Reasonable Doubt: Why Mom might not get to meet your special someone at Christmas
You met that special foreign someone (probably online). Now you want to bring her home to meet your parents for the holidays. Or maybe she has a job offer and is all set to get her work permit. Or maybe you’re going to see if you can make it work with that sassy Cirque de Soleil performer you married in Vegas last weekend.
Everything is going great—until you get to the border and you find out that the “artistic” wobbly peace sign on her shoulder is a prison tattoo, and the love of your life is being denied entry into Canada.
Foreign nationals with criminal convictions are inadmissible to Canada. Canada Border Services Agency officers do not run a criminal record check on every visitor to Canada, so it may not be until an application for a work permit or permanent residency is made that a decade-old vandalism conviction becomes an issue.
There are mechanisms in place to gain entry to Canada despite one’s criminal history. After all, if CBSA officers turned away every visitor who was convicted for being drunk and rowdy at a concert in the ’70s, our tourism industry would probably tank.
Officers may determine that a would-be visitor is “deemed rehabilitated”. All crimes committed abroad are analyzed and equated to Canadian law. If the visitor has a conviction that would be considered a summary offence in Canada (meaning it would have a maximum sentence of six months imprisonment and/or a $2,000 fine), and at least five years have passed since the sentence was completed, a visitor may be deemed rehabilitated. If the crime would have been an indictable offence and punishable by a maximum sentence of less than 10 years, then 10 years must have passed since the completion of the sentence. The foreign national must also demonstrate to the investigating officer that he or she is unlikely to reoffend. If the visitor has multiple convictions, he or she may not be eligible for deemed rehabilitation.
In Canada, sometimes a crime can be prosecuted as either a summary or an indictable offence. In those cases, the crime is deemed by Immigration to be indictable. An example is a drinking and driving conviction: Canada considers DUIs abroad to be indictable offences. This is even the case for Americans whose DUIs were prosecuted as “misdemeanors”.
If your lady-friend does not qualify for deemed rehabilitation, she can still apply for “individual rehabilitation”. This is a formal, time-intensive application that involves, among other things, submitting all court documents, criminal records checks, and a history of every place she has lived since the age of 18. These applications are not cheap—the initial application fee is $200, and if a reviewing officer decides the crime (or crimes) are serious, they may ask you to cough up another $800 for it to be processed. This type of application is not always reviewed right at the border, and could take weeks or months before a decision is made.
If the crime at issue were committed within Canada, the foreign national is expected to obtain a record suspension (a pardon), unless he or she has just one summary conviction. There is a common misconception that if a record in the USA was “expunged” it will not be an issue. This is not entirely true: oftentimes, an expungement by a state will not result in the record being removed from the FBI’s National Crime Information Center. It may still cause a problem at the border.
Not everyone is eligible for criminal rehabilitation: if you’re dating someone with serious criminality—like a serial killer or war criminal—forget it. She’s not getting in. (You may also want to exclude war criminals from your dating pool. That should really be a deal-breaker.)
So, before your mom puts out the extra table setting, you may want to casually broach the past criminality topic with that special someone. If you’re not sure if she qualifies for rehabilitation, check with Immigration. It may be best to deal with the admissibility issue head-on and have peace of mind, rather than roll the dice at the border.
Carmen Hamilton is an immigration and civil litigation lawyer at Singleton Urquhart LLP. Reasonable Doubt appears on Straight.com on Fridays. You can send your questions for the column to its writers at email@example.com.
A word of caution: Don’t take this column as personal legal advice, because it’s not. It is intended for general information and entertainment purposes only.