Inadmissibility Categories

• Author: Raj Sharma/Aris Daghighian
• Pages: 13-224

13

2

Inadmissibility

Categories

I. Consequences of Criminality ................................ 14

II. Misrepresentation Explained ................................ 53

III. Non-Compliance—Section 41 ............................... 81

IV. Accompanying Family Members—Section 42 .................. 89

V. Residency Obligations—Section 28 .......................... 94

VI. Security, Human or International Rights Violations, and

OrganizedCriminality ..................................... 109

VII. Medical Inadmissibility .................................... 186

VIII. Finances/“Public Charge”—Section 39 ....................... 217

© [2022] Emond Montgomery Publications. All Rights Reserved.

14 Inadmissibility and Remedies

I. Consequences of Criminality

A. Overview

Immigration jeopardy can flow from convictions in Canada and offences commit-

ted outside Canada. The strong enforcement provisions within the Immigration and

Refugee Protection Act1 allow for the refusal of entry or banishment;2 even a single

pebble of criminality has far-reaching ripples.

Some examples:

• For permanent residents (PR) and foreign nationals (FN), criminality can result

in loss of status and removal from Canada.

• Criminality can impact family class sponsorships and stymie the hope of fam-

ily reunification. A PR or a Canadian citizen convicted of an offence involving

violence against a family member results in sponsor ineligibility.3

• A criminal conviction by a sponsored family member, even an accompanying

dependant, could waylay a family class sponsorship and the dream of family

reunification.

• Even those recognized as refugees in Canada can be removed and sent to a

country where they fear persecution if there is sufficient concern regarding

their (criminal) risk to Canadians.

• Canadian criminality4 can result in lifetime inadmissibility to the United States,

even for a Canadian citizen. It can also delay the application by a PR for citizen-

ship in Canada. Time spent in jail, on probation, or out on parole does not count

for the calculation of residency for an application for a grant of citizenship.

Canada’s criminal justice and immigration systems are inextricably bound together.

Criminal inadmissibility can result from a conviction under the Criminal Code5 of

Canada, or from foreign offences that are equivalent to a threshold offence under the

Criminal Code of Canada. However, criminal inadmissibility can also result from con-

victions in Canada or foreign offences that are equivalent to a threshold offence under

other federal parliamentary legislation, including the wide-ranging offence provisions

of the IRPA.

Criminality has always had repercussions for non-citizens. The IRPA, now approach-

ing its 20th year, prioritized security. As a result, avenues to ameliorate the conse-

quences of criminality have been limited. The Supreme Court of Canada considered the

1 SC 2001, c 27 [IRPA].

2 This chapter will deal with criminality simpliciter—i.e., s 36.

3 IRPR, s 133(3)(f).

4 Even a conditional discharge.

5 RSC 1985, c C-46.

© [2022] Emond Montgomery Publications. All Rights Reserved.

Chapter 2 Inadmissibility Categories 15

objectives of the IRPA in Medovarski6 in sum; the legislation indicates an intent to pri-

oritize security and the IRPA objectives and provisions communicate a “strong desire

to treat criminals … less leniently [than] under the former act.”7 The most fundamental

principle, as reaffirmed in Medovarski, is that non-citizens do not have an unqualified

right to enter or remain in Canada.8

The Federal Court of Appeal (FCA) has also been clear as to the powers of the

executive in removing and denying entry and status to non-citizens that have commit-

ted threshold offences:

• immigration is a privilege, not a right, and non-citizens do not have an unquali-

fied right to enter or remain;

• citizens are treated differently than PRs, who in turn are treated differently than

convention refugees (and protected persons), who are in turn treated differently

than other FNs;9 and

• section 36 also distinguishes between offences committed inside Canada and

offences committed outside Canada.10

There are options:

• Avoidance of a determination of guilt for an offence that results in immigration

jeopardy or avoidance of a sentence that results in immigration jeopardy.

• Approaching and seeking an officer’s discretion not to proceed with enforce-

ment action.

• Foreign convictions or acts must be equated to an offence in Canada. That

equivalency exercise needs to be done correctly and can be challenged.

• A foreign pardon or expungement may alleviate concerns; however, not all par-

dons are equal.

• Depending on the maximum available sentence for an offence outside Canada

or the length of sentence imposed for a conviction in Canada, a PR has recourse

to the Immigration Appeal Division (IAD), which can grant relief on humani-

tarian and compassionate (H&C) grounds.

• The temporary resident permit can allow leave for a criminally inadmissible

individual to remain or authorization to enter Canada.

• The grant of H&C relief can overcome criminal inadmissibility.

• The IRPA allows for rehabilitation in certain circumstances.

6 Medovarski v Canada (Minister of Citizenship and Immigration); Esteban v Canada (Minister of

Citizenship and Immigration), 2005 SCC 51.

7 Ibid at para 10.

8 Ibid at para 46.

9 Cha v Canada (Minister of Citizenship and Immigration), 2006 FCA 126 at para 23.

10 Ibid at para 27.

© [2022] Emond Montgomery Publications. All Rights Reserved.