Criminal laws not soft: Many convicted foreigners barred entry into Canada
February 7th, 2005
By Guidy Mamann
A foreign reporter recently asked me a question about Canada’s “liberal immigration laws.”
He was under the impression that our laws are soft on foreign criminals. He is not alone. Many Canadians think that our laws are making Canada a haven for foreign criminals. Is that assessment fair?
The fact is, Canada is not soft on foreign criminals. In fact, our Immigration and Refugee Protection Act (IRPA) is very tough, not only on them, but also their accompanying family members.
Let’s look at the law.
Canada’s immigration laws bar entry to virtually all foreigners who have been convicted of a crime whether in Canada or abroad. There are exceptions for people who have been convicted of a single summary offence, those who can prove to the minister of immigration that they are rehabilitated, and some who have been pardoned.
Canadians who sponsor a member of the family class who is inadmissible on grounds of criminality can appeal a sponsorship refusal to the Immigration and Refugee Board (IRB) if they can demonstrate sufficient humanitarian or compassionate grounds.
What may be surprising to most is the fact that foreigners can be found to be inadmissible to Canada on the grounds of criminality even if they have never been convicted of a crime.
If a person is suspected of having “committed an act” outside of Canada that would constitute a crime in Canada, that person is criminally inadmissible to Canada. In other words, a foreigner coming to Canada can be denied entry to Canada on the grounds of criminality even though he has never been charged with a crime in Canada or abroad. Furthermore, in most western criminal justice systems, the criminal case must be proven “beyond a reasonable doubt.” If there is any reasonable doubt, the presumption of innocence prevails.
This is definitely not the case under Canadian immigration law. In Canada, the immigration department is required to prove its case according to a much lower standard of proof. The department only needs to show that on “a balance of probabilities” the person has done something overseas that, if prosecuted, would have constituted a criminal offence in Canada.
In our criminal courts, strict rules of evidence apply. For example, evidence can be excluded if it constitutes hearsay evidence or was obtained illegally or improperly.
Again, not so in our immigration system! Our IRB does not have to concern itself with these rules of evidence. Our immigration laws state quite clearly that “the judge is not bound by any legal or technical rules of evidence.” Basically, the Canadian immigration judge can simply rely on any evidence he considers reliable whether it is hearsay, or even double hearsay.
Lastly, a foreigner is inadmissible to Canada if they have an accompanying family member who is inadmissible to Canada. Even if a foreigner has no criminal history whatsoever, but their spouse or common-law partner does, they are both inadmissible to Canada. The innocent spouse is clearly inadmissible to Canada by association only.
No doubt there are foreigners with criminal histories who enter Canada every day. Customs officers can only spend a few moments with most visitors to Canada. They simply do not have the resources or the mandate to screen every visitor who comes to Canada for a possible criminal conviction or history in each of almost 200 countries in the world. No country can do this. This doesn’t mean that Canada is soft on criminals.
However, once the criminal conviction or history is detected, our laws make it very easy to obtain a deportation order against not only that individual but also against his accompanying family members.
Clearly, our reputation is not deserved.