Inadmissibility to Canada

By equivalency. The officer identifies what the foreign offence would be under Canadian law and then reads the Canadian maximum for that offence. The sentence the foreign court imposed is close to irrelevant. Somebody who paid a small fine abroad for an offence equivalent to one carrying ten years here is inadmissible for serious criminality. Somebody who served real time abroad for something equivalent to a summary offence here may not be inadmissible at all.

Two convictions change the arithmetic even where each is minor. Section 36(2)(a) catches two offences not arising out of a single occurrence, whatever their individual seriousness, so a pair of unrelated minor matters can do what neither would do alone.

This is why the paperwork matters more than the memory of it. The court record, the charging document and the sentence imposed are what allow the equivalency to be worked out. A client's description of what happened, however honest, is not enough to tell whether the border is closed.

There are four routes and they do different jobs. Deemed rehabilitation clears an old, lesser matter automatically: one conviction equivalent to an indictable offence punishable here by less than ten years, with ten years elapsed since the day after the sentence was completed, or two or more summary equivalents with five years elapsed. Nothing is filed and nothing is issued, which means nothing confirms it either. An officer at the border can take a different view, and many people ask for a formal opinion rather than arrive and find out.

Individual rehabilitation is the application, available five years after the sentence has been completed. It costs $246.25 where the inadmissibility is criminality and $1,231 where it is serious criminality. Approval is permanent and covers the offences it names.

A temporary resident permit is the route when there is no time to wait. Section 24 lets an officer issue one to somebody who is inadmissible where the need to enter outweighs the risk, for up to three years, and it costs $246.25. It is discretionary, it is a permission rather than a fix, and the underlying inadmissibility survives it.

A Canadian record suspension from the Parole Board removes the conviction from the police database and resolves the inadmissibility that came with it. A pardon or expungement from another country generally does not, unless it can be shown to be equivalent to a Canadian one. Clients arrive with foreign pardons believing the matter closed more often than with any other single misunderstanding on this page.

Three things, at section 38(1). A condition likely to be a danger to public health. A condition likely to be a danger to public safety. And a condition that might reasonably be expected to cause excessive demand on health or social services. The third is the one that produces almost all of the letters.

Excessive demand is measured against a published threshold set at three times the average Canadian per person cost of health and social services, which was tripled by a policy change in 2018 and is revised, so the current figure is worth reading rather than assuming. The assessment is individual: no condition is automatically disqualifying, and the question is the projected cost rather than the diagnosis.

Section 38(2) then removes the excessive demand ground entirely for a group of people. A spouse, common-law partner or child sponsored in the family class. Convention refugees and people in similar circumstances. Protected persons. And prescribed family members of those people. A sponsored spouse or child cannot be refused for excessive demand at all, which is the answer to a question this office is asked constantly and one that no amount of worrying changes.

Where the ground does apply, the answer to a fairness letter is a mitigation plan: evidence of who will pay, what the treatment actually costs, and why the projection in the letter is higher than the reality. It is an evidence exercise, and the deadline in the letter is real.

Because section 40(1)(a) has no intention in it. The wording is directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of the Act. Could induce. The error does not have to happen, and the person does not have to have meant anything by it.

What the section does require is materiality. A fact is material where it bears on the decision, which is why an omitted earlier refusal, an undisclosed former spouse or an unmentioned prior visa application are the recurring cases. All three feel private to the applicant and all three go to a relevant matter.

The consequence is five years, and the start date decides how bad it is. Where the finding is made outside Canada the five years run from the final determination. Where it is made in Canada they run from the day the removal order is enforced, so somebody who stays and litigates has not begun serving it. Section 64(3) removes one appeal against a misrepresentation finding, the sponsor's appeal under subsection 63(1), and keeps even that where the person refused is the sponsor's spouse, common-law partner or child.

Where a procedural fairness letter arrives before any of that, it is the whole opportunity. The answer explains the discrepancy and puts the documents behind it, and it is worth far more at that stage than any argument made afterwards.

At the sentence, and usually before anybody has thought about it. The two numbers that decide the immigration outcome are both set in the criminal court. Whether the offence carries a Canadian maximum of at least ten years, which puts it into section 36(1) and reaches permanent residents. And whether the term imposed is at least six months, which removes the appeal to the Immigration Appeal Division under section 64(2).

That second number is negotiable in a way the first is not. A sentence of five months and a sentence of six months are close to identical for the person serving them and completely different afterwards, because one leaves an appeal and the other does not. A conditional discharge is not a conviction, and a plea to a lesser included offence can move the matter out of section 36(1) altogether.

None of that is available once the sentence has been imposed. It has to be raised while the Crown is still deciding what it will accept, which means whoever is running the criminal matter has to know the client's status and what the plea will do to it. Where the defence and the immigration file sit with two different firms, that conversation frequently does not happen.

This firm runs both, in the same office. That is the reason the criminal side and the immigration side of a file are read together here rather than in sequence.