (or not so criminal) past. All documents relating to your involvement with the police, the prosecution service, the courts, and the probation service are needed.
For the police, your record of arrest, and copies of all the evidence they gathered from you and others, including copies of all statements and other evidence. For the prosecution, copies of all prosecutor notes, submissions and disclosure to the defence. For the courts, copies of all transcripts of oral submissions or testimony, all exhibits files, and all judgments by a judge. For probation, copies of your exact sentence, including proof that it was completed in full, including the payment of any fine.
You’re also going to need an extensive cover letter in which you explain the circumstances of the arrest, charge and outcome, a listing by the numbers of exactly what documents are being attached, and an explanation of every last document you can squeeze out of your court and prosecution system. All officially translated into English or French.
If it’s just an arrest that didn’t lead to charges, you may not have any documents. But you’ll still need to explain that in a cover letter, including why charges were never laid.
If it’s a charge but no conviction, you’ll need all the court records to prove that result: (a) the charging document; (b) the document explaining how the charge was disposed of; (c) other documents from the prosecution or court explaining the history of the charge; (d) a description of the exact offence under the national law of the place the charge was laid in.
If it’s a conviction, you’ll need similar documents to those mentioned for a charge, but also (a) a document explaining what you were and weren’t convicted of (as you might have been convicted of an alternate offence); (b) a document confirming the sentence; (c) a document confirming the sentence has been completed (including that all fines have been paid).
Some of these documents won’t be easy to obtain. For clients we help with this process, we usually retain a local law firm in the country of the charge/conviction that will be best placed to shake down the court and prosecution for every last document. If we’re lucky, a client may have used a criminal defence lawyer to originally deal with the charge, in which case we start by just requesting a copy of that lawyer’s file.
You might be able to write to the court/prosecution yourself, or send a relative/friend to the court, in order to obtain documents. But often court documents are best obtained in person. And sometimes courts are more reluctant to share information with non-lawyers.
You shouldn’t approach the request for documents as a minimalist exercise in providing as little as possible, figuring the Government of Canada will just ask for more later. Instead, you need to overwhelm the government with completeness the first time round. If there are huge numbers of documents where official translation costs could become prohibitive, some selection among the documents might be possible to narrow down the absolutely require range, but you are best off seeking legal advice on that selection rather than guessing at what Canada might or might not require.
2. Understand that a Crim Rehab/TRP Application is Not a Simple, Quick or Cheap Process
Should despite your explanations Canada find you to be criminally inadmissible, you still have options to gain entry. However we find it’s a common misconception that an application to Canada for criminal rehabilitation or a Temporary Residence Permit (TRP)(sometimes used when it’s too early post-sentence to apply for rehabilitation) is somehow a simple, quick and cheap process. To stand any reasonable chance of success, you must understand that the process is complex, time consuming, and resource intensive.
Just because Canada posts a few forms and basic instructions online doesn’t mean that by filling out the bare minimum of those forms, you’re somehow guaranteed success. Entry to Canada for foreigners is a privilege, not a right. Canada is especially sensitive over letting people with criminal records come to visit, study or work. So if you have any kind of criminal past - even one which didn’t lead to a conviction - you need to be prepared for a major undertaking to be able to enter Canada.
Thinking you can throw together a few pieces of paper and draft a brief sob story in a cover letter where you mainly explain how none of it was really your fault, you’re actually innocent, and you’d really like to see Niagara Falls from the Canadian side is only going to guarantee failure.
Be prepared to wait anywhere from 4 months to 24 months for a review and approval or denial of your criminal rehabilitation or temporary residence permit application.
3. You Need a Legal Opinion on Criminal Equivalency
No foreign criminal offence will match up perfectly with an identical Canadian criminal offence. It’s possible your foreign criminal offence isn’t even a criminal offence in Canada, in which case you have no admissibility problem. It’s also possible that your foreign regulatory offence (like impaired driving in some Australian states) is a serious criminal offence in Canada, in which case you have a major admissibility problem. It’s also possible that your minor foreign criminal offence is considered a major criminal offence in Canada, or your major foreign criminal offence is considered a minor criminal offence in Canada, which will affect whether you could qualify for “deemed rehabilitation” 10 years post-sentence ending, meaning no formal rehabilitation application would be required.
Only a lawyer knowledgeable in criminal law can render a reliable opinion on criminal offence equivalency. You might only need a lawyer in Canada for an opinion, or that lawyer might need to collaborate with a criminal lawyer in the place of your conviction to come to a fully informed opinion. Transnational criminal offence equivalency drives all immigration criminal inadmissibility and rehabilitation analysis in Canada.
4. You Need to Demonstrate You’re a New Man/Woman
Although criminal rehabilitation to enter Canada has lots of technical requirements, what is never explicitly stated anywhere in the government’s instructions is the “new man/woman” requirement. Meaning, just because time has passed from your last offence doesn’t mean you’re “cured” of your criminal tendencies. So you need to sell to the Canadian government that you’re a new man/woman, and thus pose no threat to Canada and Canadians.
Selling your rehabilitation is best done through deeds, not words. So demonstrate all the volunteer work you’re doing now that you’ve turned your life around. Demonstrate the educational activities you’ve undertaken recently. Demonstrate how you have stopped drinking or using drugs, and how they played a role in your earlier offence. You can explain the deeds in a cover letter, but also prove them through supporting documents written by third parties: certificates of volunteer hours, educational diplomas, medical reports, addiction program completion certificates.
5. For TRPs, you need a VERY Good Reason, and Possibly Limitations
If less than 5 years have passed since you completed your sentence, you won’t be eligible to apply for criminal rehabilitation in Canada. And even if you are eligible to apply, given how long it can take to process a rehabilitation application you might also have an urgent need to enter or remain in Canada. The Temporary Residence Permit is the potential solution to these issues.
What most don’t realize is just how difficult it can be to obtain a TRP, because you need a very, very compelling reason for Canada to let you off the hook on the no crim rehab prior to 5 years post-sentence completion rule. Generally speaking, coming to Canada on holiday because you’ve always wanted to see the Rockies sucks as a reason. Seeing your girlfriend is a terrible reason. Even seeing your long lost mother is going to fail.
To get a TRP, you usually need a reason that is strongly in Canada’s national interests, or has very compelling humanitarian and compassionate justification. And with either, there will still be lots of strings attached, so you should ask for as narrow of a visitation window, with limiting conditions, as is possible.
Professional athletes, artists, and business people are most likely to qualify on the national interest basis, but only with compelling supporting evidence and strict conditions. For example, one criminally inadmissible professional athlete reputedly gained entry with a TRP to play in a major game in Toronto - a benefit to Canada - solely on the basis of only being in Canada for 24 hours, and being guarded by private security operators the whole time - not to protect him from Canadians, but to protect Canadians from him.
A child or parent who is dying in Canada might constitute sufficient humanitarian and compassionate grounds to secure a TRP, but the proposed visit should be brief, the evidence that the applicant would leave Canada immediately after the visit must be strong, and the medical evidence demonstrating imminency of death must likewise be compelling.
Criminal inadmissibility to Canada is entirely fixable. But Canada treats a criminal past for any prospective temporary or permanent resident as a big thing. Thus big things require big responses.
Gordon S. Campbell is a Canadian immigration & citizenship lawyer who helps foreign nationals and permanent residents overcome criminal inadmissibility issues. He is the author of three criminal law books, practiced transnational criminal law with the Department of Justice Canada, and has litigated public law cases up to the level of the Supreme Court of Canada.