Canada maintains strict immigration laws designed to protect public safety and security. Among these regulations, the concept of serious criminality plays a crucial role in determining who can enter or remain in the country. Understanding what constitutes serious criminality under Canadian law is essential for foreign nationals, permanent residents, and anyone seeking to immigrate to Canada.
Whether you’re planning to visit, immigrate, or are already living in Canada, it’s important to know how serious criminality is defined in law and the potential impact it could have on your right to travel freely.
What Is Serious Criminality Under Canadian Law?
Serious criminality is defined in Section 36 of the Immigration and Refugee Protection Act as follows:
“a person is inadmissible on grounds of serious criminality if they have been convicted in Canada of an offence punishable by a maximum term of imprisonment of at least ten years, or if they have been convicted of an offence outside Canada that if committed in Canada would constitute an indictable offence punishable by a maximum term of imprisonment of at least ten years.”
For convictions that occurred in Canada, the focus is on the maximum sentence that could have been imposed for the criminal activity, not the actual sentence received. For convictions outside Canada, immigration officials will determine the maximum possible sentence that could be imposed for the equivalent crime under Canadian law at the time of the conviction.
Who Can Be Found Inadmissible for Serious Criminality?
Serious criminality provisions apply to both foreign nationals and permanent residents; however, different rules govern each case.
Foreign Nationals (e.g., US Citizens)
A foreign national can be found inadmissible to Canada for serious criminality based on convictions both inside and outside Canada. This includes visitors, temporary residents, and those applying for permanent residence. Any conviction that meets the serious criminality threshold can result in inadmissibility or mean the person is subject to removal orders.
Permanent Residents
A permanent resident can be considered inadmissible for serious criminality only if convicted in Canada of an offence punishable by a maximum term of imprisonment of at least ten years, or convicted of an offence outside Canada that, if committed in Canada, would constitute an indictable offence punishable by ten years or more in prison.
However, permanent residents cannot be removed for serious criminality if the offence was committed before they became permanent residents, unless the sentence imposed was more than six months’ imprisonment.
Offenses That Constitute Serious Criminality
Many criminal offences constitute serious criminality under Canadian immigration law. The key factor is whether the maximum penalty for the offence is at least ten years’ imprisonment – this would make you automatically inadmissible to Canada.
- Drug Trafficking – Drug trafficking offenses typically carry maximum sentences well above the ten-year threshold. These offenses include trafficking in controlled substances and possession for the purpose of trafficking.
- Assault with a Weapon – Assault with a weapon is an indictable offence that carries a maximum sentence of ten years imprisonment, making it serious criminality according to Canadian immigration law.
- Fraud Over $5,000 – Fraud exceeding $5,000 is considered an indictable offence with a maximum sentence of fourteen years imprisonment, and is therefore regarded as serious criminality.
- Impaired Driving Offences – Recent changes to Canadian impaired driving laws have significantly increased the immigration consequences of a conviction for this type of offense. Any impaired driving conviction can now constitute serious criminality, as these are classified as indictable offences with maximum sentences of at least ten years imprisonment.
Other examples include robbery, breaking and entering, sexual assault, and most weapons offences.
Overcoming Inadmissibility – Criminal Rehabilitation & TRPs
Several options exist for overcoming inadmissibility due to serious criminality:
- Criminal Rehabilitation – Criminal rehabilitation is available to persons convicted of crimes outside of Canada. To be eligible, applicants must demonstrate that they have been rehabilitated, have a stable lifestyle, and are unlikely to commit further crimes. The waiting period for criminal rehabilitation applications is typically five years after completion of the last sentence, including any requirements such as probation or parole.
- Temporary Resident Permit (TRP) – A Temporary Resident Permit allows inadmissible persons to enter or remain in Canada for specific purposes and limited periods. TRPs are discretionary and granted only when the person’s need to enter Canada outweighs the health and safety risks to Canadian society.
Summary vs. Indictable Offences: Why It Matters
Another way that Canada classifies criminal offenses is by making the distinction between summary, hybrid, and indictable offences:
- Summary Offences Summary offences are less serious crimes (like misdemeanors) which usually have maximum penalties of six months imprisonment, a $5,000 fine, or both. These offences generally do not result in serious criminality findings but may still be regarded as criminality.
- Indictable Offences Indictable offenses are more serious crimes (like felonies) and are tried in higher courts. These offences typically carry higher maximum penalties and are more likely to constitute serious criminality if the maximum sentence is at least ten years’ imprisonment.
- Hybrid Offences Hybrid offenses can be prosecuted either summarily or by indictment. For immigration purposes, hybrid offences are always treated as indictable offences, regardless of how they were prosecuted. This means a hybrid offence with a maximum indictable penalty of ten years or more will constitute serious criminality, even if prosecuted summarily.
This interpretation significantly expands the range of convictions that can result in serious criminality findings. Many common offences, including assault, theft, and fraud, are hybrid offences that may constitute serious criminality and therefore would lead to you being deemed inadmissible to Canada.
How Dogen Law Can Help
At Dogen Law, we have extensive experience helping clients with criminal records navigate through the various legal pathways to enter Canada legally. Our team can assist you with applications for Temporary Residence Permits and Criminal Rehabilitation to help you overcome criminal inadmissibility to Canada.
Get in touch today by completing our online assessment to see if you are eligible. If you still have questions about the process, you can also call our toll-free number for more information.
Frequently Asked Questions – Quick Answers
What is serious criminality?
In Canadian immigration law, serious criminality refers to criminal offences that are punishable by a maximum term of imprisonment of ten years or more. This applies to convictions both inside Canada and outside Canada. When someone has been convicted of a crime outside Canada, the equivalent in Canadian law will be used to assess the seriousness of the offense.
Is a DUI serious criminality in Canada?
Yes, impaired driving offences are now considered serious criminality in Canada. Recent changes to the Criminal Code have made impaired driving an indictable offence with maximum penalties of up to ten years in prison. This means any DUI conviction from anywhere in the world can result in a finding of serious criminality for immigration purposes, so you would be deemed criminally inadmissible to Canada.
What are the different levels of crime in Canada?
Canadian criminal law recognizes three categories of offences: summary offences (less serious), indictable offences (more serious), and hybrid offences (can be tried either way). For immigration purposes, all hybrid offenses are treated as indictable. Serious crimes are those indictable offenses that have a maximum possible punishment of 10 years or more imprisonment.
What crimes disqualify you from entering Canada?
There is a wide range of crimes that can disqualify someone from entering Canada on the grounds of criminal inadmissibility. Multiple convictions or convictions for serious crimes involving weapons or harm to others are very likely to make you inadmissible.
There are, however, legal pathways in place that allow people to overcome criminal inadmissibility. More information can be found on our post: Crimes That Will Make You Inadmissible to Canada
