Your past criminal record in a foreign country—even if considerable time has passed—can prevent you from being allowed into Canada.

Under Canadian law, any non-citizen can be denied entry on account of criminal inadmissibility.

If you’re eligible, there are ways you may be able to overcome criminal inadmissibility, depending on a variety of factors, such as the time elapsed since your sentence was completed and the severity of the crime(s).

This article will cover

• How Canadian authorities classify and assess criminal inadmissibility;
• Offence classification based on severity;
• Options available to you for overcoming criminal inadmissibility;
• The consequences you may face for being criminally inadmissible; and
• The types of offences that may make you inadmissible to Canada.

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How Canada assesses criminal inadmissibility

Unless you’re a Canadian citizen, you may be found “criminally inadmissible,” and denied entry into Canada due to your past criminal history.

To result in criminal inadmissibility, an offence must have been a crime in the jurisdiction in which it took place, and must correspond to an equivalent offence under Canadian law.

As a non-citizen, you can be found criminally inadmissible to Canada on account of

• Having committed an offence, (regardless of whether you were charged or convicted for that offence);
• Having been charged with an offence, (even if you were not prosecuted or convicted for that offence);
• Being under pending charges for an offence, (regardless of whether you committed that offence or not); or
• Having been convicted of an offence.

Whether or not you’re inadmissible will depend on whether you’re found to have engaged in “criminality” or in “serious criminality,” which depends on the severity of the offence under Canadian law at the time the offence was committed.

Non-serious offences (criminality)

For criminality, you may be considered inadmissible to Canada as a foreign national if you

• Were convicted in Canada of a crime punishable by indictment, or of two separate offences not arising from the same incident;
• Were convicted outside Canada of a crime that would be punishable by indictment if committed in Canada, or of two separate offences that would be considered crimes under Canadian law; or
• Committed an act outside Canada that is a crime in that location and would be punishable by indictment if committed in Canada.

Under Canadian law, indictable offences are more serious crimes, such as violent crimes, or major theft or fraud—the equivalent of felonies in the United States.

Non-indictable offences, known as offences punishable by summary conviction, are minor offences such as vandalism and petty theft—the equivalent of US misdemeanours.

Canada also has hybrid offences, which count as indictable offences for immigration purposes.

So you can be criminally inadmissible on account of non-serious criminality for either a single major offence, or for two minor offences.

A single minor offence will not render you criminally inadmissible.

Serious offences (serious criminality)

As a non-citizen, you may be considered inadmissible for serious criminality if you

• Were convicted in Canada of a crime punishable by a maximum sentence of at least 10 years, or if you were sentenced to more than six months in jail;
• Were convicted of a crime outside Canada that would be punishable by a maximum sentence of at least 10 years if committed in Canada; or
• Committed an act outside Canada that is a crime in that location and would be punishable by a maximum sentence of at least 10 years if committed in Canada.

Examples of offences that constitute serious criminality include

• Aggravated assault;
• Kidnapping;
• Large-scale fraud; and
• Driving Under the Influence (DUIs)*.

Prior to December 18, 2018, DUIs were less serious offences under Canadian law—so a DUI will be treated differently for criminality purposes by Canadian immigration authorities depending on whether it was committed before or after this date.

Overcoming criminal inadmissibility

There are three primary ways you can overcome criminal inadmissibility so you can gain entry into Canada:

• Obtaining a Temporary Resident Permit (TRP).
• Obtaining criminal rehabilitation.
• Being considered deemed rehabilitated.

The following factors will be considered when analyzing if you will be deemed admissible to Canada:

• The severity of your crime(s);
• The amount of time that has passed since you’ve committed the crime(s);
• Your likelihood to commit a crime while in Canada; and/or
• If your need to enter Canada outweighs the health and safety risks to Canadian society (applicable to TRPs).

Option one: Temporary Resident Permit (TRP)

TRPs can grant you entry to Canada on a temporary basis based on special circumstances even if you’re considered criminally inadmissible to Canada.

You must, however, prove that you have a compelling reason to enter Canada in your application (with supporting documents included) and that your entry into the country will not pose a danger to Canadian society. That is, that your need to enter Canada is compelling enough to outweigh the risk you pose to public safety.

For example, a popular US singer with past convictions for minor drug offences wants to perform at a concert in Ontario. Because their offences were minor and non-violent in nature, and their entry would benefit Canada culturally and economically, they can make a compelling application for a TRP.

A TRP can be issued for a minimum period of one day to a maximum period of three years. Additionally, you can be issued a single entry TRP or a multiple entry TRP at the discretion of the immigration officer handling your application.

If it is needed and justified, your TRP can be extended (if your original permit was issued for a period less than three years) from within Canada. However, once your TRP expires and can no longer be extended, you must leave Canada.

You can apply for a TRP either online at a Canadian consulate or the border if eligible—more on that later. It is highly recommended to apply online well in advance of your travel dates to avoid unnecessary expenses and save valuable time.

The non-refundable fee for processing your application is $239.75.

A TRP can be cancelled at the discretion of an immigration officer at any time.

Examples of compelling reasons

The immigration officer reviewing your TRP application will assess whether you have a valid and compelling reason to enter Canada, such as

• Attending a business conference or networking event;
• Attending a family member’s funeral or wedding;
• Visiting a seriously ill or dying family member;
• Handling a family emergency (for instance, visiting your child who is undergoing major surgery); or
• Passing through Canada during your travels (for instance, you have a layover in Canada and cannot re-route your flight).

Option two: Deemed rehabilitation

You can be considered deemed rehabilitated if at least 10 years have passed since all aspects of your sentence (jail time, probation, fines, etc.) have been completed.

If you are considered deemed rehabilitated, you will no longer be criminally inadmissible on account of those offences for which you have been deemed rehabilitated.

There is no formal application required for deemed rehabilitation. Deemed rehabilitation applies automatically if enough time has passed since the offence, and you’ve maintained a clean record during that time.

Immigration officers can determine your rehabilitation by evaluating several factors, including the following:

• How much time has passed since your sentence has been completed in its entirety.
  • For indictable offences, you must wait 10 years post-completion to be deemed rehabilitated.
  • For summary offences, five years post-completion will suffice (if your record is only comprised of summary offences).
• The type and number of offences on your record—generally, deemed rehabilitation applies only if you have just a single offence on your record.
  • Multiple offences usually makes you ineligible, unless all of them are summary offences.
• Whether your offence was classified as criminality or serious criminality. You can only be deemed rehabilitated for non-serious criminality.

To qualify for deemed rehabilitation, you must have avoided committing any additional offences after having completed your sentence.

Even if you are confident that you qualify for deemed rehabilitation, you may wish to obtain a legal opinion letter (with supporting documentation) to present to immigration officers, to present your case to officers in the strongest form possible.

Option three: Criminal rehabilitation

A criminal rehabilitation application allows you to permanently wipe out your past criminal history for the purposes of entering Canada.

To be successful with an application for criminal rehabilitation, you must prove that you live a stable lifestyle and are not likely to re-offend.

If your criminal rehabilitation application has been approved, the grounds of inadmissibility are removed, allowing you to travel to Canada without needing a TRP.

To be considered eligible for criminal rehabilitation, a minimum of five years must have elapsed since you’ve completed all elements of your sentence, including

• Jail time;
• Probation;
• Fines;
• Parole; and/or
• Community service.

Additionally, you must have either been formally convicted of the offence or have acknowledged committing the act.

If you qualify to apply for criminal rehabilitation, it’s advisable to do so as soon as possible, since the processing period can often take a significant amount of time—typically anywhere from 6 to 12 months.

Criminal rehabilitation processing fees differ for non-serious criminality ($239.75) and serious criminality ($1,199).

Note: Criminal rehabilitation only expunges past criminal history; it does not serve as a blanket pardon for future offences.

Consider getting a legal opinion letter

A legal opinion letter can be a helpful tool for overcoming criminal inadmissibility to Canada.

This document, typically drafted by a qualified immigration lawyer, provides a detailed analysis of your criminal history in relation to Canadian immigration law.

It assesses whether your offence(s) equate to a crime under Canadian law, highlights mitigating factors (such as the passage of time since the offence, evidence of good conduct, and your contributions to your community), and can suggest legal remedies such as a TRP or criminal rehabilitation.

A legal opinion letter can be instrumental in demonstrating to immigration officers that you’ve taken steps to address your inadmissibility and present a low risk to Canadian society.

By presenting a well-reasoned argument for why you should be allowed to enter Canada, the letter can significantly increase your chances of a favourable outcome.

It is particularly beneficial if you are facing pending charges.

Note: This document will not help you overcome criminal inadmissibility on its own; rather, it is helpful in conjunction with a TRP or criminal rehabilitation application.

Even with a legal opinion letter, the final decision regarding whether you’ll be granted entry rests with the immigration officer(s) reviewing your case.

Schedule a Free Legal Consultation with the Cohen Immigration Law Firm

Common offences leading to criminal inadmissibility

When determining if you’re admissible to Canada, check for your offence’s equivalent crime under Canadian law at the time when the offence was committed. This can be done by cross-referencing criminal law in the country the crime was committed against the Criminal Code of Canada.

Below you will find a list of offences that are considered non-serious, and a list of offences that are considered serious under Canadian law.

Committing any serious offence can result in your inadmissibility to Canada. For non-serious offences, committing a single offence from the list will generally not affect your admissibility. However, if you commit two or more non-serious offences, you may no longer be admissible to Canada.

Non-serious offences

Here are examples of offences which could result in (non-serious) criminality:

• Loitering.
• Assault (with no weapon and without significant bodily harm).
• Disorderly conduct.
• Causing a disturbance.
• Failure to appear in court.
• Unlawful assembly.
• Animal cruelty.
• Trespassing at night.
• Petty theft.
• Vandalism.

Serious offences

Here are example of offences that would generally result in serious criminality:

• DUI.
• Dangerous Driving.
• Theft and fraud over $5,000.
• Aggravated assault.
• Armed robbery.
• Drug manufacturing or trafficking.
• Breaking and entering.

Consequences to being criminally inadmissible

The most common occurrence if you’re found criminally inadmissible is that you will simply be denied entry and be forced to change your travel plans.

If you’re living in Canada (as a non-citizen) and are found guilty of a serious criminal offence, you risk having your status revoked and being deported. If you are deported, you cannot return to Canada unless you obtain an Authorization to Return to Canada (ARC).

If you attempt to enter Canada multiple times while being criminally inadmissible, Canadian authorities could issue you an exclusion order, barring you from entering the country for one year. If you wish to return before then, you’d also need obtain an ARC.

If you lie or provide false information about your criminal record, you could be banned from entering Canada for up to five years due to misrepresentation.

Where you can apply for a TRP based on travel restrictions

You can apply for a TRP at your nearest Canadian consulate, but whether you can enter by land or air will vary, depending on whether

• You require a visa;
• You are visa-exempt, but require an electronic travel authorization (eTA); or
• You are visa and eTA exempt.

Note: If possible, you will benefit from applying at your a Canadian consulate in advance, rather than banking on receiving a TRP at the border.

The following table details where you can apply based on your circumstances.

Traveller entry requirements	Entering Canada by land	Entering Canada by air
Visa and eTA exempt	May apply for a TRP upon arrival at a land border.	May apply for a TRP upon arrival to Canada by air.
Visa required	Cannot apply for a TRP at a land border. Must apply at a Canadian consulate in home country / country of residence before travelling to Canada.	Cannot apply for a TRP when entering Canada by air. Must apply at a Canadian consulate in home country / country of residence before travelling to Canada.
Visa exempt, need an eTA	Generally may apply for a TRP upon arrival at a land border.	Must apply for a TRP at the nearest Canadian consulate in home country / country of residence and wait for approval. (You cannot obtain an eTA while inadmissible)

Visa and electronic Travel Authorization (eTA) exempt

• Only US citizens, US green card holders, and citizens of France who are residents of St. Pierre and Miquelon are eTA (and visa) exempt.
• To enter Canada as an eTA and visa exempt traveller, foreign nationals must present the following documentation:
  • A valid passport or valid equivalent travel document; and/or
  • A valid green card, or equivalent valid proof of status in the US (only applies to foreign nationals who are not citizens of the US).

Visa exempt, need an eTA

• Citizens of visa-exempt countries who need an eTA must apply for a TRP based on the guidelines set out by your specific country, as guidelines may differ.
• Foreign nationals requiring an eTA, who are entering Canada by air must apply for a TRP beforehand in their country of residence / origin.
  • If the TRP application is approved, the TRP may function as an eTA for these individuals, exempting them from the need to get a TRP and an eTA.
• Visa-exempt travellers who require eTAs to enter Canada by air may still apply for a TRP at the port of entry if entering Canada at a land border.

Schedule a Free Legal Consultation with the Cohen Immigration Law Firm