Criminal Convictions: The Immigration Implications

By Edward C. Corrigan, BA, M.A. LL.B

There is a false impression that exists in the public that Canada's Immigration laws are soft on criminals. This is not the case that there are very strict rules on admission to Canada and that individuals who are suspected of having been convicted of, or even suspected of being convicted of, more than one single summary offence are criminally inadmissible to Canada. For individuals visiting Canada, if they are convicted in Canada for an offence under an Act of Parliament punishable way of an indictment or two summary convictions under an Act of Parliament not arising out of a single occurrence they are inadmissable to this country. This is a very strict standard and even for individuals who are sponsored into Canada based on a marriage. In a marriage sponsorship there would have to be an appeal to the Immigration Refugee Board Immigration Appeal Division to demonstrate that there is sufficient humanitarian grounds to allow entry and that the person is not a risk to Canada before they will be allowed to enter Canada. If one member of a family has criminal convictions that make them inadmissable than the entire family would not be admissible to Canada if they are part of the same application.

These considerations also apply to permanent residents who are convicted of a serious criminal charge. Permanent residents can be found inadmissible on grounds of serious criminality and deported from Canada. If a person is convicted in Canada of an offence under Parliament that is punishable by a maximum term of at least ten years or an offence under the Act of Parliament where a term of prison of more than six months has been imposed then person is inadmissible to Canada. Inadmissibly would also apply to permanent residents if they are convicted of an offence outside of Canada that if committed in Canada would constitute an offence of Act of Parliament where a maximum sentence of at least ten years could be imposed.

It's very important that lawyers who are representing clients keep these immigration matters in mind and that if there is an indictable conviction of the person who has the status of a visitor or if there was more than two summary convictions not arising out of the same occurrence they would be criminally inadmissible to Canada.

For permanent residents there is no appeal of an inadmissibility finding if they have been found to fall under section 64(2) of the Immigration and Refugee Protection Act by having been convicted for serious criminality. This means they have been punished in Canada by term of prison of at least 2 years. A person who is sentenced for two years loses their right to appeal the deportation order and would be automatically removed from Canada. A sentence of two years less a day allows an Appeal to the Immigration Refugee Board Appeal Division based on humanitarian and compassionate grounds and that the individual does not pose a risk to Canada. These immigration considerations have to be kept in mind when criminal lawyers are reviewing matters and discussing plea bargains. These immigration considerations do not normally apply to citizens unless a misrepresentation was made in obtaining Canadian Citizenship.

There are also considerations that must be made with regard to entry into the United States. A citizen of Canada or permanent resident who has been found guilty of two summary convictions involving a moral turpitude, for example is criminally inadmissible to the United States. A crime of moral turpitude is possession of drugs , fraud, a break and enter and prostitution. Only two summary convictions involving moral turpitude makes a person criminally inadmissible to the United States. Not being able to legally enter to the United States would have a tremendous impact on an individuals career, job mobility and their right to enter the United States for holidays or business purposes. If you are criminally inadmissible in the United States you will need to obtain a Waiver or Advance Permission to enter the United States. This permission will have to be renewed yearly. These immigration complications should be something to keep in mind when sentencing matters are dealt with and that all criminal defense counsel need to be aware of the implications of convictions in Canadian courts both in terms of Canadian Immigration law, but also terms of United States immigration law. This summary is a quick overview issues dealing with criminality and immigration, but for a more detailed analysis one should consult an Immigration lawyer. Ed Corrigan is a lawyer certified as a Specialist by the Law Society of Upper Canada in Immigration law and refugee protection with offices located in London Ontario at 383 Richmond St. Suite 902, tel 519-439-4015 and at 3195 Erindale Station, Rd in Mississauga, tel: 905-290-9018. Toll free number is 1-800-883-6217. His email is corriganlaw@linkd.net