Section 34(1)(d) of the Immigration and Refugee Protection Act (the “IRPA”) provides that a permanent resident or a foreign national is inadmissible on security grounds for being a danger to the security of Canada.
Standard of Proof
Section 33 of the IRPA provides that the facts which can give rise to an inadmissibility under IRPA s. 34(1)(d) include facts arising from omissions and, unless otherwise provided, include facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur.
In Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, the Supreme Court of Canada stated that the “reasonable grounds to believe” standard requires something more than mere suspicion, but less than the standard applicable in civil matters of proof on the balance of probabilities and that reasonable grounds will exist where there is an objective basis for the belief which is based on compelling and credible information.
Requirements
In Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, the Supreme Court stated:
While the phrase “danger to the security of Canada” must be interpreted flexibly, and while courts need not insist on direct proof that the danger targets Canada specifically, the fact remains that to return (refouler) a refugee under s. 53(1)(b) to torture requires evidence of a serious threat to national security. To suggest that something less than serious threats founded on evidence would suffice to deport a refugee to torture would be to condone unconstitutional application of the Immigration Act. Insofar as possible, statutes must be interpreted to conform to the Constitution.
» Read more about: Inadmissibility for Being a Danger to Canada »
Read more ›Section 25 of Canada’s Immigration and Refugee Protection Act provides that applicants can seek humanitarian & compassionate relief from the harsh application of other portions of Canadian immigration legislation.
When the IRPA was created s. 25 was short two paragraphs, and read:
25. (1) The Minister shall, upon request of a foreign national who is inadmissible or who does not meet the requirements of this Act, and may, on the Minister’s own initiative, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligation of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to them, taking into account the best interests of a child directly affected, or by public policy considerations.
Provincial criteria
(2) The Minister may not grant permanent resident status to a foreign national referred to in subsection 9(1) if the foreign national does not meet the province’s selection criteria applicable to that foreign national.
In 2020, s. 25 is much longer, and reads:
25 (1) Subject to subsection (1.2), the Minister must, on request of a foreign national in Canada who applies for permanent resident status and who is inadmissible — other than under section 34, 35 or 37 — or who does not meet the requirements of this Act, and may, on request of a foreign national outside Canada — other than a foreign national who is inadmissible under section 34, 35 or 37 — who applies for a permanent resident visa, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national,
» Read more about: Restrictions on H&C »
Read more ›Inadmissibility for Acts of Violence that Would or Might Endanger the Lives or Safety of Persons in Canada
People who immigrate to Canada are typically aware that if they are convicted of certain criminal offences that they could lose their permanent resident status. When immigrants are charged with criminal offences, immigration lawyers and criminal defense counsel will accordingly often work together to do their best to ensure that those charged do not lead to deportations. It is therefore important to note that the Canada Border Services Agency has recently taken an exceptionally strict approach to interpreting Canadian immigration legislation which could fundamentally change the immigration consequences of violent actions in Canada. The issue is now before the Federal Court of Canada.
The Consequences of Criminal Records
Canadian immigration legislation provides that a permanent resident is inadmissible to Canada on grounds of serious criminality if they have been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least ten years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed.
The first thing to note about the above is that a conviction is required. A conviction is a finding by a Canadian court that a person is guilty of an offence. A charge or a confession is not a conviction. A conviction that is set aside on appeal is also not a conviction for immigration purposes, nor is an absolute or conditional discharge, which is where a finding of guilt is made, but no conviction against the individual is registered.
The second thing to note about the above is that only convictions for certain offences will result in a permanent resident being inadmissible to Canada. The offence must either be one whose maximum penalty is a term of imprisonment of ten years or more,
Read more ›American nationals wishing to visit Canada may be unable to do so if they have a criminal record which renders them inadmissible to Canada. In order to overcoem their inadmissibility, they need to either apply for criminal rehabilitation or a temporary resident permit (a “TRP”).
TRPs
Section 24 of the IRPA provides that:
A foreign national who, in the opinion of an officer, is inadmissible or does not meet the requirements of this Act becomes a temporary resident if an officer is of the opinion that it is justified in the circumstances and issues a temporary resident permit, which may be cancelled at any time.
The Immigration, Refugees and Citizenship Canada (“IRCC“) TRP guidelines (the “Guidelines”) provide officers with the following guidance on issuing TRPs:
Generally, individuals who do not meet the requirements of the Immigration and Refugee Protection Act (IRPA), or who are inadmissible under the IRPA, may be
- refused a permanent resident visa (PRV) or temporary resident visa (TRV) abroad
- refused an electronic travel authorization (eTA)
- reported inadmissible under section A44(1)
- allowed to withdraw their application to enter Canada at a port of entry (POE)
- refused processing within Canada
In some cases, however, an officer may issue a TRP to allow a person who is inadmissible, or who does not meet the requirements of the IRPA, to become a temporary resident (that is, to enter or remain in Canada) if it is justified in the circumstances.
TRPs allow officers to balance the objectives of the IRPA to meet Canada’s social, humanitarian and economic commitments, while maintaining the health and security of Canadians.
When A TRP May Be Issued
The IRCC Guidelines state that officers may issue a TRP when both of the following apply:
- The purpose of the individual to enter or remain in Canada is balanced when the objectives of the IRPA are considered;
» Read more about: TRPs for Americans »
Read more ›Discretion is the freedom to decide what should be done in a given situation. In the criminal justice system, in 2014 the Supreme Court of Canada (the “SCC“) in R v. Anderson recognized that prosecutorial discretion “is a necessary part of a properly functioning criminal justice system.” Examples of prosecutorial discretion include the decision to repudiate a plea agreement, the decision to pursue a dangerous offender application, the decision to prefer a direct indictment, the decision to charge multiple offences, the decision to negotiate a plea, the decision to proceed summarily or by indictment, and the decision to initiate an appeal.
Similarly, in R. v. Beaudry, the Supreme Court recognized the importance of police discretion, noting that:
Applying the letter of the law to the practical, real‑life situations faced by police officers in performing their everyday duties requires that certain adjustments be made. Although these adjustments may sometimes appear to deviate from the letter of the law, they are crucial and are part of the very essence of the proper administration of the criminal justice system, or to use the words of s. 139(2), are perfectly consistent with the “course of justice”. The ability — indeed the duty — to use one’s judgment to adapt the process of law enforcement to individual circumstances and to the real‑life demands of justice is in fact the basis of police discretion
As the Supreme Court further wrote, “a system that attempted to eliminate discretion would be unworkably complex and rigid.”
However, in the immigration system, the Government of Canada, with the seeming approval of many Federal Court of Canada judges, has removed much of the discretion from Canada Border Services Agency (“CBSA“) officers in their administration of the Immigration and Refugee Protection Act (“IRPA“).
» Read more about: Chipping Away At Discretion »
Read more ›Last updated on March 28th, 2021
Sections 36(1)(a) and (b) of the Immigration and Refugee Protection Act states:
36 (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for
(a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed;
(b) having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years;
Sections 36(2)(a) and (b) of the Immigration and Refugee Protection Act states:
(2) 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;
This blog post discusses what is a conviction.
» Read more about: What is a Conviction »
Read more ›Last updated on January 9th, 2020
On June 28, 2019 Immigration, Refugees and Citizenship Canada substantially changed the guidance that it provides to officers regarding the issuance of Temporary Resident Permits (“TRPs“). The biggest change was the removal of the statement that TRPs could not be issued for administrative convenience.
People who do not meet the requirements of the Immigration and Refugee Protection Act (the “IRPA“), and most commonly people who are criminally inadmissible to Canada and who are not eligible to apply for rehabilitation, require TRPs in order to enter or remain in Canada.
» Read more about: Temporary Resident Permits »
Read more ›Last updated on March 11th, 2021
Section 40 of the Immigration and Refugee Protection Act provides that a permanent resident or foreign national is inadmissible to Canada for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of Canada’s immigration laws.
The general consequence of misrepresenting is a five-year ban from entering Canada.
Canada is very strict on misrepresentation. In Bundhel v. Canada (Citizenship and Immigration), 2014 FC 1147, for example, Mr. Bundhel had been charged and convicted with an offence, which had been overturned on appeal. Mr. Bundhel would accordingly not have been criminally inadmissible to Canada. Because of this, he put on his immigration forms that he had never been charged or arrested. When it discovered thathehad been previously charged, Citizenship and Immigration Canada wrote to him and provided him with an opportunity to explain why he misrepresented. After the immigration officer reviewed the Mr. Bundhel’s explanation that it was an innocent mistake, the officer refused the application, and declared the person inadmissible to Canada for misrepresentation. The Court wrote (citations removed):
Mr. Bundhel’s complaint that the Officer should have considered the fact that he owned-up to the problem at the first available opportunity is also unjustified. Mr. Bundhel only acknowledged the true facts when he was confronted with them. This is not equivalent to a situation where an applicant owns-up to a mistake before it is brought to light or where the file already contains the correct information. In such a case, a favourable inference is more likely to be drawn because it is suggestive of an innocent mistake and not a wilful omission. The same point is made in Uppal v Canada (Minister of Citizenship and Immigration),
» Read more about: Misrepresentation »
Read more ›Last updated on December 9th, 2020
Section 40 of the Immigration and Refugee Protection Act provides that a permanent resident or foreign national is inadmissible to Canada for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of Canada’s immigration laws.
The general consequence of misrepresenting is a five-year ban from entering Canada. As well, s. 40(3) of the Immigration and Refugee Protection Act provides that a foreign national who is inadmissible to Canada for misrepresentation cannot apply for permanent residence during the five year bar. In Gill v. Canada (Citizenship and Immigration), 2020 FC 33 the Federal Court ruled that applications submitted during the bar are a “nullity” and as such refusals cannot be appealled to the Immigration Appeal Division.
Canada is very strict on misrepresentation. In Bundhel v. Canada (Citizenship and Immigration), 2014 FC 1147, for example, Mr. Bundhel had been charged and convicted with an offence, which had been overturned on appeal. Mr. Bundhel would accordingly not have been criminally inadmissible to Canada. Because of this, he put on his immigration forms that he had never been charged or arrested. When it discovered thathehad been previously charged, Citizenship and Immigration Canada wrote to him and provided him with an opportunity to explain why he misrepresented. After the immigration officer reviewed the Mr. Bundhel’s explanation that it was an innocent mistake, the officer refused the application, and declared the person inadmissible to Canada for misrepresentation. The Court wrote (citations removed):
Mr. Bundhel’s complaint that the Officer should have considered the fact that he owned-up to the problem at the first available opportunity is also unjustified.
» Read more about: Misrepresentation »
Read more ›On June 18, 2015 the Secure Air Travel Act received Royal Assent. It enhanced the Passenger Protect Program, more commonly called the “no-fly list.”
The previous Conservative Government of Canada strengthened the Passenger Protect Program in response to an increase in the number of individuals travelling from Canada to participate in foreign conflicts, and in particular joining ISIS.
The Passenger Protect Program is an air passenger security program. Through it the government works with air carriers to screen commercial passenger flights to, from and within Canada, and uses measures to mitigate the threat if a listed individual attempts to board an aircraft.
The specific categories of individuals who can be impacted include (a) those who are suspected of posing a threat to transportation and (b) those who are attempting to travel abroad by air to support terrorism-related activities.
Individuals who are subject to a denial of boarding, also known as those on the Specified Persons List, can make an application to the Minister of Public Safety and Emergency Preparedness to be removed.
The government does not publish the Specified Persons List, nor does it say how many people are on the list.
» Read more about: The Passenger Protect Program »
Read more ›DISCLAIMER
Please note that none of the information on this website should be construed as being legal advice. As well, you should not rely on any of the information contained in this website when determining whether and how to apply to a given program. Canadian immigration law is constantly changing, and the information above may be dated. If you have a question about the contents of this blog, or any question about Canadian immigration law, please contact the Author.
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