March 6, 2017

Do I have to Declare My Criminal Record When I Enter Canada Even if I am Not Asked?

This is a common question during consultations.  Or if I ask “did you declare your criminality” the common answer I receive is “they did not ask me.”  With the advent of electronic travel authorizations this may not be the surprise or under the radar issue it has to date but still worth discussing.   The Act and Regulations impose certain obligations on persons seeking to enter Canada depending on their status and reason for coming to Canada. The port of entry (‘‘POE”) is defined as the place at which a person enters Canada. This can be an airport or a border crossing by car, bus, train or ship. When a person enters one of the ports in Canada, he or she is subjected to a series of examinations conducted by Canadian Border Services Agency (‘‘CBSA”) officers at the point of entry.

Obligation upon Entry

Subsections 16(1) and (2) of the Act holds a person must answer truthfully and provide relevant evidence such as a visa that the officer reasonably requests, including, in the case of foreign nationals, proof of photographic and fingerprints and a medical examination.  Subsection 16(3) pertains to evidence such as photographic or fingerprints or other materials that may be used to establish the identity of a permanent resident or a foreign national who is arrested, detained or subject to a removal order. It is important to note that section 23 of the IRPA allows an officer to authorize a person to enter Canada for the purpose of further examination or an admissibility hearing. In such a case the person remains under examination until a decision has been made.  But if an Officer does not ask, is the person seeking entry in the clear?

Primary Examinations

Primary examination questions are designed to obtain essential information, such as citizenship, residency, intention, employment, length of stay and identity as quickly as possible. Typically, the CBSA officer conducting the examination at the Primary Inspection Line (PIL) does not ask a person about criminality. Officers are trained to direct person’s with criminality issues to the Immigration Secondary Examination as this allows for more time to conduct an in-depth examination. So should a CBSA officer at any time suspect through questioning, behaviour or other indicators that a foreign national may have a criminal record, that person should be referred to the secondary examination. The privacy of the individual is protected under the Act. Therefore, officers should not ask any questions regarding criminality in the presence of accompanying family members or other travelers.

So this sounds as if the person is not asked or suspected of having a criminal record there is no obligation on the person entering the country.  Not quite.  All persons seeking to enter Canada must appear for an examination to determine whether they have the right to enter Canada or may become authorized to enter and remain in Canada. If a foreign national or permanent resident has a criminal record that renders the person inadmissible to Canada and has not received a record suspension, been deemed rehabilitated or received a certificate of rehabilitation that person cannot enter Canada without a temporary resident permit.  So there exists a positive obligation to declare the criminality even if not asked or previously entered Canada without any issue.

Once declared, expect a referral to secondary.  It is always best to consult with a Canadian immigration lawyer if you have any concerns about your status and potential admissibility.  In Part Two, I will discuss what happens at the Secondary Examination.

For more information on Criminality and TRPs, please click here and here.