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Can an ex-convict visit Canada?

Wednesday, December 25, 2013    

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Dear Mr Brown,

I was convicted of a crime and served a sentence for five years. I was then deported to Jamaica. I would like to know when can I visit Canada. Is there a period of time that I have to wait or would I be banned for life?

KGCT

Dear KGCT,

I am not sure of the exact nature or location of the offence or your age. These are all relevant factors. You may be able to apply for a pardon or rehabilitation depending on the circumstances. However, I will give you a general response about criminal inadmissibility. A legal decision on inadmissibility can only be made at the time that one seeks entry into Canada either through an application or at a port of entry. However, depending on the nature of an offence, the time elapsed, and one's behaviour since it was committed or since one was sentenced, one may no longer be considered inadmissible to Canada.

For example, you may be considered criminally inadmissible if you:

* were convicted of an offence in Canada;

* were convicted of an offence outside of Canada that is considered a crime in Canada; and/or

* committed an act outside of Canada that is considered a crime under the laws of the country where it occurred and would be punishable under Canadian law.

You may be permitted to go to Canada if:

* you are able to satisfy an immigration officer that you meet the legal requirement to be deemed rehabilitated; or

* you have applied for rehabilitation and your application has been approved;

* you have obtained a pardon; or

* you have obtained a temporary resident permit.

It is important to note that the outcome of an application is never guaranteed. There are factors that guide the decisions for applications for rehabilitation, pardons or temporary resident permits. However, decisions dealing with immigration matters are largely discretionary, although the discretion is held to certain standards.

Summary offences should be interpreted as ones that are less serious, with sentences that are normally less than two years, as contrasted with indictable offences which are more serious, with sentences of two years or more. Of course, indictable offences range from less serious to more serious as well.

Deemed Rehabilitated

Rehabilitation means that one is restored through leading a stable life after conviction for a criminal offence and is unlikely to be involved in any further criminal activity.

The requirements for being deemed rehabilitated may depend on the nature of the offence(s) committed or for which an individual has been convicted, and the passage of time after the offence. At least five years and as many as 10 years must have passed since the completion of an imposed sentence.

However, in all cases, you may only be deemed rehabilitated if the offence committed would be punishable in Canada by a maximum term of less than 10 years. One is not required to submit an application to be deemed rehabilitated.

Application for Rehabilitation

Should one not be eligible to be deemed rehabilitated, and wishes to go to Canada after committing or being convicted of a crime, one must apply for rehabilitation. At least five years must have passed since the completion of criminal sentences or five years have elapsed since the commission of a criminal act. Details of criminal history are required for visa applications. This process entails an application and processing fee.

Pardon

If you received a pardon in Canada for a Canadian conviction, you may be allowed to enter Canada. However, if you received a pardon or a discharge for a criminal conviction in a country other than Canada, you should first determine whether you qualify.

You are admissible if charges are withdrawn, dismissed, or if you are discharged or pardoned for offences that occur in Canada. For offences that occurred outside of Canada, you may be inadmissible.

Temporary Resident Permit

A temporary resident permit (TRP) may allow an admissible person to enter or remain in Canada if less than five years have passed since the end of a criminal sentence, or if justified by compelling circumstances. A TRP may also be cancelled at any time.

A temporary resident permit can be granted if:

* the offence was minor, ie there is no involvement of drugs, physical violence, or damage to property;

* there are no more than two criminal convictions;

* there is no pattern of criminal behaviour;

* the individual has completed all sentences; and

* there is a high probability that the individual will successfully settle in Canada without committing further offences.

Offences Outside Canada

For indictable offences outside of Canada, one may overcome criminal inadmissibility by applying for rehabilitation, or one may be deemed to have been rehabilitated if at least ten years have passed since the sentence was completed or since the commission of the offence (if the offence would be an indictable offence punishable by a maximum term of imprisonment of less than ten years.

If the offence is one that would, in Canada, be prosecuted summarily, and if one is convicted for two or more such offences, the period is at least five years after the sentences were served.

For summary offences, five years must elapse after the sentence is concluded to be deemed rehabilitated, while an application for rehabilitation may be done after two years.

Offences in Canada

For criminal convictions in Canada, one must seek a pardon or clemency before one will be admissible to Canada. A specified period of time must pass after the end of the sentence. The waiting period for offences is five years if prosecuted by indictment, and three years if punishable on summary conviction.

For persons having two or more summary convictions in Canada, one may no longer be inadmissible if at least five years have passed since all sentences were served.

For further information visit jamaica2canada.com.

— Antonn Brown, BA, (Hons), LLB, MSc, RCIC, is an immigration counsel, education agent and managing director of JAMAICA2CANADA.COM — a Canadian immigration & education firm in Kingston. Send questions/comments to jamaica2canada@gmail.com

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