How to Immigrate to Canada with a Criminal Record

22.01.2022

What to do If You Have a Criminal Record and Want to Immigrate to Canada

This article is only relevant to people with a conviction of some kind on their police record. 

What is Criminal Inadmissibility to Canada?

Criminal inadmissibility is when a person has committed an offense of some sort. It can be a minor offense or it can be a serious one, but by committing that offense, they make themselves inadmissible to Canada. 

How will a Criminal Record impact my Permanent Residency Application?

How it is treated will depend on the seriousness of the offense according to Canadian law, how much time has passed since you finished serving any penalty and paying and fines associated with the offense, and how many offenses you have had.

If I try to apply a different way to Canada such as PNP or via a study visa program will I still be Criminally Inadmissible?

If you have not yet been deemed admissible to Canada then yes you will still be criminally inadmissible to Canada no matter which program you apply for.

Is there anything I can do?

Yes, the good news in most cases is something can be done.

In some cases you can get an acquittal so that your conviction is removed, you could resolve the matter, you could also be deemed rehabilitated by Canada if the offense was minor, you only have one offense and time has passed, or you could seek rehabilitated status from the Canadian Court.

It is very important you understand what is possible for you and that you sort everything out about your Criminal Inadmissibility before you lodge your documents for Permanent Residency.

 

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What is rehabilitation in terms of Canadian immigration?

Rehabilitation is about criminal inadmissibility to Canada. If someone can be deemed rehabilitated from the offense they committed, or if they can have their record suspended or seek rehabilitation confirmation from the Canadian court, then they are again able to enter Canada.  

What is “deemed rehabilitation”?

If you have committed an offense in the past, your goal is to be considered rehabilitated by Canada for Immigration purposes. Ideally, you want to be “deemed rehabilitated” in the eyes of Canada, which will allow you to continue with your permanent residency application.  

So, what does “deemed rehabilitated” mean and how do you become “deemed” rehabilitated and Immigrate to Canada with a Criminal Record

There are certain conditions, that if you meet them, Canada will deem you rehabilitated for immigration purposes. This means your offense will not negatively impact your application and you can apply in the same way as if you had no offense on your record.

To do this you must understand the nature of the offense you committed, its equivalent offense in Canada, and the rules around which types of offenses can be deemed rehabilitated and under what conditions. We will go through these in detail below.

If after reading the details below you can see that you qualify to be deemed rehabilitated, then the way you apply for this is through your immigration officer.

What you need to do is to submit enough documents to prove to the immigration officer that you are deemed rehabilitated (by showing you meet the conditions for deemed rehabilitation) and you are not inadmissible to Canada anymore. 

 

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We will now work through how you determine if you qualify to be deemed rehabilitated.

First, ask yourself, 

“Was the offense committed inside Canada or not?”

My offense was committed inside Canada

If the conviction is inside Canada, then rehabilitation is not an option. You need to go through the court system in Canada, and either receive an acquittal or a record suspension acquittal which means that the system tells you that you are not convicted anymore and maybe the original conviction was a mistake in the first place.

Alternatively, if they believe that the conviction was correctly determined, but they agree to remove your name from the criminal records of RCMP, then you receive what is called a record suspension. If you receive an acquittal or a record suspension then you are no longer inadmissible to Canada.

Summary of offense committed in Canada

So for convictions inside Canada, the only direction would be acquittal or record suspension. If you can not obtain either of these then unfortunately you remain Criminally Inadmissible to Canada.

 

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My offense was committed outside Canada

If your offense was committed outside Canada, you first need to confirm if you have been convicted yet.

So ask yourself 

“Have I been convicted yet or have I only been charged so far and am waiting for a conviction?”

If you have not received the conviction yet, but you are charged by a prosecutor outside Canada, your best bet is to try to resolve that issue through the foreign court first.

Canada can’t yet make you inadmissible if it does not know if you are going to be convicted, this needs to be finalized. Do all you can to avoid a conviction. If no conviction is recorded then make sure your record is clear and you are no longer inadmissible to Canada.

If you end up with a conviction in Canada, then you will need to obtain rehabilitation to become admissible. 

Summary of offense committed outside Canada but still only charged, no conviction as yet

Do all you can to settle the matter without a conviction. If you are convicted, follow the steps below to determine if you can be deemed rehabilitated.

If you have already been convicted of an offense outside Canada, ask yourself :

“Was my offense a summary conviction (misdemeanor or non-serious crime) or is it an Indictable (serious) Crime?”

Conviction received outside Canada

If your offense has occurred outside Canada, then you need to find the equivalency in the Canadian criminal code or other acts of the parliament. In other words, it doesn’t matter how an offense is prosecuted outside Canada. What matters is equivalency in Canadian law. So focus on Canadian law.

What might be a minor offense in some Countries might be a major offense in Canada. The only thing that matters is what Canada considers this crime as.   

Summary Conviction outside of Canada

So, if you can determine that you have had a summary conviction outside Canada then the question to ask yourself becomes, “is this a summary conviction in the eyes of Canada”?

Generally speaking, summary convictions are less severe than indictable convictions, this also means that usually, not always, the term of imprisonment is less than six months and you don’t have a jury. Usually, a judge in Canada makes a decision about the case.

If you do a search online you will find that some convictions are clearly ‘summary’ and some are clearly ‘indictable’. If there is any doubt you should obtain separate advice on this specific matter as Canadian legal equivalence can get complex. But for now let’s continue to determine if you might be able to be deemed rehabilitated.

So let’s now assume you have determined your offense is summary in nature (not serious), the next question to ask is:

Is this my only conviction?

If you have received only one summary conviction in your life and no indictments, then you are deemed rehabilitated and no longer inadmissible to Canada.

If you have received two summary convictions in your life, then you need at least five years to have passed since the time that you completed your sentence and finished paying the fines.  If 5 years have passed you can be deemed rehabilitated.

If 5 years has not passed, you are not deemed rehabilitated. In this case, you need to wait 5 years then apply for your permanent residency and Immigrate to Canada with a Criminal Record

 

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Summary of “Summary Convictions”

If you only have 1 summary conviction you are deemed rehabilitated, if you have two you need to wait for 5 years to pass to be deemed rehabilitated and Immigrate to Canada with a Criminal Record

What if I was convicted of an Indictable or Serious crime outside of Canada?

In this situation, you only are deemed rehabilitated if at least 10 years have passed since the day that you completed all the sentences and paid all the fines related to your conviction. 

So this is only possible when you have only one indictable conviction in all your life, and that indictable conviction is not considered serious criminality. In other words, if you find the equivalency of that criminal offense in Canadian law, the maximum term of imprisonment is definitely less than 10 years.

If you have an indictable conviction where the maximum term of imprisonment is more than 10 years, or if you have multiple indictable convictions then in this situation you never become deemed rehabilitated under Canadian Immigration law. 

What you need to do in those situations is to wait at least five years from the day that you complete the sentence and pay the fines to apply for rehabilitation determination through a direct request which is a complex process.  

It will then be up to the immigration officer to decide if they will grant you rehabilitation so you can apply to immigrate to Canada. You will need to pay fees, legal costs and submit documentation. The immigration officer will make a decision on your case, but the “deemed” rehabilitation process where you are already meeting rehabilitation criteria is not available to you. 

Summary of Serious or multiple convictions outside Canada

In summary, if the serious offense is inside Canada, your only option is to seek record suspension or acquittal. If the indictable offense was committed outside Canada, and you only have one then you can wait 10 years to be deemed rehabilitated.

If your crime was more serious or you have multiple serious offenses, then your only option is to apply for rehabilitation directly to be able to Immigrate to Canada with a Criminal Record

How do I get officially deemed rehabilitated?  Do I have to go to court in Canada?

No. If you qualify to be deemed rehabilitated then the process is that you just submit enough documentation to convince the immigration officer that you qualify for deemed rehabilitation and are not inadmissible anymore.

What should I submit to the immigration officer to be deemed rehabilitated and Immigrate to Canada with a Criminal Record

The documents you need vary as every case is unique.

As a starting point you are going to need proof of your conviction and sentence, proof of when you completed any sentence and the payments of any fines, a full back record check to show you have no other convictions in all the jurisdictions you have lived, a personal statement, details of the offense, any evidence in the case, police reports of the offense (if there is any) and possibly many more. You need to prove you meet the rehabilitation criteria.

Please obtain professional advice if this impacts you. It is an expert and specialist area and every case is different so it is beyond the scope of this guide to cover the rehabilitation application process beyond the general approach to take and of understanding where you are placed in the process.

 

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What is the difference between Criminality and Serious Criminality in relation to Immigration to Canada?

In Canada, they differentiate between the seriousness of crimes.

General Criminality is usually where the penalty is below 10 years maximum in prison (regardless of actual sentence), and Serious Criminality can generally be where the maximum penalty can be over 10 years prison.

Again, this is not for all situations and it is a complex area and you need to seek expert advice on your specific circumstance in relation to this.

What is a Hybrid Offense in Canada?

Canada has some offenses that are known as Hybrid Offenses which means that they allow the prosecutors and the justice system, either to prosecute a person by the Summary offense or by way of Indictment. 

The reason they have this is for people such as first-time offenders who committed an offense to be treated less severely than somebody who is a repeat offender. It is to allow some discretion with the prosecution.

However, in relation to Hybrid Offenses in terms of immigration to Canada, there is no discretion.  If you have committed an offense that is regarded as a Hybrid Offense in Canada it will always be considered an indictable offense. It does not matter that in Canada if you were a first-time offender you might have been prosecuted as a summary offense. You will be considered as having committed an indictable offense.

If you think your offense is a Hybrid offense in Canada, you must look at the process for having committed an indictable offense in terms of equivalency in Canada.

The country where I committed the offense only saw what I did as a very minor offense or a misdemeanor, will Canada see it that way?

Not necessarily. It will depend on what the equivalency is in Canadian Law. If the equivalency is an indictable offense, then it is considered a criminal offense for criminality. 

Many people fail to get clear on what their offense would mean if committed in Canada. It does not matter if it is not a serious offense where you committed the offense, it only matters what Canada thinks.

A mistake has appeared on my police check certificate PCC, what should I do so I don’t become Criminally Inadmissible due to this error?

You need to have it removed because it is going to cause issues. This is something you should check and deal with immediately, and make sure it is done before submitting your PCC to Canada Immigration. If you have something on your record that should not be there, many Countries have processes you can follow to get it taken off.   

So, if you find something that should be removed – get advice in the Country that issued the Police Clearance Certificate and get it removed, then order a new PCC that is clear of the error.

Do not submit the PCC with the error on it. Get it sorted out first, then submit it, even if this means letting your offer lapse and having to wait for another one.

Canada will not accept that it is a “mistake” by the issuing Country. The only way to deal with this is with the country that issued the PCC and to clear the mistake you found. 

To avoid this situation, get copies of your PCC early so these issues don’t arise. It is surprising how many errors people have had on their police records over the years. Again, being prepared is the best way to deal with it. Get a PCC early to be sure, even if it means you need to get another PCC due to the document expiring.

 

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The issue of Impaired Driving

The most common of those looking to Immigrate to Canada with a Criminal Record is having an offense of driving under the influence (DUI) or Impaired Driving.

Canada has introduced Bill C46. This has made the offense of Impaired driving be considered a serious crime under the immigration and refugee protection act. The criminal code now makes the maximum imprisonment sentence of 10 years or more. This means that it’s considered serious criminality under the Immigration Act. 

This means that if someone drives while impaired in Canada, they are considered to have committed a serious crime. What this means for you, if you have an impaired driving offense from a different country, is that Canada will consider your offense the way Canada does, not the way the country where you committed the offense does.

It does not matter that you committed the offense outside of Canada, Canada sees it as a serious offense in their eyes no matter when you committed it, and it will render you inadmissible to Canada.

The country I live in considers my offense very minor, why won’t Canada give me a visa because of this?

Canada will assess your offense in terms of how the offense would be classified as if it was committed inside of Canada. This is called “equivalency”. It does not matter how the other country dealt with the matter, it only matters as to what would Canada have done if you had committed the same offense inside Canada.

If your offense is one Canada considers as serious, then it is likely you will be determined as inadmissible. If it is one that is considered minor in Canada, then it is likely you will still be able to enter Canada after ensuring you can be deemed rehabilitated.

What if it is just one family member on my application who is Criminally inadmissible to Canada?

Having one family member Criminally Inadmissible will generally mean the whole application to Immigrate to Canada with a Criminal Record will be rejected. You must make sure the person on your application with Criminality issues can be deemed rehabilitated or you seek rehabilitation or wait to submit your application until that time.

Don’t submit your express entry if you have an applicant in the group who does not qualify for rehabilitation yet, or who you can’t get an acquittal for. You must all meet the criteria to be admissible to Canada. If that is not the case yet, wait until you all are.

When should you deal with your Offense?

Make sure you have all the information you need at hand before you submit your Express Entry application and apply to Immigrate to Canada with a Criminal Record. You will not have time to gather the information and documents you may need after you receive an Invitation to Apply.

You need to be aware of this, you need to understand what the ramifications are and you definitely need to have this all planned out and deal with it head-on prior to doing anything.

As we have stated above, criminal inadmissibility is an area that in this instance it is worth getting some specific advice on. It is complex but in many cases, immigration is still achievable. You need to be proactive and deal with the matter directly and before you receive your ITA so you can be ready.

 

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© Emigrate Canada 2022, Immigrate to Canada with a Criminal Record

 

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