Criminality versus serious criminality in immigration to Canada
Sometimes people become inadmissible to Canada because of criminal history. Unfortunately, even the criminal history of a family member could affect you. The immigration law divides the offences into two distinct groups of criminality and serious criminality. Of course, the consequences are immensely different. Let’s compare criminality versus criminality in immigration to Canada.
- Inadmissibility to Canada
- Criminal inadmissibility
- Terminology of offences
- Convictions inside Canada
- Offences outside Canada
- Port of entry offences
- Immunity to inadmissibility
- Solutions to criminal inadmissibility
- Let us help!
Inadmissibility to Canada
A permanent resident or a foreign national could face inadmissibility. However, Canadian citizens are immune. The outcome of inadmissibility could be one or more of the following:
- Inability to enter Canada
- A prohibition from immigration to Canada
- Refusal of temporary resident applications such as TRV, study permit, or work permit
- Removal from Canada
- Loss of permanent resident status in Canada
- Facing detention under the immigration law
As you can see, the consequences are dire. Therefore, you have to try to resolve inadmissibility with the help of a professional.
Criminal inadmissibility
The Criminal Code of Canada is the primary source of defining criminal offences. However, many other Acts of Parliament include criminal provisions. For example, the Immigration and Refugee Protection Act (IRPA) is one of them. Matters such as human smuggling and misrepresentation are among criminal offences under the IRPA. A person could become criminally inadmissible to Canada because of the following reasons:
- Convictions inside Canada
- Convictions outside Canada
- Committing a crime or rather criminal charges outside Canada
- Committing a crime at a Canadian port of entry
Terminology of offences
To compare criminality versus serious criminality, you must comprehend the following concepts. Of course, I try to simplify the definitions as much as possible.
- Standard of proof means how deeply an immigration officer reviews a case to find a person inadmissible. The standard of proof for most criminal inadmissibilities is “reasonable grounds to believe.”
- Summary Offences: These are offences that are not serious. The conviction usually results in fines and a few days of jail time. Moreover, the maximum prison time for a summary offence is often, but not necessarily, less than six months. Also, there is no right to a jury trial.
- Indictable Offences: An indictable offence could usually result in long-term prison time.
- Hybrid offences happen when the law allows either summary or indictable convictions. Of course, the ultimate decision is for the judge.
- Maximum penalty: The maximum jail time or fines a person could face because of an offence. Therefore, a judge cannot put a person in prison for five years if the maximum penalty is two years.
- Actual prison time refers to the exact duration of imprisonment a judge considers for a person. For example, the maximum penalty could be two years, but the actual prison time could be only three weeks.
Criminality versus serious criminality for convictions inside Canada
If the conviction is inside Canada, then the following bullet points apply:
- The maximum penalty is ten years or more – serious criminality
- The actual prison time is six months or more – serious criminality
- At least one hybrid or indictable offence – criminality
- At least two summary convictions not arising from the same incident – criminality
Of course, for inside Canada, the conviction is a must.
Criminality versus serious criminality for offences outside Canada
If the conviction is outside Canada, the first step is to find the offence’s equivalency in Canadian laws. Therefore, consider the following:
- If the offence is not an offence in Canada, then we are not dealing with criminal inadmissibility.
- The jail time outside Canada is not important. Therefore, focus on equivalency.
- In certain situations, a person could become inadmissible without having a conviction outside Canada. I have written another article to cover this topic. Regardless, I must emphasize inadmissibilities of this nature are not prevalent.
Here is how we recognize between criminality and serious criminality outside Canada.
- The maximum penalty in Canadian laws is ten years or more – serious criminality.
- One indictable offence – criminality
- Two or more summary offences – criminality
What about the port of entry issues
Sometimes people commit an offence at a port of entry. Consequently, the CBSA officers may remove them from Canada under criminal inadmissibility. However, if they charge them, they could face prosecution inside Canada. In such situations, the potential inadmissibility will arise from an inside-Canada conviction.
Who is immune to criminal inadmissibility
Both permanent residents and Canadian citizens are immune to criminal inadmissibility. However, serious criminality affects both foreign nationals and permanent residents alike.
Resolving inadmissibility because of criminality versus serious criminality
Generally speaking, resolving inadmissibility because of criminality is easier than serious criminality. However, if you want to know more about these subjects, please read the following articles:
- Rehabilitation vs Record Suspension in immigration to Canada
- Record Suspension or Pardon for Immigration to Canada
- Application for Rehabilitation – Overcoming Criminal Inadmissibility
- Deemed Rehabilitated in Canada – Deemed Rehabilitation
- TRP – Temporary Resident Permit to Canada – A Remedy for Inadmissibility
- H&C Applications – Humanitarian and Compassionate Canada
Let us help!
Are you facing inadmissibility due to criminality or serious criminality? Are you facing other immigration-related problems? Consider filling out the following form or booking a consultation session with me. I am not a criminal lawyer. However, I have dealt with several criminal inadmissibility cases in the capacity of a seasoned immigration consultant.
If you wish to visit or move to Canada, please fill out our free assessment form. We will review it for free, but we will contact you only if we find an opportunity for you. Alternatively, you may book a consultation session. Consultation sessions are not free, but you will receive formal advice from a licensed practitioner.
Al Parsai, MA, DTM, RCIC
Regulated Canadian Immigration Consultant
Ashton College Instructor – Immigration Consulting
Author – 88 Tips on Immigration to Canada
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