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Immigration and Refugee Protection Act of Canada , section: 36 (1) to (3)

Immigration/Exclusion of Visitors, Inadmissibility to Canada for Criminal Conviction

Serious criminality

36. (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for

(a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed;

(b) having been convicted of an offence outside Canada 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; or (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.

Criminality

(2) A foreign national is inadmissible on grounds of criminality for

(a) having been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment, or of two offences under any Act of Parliament not arising out of a single occurrence;

(b) having been convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, or of two offences not arising out of a single occurrence that, if committed in Canada, would constitute offences under an Act of Parliament;

(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; or

(d) committing, on entering Canada, an offence under an Act of Parliament prescribed by regulations.

(3) The following provisions govern subsections (1) and (2):

(a) an offence that may be prosecuted either summarily or by way of indictment is deemed to be an indictable offence, even if it has been prosecuted summarily;

(b) inadmissibility under subsections (1) and (2) may not be based on a conviction in respect of which a record suspension has been ordered and has not been revoked or ceased to have effect under the Criminal Records Act, or in respect of which there has been a final determination of an acquittal;

(c) the matters referred to in paragraphs (1)(b) and (c) and (2)(b) and (c) do not constitute inadmissibility in respect of a permanent resident or foreign national who, after the prescribed period, satisfies the Minister that they have been rehabilitated or who is a member of a prescribed class that is deemed to have been rehabilitated;

(d) a determination of whether a permanent resident has committed an act described in paragraph (1)(c) must be based on a balance of probabilities; and

(e) inadmissibility under subsections (1) and (2) may not be based on an offence

(i) designated as a contravention under the Contraventions Act,

(ii) for which the permanent resident or foreign national is found guilty under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, or (iii) for which the permanent resident or foreign national received a youth sentence under the Youth Criminal Justice Act.

2001, c. 27, s. 36; 2008, c. 3, s. 3; 2010, c. 8, s. 7; 2012, c. 1, s. 149.

Comments : Canada's Immigration and Refugee Protection Act excludes persons under sub-section (2) who have a criminal conviction for an offence that would constitute an indictable offence if committed in Canada. Impaired driving, over 80, and refusal are all indictable offences within the meaning of this section. Exclusion also applies to "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". The latter includes pending DUI's. However if there has been a pardon or a final acquittal see the (3) (b)exception.

Immigration and Rufugee Protection Regulations

Prescribed period

17. For the purposes of paragraph 36(3)(c) of the Act, the prescribed period is five years

(a) after the completion of an imposed sentence, in the case of matters referred to in paragraphs 36(1)(b) and (2)(b) of the Act, if the person has not been convicted of a subsequent offence other than an offence designated as a contravention under the Contraventions Act or an offence under the Young Offenders Act; and

(b) after committing an offence, in the case of matters referred to in paragraphs 36(1)(c) and (2)(c) of the Act, if the person has not been convicted of a subsequent offence other than an offence designated as a contravention under the Contraventions Act or an offence under the Young Offenders Act.

Marginal note:Rehabilitation

18. (1) For the purposes of paragraph 36(3)(c) of the Act, the class of persons deemed to have been rehabilitated is a prescribed class.

Marginal note:Members of the class

(2) The following persons are members of the class of persons deemed to have been rehabilitated:

(a) persons who have been convicted outside Canada of no more than one offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, if all of the following conditions apply, namely,

(i) the offence is punishable in Canada by a maximum term of imprisonment of less than 10 years,

(ii) at least 10 years have elapsed since the day after the completion of the imposed sentence,

(iii) the person has not been convicted in Canada of an indictable offence under an Act of Parliament,

(iv) the person has not been convicted in Canada of any summary conviction offence within the last 10 years under an Act of Parliament or of more than one summary conviction offence before the last 10 years, other than an offence designated as a contravention under the Contraventions Act or an offence under the Youth Criminal Justice Act,

(v) the person has not within the last 10 years been convicted outside Canada of an offence that, if committed in Canada, would constitute an offence under an Act of Parliament, other than an offence designated as a contravention under the Contraventions Act or an offence under the Youth Criminal Justice Act,

(vi) the person has not before the last 10 years been convicted outside Canada of more than one offence that, if committed in Canada, would constitute a summary conviction offence under an Act of Parliament, and

(vii) the person has not committed an act described in paragraph 36(2)(c) of the Act;

(b) persons convicted outside Canada of two or more offences that, if committed in Canada, would constitute summary conviction offences under any Act of Parliament, if all of the following conditions apply, namely,

(i) at least five years have elapsed since the day after the completion of the imposed sentences,

(ii) the person has not been convicted in Canada of an indictable offence under an Act of Parliament,

(iii) the person has not within the last five years been convicted in Canada of an offence under an Act of Parliament, other than an offence designated as a contravention under the Contraventions Act or an offence under the Youth Criminal Justice Act,

(iv) the person has not within the last five years been convicted outside Canada of an offence that, if committed in Canada, would constitute an offence under an Act of Parliament, other than an offence designated as a contravention under the Contraventions Act or an offence under the Youth Criminal Justice Act,

(v) the person has not before the last five years been convicted in Canada of more than one summary conviction offence under an Act of Parliament, other than an offence designated as a contravention under the Contraventions Act or an offence under the Youth Criminal Justice Act,

(vi) the person has not been convicted of an offence referred to in paragraph 36(2)(b) of the Act that, if committed in Canada, would constitute an indictable offence, and

(vii) the person has not committed an act described in paragraph 36(2)(c) of the Act; and

(c) persons who have committed no more than one 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, if all of the following conditions apply, namely,

(i) the offence is punishable in Canada by a maximum term of imprisonment of less than 10 years,

(ii) at least 10 years have elapsed since the day after the commission of the offence,

(iii) the person has not been convicted in Canada of an indictable offence under an Act of Parliament,

(iv) the person has not been convicted in Canada of any summary conviction offence within the last 10 years under an Act of Parliament or of more than one summary conviction offence before the last 10 years, other than an offence designated as a contravention under the Contraventions Act or an offence under the Youth Criminal Justice Act,

(v) the person has not within the last 10 years been convicted outside of Canada of an offence that, if committed in Canada, would constitute an offence under an Act of Parliament, other than an offence designated as a contravention under the Contraventions Act or an offence under the Youth Criminal Justice Act,

(vi) the person has not before the last 10 years been convicted outside Canada of more than one offence that, if committed in Canada, would constitute a summary conviction offence under an Act of Parliament, and

(vii) the person has not been convicted outside of Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament.

SOR/2004-167, s. 7.

Prescribed class

18.1 (1) The class of foreign nationals who are inadmissible solely on the basis of having been convicted in Canada of two or more offences that may only be prosecuted summarily, under any Act of Parliament, is a prescribed class for the application of paragraph 36(2)(a) of the Act.

Marginal note:Exemption

(2) A member of the class prescribed in subsection (1) is exempt from the application of paragraph 36(2)

(a) of the Act if it has been at least five years since the day after the completion of the imposed sentences.

SOR/2004-167, s. 8.

Marginal note:Transborder crime

19. For the purposes of paragraph 36(2)(d) of the Act, indictable offences under the following Acts of Parliament are prescribed:

(a) the Criminal Code;

(b) the Immigration and Refugee Protection Act; (c) the Firearms Act;

(d) the Customs Act; and

(e) the Controlled Drugs and Substances Act.

Excerpt from Immigration Canada: Rehabilitation For Persons Who Are Inadmissible to Canada Because of Past Criminal Activity (see link below)

Coming to, or Remaining in Canada Without Approval of Rehabilitation

If you need to come to Canada, but cannot apply for rehabilitation because five years have not passed since the end of the sentence imposed or you are not eligible to apply for a pardon for convictions in Canada, you may ask an officer for special permission to enter or remain in Canada. Complete the Application for Criminal Rehabilitation, but check the box that states, “For Information Only.” Attach the documents outlined in the Document Checklist. After reviewing the form and looking at the nature of the offences, number of offences, when they happened and your current situation, the officer may:

At Canadian visa offices outside of Canada

• advise that they do not recommend that you travel to Canada; or,

• advise that you could apply for special permission (temporary resident’s permit) to enter Canada*.

At Ports of Entry (airport, marine or land)

(Contact your nearest Canadian visa office before travelling to Canada.)

• advise that you will not be allowed to enter Canada and ask you to return immediately to your country of departure;

• take enforcement action (arrest, detention and/or removal); or,

• advise that you could apply for special permission (temporary resident’s permit) to enter Canada*.

In Canada

• ask that you leave Canada voluntarily;

• take enforcement action (arrest, detention, and/or removal from Canada); or

• advise that you could apply for special permission (temporary resident’s permit) to remain in Canada*.

*There will be processing fees for applications for special permission to come into or remain in Canada. You will be advised of the processing fees at the time, or you can refer to [the Immigration Canada] Web site for further details.

Please note that you need a VERY GOOD REASON and lots of documentation of your criminal case to get a Temporary Resident Permit. There is no guarantee that you will get one. They may refuse you at the airport or at the border and keep you out of Canada in their exercise of discretion. Please note that a Temporary Resident Permit is NOT the same thing as a Temporary Resident Visa.

This is not the official web site for the  Ontario legislature. 

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bulletApplication for Criminal Rehabilitation
bulletFees for Determination of Rehabilitation
bulletForms for Determination of Rehabilitation
bulletIP1 Manual
bulletIP1 Temporary Resident Permits
bulletManual Respecting Rehabilitation
bulletRehabilitation For Persons Who Are Inadmissible Because of Past Criminal Activity
bulletVisiting Canada: Overcoming Criminal Inadmissibility
 

 

 

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OntarioImmigration and Refugee Protection Act of Canada 36 (1) to (3) Immigration/Exclusion of Visitors, Inadmissibility to Canada for Criminal Conviction