Deemed Rehabilitated in Canada – Deemed Rehabilitation

Nora is a 39-year-old Norwegian citizen. A court in Norway convicted her for possession 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.

One of the objectives of the Canadian immigration law, IRPA, is to protect the safety of Canadians. As a result, a criminal history could make you inadmissible to Canada.

• Inside vs. outside Canada 
• Comparing criminality and serious criminality
• Examples of serious criminality
• Indictable vs. summary offences
• Examples of criminality
• Definition of deemed rehabilitation
• Deemed rehabilitation flowchart
• How to act when you are deemed rehabilitated
• Offences that never qualify for deemed rehabilitation
• Let us help!

Criminal history inside or outside Canada

If your criminal history is inside Canada, this article is not for you. You either need to apply for a record suspension or a TRP in such situations. However, 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 of at least ten years.
• Criminality – A criminal offence under Canadian law is an indictable offence or multiple offences, whether summary or indictable offences.

Remember that our focus in this article is the offences that happened and was 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, 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, you may face inadmissibility because of misrepresentation.

Consider reading the following article for more information:

• Criminality versus serious criminality in immigration to Canada

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 268 of the Canadian Criminal Code, the maximum punishment for aggravated assault is 14 years in prison (assuming it does not result in the victim’s death). Since the maximum sentence is more than ten years, aggravated assault is serious criminality.
• Human trafficking under immigration laws refers to organizing “the coming into Canada of one or more persons utilizing 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.
• For fraudulent purposes, arson could refer to putting 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 a serious crimes. Also, keep in mind that sometimes a simple charge without conviction is enough for inadmissibility for outside Canada cases.

Indictable versus summary offences

Offences in Canada could be indictable or summary.

• 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 to 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 stem from the same incident, IRPA considers them one offence. Here are some examples of criminality for outside Canada convictions or charges. 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(1)(c) of IRPA, if a person hires a foreign national without 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 a 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, 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?

After this long introduction, let’s define “deemed rehabilitation.” The IRCC and CBSA officers consider a person with a criminal record deemed rehabilitated under the following circumstances:

1. Deemed to be rehabilitated for indictable offences (commission or conviction)
   • Only one crime outside Canada,
   • the crime is criminality, and
   • more than ten years have passed since the completion of the sentence.
2. Deemed rehabilitated for summary offences (conviction)
   • All the offences are summary offences and
   • more than five years have passed since completing 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 have a criminal history outside Canada, 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 enables you to 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 disagrees with you, the process becomes more complex, and you may apply 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. You could seek relief under section 42.1 of the IRPA or another potential solution in such circumstances. Consult with a professional for your options.

Let us help!

If you want us to help you with deemed rehabilitation or other immigration issues, fill out the following form. Alternatively, please book a consultation session with me. However, you may fill out our assessment form for immigration options.