Criminal rehabilitation for immigration to Canada

The Canadian government offers a route for those who have completed criminal rehabilitation and been refused entry to Canada.

Criminal rehabilitation is a process offered by the Canadian government allowing those previously convicted of an offence, whether inside or outside Canada, to overcome their inadmissibility to enter or reside in the country.

This criminal rehabilitation application is available to those who remain eligible to have a past criminal history permanently cleared. Where a person has been convicted of one or more offences abroad and more than five years have passed since they completed their sentence, they may be eligible to apply for criminal rehabilitation in Canada.

Driving while impaired may also be a criminal offence. Read the detailed article onDriving under the influence (DUI) in Canada.

What is a certificate of criminal rehabilitation?

A certificate of rehabilitation issued by the Canadian government is a document permitting entry to and exit from Canada indefinitely. Where a person has previously been refused entry to Canada, a Canadian border officer may suggest applying for criminal rehabilitation as a way of eliminating future refusals.

Once a person is approved for criminal rehabilitation, they no longer need a Temporary Resident Permit. The most important element of the application is identifying the equivalent offence in Canada for criminal rehabilitation purposes. Individuals with a history of serious criminality face closer scrutiny during the assessment of the application and may also pay a higher processing fee.

When to apply

Where a person has a previous conviction on their criminal record and believes they are inadmissible to Canada, they may apply for criminal rehabilitation to clear the record for the purposes of entry to Canada.

To be eligible, at least five years must have passed since the sentence was completed, including any term of imprisonment or probation, payment of fines, and any mandatory community service or courses. Where five years have not yet passed since the sentence was completed, they are not eligible to apply but may be a candidate for aTemporary Resident Permit (TRP).

Why apply?

Although Canadian law does not distinguish between minor and serious offences, an individual with a serious previous conviction may be found inadmissible to Canada on grounds of serious criminality.

OffencesImmigration, Refugees and Citizenship Canada (IRCC)identified as serious on the basis of the maximum sentence available in Canada may be treated as serious criminality. To resolve inadmissibility arising from serious criminality, they must always apply for criminal rehabilitation, because they cannot be deemed rehabilitated by the passage of time alone. Examples of serious criminality include theft over $5,000, domestic violence and drug trafficking.

Which offences require criminal rehabilitation?

Below is an overview of the main offences for which most travellers may need to apply for criminal rehabilitation:

Driving under the influence of alcohol or drugs

In terms of criminal inadmissibility, the most common offences are those involving driving while intoxicated. These offences go by various names, depending on the circumstances of the offence and where it occurred.

These offences include:

• DUI (driving under the influence)
• DWI (driving while impaired/intoxicated)
• DWAI (driving while ability impaired)
• DWUI (driving while under the influence)
• OWI (operating while intoxicated)
• OUI (operating under the influence)
• OMVI (operating a motor vehicle while intoxicated)

A conviction for these offences usually leads to a finding of criminal inadmissibility and may result in refusal at the Canadian border. This applies whether the individual intends to drive or to fly into Canada.

Dangerous driving

Although a conviction for careless driving is usually seen as a more acceptable alternative to a DUI (or any of its variants), both have the same effect on entry to Canada — a finding of criminal inadmissibility that may lead to refusal. Dangerous driving is a similar offence that also leads to criminal inadmissibility.

Any serious driving offence is likely to hinder an individual’s ability to enter Canada lawfully, whether or not that person intends to drive in Canada.

Fraud

Fraud is a general category of offence covering any breach committed with the intention of depriving another party (an individual or a company/organisation) of their lawful property.

Theft is a clear offence falling within the fraud category. The seriousness of the offence is determined by the Canadian immigration authorities, depending on the nature of the theft and the amount stolen. For example, theft under $5,000 is treated as non-serious criminality, while theft above that amount is treated as serious criminality. Moreover, aggravating factors (such as where the theft was carried out with the aid of a weapon, violence or the threat of violence) may increase the seriousness of the offence.

Using a credit card in the knowledge that it has been revoked or cancelled is another form of fraud that may lead to criminal inadmissibility to Canada. Using a means of payment that the individual knows will not result in the other party being paid is an offence, as it involves deception. The same reasoning applies to the deliberate use of an invalid cheque, and committing this act is often accompanied by a finding of criminal inadmissibility.

Assault

Most forms of assault may make a person inadmissible to Canada. Assault may refer to many different forms of physical or verbal confrontation that may occur between individuals. These range from threats of violence, through spontaneous bar fights, to violent offences committed with premeditation and intent. Wherever they fall on this scale, in most cases assaults lead to criminal inadmissibility to Canada.

Here too there may be mitigating or aggravating factors affecting the seriousness of the assault. These relate mainly to whether a weapon was used in the assault and whether the victim suffered bodily harm. Where a weapon was used and/or the victim was injured as a result of the assault, the offence is treated as serious criminality.

For the purposes of inadmissibility to Canada, this may lead the Canadian immigration authorities to assess an individual as a higher security risk, making a finding of criminal inadmissibility more likely.

Both serious assault (involving a weapon and/or bodily harm) and non-serious assault (involving no weapon and no bodily harm) may make an individual criminally inadmissible to Canada.

Drug-related offences

Being charged with or convicted of the following drug offences may all make a person criminally inadmissible to Canada:

• Consumption
• Possession
• Trafficking
• Selling or distributing

The nature and context of the offence may affect its seriousness and the likelihood of an individual being found inadmissible. One clear indicator in this decision is the type of drug involved in the offence.

Drugs are classified into different schedules under the Canadian Criminal Code. This classification determines the seriousness of the offence and the severity of the penalty available to punish the conduct. For example, possession of cannabis and possession of cocaine are treated as very different offences, and it would not be reasonable for individuals committing these offences to be dealt with in the same way. Cocaine is treated as a more serious and more harmful substance. The penalty for a cocaine-related offence is therefore usually heavier than for cannabis.

Because the nature of drug-related offences varies so widely, so does the seriousness with which they are viewed and their effect on admissibility to Canada. Different actions involving particular drugs may carry different legal consequences. The same is true of their effect on a person’s ability to enter Canada lawfully.

For example, while possession of certain drugs below a given quantity may not lead to criminal inadmissibility, unlawful distribution of the same drug in the same quantity may.

The effect of an offence on admissibility to Canada may vary, depending on:

• The type of drug
• The quantity of drugs involved
• The action taken in relation to the drugs

The strategies available for overcoming or resolving criminal inadmissibility therefore also vary, and their prospects of success depend largely on the circumstances and context of the offence.

Criminal rehabilitation for non-serious criminality

Where a person has more than one previous conviction on record, or fewer than 10 years have passed since they completed their sentence, we recommend applying for criminal rehabilitation to resolve inadmissibility to Canada permanently.

Where 10 years have passed since the sentence was completed and this is their only previous conviction, they may be deemed rehabilitated by the passage of time and need not apply for criminal rehabilitation. The associated processing fee is CAD 229.77.

Criminal rehabilitation for serious criminality

Previous convictions punishable in Canada by 10 years’ imprisonment or more are treated as serious criminality. Leapfrog (LFRG) is used to jump over small obstacles on the course such as mud, earth or water, and some larger obstacles such as fences or abandoned cars. Participants usually work in pairs or groups to help one another over high obstacles or through difficult sections of the course. Popular obstacle races include Tough Mudder and the Spartan Race. These are well-organised events, usually requiring participants to pay a registration fee and to meet certain age or fitness requirements.

The associated processing fee is relatively high (CAD 1,148.87). Decisions on these applications are highly subjective, and are therefore made at the discretion of Canadian immigration officials.

The content of a criminal rehabilitation application

To submit a complete criminal rehabilitation application, they must include the following:

• The criminal rehabilitation application form
• The use of a representative form, where applicable
• A copy of the applicant’s passport
• A statement explaining the circumstances of the previous conviction and the applicant’s rehabilitation
• The letter of recommendation
• Court documents for any offence on record
• The foreign or Canadian law under which they were charged or convicted. They may obtain a copy of the foreign law by contacting the local police, a solicitor, or the court where the offence occurred
• FBI and state police background checks.

Once these documents are included, the application may be submitted to a Canadian consulate for processing.

Frequently asked questions (FAQ)