The Trouble you can Run Into with ETA Questions That Might Require a Lawyer's Help

Because Canada is processing an estimated 3.5 million eTAs per year (!) there are bound to be lots of people encountering problems with them. Some problems might arise just from the way the form was filled out. Other problems might derive from administrative deficiencies. And still other problems could stem from legitimate sources of inadmissibility to Canada.

You might be able to fix some of the eTA problems of an administrative nature yourself, but because of the huge volume of ETA applications, you should be prepared for delays in sort out things with the government. 

Why Interpreting ETA Health Questions Can be a Problem

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?”

You 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. 

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? 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. Do you follow the wording of the actual question, or wording of the guide? This can get very confusing, and might easily lead to misunderstandings that create entry to Canada problems.

Why Interpreting ETA Criminality Questions Can Be a Problem

Equally confounding is the eTA 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 not just asking if you've been convicted an an offence for which no pardon has been issued. Rather, they're asking if you’ve ever done anything, anywhere in the world, that no one other than you knows about! 

Canada has experienced a creeping expansion of the wording of criminal inadmissibility immigration screening questions over the past few years in application documents. The wording of s. 36 of the Immigration and Refugee Protection Act rules foreign nationals inadmissible for certain types and degrees of criminality based on actual “convictions.” Having “committed” or been “arrested” or “been charged with” are arguably only relevant to other provisions of the Act concerning associations with organized crime, terrorism or war crimes, which 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. 

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"?

Why a Case by Case Approach is Necessary to Advising on ETA Answers

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, be it health, criminality, or other questions contained within the eTA application.

Say “yes” too readily to any of the questions, 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. 

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.