Category: Inadmissibility

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 about: Inadmissibility for Acts of Violence that Would or Might Endanger the Lives or Safety of Persons in Canada  »

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  »

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  »