An individual who is criminally inadmissible to Canada will be eligible to apply for rehabilitation after five years have passed since the individual completed his/her sentence. A sentence can include imprisonment, a fine, or probation.
Next to probation, the payment of a fine is a type of sentence that can significantly extend a person’s sentence for Canadian immigration purposes. The reason is because the payment of fines are often staggered over a period of time. This is especially the case in the United States, where, for example, I have seen fines of $2000 stretched over twenty $100 monthly payments.
The Supreme Court of Canada recently released a decision which makes me wonder whether there may be a potential argument that a fine imposed outside of Canada should not be counted for the purpose of determining eligibility to apply for rehabilitation if the inadmissible person can argue that he/she simply cannot pay it.
In R v. Topp, 2011 FC 43, the accused used his brokerage business to defraud Canada Customs of $4.7 million. The Crown sought a $4.7 million fine in addition to imprisonment. The trial judge sentenced the accused to imprisonment but declined to impose a fine because she was not satisfied as required by s. 734(2) of the Criminal Code that the accused was able to pay a fine.
Section 734(2) of Canada’s Criminal Code provides that:
Except when the punishment for an offence includes a minimum fine or a fine is imposed in lieu of a forfeiture order, a court may fine an offender under this section only if the court is satisfied that the offender is able to pay the fine or discharge it under section 736.Read more ›
The test for determining whether an individual is inadmissible to Canada is closely inter-twined with the criminal justice system of every country that that person has lived in. The determining factor for whether an individual is inadmissible to Canada or not is whether the person was convicted. It is not what the sentence was.
Our immigration system’s emphasis on convictions over sentences bears little resemblance to how the criminal-justice system of most countries work. Most people who are charged with an offense are more concerned with what their sentence will be (“will I receive jail time?”) as opposed to whether they are convicted. Accordingly, plea-bargaining has become the hallmark of most states’ criminal-justice system. Individuals who probably would not be convicted of their serious original charge are more than willing to avoid the risk of being convicted by pleading guilty to a lighter offense in exchange for little to no sentence.
Unfortunately, this leads to the trend of there being a lot more people with criminal records out there then there otherwise would be if people did not succumb to plea-bargaining, and if prosecutors not able to so rely on bargain results. The Journal of Law, Economics and Policy recently published an article highlight this relationship between plea-bargaining and overcriminalization. The article is titled “Overcriminalization 2.0: The Symbiotic Relationship between Plea Bargaining and Overcriminalization”, and can be downloaded here.
Some key excerpts include:
There is an enormous problem with plea bargaining, particularly given that over 95% of defendants in the federal criminal justice system succumb to the power of bargained justice.
(Citing the United States Supreme Court) This is not to say that guilty plea convictions hold no hazard for the innocent or that the methods of taking guilty pleas presently employed in this country are necessarily valid in all respects.Read more ›
Individuals can be inadmissible to Canada for numerous reasons, including criminality, misrepresentation, medical issues, and non-compliance with Canadian immigration legislation. This latter reason, non-compliance with the Canadian immigration legislation, can seem extremely vague. Fortunately, the Citizenship and Immigration Canada Manual contains a list of the different frequently used reasons for declaring someone inadmissible for non-compliance with the Act.
- Entering Canada to remain on a permanent basis without first obtaining a permanent resident visa.
- Entering Canada to remain on a temporary basis without first obtaining a temporary resident visa.
- Entering Canada to study without first obtaining a study permit.
- Entering Canada to work without first obtaining a work permit.
- Not answering questions truthfully or producing required relevant documents.
- Not submitting to a medical examination.
- Not holding a medical certificate that is based on the last medical examination.
- Not holding the required documents to enter Canada.
- Not establishing that the person will live Canada by the end of the authorized period.
- Where a person is subject to an enforced removal, returning to Canada without authorization.
- Working without authorization.
- Studying without authorization.
- Not leaving Canada at the end of the authorized period.
- Not reporting to a port of entry examination without delay.
- Being a permanent resident and not complying with the residency requirement.
Given all this, you might wonder how it is that more people aren’t declared inadmissible to Canada. The reason is that immigration officers have the discretionary power to decide whether or not to write what is known as an A44(1) inadmissibility report.Read more ›
Last updated on September 13th, 2018
Sometimes, the Immigration and Refugee Protection Act and its regulations can force individuals to make really difficult choices. I recently encountered this when a client presented issues raising a refugee claim based on sexual orientation, an inadmissible spouse who had been working with a work permit, potential misrepresentation based on a misunderstanding of the law, and really difficult choices.
Because I for obvious reasons cannot get into any details on my own clients, I’m going to present the “inadmissible spouse issue” by summarizing a recent Federal Court case: Abalos v. Canada (Citizenship and Immigration).
In Abalos, the Applicant was a live-in caregiver living in Canada whose application for permanent residence was approved-in-principle. As there was nothing to suggest that she was medically or criminally inadmissible, the coast was essentially clear for her to become a permanent resident.
Prior to the Applicant’s application being approved in principle, the Applicant married a refugee claimant in Canada. The man was from the same country that she was.
Shortly after learning that her application was approved-in-principle, the Applicant sent a letter to Citizenship and Immigration Canada informing them that she had gotten married.
One month later, the Applicant’s husband’s refugee claim was rejected. The rejection of the refugee claim resulted in the husband being the subject of an unenforceable removal order.
This, unfortunately, triggered the application of s. 113(1)(e) of the Regulations, which provide that:
113. (1) A foreign national becomes a member of the live-in caregiver class if
(e) they are not, and none of their family members are, the subject of an enforceable removal order or an admissibility hearing under the Act or an appeal or application for judicial review arising from such a hearing;Read more ›
Last updated on August 7th, 2019
One of the challenges in immigration law is determining the appropriate balance between the understandable necessity of ensuring that visa applicants are upfront and honest and humanitarian & compassionate considerations (“H&C considerations”).
In the removals context, s. 67(1)(c) of Canada’s Immigration and Refugee Protection Act specifically provides that removal orders issued as a result of misrepresentation may be excused in light of sufficient H&C considerations. As the Federal Court of Canada noted in Li v Canada (Public Safety and Emergency Preparedness), 2016 FC 451, even though Parliament intended there to be consequences for misrepresentation, it also recognized that there may be circumstances where a removal order issued due to misrepresentation may be cured by H&C relief
The balancing act can be especially complex when children are involved. In Baker v. Canada (Minister of Citizenship and Immigration), the Supreme Court of Canada stated that H&C considerations require that immigration officers consider the best interests of a child when there are children involved.
As I have previously discussed on this blog, this principle has created a bit of a myth that the bests interests of a child will be determinative in any application. This is simply not the case. For example, in Canadian Foundation for Children, Youth, and the Law , the Supreme Court declared that:
It follows that the legal principle of the “best interests of the child” may be subordinated to other concerns in appropriate contexts. For example, a person convicted of a crime may be sentenced to prison even where it may not be in his or her child’s best interests. Society does not always deem it essential that the “best interests of the child” trump all other concerns in the administration of justice.Read more ›
Last updated on June 13th, 2019
The subject unreasonable delays often arise in the immigration context. In one case that I was previously involved with, an individual was in Canada for 11-years before the Canada Border Services Agency expressed concerns that he might be inadmissible to Canada for previous involvement in a group accused of terrorism. In another case, an individual who had been in and out of Canada numerous times was suddenly denied entry to Canada because of a criminal conviction that occurred eight years ago. In both cases, the client asked whether the delay amounted to an abuse of process, and if so, what the remedy was.
As the Federal Court of Appeal noted in Mahjoub v. Canada (Citizenship and Immigration), 2017 FCA 157, the Federal Court of Canada has the jurisdiction to issue a permanent stay of proceedings, and less drastic measures, as a result of an abuse of process. It is less clear whether the Immigration and Refugee Board can issue stays of proceeding for delays. In Canada (Public Safety and Emergency Preparedness) v. Najafi, 2019 FC 594, Associate Chief Justice Gagné held that it does, but certified the following question:
Do the Immigration Division and the Immigration Appeal Division of the Immigration and Refugee Board have the jurisdiction to grant a permanent stay of proceedings based on an abuse of process on the basis of a delay which is alleged to have occurred following the signing of the s. 44(1) report and/or s. 44(2) referral?
Blencoe v. British Columbia
The leading Supreme Court of Canada decision on this issue is Blencoe v. British Columbia, 2000 SCC 44 .
In Blencoe,Read more ›
Are you an American citizen who was recently denied entry to Canada while attempting to cross the border? Were you told that you were “inadmissible for criminality” and that you were “not allowed to enter Canada for 2, 3, 4, or even up to ten years?”
Many Americans are often stunned to discover that they are inadmissible to Canada for offenses that are just misdemeanors in the United States. Examples that our office has recently dealt with include:
- Negligent driving in Washington State (easily the most common reason that an individual is denied entry);
- Fishing off limits in Alaska;
- Trespassing in Nevada;
- Reckless driving in Wisconsin;
- Possession of cocaine in Oregon;
- and the list goes on and on.
You Have Options
If you have been denied entry into Canada because of a criminal record, or if you are wary of even attempting to cross because you believe that you will be denied entry, then it is important to know that you always have options.
Our offices regularly assists individuals who have been told that they are inadmissible to Canada.
Amongst the services that we can help you with include:
- Determining whether you were actually “convicted”. Many people mistakenly think that if they were sentenced for an offense, then they must have also convicted. This, however, is not always the case. It is important to note that Canadian border officials often do not have your full criminal record. They know you were charged with an offense. They may even know that you were convicted.
Section 122 of the Immigration and Refugee Protection Act states:
122. (1) No person shall, in order to contravene this Act,
(a) possess a passport, visa or other document, of Canadian or foreign origin, that purports to establish or that could be used to establish a person’s identity;
(b) use such a document, including for the purpose of entering or remaining in Canada; or
(c) import, export or deal in such a document.
The consequence of being found guilty of s. 122(1)(a) is liability to conviction on indictment of up to a term of imprisonment of a maximum of 5 years. The average sentence winds up ranging from 4 months – 2 years imprisonment. It is rare for a conditional sentence to be imposed.
The consequence of being found guilty of ss. 112(1)(b)-(c) is conviction on indictment to a term of imprisonment of up to 14 years.
An additional, and important, consequence, is that if you are convicted of an offense under s. 122 of IRPA, then you will be inadmissible to Canada for at least five years.
Read more ›
If you have a s. 34(2) Application for Ministerial Relief being processed then you need to read this. The Federal Court of Appeal (the “Court”) has just released a ruling that has turned this area of the law upside down, and that will likely result in your application being rejected. You need to contact your immigration consultant or lawyer to discuss the implications of this case.Read more ›
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.Read more ›
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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