Deemed Rehabilitated in Canada – Deemed Rehabilitation
Nora is a 39-year-old Norwegian citizen. A court in Norway convicted her for possession of a small amount of a controlled substance, cocaine, for personal use. Consequently, she served twenty-five days in jail. Upon release, Nora decided to change her ways. She went back to school and became a professional accountant. Nora has no other issues with the law in Norway or anywhere else before or after that incident. She wants to travel to Canada, but she wonders if her criminal history could cause any trouble. She wonders if she is deemed rehabilitated or not.
Criminal History Inside or Outside Canada
If the criminal history is inside Canada, then this article is not for you. In such situations, you either need to apply for a record suspension or a TRP. If the criminal history is outside Canada, continue reading.
Criminality versus Serious Criminality
Canadian immigration law divides criminal history outside Canada into two significant groups.
- Serious Criminality – A criminal offence that under Canadian laws is punishable by a maximum term of imprisonment that is at least ten years.
- Criminality – A criminal offence that under Canadian law is an indictable offence or multiple offences whether they are summary or indictable offences.
Remember that our focus in this article is the offences that happened and prosecuted outside Canada. Regardless, we have to find the Canadian equivalency.
If the offence is not an offence in Canada, then your criminal record does not count. For example, homosexuality is not a crime in Canada. However, it is a crime in some countries of the world. If you have a conviction solely to be a homosexual, then your criminal history does not count in Canada. Of course, you still need to disclose it to the immigration authorities to convince them there is no criminal equivalency in Canada. If you do not disclose, then you may face inadmissibility because of misrepresentation.
Examples of Serious Criminality
To make it a bit easier to understand, here are some examples of serious criminality:
- Aggravated assault usually refers to physically harming another person with the help of a deadly weapon. Under section 286 of the Canadian Criminal Code, the maximum punishment for aggravated assault is 14 years in prison (assuming it does not result in the death of the victim). Since the maximum sentence is more than ten years, aggravated assault is serious criminality.
- Human trafficking under the immigration laws refers to organizing “the coming into Canada of one or more persons by means of abduction, fraud, deception or use or threat of force or coercion.” Under section 120 of IRPA, the maximum punishment for human trafficking is life imprisonment. As a result, human trafficking is serious criminality.
- Arson for the fraudulent purpose could refer to put your property on fire so you can defraud the insurance company. Under section 435(1) of the Criminal Code, the maximum penalty for such an act is ten years imprisonment. Consequently, arson for fraudulent purposes is serious criminality.
These are some examples of serious criminality. Of course, there are many more offences that IRPA considers them serious criminality.
Indictable versus Summary Offences
- Summary Offences: These are offences that are not serious. The conviction usually results in fines and a few days of jail time. The maximum prison time for a summary offence is generally less than six months. Also, there is no right for a jury trial.
- Indictable Offences: An indictable offence could usually result in long-term prison time.
Sometimes the law allows an offence to be prosecuted summarily or by the way indictment. Such offences are hybrid offences. Unfortunately, IRPA considers these offences indictable regardless of the way of prosecution.
Examples of Criminality
As I mentioned earlier, criminality refers to a single indictable conviction or more than one offence in the past whether summary or indictable conviction. However, if multiple charges are stemming from the same incident, IRPA considers them as one offence. Here are some examples of criminality. All these examples are either indictable or hybrid offences.
- Under subsection 4(3) of the Controlled Drugs and Substances Act, possession of cocaine for personal use could result in jail time for up to seven years. As a result, this offence is criminality.
- Under paragraph 124(a)(c) of IRPA, if a person hires a foreign national without holding a valid work permit, they have committed an offence. Furthermore, subsection 125(1) of IRPA considers a maximum penalty of two years in prison for the employer. Hence, it is criminality.
- Theft under $5000 could result in maximum prison time of two years under section 355 of the Criminal Code. As a result, it is criminality.
I must emphasize these are for offences that occur outside Canada. If the offence occurs in Canada, then the actual prison time could turn the offence from criminality to serious criminality. However, this topic is outside the scope of this article.
What is Deemed Rehabilitation
- Deemed rehabilitated for indictable offences (commission or conviction)
- Only one offence outside Canada,
- the offence is criminality, and
- more than ten years have passed since the completion of the sentence.
- Deemed rehabilitated for summary offences (conviction)
- All the offences are summary offences and
- more than five years have passed since the completion of the sentence for the last offence.
As you can see, there is no deemed rehabilitation for serious criminality. If you do not meet any of the above conditions and you have a criminal history outside Canada, then consult with a professional for alternative options (Note to practitioners, see R18).
Deemed rehabilitation flowchart
The following flowchart helps you understand whether you are deemed rehabilitated or not. Of course, it also helps you pursue your alternative options.
What to Do if You Are Deemed Rehabilitated
If you believe you are deemed rehabilitated, you need to present enough evidence to the immigration or border officer to prove you meet the conditions mentioned above. Regardless, you may apply for a visa or immigration to Canada just like those who do not have a criminal history. Of course, if the officer does not agree with you, the process becomes more complex, and you may end up applying for a certificate of rehabilitation or a TRP.
Security, Human Rights Violations, and Organized Criminality
Deemed rehabilitation does not apply to inadmissibility because of security (e.g. terrorism or espionage), human rights violations, or organized criminality. In such circumstances, you could seek relief under section 42.1 of the IRPA or another potential solution. Consult with a professional for your options.
If you wish to visit or move to Canada or if you have encountered any issues with the immigration authorities, you may fill out our free assessment form or book a consultation session to assess your potential opportunities or offer you immigration, visa, or citizenship advice.
This article provides information of a general nature only. It may no longer be current. It does not give legal advice nor should you rely on it as legal advice. If you have specific legal questions, you should consult a lawyer. If you are looking for immigration advice, book an appointment. All the characters in the articles are fictional, unless otherwise clearly stated. Any resemblance in names, dates, and places (whether individuals, organizations, regions, or countries) is coincidental.