Immigration
Visiting Canada this winter? How to avoid criminal inadmissibility issues at the border
Many will look to visit the Great White North this winter now that Canada’s borders have re-opened and the Christmas holidays are around the corner.
Visitors from the U.S. and other parts of the world will be keen to see their family and friends, as well as enjoy the Canadian outdoors. This winter season is of added significance given that Canada’s borders were closed to most travellers last winter.
Before you plan your trip, it is important to note you may be deemed inadmissible to Canada if you have a criminal charge on your record. Canada may turn you away depending on factors such as the severity of your offense. At the same time, Canada offers three major remedies to allow such individuals to enter the country. The rationale for the remedies is that individuals have the ability to be rehabilitated. Moreover, the benefits to Canada’s economy and society of welcoming such individuals are likely to outweigh potential risks.
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When you show up at the border, a Canada Border Services Agency (CBSA) officer will assess the nature of your conviction and compare it with its equivalent in Canadian law. Canadian immigration law makes a distinction between criminality and serious criminality. Three factors are examined when making the distinction: the type of crime committed, how you were prosecuted, and what your sentence was.
As noted, Canada does offer three ways to overcome criminal inadmissibility. The three ways are applying for a Temporary Resident Permit, Rehabilitation, and getting a Legal Opinion Letter.
Temporary Resident Permit (TRP)
You can apply to obtain a TRP if you are inadmissible and need to visit Canada temporarily. You must demonstrate a compelling reason for your visit to Canada and show that the benefits of your trip outweigh any risks. If your application is successful, you will receive a TRIP valid for up to three years. U.S. citizens and Green Card holders can apply for a TRP at a Canadian port-of-entry or a Canadian consulate. Those seeking a TRP from elsewhere must obtain approval while abroad before seeking entry to Canada. The processing fee for a TRP is $200 CAD. As the name implies, a TRP is a temporary solution for entering Canada and you need to continue to hold a valid TRP to enter the country until you are found to be rehabilitated.
Rehabilitation
Unlike the TRP, Rehabilitation is a permanent solution. This means once Canada considers you to be rehabilitated, you can visit the country as you wish without needing to worry about being deemed criminally inadmissible.
There are two forms of rehabilitation: deemed and individual.
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Factors for consideration include the nature of the crime, the amount of time that has elapsed since you were convicted, and your subsequent behaviour.
Deemed rehabilitation can be automatic, based on the nature of the crime and the time that has passed since conviction. One can be deemed rehabilitated if 10 years have elapsed since they completed their sentence for an indictable offense, and have not committed any other crimes since. However, there is no deemed rehabilitation if the punishment for the conviction is 10 years or more under Canadian law.
You can also be deemed rehabilitated if at least five years have passed since you were convicted for two or more summary offenses in Canada (i.e., minor offenses).
You do not need to submit an application to be deemed rehabilitated. However it is in your best interests to speak with your local Canadian consulate or a Canadian immigration law firm to confirm that you are eligible to enter Canada.
It may also help to obtain a Legal Opinion Letter from a law firm just in case a CBSA officer has any doubts about your eligibility.
You need to apply for individual rehabilitation if you are not eligible for deemed rehabilitation. Five years must have elapsed from when the act was committed or the end of your sentence (whichever came later).
As part of the application process, you need to demonstrate at least five years have indeed elapsed, you are no longer a risk for criminality, and you no longer pose a risk.
The application cost is $200 CAD for criminality and $1,000 CAD for serious criminality.
Legal Opinion Letter
Legal Opinion Letters are your third option to overcome criminal inadmissibility at the Canadian border. The letters are prepared by lawyers and contain arguments as to why you should be able to enter Canada despite your criminal record. The letter can challenge a conviction or charge, or conversely, acknowledge the conviction. The lawyer may argue the likes of you are deemed rehabilitated; your offense was an isolated incident and/or less serious in nature; or potentially, there is no Canadian equivalent to your offense. Legal Opinion Letters can be used to support a TRP or Rehabilitation application.
It is important to remember that while Canada has strict rules, it does look to accommodate entry into the country. Preparing in advance of your trip by understanding your options on how to overcome criminal inadmissibility can help you avoid unexpected surprises at the Canadian border.
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Daniel Levy
