22 Mar

Criminal Rehabilitation Applications: Will Canada accept another country’s pardon?

Posted in: Criminal Law

 

If you are seeking to enter Canada as a foreign national, you may encounter difficulty from Canadian Immigration and Citizenship (“CIC”) if you have a history of criminality outside of Canada. If that is the case, then you may very well be denied entry to Canada on the basis of criminal inadmissibility.[1]

Even if you are found to be criminally inadmissible, or if you are concerned that you may be found to be criminally inadmissible, Canadian law grants an opportunity for individual applicants to overcome that obstacle. This is usually done in the form of an application for criminal rehabilitation.

Criminal Rehabilitation in Canada

As set out on the CIC’s website for Criminal Rehabilitation[2], if you were convicted of or committed a criminal offence outside Canada, you may overcome this criminal inadmissibility by:

  1. Applying for rehabilitation, or
  2. You may be deemed to have been rehabilitated if:
    • The offence was an indictable offence punishable by a maximum term of imprisonment of less than ten years, and at least ten years have passed since you completed the sentence imposed upon you, or
    • The offence was a summary offence, and at least five years have passed since the sentence was served.

Now, although applying for criminal rehabilitation may be the right thing to do in certain circumstances, the subject-matter of this blog is how one can be “deemed to have been rehabilitated.” Another blog on criminal rehabilitation will follow.

There are therefore ways to be deemed to be rehabilitated by Canada. However, a question comes up as to whether Canadian immigration will accept another country’s decision that their citizen has been deemed rehabilitated.

Does Canada accept another country’s finding of criminal rehabilitation?

In the last few weeks I have worked with two separate clients, both of whom were dealing with possible inadmissibility to Canada. Both clients were British nationals, and both committed offences in the UK. One of them was in the UK and had been denied entry to Canada on the basis of criminal inadmissibility, while the other wanted to make a preemptive application to CIC to ensure that he was not, at a future time, declared criminally inadmissible.

In both those cases, we submitted applications for criminal rehabilitation. In both cases, we also submitted that these individuals were already deemed rehabilitated pursuant to specific UK legislation.

UK Rehabilitation of Offenders Act, 1974

Conviction is “spent”

The specific UK legislation we referred to is the Rehabilitation of Offenders Act 1974 (“ROA”).[3] Briefly, this legislation (and subsequent amendments) provides that criminal convictions, after a certain period of time, may be considered “spent” – or in Canadian terms, the individual is criminally rehabilitated.

The effect of the conviction being “spent” means that the person “shall be treated for all purposes in law as a person who has not committed or been charged with or prosecuted for or convicted of or sentenced for the offence or offences which were the subject of that conviction.”[4]

The ROA was amended by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO”)[5] which gives specified timelines for when someone’s conviction would be considered “spent” based on the type of conviction at issue. For example, for adult offenders given a:

  • Community Order: “the end of the period of 12 months beginning with the date of the conviction in respect of which the sentence is imposed.”
  • Fine: “The end of the period of 12 months beginning with the date of the conviction in respect of which the sentence is imposed.”
  • A Custodial Sentence of 6 Months or Less: “The end of the period of 24 months beginning with the day on which the sentence (including any license period) is completed.”[6]

Essentially, if you are sentenced to one of the above, your conviction will be deemed “spent” after the relevant period of time has elapsed. No specific documentation will be issued once your conviction becomes “spent” in the UK – it just is.

In other countries, one’s conviction may be pardoned by the relevant authorities.

Canadian applications of “spent” convictions

Now, this is good if you intend to remain in the UK, but what if you are trying to come to Canada, and Canada learns of your criminal background in the UK?

Historically, Canada has considered the UK’s ROA in assessing whether an individual is rehabilitated for Canadian purposes as well. Recent jurisprudence has formulated a test, of sorts, that can be applied in determining whether a foreign pardon or finding or rehabilitation can be adopted in Canada.[7] This is of course relevant for other countries as well as Britain.

The considerations that will need to be made by Canadian immigration authorities, when presented with the case of someone whose conviction has been spent (in the case of the UK), or someone who has been pardoned elsewhere, will be:

  1. Is the foreign legal system similar to Canada’s?
  2. Is the aim, content, and effect of the specific foreign law similar to Canadian law?
  3. Is there a valid reason not to recognize the effect of the foreign law?[8]

There is one additional element in making this decision to adopt a foreign pardon, and that is taking into consideration the seriousness or “gravity” of the offence.[9] For example, the crime of hijacking an airliner has more gravity than stealing some money from a cash register.

From the case law, we find then that where another country, whose legal system is based on similar foundations and values as ours, has enacted legislation which reflects goals and objectives analogous to those encompassed within our own system, that that law may be accorded respect and recognized for the purposes of Canadian immigration law objectives.

Example

 

On April 29, 2011, George Windsor was caught stealing a batch of fish & chips from his neighbourhood pub. He was arrested by the Bobbies, and on July 22, 2013 was convicted of theft, and handed a Community Order as a sentence. According to this Order, George must perform 50 hours of community service, and attend 20 hours of rehabilitation for getting over his fish-theft.

By September 1, 2013, George had completed the terms of his community order. Pursuant to the terms of the ROA and LAPSO, above, 12 months after the sentence (i.e. July 22, 2014) George’s sentence was “spent”. Therefore, for all intents and purposes as of that date, he no longer had a criminal record in the UK.

In 2015, George wanted to visit Canada. He hired a lawyer who made an application on George’s behalf, arguing that George was to be deemed criminally rehabilitated in Canada since in the UK his conviction was “spent” as of July 2014. Britain has a similar legal system to that of Canada’s, and the gravity of George’s crime was minimal. The Officer from Canadian Immigration agreed, and advised George that he was not criminally inadmissible to enter Canada (any similarities to real names in this post is purely coincidental).

 

Conclusion

This blog is not intended to serve as a comprehensive treatment of the topic, nor is it intended to be legal advice. Since every case is fact-specific, nothing replaces retaining an experienced and qualified lawyer who can help guide your actions and give you good legal advice.

If you are trying to come to Canada, or have been determined by Canada to be criminally inadmissible, it may assist you to consider whether your overseas conviction has been pardoned, deemed rehabilitated, or spent.

At Mamann, Sandaluk & Kingwell LLP, we are happy to assist with any and all matters relating to findings of criminal inadmissibility, and it always helps to have a lawyer take a look at specific circumstances and help figure out the best way for you to move forward.

Adam Hummel is an Associate Lawyer in Mamann, Sandaluk, & Kingwell LLP’s Immigration Litigation Group

 

Notes

[1] You can be denied entry on the basis of either criminality or serious criminality, pursuant to s. 36(1)&(2) of the Immigration and Refugee Protection Act.

[2] http://www.cic.gc.ca/english/information/applications/guides/5312ETOC.asp

[3] http://www.legislation.gov.uk/ukpga/1974/53

[4] http://www.legislation.gov.uk/ukpga/1974/53, and  in particular s. 4 which in its entirety states:

4 Effect of rehabilitation.

(1) Subject to sections 7 and 8 below, a person who has become a rehabilitated person for the purposes of this Act in respect of a conviction shall be treated for [SA1] all purposes in law as a person who has not committed or been charged with or  prosecuted for or convicted of or sentenced for the offence or offences which  were  the subject of that conviction; and, notwithstanding the provisions of any   other enactment or rule of law to the contrary, but subject as aforesaid—

(a) no evidence shall be admissible in any proceedings before a judicial authority exercising its jurisdiction or functions in Great Britain to prove that any such person has committed or been charged with or prosecuted  for or convicted of or sentenced for any offence which was the subject of a spent conviction; and

(b) a person shall not, in any such proceedings, be asked, and, if asked, shall not be required to answer, any question relating to his past which cannot be answered without acknowledging or referring to a spent conviction or spent convictions or any circumstances ancillary thereto

[5] http://www.legislation.gov.uk/ukpga/2012/10/part/3/chapter/8/enacted

[6] Ibid.

[7] These cases include Canada (Minister of Employment and Immigration) v. Burgon, [1991] 3 F.C. 44 (C.A.), per Mahoney J.A.; Saini v. Canada (Minister of Citizenship and Immigration) [2002] 1 F.C. 200 (F.C.A.) (“Saini”); and Barnett v. Canada (Minister of Citizenship and Immigration) (1996), 33 Imm. L.R. (2d) 1, 109 F.T.R. 154 (Fed. T.D.)

[8] Saini, at para. 24.

[9] Saini, at para. 43

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