Are you allowed to enter Canada if you have committed or been convicted of a youth offense outside of Canada?
Are you allowed to enter Canada if you have committed or been convicted of a youth offence outside of Canada?
The short answer is: it depends.
Under Canadian immigration laws, a permanent resident or foreign national is inadmissible to Canada if they have committed or been convicted of an offence that, if committed in Canada, would constitute an offence that would be punishable by a maximum term of imprisonment of at least 10 years. Similarly, a foreign national is inadmissible for having committed or been convicted of an offence outside of Canada, that if committed in Canada, would constitute an indicatable offence. And in some instances, if a foreign national was convicted of two offences not arising out of a single occurrence that, if committed in Canada, would constitute offences under an Act of Parliament, this person will also be inadmissible. (Sections 36(1)(b), 36(1)(c), 36(2)(b) and 36(2)(c) of the Immigration and Refugee Protection Act)
As such, clients are often surprised when they are told that they may be inadmissible to Canada for an offence that was committed or for which they have been convicted of as minors and outside of Canada. The response we often get it is: “How could that be – it happened so long ago” or “I was foolish back then but I am a changed person now”.
In order to determine if someone is inadmissible, an immigration officer is required to compare the foreign and Canadian offences. The Federal Court of Appeal has ruled that three methods can be used to determine criminal equivalency: (1) by comparing the precise wording in each statute; (2) by examining the evidence adduced before the adjudicator to establish that the essential ingredients of the offence in Canada has been proven; and (3) by combination of the two. As such, it is very possible that an individual may be found inadmissible to Canada for having committed or been convicted of a youth offence outside of Canada.
There is, however, an exception. The legislation is clear: a permanent resident or foreign national who received a youth offence sentence in Canada under the Youth Criminal Justice Act will not be found inadmissible. (Section 36(3)(e) of the Immigration and Refugee Protection Act). While this may be the case for youth convictions in Canada, does this exception apply to youth offences committed or convicted in foreign country?
The Immigration Appeal Division and Immigration Division have dealt with this question on a few occasions and have found that despite the fact that a permanent resident or foreign national will not be inadmissible for having received a youth sentence in Canada, a permanent resident or foreign national will be inadmissible for having committed or been convicted of a youth offence outside of Canada. (See Flores Giron v. Canada (Public Safety and Emergency Preparedness), 2009 CanLII 88456 (CA IRB); Singh v. Canada (Citizenship and Immigration), 2010 CanLII 95029 (CA IRB); Canada (Public Safety and Emergency Preparedness) v. X, 2009 CanLII 28035 (CA IRB)).
While these are tribunal decisions, it is important to note that there have been no published cases at the Federal Court. This does not mean that a person’s past mistakes will forever haunt them and they will never be able to travel to Canada. Furthermore, there are two ways in which a person can overcome inadmissibility: (a) a person may already be “deemed rehabilitated”; or (b) a person may apply for “criminal rehabilitation” and be found no longer criminally inadmissible. But do not go applying for rehabilitation because you may not even need it!
The first step is always to establish if you are even criminally inadmissible to Canada for having committed or been convicted of a youth offence. The lawyers at Mamann, Sandaluk & Kingwell are experienced in conducting this assessment and advising if you may be found rehabilitated.
If you have any questions regarding criminal inadmissibility, please contact our office today.]]>