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

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:

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:

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.

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    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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    Al Parsai

    Al Parsai is a Regulated Canadian Immigration Consultant (class L3 RCIC-IRB – Unrestricted Practice) in Toronto, Canada. He is an adjunct professor at Queen's University Law School and Ashton College. Al, who holds a Master of Laws (LLM) degree from York University, is a member of CICC and CAPIC organizations. Al, the CEO of Parsai Immigration Services, has represented thousands of applicants from more than 50 countries to the immigration authorities since January 2011.

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