Overcoming an Inadmissibility to Canada – Criminality
If you are planning to travel to Canada and have a criminal record, you may be found inadmissible to the country. Criminal inadmissibility is a broad category and travelers are often surprised when they are screened by a Border Services Officer or asked questions about their criminal record.
There are 3 basic categories of criminality that could result in being denied entry to Canada: Organized Criminality, Serious Criminality, and Other Criminality.
Having gang ties would be a classic example of being refused entry due to organized criminality. Crimes like money laundering, drug smuggling and human trafficking are often assigned to this category as well. Organized criminality is best described as any criminal action taken by members of an organized group that is not restricted by political borders
Even if you have not committed any crimes but the Border Services Officer becomes aware that you are affiliated with a gang or some other group with a criminal element, you risk being denied entry to Canada.
The category of serious criminality is often defined by crimes best described as ‘major’. A major crime could be a felony or indictable offense. Typically crimes that are classified as felonies include: weapons charges, sexual assault, murder or attempted murder, etc. Under Canadian legislation, if the crime were committed in Canada and would result in imprisonment of 10 years or more, then it would be classified as serious criminality.
It is much more difficult to overcome serious criminality charges and denial of entry to Canada is much more likely.
Other criminality tends to be the most common type of criminal inadmissibility experienced by travelers to Canada. Crimes in this category are usually on the misdemeanor level and include offenses such as:
- Disorderly Conduct
- Possession of Drugs or Controlled Substances
- Driving under the Influence of Drugs or Alcohol
- Petty Theft or Shoplifting
Normally in the Canadian system, this type of charge is referred to as a Summary Conviction and will result in imprisonment of less than 5 years.
Surprise Refusals at the Border
Often travelers to Canada do not expect to be stopped at the border or port of entry for these types of relatively minor charges. However, every conviction must be assessed under Canada’s Criminal Code. Quite often under the Canadian system even misdemeanor type charges can potentially be assessed as indictable offences. That means that most misdemeanor charges or even reduced charges can result in a denial of entry if the Border Services Officer believes that you might re-offend or be a risk to Canadians or Canadian society.
It is also common for travelers to Canada to be surprised when an officer asks them about arrests or convictions that may have happened many years ago. The database referenced by Border Services Officers when they are screening travelers contains details of criminal histories at the national, state, and even regional level. Quite often these databases may not be complete, particularly for older charges on record. These older convictions may not have been properly updated in the shift from a paper based to an electronic filing system. What this means is that you may have long ago completed the terms of your sentencing, had your charges expunged, or been found not guilty, but it may not be reflected in the current database.
There have even been cases of travelers being refused simply for having an arrest on record. The arrest may not have resulted in a conviction or may have later been withdrawn by the court. However, if there is only an arrest on record, quite often the Border Services Officer will have to assume you were found guilty of the arrest. Unless there is documentary evidence to prove the contrary, an arrest on record can also result in a refusal of entry to Canada.
Asking for Special Permission – Temporary Resident Permit
If you are traveling to Canada and think that you may be criminally inadmissible, it is in your best interests to ask for special permission to enter the country. This can be done by applying for a Temporary Resident Permit (TRP). A Temporary Resident Permit is a document given to travelers by either a Canadian Consulate or a Border Services Officer which allows someone with a criminal inadmissibility to travel in Canada for a limited period of time.
To obtain a Temporary Resident Permit, you must first submit a TRP application. The application will contain all of the necessary forms and supporting documentation to show that you are not a threat to Canada.
Some of the documentation that could be included with a TRP application could be:
- State police clearances
- FBI police clearances
- Letters of reference from friends, family, or professional contacts
- A personal statement
- Legal cover letters or submission letters
- Employment details
A TRP application can be submitted either at a Canadian Consulate, at the border / port of entry, or both. Most legal professionals working in Canadian immigration law would recommend submitting a complete TRP application at the Consulate beforehand and then traveling to the border or port of entry later. Either way, the application must be prepared in such a way that the Border Services Officer is satisfied that you are not a risk to Canada and should be granted access to the country.
A Temporary Resident Permit can be granted for up to 3 years, but again, this is entirely up to the discretion of the officer processing your application. There have been TRPs granted for as little as 1 day.
The length of validity of a Temporary Resident Permit can be affected by:
Your reason for coming to Canada
- For example, if you are coming to Canada for a business conference, the officer may grant you a TRP only for the duration of the conference. However, if you have strong business ties in Canada and will be required to visit frequently as part of your work duties, the officer may consider granting a longer period of validity.
Adequate supporting documentation
- It is not enough to explain your criminal charge(s) to the Border Services Officer. You will need to provide documentary evidence of your complete criminal background as well as any evidence confirming that you complied with and completed the conditions of your sentencing.
The severity or frequency of the offenses
- The seriousness of the offences and number of times you have offended will have an impact on the duration of the Temporary Resident Permit should one be issued to you. Repeat offences of a similar nature can be of particular concern to an officer.
There are other factors to consider as well. The main thing is to be organized and ready to present your case to the officer in a logical and compelling way.
Asking for Special Permission – Criminal Rehabilitation
Have five years passed?
If over 5 years have passed since you completed your sentence from an offense, you have the option of applying for Criminal Rehabilitation. Unlike a Temporary Resident Permit application, Criminal Rehabilitation applications cannot be processed at the border or port of entry. This type of application must be submitted to a Canadian Consulate in order to be processed.
Advantage of criminal rehabilitation
The advantage of a Criminal Rehabilitation application over a TRP is that once it is granted, it is permanent. There is no expiry date on Criminal Rehabilitation and you will be allowed to travel to and from Canada without requesting special permission. Much of the documentation required for a Criminal Rehabilitation application is similar to that needed for a Temporary Resident Permit application.
How long is the processing time?
Beyond the restriction of 5 years having passed since the completion of sentencing, the other caveat of a Criminal Rehabilitation application is its processing time. Due to the nature of this type of application and that it must be submitted to the Consulate, processing times tend to average from 6 months to a year or more. For those that need to travel to Canada in the next year, Criminal Rehabilitation is not a viable option.
Where should I submit my application?
It is often in your best interest to apply for both Criminal Rehabilitation at the Consulate and a Temporary Resident Permit at the border / port of entry simultaneously. If the TRP application is successful, you will still have access to Canada while awaiting the decision on the Criminal Rehabilitation application. Keep in mind that the Canadian Consulate will take longer to consider Criminal Rehabilitation applications with a serious criminality. Quite often extra fees are requested for processing as well.
Contact Akrami and Associates
If you are considering traveling to Canada with a criminal background, you should consider taking steps to overcome your inadmissibility. By being proactive, you can avoid potentially frustrating or embarrassing situations at the border and present the best case possible to the immigration officer. Our legal team of Canadian immigration lawyers and regulated consultants would be happy to counsel you and help you prepare an application. Don’t take a chance by being unprepared. Let our experience and knowledge work for you!