Criminal Inadmissibility to Canada: Rehabilitation, TRPs and Your Options

How inadmissibility works

Section 36 of the Immigration and Refugee Protection Act (IRPA) creates two tiers.

Serious criminality, s. 36(1), can apply to a permanent resident or a foreign national who:

• was convicted in Canada of a federal offence with a maximum term of at least 10 years, or one that drew a sentence of more than six months; or
• was convicted abroad of conduct that would carry a Canadian maximum of at least 10 years; or
• committed such an act abroad that is an offence where it happened.

Criminality, s. 36(2), applies only to a foreign national, not a permanent resident. It covers a Canadian conviction for an indictable federal offence, or for two federal offences arising from separate occurrences, along with the parallel convictions or acts outside Canada.

One rule connects the tiers: under s. 36(3)(a), an offence that can be prosecuted either summarily or by indictment is treated as indictable, even if the Crown proceeded summarily. The tier matters because the deemed-rehabilitation class in the regulations is limited to offences that would carry a maximum of less than 10 years.

Equivalency: how a foreign offence is compared with Canadian law

For an offence committed abroad, the wording of ss. 36(1)(b) and 36(2)(b) points the officer to the Canadian side: would the conduct "constitute an indictable offence" here, and what maximum would apply? The comparison is between the foreign conduct and the Canadian offence it would amount to.

Several features follow from the text:

• The Canadian maximum penalty drives the serious-criminality test for a foreign conviction. The sentence actually received abroad does not.
• The label used abroad does not decide the question; what matters is whether the conduct would be an indictable offence in Canada, and a hybrid Canadian offence counts as indictable under s. 36(3)(a).
• Paragraphs 36(1)(c) and 36(2)(c) turn on committing an act that is an offence where it happened, so a conviction is not always required.
• Under s. 36(3)(b), inadmissibility cannot rest on a conviction for which a record suspension has been ordered, unless it was later revoked or ceased to have effect.

IRCC states that a record suspension or discharge granted in another country is something to check with the visa office, which will say whether it is valid in Canada. A foreign expungement is therefore not something to assume will be recognized.

Impaired driving: the 10-year maximum

The date of the offence matters. Justice Canada says the impaired-driving reforms (former Bill C-46, Royal Assent on June 21, 2018) replaced the earlier transportation provisions and raised some maximum penalties. For an older offence, which maximum applied should be confirmed with a lawyer.

Permanent residents face a different set of consequences. Our separate guide on an impaired driving charge and your status covers that situation.

The main routes

Whether the sentence counts as "completed" is a fact question. IRCC's pages mention probation, fees and fines, time in custody and restitution.

Criminal rehabilitation in practice

Individual rehabilitation is requested from IRCC and decided by the Minister or a delegate. IRCC says the person has to show they meet the criteria, have been rehabilitated and are highly unlikely to take part in further crimes. At least five years must have passed since the sentence ended and since the act that made the person inadmissible. A fee applies, and the regulations set it at $1,000 for serious criminality and $200 for criminality (as of the date of this article; confirm the current amount).

Material that a lawyer typically helps assemble:

• Court records showing the charge, the disposition, the sentence and proof it was completed
• Police certificates from the country of conviction and, per IRCC's self-assessment list for deemed rehabilitation, from anywhere the person lived for six months or longer in the last 10 years
• Evidence of rehabilitation, such as employment, community support and an explanation of what happened
• A written account of the events and what has changed since
• Legal submissions on equivalency and on which paragraph of s. 36 applies

IRCC notes that these applications can take over a year to process, so the timing of any planned travel is worth considering early.

Temporary resident permits

Under s. 24(1) IRPA, an officer who considers a foreign national inadmissible may issue a temporary resident permit if the officer believes it is justified in the circumstances. IRCC describes the decision as weighing the person's need to enter or stay against the health or safety risks to Canadian society.

IRCC says a permit lets a person enter or stay where fewer than five years have passed since the sentence ended, or where there are valid reasons to be in Canada. Even if the inadmissibility looks minor, IRCC says the person must show the visit is valid.

A permit does not erase the inadmissibility. Under s. 24(1) it can be cancelled at any time, which is one reason a permit and a rehabilitation application serve different purposes.

If the person is already a permanent resident

The framework changes for permanent residents: s. 36(1) and the reporting process reach them, but s. 36(2) does not.

Where an officer forms the view that a permanent resident is inadmissible, a report can be prepared (s. 44(1)), and the Minister may send it on for an admissibility hearing (s. 44(2)). A removal order can be appealed under s. 63(3), yet s. 64 closes that appeal for serious criminality. Under s. 64(2), "serious criminality" for this purpose covers a crime punished in Canada by six months or more of imprisonment, and also the foreign-conviction and foreign-act cases in s. 36(1)(b) and (c).

Because the sentencing judge fixes that term, the immigration effect of a sentence is a question that arises in the criminal case itself. The companion guide linked above looks at this in more depth.

Common points of confusion

• Assuming deemed rehabilitation applies. The regulation limits it to offences that would carry a maximum under 10 years in Canada, and to foreign convictions or acts.
• Counting the wrong start date. For deemed rehabilitation the regulation counts from the day after the imposed sentence was completed; for individual rehabilitation it counts from the completion of the sentence (or, for an act-only case, from the offence).
• Non-disclosure. Under s. 40(1)(a) IRPA, misrepresenting or withholding material facts that could induce an error in administering the Act is a separate ground of inadmissibility.
• Relying on a foreign expungement. IRCC says to confirm with the visa office whether it is valid in Canada.
• Travelling without being assessed. IRCC's page says a person who travels without applying risks being turned away at the port of entry.

When it is worth talking to a lawyer

A lawyer can usually add the most where one of these is present:

• A refusal, a report under s. 44, or an admissibility hearing notice
• Uncertainty about which tier a foreign offence falls into
• A planned trip or application with a short timeline
• A permanent resident facing sentencing for an offence that may carry six months or more
• A past record that was not declared in an earlier application

Useful documents to gather: court records and sentence orders, proof of completed sentence and payment, police certificates, passport and immigration history, and any earlier IRCC correspondence.