Last updated on May 7th, 2019
A difficult situation that some prospective immigrants who are already inside Canada face is that they have a criminal record that they have not previously disclosed to Canadian immigration officials.
What is often especially unfortunate in such situations is that the criminal conviction can be really old, but the instances where someone failed to disclose their conviction to Canadian immigration officials more recent.
Having successfully represented several individuals in such situations obtain permanent residency, there are several legal principles that I think anyone in such a situation needs to understand.
1. An individual who has a foreign criminal record can apply to Canadian immigration officials for a determination that they are rehabilitated if it has been more than five years since the sentence was completed.
Rehabilitation assessments are forward-looking. The test is whether a person is likely to commit criminal conduct. Officers must consider both positive an neutral factors relevant to the application.
2. An individual not disclosing a criminal record to Canadian immigration authorities can be treated as a negative factor in a rehabilitation assessment.
The Federal Court has in several cases (such as Tejada v. Canada) held that an individual’s past dealings with Canadian immigration authorities is a relevant factor in determining whether an individual is likely to commit a criminal offence in Canada in the future, with the logic being that a person who is willing to break immigration legislation might also be willing to break criminal laws. In a pair of 2018 decisions that neatly summarize the law, Justice Diner held that misrepresenting one’s criminal history can tip the balance towards recidivism over rehabilitation (Yu v. Canada), but not necessarily in the case of someone fleeing oppressive conditions (Tahhan v. Canada).
3. In determining whether someone has misrepresented the existence of a criminal record, it is important to analyze one’s previous interactions with Canadian immigration officials on this issue.
Prior to the introduction of the Electronic Travel Authorisation, people who could travel to Canada without a visa were often never asked if they had a criminal record. This was especially true for individuals who applied for work permits at Canadian ports of entry. Because these individuals were never directly asked whether they had criminal records, visa officers were more forgiving for their omission than they would have been for someone who had outright misrepresented.
Immigration officials are also generally forgiving where someone did not realise that they were charged with a criminal offence. The most frequent area that this occurs is in the drunk driving context, which in many jurisdictions is dealt with administratively rather than criminally. Indeed, the Canadian province of British Columbia provides a good example of how complicated it can be to know whether one has been charged with a criminal offence. Police officers in British Columbia can decide to issue someone roadside citations under provincial regulations rather than criminal ones. If someone were later asked whether they had ever been charged with a criminal offence it is unclear what they should say.
4. It is better to disclose than be caught.
As a general rule immigration officials are much more forgiving to individuals who disclose criminal records than to those who are caught with them.