Pending Criminal Charges and Immigrating

Photo by Phil Roeder on flickr.

I have previously written that criminal convictions for foreign offenses can result in individuals being inadmissible to Canada.  I was recently asked what the implication of charges or pending charges that have not yet been adjudicated.

The following is a brief statement of the law, and is probably a more detailed response than the individual who e-mailed me expected.

The Immigration and Refugee Protection Act provides that an individual will be inadmissible to Canada where that person has committed an act abroad that would be considered an indictable offense in Canada.

The Enforcement Manual provides that Officers should apply the “committing an act” provision where charges are pending or where a person has been charged but the trial has not concluded.

The reason for this is straightforward, as it is not in Canada’s interest to make entry to Canada a way of evading criminal proceedings abroad.

A Note on Pending Criminal Convictions in Canada and In-Canada H&C Applications

The rules are somewhat different for inside Canada H&C applications.  The reasoning is that since H&C can always overcome an inadmissibility, it would not be logical to have a pending Canadian criminal charge result in the automatic rejection of an H&C application.

In Sittampalam v Canada (Minister of Citizenship and Immigration), 2006 FCA 326, the Federal Court of Appeal held that:

The jurisprudence of this Court indicates that evidence surrounding withdrawn or dismissed charges can be taken into consideration at an immigration hearing. However, such charges cannot be used, in and of themselves, as evidence of an individual’s criminality.

In Kharrat v Canada (Minister of Citizenship and Immigration), 2007 FC 842, the Federal Cour stated that H&C officers can take pending charges into account.  In Avila v Canada (Minister of Citizenship and Immigration), 2009 FC 13, the court defined the boundaries of a procedurally fair consideration of charges.  It stated that:

In the present case, not only were there no convictions, but the Officer made no attempt to ascertain the underlying facts and circumstances of the charges, and denied the applicants an opportunity to respond. She simply relied on the existence of outstanding charges, which she discovered on FOSS, to impugn the applicants’ good character.  And she did so knowing that the charges were to come before the criminal court within days of her decision, but nevertheless pressed ahead despite the possibility of acquittal on the charges.

In brief, Justice here does not appear to have been done, as a result of this statement [regarding the applicant’s criminal charges] combined [with] the failure of the Officer to wait for the outcome of the criminal proceedings or at the very least to attempt to ascertain the underlying facts and circumstances of the charges and/or to give the applicants an opportunity to respond. It appears therefore from the Officer’s decision and her failure to ascertain or wait for the result of the criminal charges that the Officer was influenced negatively and acted under the prism of pending criminal charges through which she viewed the entire file.

As recently affirmed in Sirisena Kalansyriyage v. Canada (Citizenship and Immigration), 2011 FC 183, an H&C Officer cannot simply note that there is a charge pending without analyzing the specifics of the case further, and providing applicants with an opportunity to respond.