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.
Section 14.2 of Immigration, Refugees and Citizenship Canada’s (“IRCC“) Enforcement Manual 2 – Evaluating Inadmissibility provides guidance as to how immigration authorities determine whether something is a criminal conviction.
A conviction is a finding by a competent authority that a person is guilty of an offence.
A charge, which is the specific statement of what crime an individual is accused of, or a confession is not a conviction.
A criminal conviction will not result in someone being inadmissible to Canada if it is set aside on appeal.
A criminal conviction in Canada will also not result in someone being inadmissible to Canada if the court grants an absolute or conditional discharge. In Canada, a discharge is a sentence passed in criminal court in which an individual is found guilty of an offence but is deemed not to have been convicted. A discharge which has conditions is a conditional discharge. Once the conditions are met it can become an absolute discharge.
A criminal condiction outside of Canada will not result in someone being inadmissible to Canada if the person is granted a pardon in a foreign jurisdiction and the pardon is recognized as equivalent to a Canadian pardon.
A conviction does exist if someone has a suspended sentence, the person unsuccessfully appeals the conviction or the person is convicted in absentia.
In addition to what is in the IRCC manual, it is important to note that IRCC will generally not result in a conviction for immigration purposes where there is an acquital, a stay of proceeding, an extra-judicial measure or a peace bond.
The IRCC Guidelines contain the following table explaining whether certain US dispositions would be considered a conviction for immigration purposes.
|Defined Acquittal contemplating dismissal||Not a conviction; would likely have the same effect as a conditional discharge.|
|Deferral of sentence||This is a conviction providing the offence equates to Canadian law; similar to a suspended sentence in Canadian law|
|Deferral of prosecution||Not a conviction. A deferral indicates that no trial on the merits of the charge has been held; similar to a stay in Canadian law.|
|Deferral of judgment||Not a conviction. If the conditions imposed in the deferral are fulfilled, the judgment finally rendered may be a finding of “not guilty.”|
|Deferral of conviction||Not a conviction. It is a form of disposition equivalent to a conditional discharge in Canada.|
|Nolo contendre||A Latin phrase meaning “I will not contest it.” It is a plea that may be allowed by the court in which the accused does not deny or admit to the charges. This plea is similar to pleading guilty and a conviction results.|
|Nolle prosequi||A Latin phrase meaning “I will no longer prosecute.” The effect is similar to a stay of prosecution in Canada and no conviction results.|
|Sealed record||A sealed record is, for the purposes of IRPA, a criminal record. The fact that a sealed record exists does not in and of itself constitute inadmissibility. An officer should determine the circumstances of the sealed record by questioning the person concerned. A sealed record is usually the process used in the case of young offenders; however, a sealed record may also be used because an agreement between the prosecutor and the defendant or in security cases. In the state of Vermont, for example, a record may be sealed if a person abides by terms and conditions imposed by the court. A sealed record will appear on a person’s “rap sheet”; however, the record will not be made public without a court order. In the case of a sealed record, an officer should ask whether the record was the result of a conviction as a minor. If the person was a minor, then it would most likley equate to an offence under the Young Offenders Act – unless the case would have been eligible for transfer to an adult court.|
|Convicted of several counts||Multiple convictions. Counts in the U.S. are equivalent to charges in Canadian law.|
|Expunged||Not a conviction. Expunged means to strike out; obliterate; mark for deletion; to efface completely; deemed to have never occurred.|
In addition to the above, it is important to note that not all states use the term “conditional discharge” the way that it is used in Canada. In New York, for example, a conditional discharge is similar to a suspended sentence, and would still result in someone being inadmissible to Canada.