Remedies

• Author: Raj Sharma/Aris Daghighian
• Pages: 409-506

409

5

Remedies

I. The Way Back: Overcoming Criminal Inadmissibility by Way of

Rehabilitation, RecordSuspension, and Pardon ................ 410

II. Temporary Resident Permits ................................ 426

III. Authorizations to Return to Canada .......................... 461

IV. The Humanitarian and Compassionate Application ............. 468

V. Ministerial Relief .......................................... 489

Appendix 5.1—Terms of Art .................................... 500

Appendix 5.2—The Inadmissibility Sections ....................... 501

Appendix 5.3—Excerpts from the CBSA Webpage on Ministerial Relief ... 502

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

410 Inadmissibility and Remedies

I. The Way Back: Overcoming Criminal

Inadmissibility by Way of Rehabilitation,

RecordSuspension, and Pardon

A. Overview

A finding or potential finding of inadmissibility arising from criminality does not ne-

cessarily preclude continued stay in or future entry to Canada. There is a pathway

back; individuals can overcome criminal inadmissibility with a recognition by Immi-

gration, Refugees and Citizenship Canada (IRCC) that their past should not dictate

their future. This recognition can be:

• deemed rehabilitation after the passage of time with no subsequent criminality;

• a formal finding of rehabilitation (sometimes called a certificate of rehabilitation);

• a record suspension for a Canadian conviction; or

• a foreign pardon or expungement recognized to be equivalent to the Canadian

record suspension.

Rehabilitation means satisfying IRCC that an applicant has moved on from their

past and they will not repeat criminal behaviour. The concept of rehabilitation within

the Immigration and Refugee Protection Act1 mandate intersects with the concept of

recidivism, derived largely from the criminal justice system.

Even if decades have passed, even if there was no conviction or no sentence, charges

are forever. The passage of time, no matter how lengthy, does not excuse an applicant

from disclosing and dealing with dated criminal record(s). A dated and limited criminal

record is far easier to deal with than a fresh allegation of misrepresentation.

Further, neither counsel nor the person concerned should assume that a foreign

pardon or pardon-like instrument will be recognized by a Canadian immigration officer.

It is important for counsel to understand how to navigate the rehabilitation regime.

Most of the statutory rehabilitation provisions are found in the Immigration and

Refugee Protection Regulations.2 Counsel should also have regard to IRCC manuals

ENF 14/OP 19: Criminal Rehabilitation3 to understand the rehabilitation provisions

and applicability to the facts at hand. ENF 14/OP 19 provides a detailed overview of

the application of therehabilitation provisions of the IRPA and IRPR. The relevant

1 SC 2001, c 27 [IRPA].

2 SOR/2002-227 [IRPR].

3 IRCC (Ottawa: IRCC, 2008). Not available on the IRCC website and obtained and reviewed

after an access to information request.

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

Chapter 5 Remedies 411

guide (IMM 5312)4 is also helpful in determining both eligibility and calculation of

the relevant wait periods.

Criminal inadmissibility for offences committed inside Canada require criminal

convictions that carry with them immigration consequences. The relevant IRPA inad-

missibility provision is contained at section 36:

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 pun-

ishable 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 pun-

ishable 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 pre-

scribed by regulations.

Section 37 of the Act, “organized criminality,” is a different beast altogether. A

finding of inadmissibility on this ground does not require conviction, and the only

4 IRCC, “Rehabilitation for Persons Who Are Inadmissible to Canada Because of Past Crim-

inal Activity” (last modified 27 March 2020), online: Government of Canada <https://www

.canada .ca/en/immigration-refugees-citizenship/services/application/application-forms

-guides/guide-5312-rehabilitation-persons-inadmissible-canada-past-criminal-activity.html>

[“Rehabilitation”].

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