Authored by Charu Vinayak, Student member of CILA
Criminal inadmissibility is a fundamental principle of Canadian immigration law, preventing individuals with certain criminal records from entering or remaining in the country. Governed by the *Immigration and Refugee Protection Act* (IRPA), this doctrine distinguishes between “criminality” and “serious criminality” based on the severity of offences and their sentencing thresholds.
The Canadian judiciary plays a crucial role in interpreting and applying these provisions, shaping the legal landscape through precedent-setting decisions. This paper explores the statutory framework, judicial interpretations, and case law while analyzing the broader policy implications of criminal inadmissibility on immigration enforcement, individual rights, and public safety.
Legal Framework of Criminal Inadmissibility
Provisions under the Immigration and Refugee Protection Act (IRPA)
Criminal inadmissibility is primarily governed by Section 36 of the *Immigration and Refugee Protection Act* (IRPA). The provision distinguishes between two levels of criminal offences:
Serious Criminality
- Applies to permanent residents and foreign nationals convicted of an offence in Canada punishable by a maximum term of imprisonment of at least ten years, or for which a term of imprisonment of more than six months has been imposed.
- Also applies to individuals convicted outside Canada for offences that would be punishable by a maximum term of at least ten years if committed in Canada.
- Committing an offence outside of Canada that is illegal in the jurisdiction where it was committed and would constitute a serious criminal offence in Canada, punishable by a maximum term of imprisonment of at least 10 years.
Criminality
Applies only to foreign nationals and includes:
- Having been convicted in Canada of an offence under federal law that is punishable by indictment or of two separate offences under federal law.
- Having been convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable offence under federal law, or of two separate offences that, if committed in Canada, would constitute offences under federal law.
- Committing an act outside Canada that is an offence in the jurisdiction where it was committed and that, if committed in Canada, would constitute an indictable offence under federal law.
These provisions are designed to ensure that individuals with a history of serious criminal activity are not permitted to enter or remain in Canada. However, determining whether an offence qualifies as “serious criminality” often requires judicial interpretation, particularly in cases involving foreign convictions, changes in sentencing laws, or conditional sentences.
Judicial Interpretation and Case Law
- Canada (Public Safety and Emergency Preparedness) v. Tran, 2017 SCC 50
One of the key issues in the case was whether the maximum sentence for an offence should be assessed based on the law at the time of conviction or at the time of the immigration proceedings. The Supreme Court ruled that the law in force at the time of the offence should be used to determine serious criminality, ensuring that changes in sentencing laws do not retroactively affect an individual’s admissibility status.
This decision provided clarity on how criminal inadmissibility is assessed and reaffirmed the principle that individuals should not be penalized under laws that did not exist at the time of their offences.
https://www.canlii.org/en/ca/scc/doc/2017/2017scc50/2017scc50.html)
- Febles v. Canada (Citizenship and Immigration), 2014 SCC 68
In Febles, the Supreme Court considered whether a person who had served a sentence for a serious offence outside Canada could later be deemed admissible. The appellant, a refugee claimant, argued that his past crimes should no longer render him inadmissible since he had served his sentence and reformed.
The Court held that the principle of expiation (serving a sentence and demonstrating rehabilitation) does not negate inadmissibility under Article 1F (b) of the Refugee Convention. This ruling reinforced the idea that past serious criminality remains relevant, even if the individual has completed their sentence.
https://www.canlii.org/en/ca/scc/doc/2014/2014scc68/2014scc68.html)
- Zrig v. Canada (Minister of Citizenship and Immigration), 2003 FCA 178
This case addressed the interpretation of a serious non-political crime under Article 1F (b) of the Refugee Convention. The Federal Court of Appeal ruled that in the absence of an international consensus, domestic Canadian law should guide the determination of whether a crime is serious.
The ruling highlighted the challenges of applying international legal principles to domestic immigration law and underscored Canada’s commitment to aligning its refugee and immigration policies with international human rights obligations.
https://www.canlii.org/en/ca/fca/doc/2003/2003fca178/2003fca178.html)
Conclusion
Criminal inadmissibility is a critical aspect of Canada’s immigration system, ensuring that individuals with a history of serious offences do not enter or remain in the country. However, its application requires careful legal interpretation and consideration of individual circumstances. Judicial decisions continue to shape the legal landscape, clarifying issues such as the timing of sentencing laws, the impact of foreign convictions, and the relevance of rehabilitation.
As immigration law evolves, policymakers must strike a balance between protecting public safety and upholding principles of fairness and proportionality. Ongoing legal challenges and policy debates will likely continue to refine the application of criminal inadmissibility in Canada.
Bibliography
– *Canada (Public Safety and Emergency Preparedness) v. Tran*, 2017 SCC 50. Retrieved from [CanLII](https://www.canlii.org/en/ca/scc/doc/2017/2017scc50/2017scc50.html).
– *Febles v. Canada (Citizenship and Immigration)*, 2014 SCC 68. Retrieved from [CanLII](https://www.canlii.org/en/ca/scc/doc/2014/2014scc68/2014scc68.html).
– *Zrig v. Canada (Minister of Citizenship and Immigration)*, 2003 FCA 178. Retrieved from [CanLII](https://www.canlii.org/en/ca/fca/doc/2003/2003fca178/2003fca178.html).
– Immigration and Refugee Protection Act, S.C. 2001, c. 27. Retrieved from
(https://laws-lois.justice.gc.ca/eng/acts/I-2.5/)
Disclaimer:
This article is provided for general informational and educational purposes only. The content is not intended to be a substitute for professional advice, diagnosis, or treatment. Always seek the advice of a qualified professional with any questions you may have regarding a specific situation or condition.
