Criminal

Criminal inadmissibility is one of the most serious and complex areas in Canadian immigration law. Under IRPA ss.36(1) and 36(2), individuals may be deemed inadmissible for criminality or serious criminality, whether the conduct occurred inside or outside Canada. Criminal inadmissibility affects temporary residence, permanent residence, sponsorship eligibility, citizenship applications, and re-entry into Canada. Even minor criminal records from abroad can bar entry, while more serious offences can lead to deportation, loss of status, and long-term restrictions. Following is a comprehensive, practitioner-level analysis of criminal inadmissibility, equivalency assessments, rehabilitation pathways, Temporary Resident Permits (TRPs), record suspensions, appeals, Federal Court remedies, and strategies to protect or restore admissibility.

Criminal assessments require a detailed understanding of both Canadian criminal law and the law of the foreign jurisdiction where the offence occurred. Immigration officers and border officials rely on legal equivalency analysis—comparing foreign offences to Canadian Criminal Code provisions—which makes criminal inadmissibility a technical and evidence-intensive field. Skilled counsel can minimize the impact of past convictions, challenge inadmissibility determinations, and prepare submissions that restore the applicant’s ability to enter or remain in Canada.

Legal Framework Under IRPA

Criminal inadmissibility falls into two broad categories:

1. Serious Criminality – IRPA s.36(1)

A person is inadmissible for serious criminality if:

• they have been convicted in Canada of an offence with a potential maximum sentence of 10 years or more, or
• they have been convicted outside Canada of an offence that, if committed in Canada, would carry a maximum sentence of 10 years or more, or
• they have committed an act outside Canada that would be an offence in Canada punishable by 10 years or more.

Serious criminality often leads to removal orders for permanent residents.

2. Criminality – IRPA s.36(2)

A person is inadmissible for criminality if:

• they have been convicted outside Canada of an offence equivalent to a hybrid or indictable offence in Canada,
• they have two summary conviction offences, or
• they have committed an act abroad that would be an indictable offence if committed in Canada.

One hybrid offence abroad may be enough to cause inadmissibility.

Criminal Equivalency Analysis

The core of criminal inadmissibility is equivalency. Officers compare:

• the foreign statute,
• the essential elements of the offence,
• the facts of the conviction,
• the Canadian Criminal Code provision most similar to it.

Challenges commonly arise due to:

• foreign statutes being broader than Canadian offences,
• lack of mens rea equivalency,
• improper reliance on police reports rather than conviction records,
• incorrect factual assumptions.

If the officer misapplies equivalency, the applicant may not be criminally inadmissible at all.

Types of Offences Commonly Triggering Criminal Inadmissibility

• DUI / DWI / impaired driving,
• assault,
• domestic violence,
• theft and fraud,
• drug possession or trafficking,
• weapons offences,
• financial crimes,
• public-order offences.

Offences like DUIs have become particularly significant since legislative reforms increased maximum penalties.

DUI and Serious Criminality

Since 2018 amendments to the Criminal Code, impaired driving is now punishable by up to 10 years, making it serious criminality even for first-time offenders. This impacts:

• temporary residents,
• permanent residents facing removal proceedings,
• foreign nationals requiring TRPs,
• rehabilitation eligibility timelines.

Impact on Permanent Residents

Permanent residents convicted of serious criminality may face:

• admissibility hearings,
• loss of PR status,
• deportation orders,
• Federal Court challenges.

Appeals to the Immigration Appeal Division (IAD) may be barred for serious criminality if the sentence imposed is six months or more.

Impact on Temporary Residents

Foreign nationals convicted abroad often face refusal of:

• visitor visas,
• study permits,
• work permits,
• PR applications.

Border officers may deny entry even if the foreign conviction is old.

Rehabilitation as a Long-Term Solution

There are two types of rehabilitation:

1. Deemed Rehabilitation

• Available for less serious offences,
• Applies after 10 years of clean history,
• Dependent on the nature and number of offences.

2. Individual Rehabilitation

• Available after 5 years have passed since completion of the sentence,
• Requires showing remorse, stability, law-abiding conduct, and reform,
• Requires extensive documentation.

Rehabilitation removes inadmissibility permanently once granted.

Temporary Resident Permits (TRPs)

A TRP allows entry despite criminal inadmissibility. TRPs require:

• a compelling purpose of travel,
• low risk of reoffending,
• evidence of reform,
• a favourable risk-benefit analysis.

Officers have wide discretion in issuing TRPs; strong submissions greatly improve outcomes.

Record Suspensions (Pardons)

For offences committed inside Canada, a record suspension may eliminate criminal inadmissibility. Criminal record suspension applications require:

• waiting periods depending on the offence,
• court documents and police checks,
• character references,
• evidence of rehabilitation.

Once granted, a suspension generally resolves inadmissibility issues based on Canadian convictions.

Admissibility Hearings (Immigration Division – ID)

Permanent residents may be referred to the Immigration Division for an admissibility hearing. Counsel can:

• challenge equivalency findings,
• challenge police evidence,
• argue legal interpretation issues,
• present evidence of rehabilitation,
• attack credibility issues in government evidence.

Strong cross-examination and legal argumentation are critical at this stage.

Role of the Immigration Appeal Division (IAD)

Eligible permanent residents may appeal a removal order on the basis of:

• legal errors,
• humanitarian and compassionate considerations,
• rehabilitation,
• establishment in Canada,
• best interests of children.

However, PRs with a sentence of six months or more lose the right to appeal for serious criminality.

Judicial Review at the Federal Court

Federal Court review is available when:

• officers misapply equivalency,
• decisions lack justification,
• TRP refusals are unreasonable,
• rehabilitation refusals rely on improper considerations,
• procedural fairness is breached.

Court intervention often results in a fresh assessment.

Evidence Required in Criminal Inadmissibility Cases

Typical evidence includes:

• foreign court judgments,
• police certificates,
• sentencing records,
• expert legal opinions on foreign law,
• rehabilitation evidence,
• psychological reports (if relevant),
• employment records,
• letters of reference.

Accuracy and translation quality are critical.

Strategies for Resolving Criminal Inadmissibility

• Challenge equivalency errors early.
• Seek record suspension for Canadian convictions.
• Apply for rehabilitation as the long-term solution.
• Use TRPs for urgent travel needs.
• Prepare legal opinions for visa officers.
• Gather strong evidence of reform and rehabilitation.

The Importance of Skilled Counsel

Criminal inadmissibility is among the most technical and high-risk areas of immigration law. Skilled representation ensures:

• accurate equivalency analysis,
• proper interpretation of IRPA and Criminal Code provisions,
• strategic use of rehabilitation and TRPs,
• effective representation at hearings and appeals,
• strong submissions tailored to the client’s needs.

With professional guidance, clients can overcome criminal inadmissibility, regain admissibility, and pursue temporary or permanent immigration goals in Canada.