September 10, 2024
I Do Not Have Any Criminal Convictions. Why Have I Been Refused Entry to Canada for Criminality?
We often receive this question from individuals who have been refused entry to Canada despite having no criminal convictions. This situation can be confusing. Under the Immigration and Refugee Protection Act, Immigration, Refugees and Citizenship Canada (IRCC) has the authority to refuse entry based on criminality pursuant to sections 36(1)(c) and 36(2)(c).
Section 36(1) – Serious Criminality
A permanent resident or a foreign national is inadmissible on grounds of serious criminality for
[…]
(c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years.
Section 36(2) – Criminality
A foreign national is inadmissible on grounds of criminality for
[…]
(c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an indictable offence under an Act of Parliament.
What makes it more confusing is the application of these provisions are not always consistent or even transparent. Based on our practice experience, previous cases, and relevant manuals, here are some key points to consider:
- The provisions are not meant to capture persons who may have committed, but have not been convicted of, one or more summary (less serious) offences.
- They can apply to persons running away from a criminal proceeding in a foreign jurisdiction;
- It should not apply to persons who can demonstrate rehabilitation to IRCC or have been deemed rehabilitated.
- These provisions cannot be used where the person has been found innocent or where the person admits to committing the act but has received a record suspension, or the record is expunged or further still, where the act was committed in Canada.
- But if a foreign investigating authority decides not to lay or proceed with charges in a country whose criminal justice principles are similar to Canadas criminal justice system, the provisions can still be used. We see this often.
The essential case elements outlined in the now-unavailable ENF 2 IRCC manual include:
In determining, on reasonable grounds for a foreign national, and a balance of probabilities for a permanent resident, that an act was committed, the following case elements must be established:
-
- an act was committed;
- the act occurred outside Canada;
- the act is an offence under the laws of the place where it occurred; and
- for foreign nationals, the offence in question has a Canadian equivalent that is an indictable offence;
- for permanent residents or foreign nationals, the offence in question has a Canadian equivalent that is an offence punishable by a maximum term of imprisonment of at least 10 years.
In our experience, we have seen IRCC officers apply these provisions in cases where, for example, a British foreign national received a criminal caution that did not result in a conviction, or where there is an outstanding warrant, a charging document has been issued, or even in countries with high corruption levels where charges were dropped in exchange for a bribe.
IRCC officers should wait for the conclusion of criminal proceedings and not use these provisions before upholding the principle of presumed innocence. It should not be used as an alternative to prosecution. Unfortunately, this sometimes is the case in practice.
There clearly exist a number of variables, and the application of these frequently used provisions can be complex. If you are concerned that these provisions might be used against you, or if you are already the subject of an investigation or have been refused entry, we are here to help.
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Thank you for reading.
