The following piece was written by Daniel Kingwell, a partner at Mamann, Sandaluk and Kingwell LLP, where he has practiced in all areas of immigration law for almost two decades. He is a head of the firm’s thriving litigation practice, regularly appearing before the Immigration and Refugee Board, and the Federal Court of Canada. You can reach Daniel by calling him toll free at 1-855-402-1845, or by email at [email protected].
In our last blog, we explained how some people with a criminal history are inadmissible to Canada, and so may require a Temporary Resident Permit (TRP) to enter the country. However, this is only a temporary fix. Depending on the type of TRP issued, it will only allow you to enter Canada for a single visit, or multiple visits over a limited time period. In other words, it’s only a band aid solution. You may want to resolve the problem once and for all.
For those who want to be able to enter Canada without having to resort to a discretionary TRP, the answer is to apply for “criminal rehabilitation”. Criminal rehabilitation may best be described as an immigration pardon. Once granted, Canadian border officers will no longer consider you to be inadmissible, and you will be as free to enter Canada as anyone else, without the need to apply for a TRP.
The following answers some common questions about criminal rehabilitation.
When am I eligible to apply for criminal rehabilitation?
As discussed in our last blog, you may be criminally inadmissible to Canada in two cases: where you have one or more criminal convictions; or where a border officer has reason to believe that you have committed a criminal offense, even without a conviction or even a charge. In either case, the wait time to apply is five years. The way this is calculated depends on the manner in which you are inadmissible.
On the one hand, if you are inadmissible for a criminal conviction, and have no further convictions, start counting the five-year wait period from the completion of your last sentence. This includes all aspects of the sentence, such as any jail sentence, probation, driving prohibition, and payment of any fine. In many cases, we have had to tell disappointed clients that they are not eligible to apply for an old offense, simply because they missed paying a small fine. In that case, they would have to pay the fine and wait another five years before applying. If you think you may want to travel to Canada in the future, make sure to satisfy all elements of your sentence as soon as possible.
On the other hand, if you are inadmissible for a suspected criminal act without a conviction, you may apply once five years have passed since the act occurred. Again, you cannot have any subsequent convictions.
As an aside, in some cases, you may be “deemed rehabilitated”. This was discussed in our last blog. If it applies to you, you are no longer inadmissible and won’t need to apply for criminal rehabilitation.
How do I apply for criminal rehabilitation?
Immigration, Refugees and Citizenship Canada requires that you complete a set of application forms to apply for criminal rehabilitation. You must also pay a processing fee of $155 to $770, depending on the severity of your criminal offense.
Along with the forms, you will be asked to submit supporting documents, including available police and court records of your charge and conviction, state and FBI police clearance certificates, copies of the laws under which you were convicted, and proof of completion of your sentence. You will also need evidence that you are now of good conduct and not likely to re-offend.
In the US, the completed application must be submitted to the consulate in New York. If you are applying for criminal rehabilitation along with a TRP, you must submit the application to the consulate in Los Angeles.
How long does it take for a criminal rehabilitation application to be determined?
There is currently no published processing time. You should allow for a processing time of nine months to a year, although processing may take longer. This will vary considerably, in particular due to recent processing delays. Once received, Canadian officials will need to examine the application closely to determine whether you pose a danger to the public. This takes time, because they take this assessment very seriously. To be on the safe side, submit the application as soon as possible.
While your application for criminal rehabilitation is in process, you may still seek to enter Canada. In that case, you will require a TRP.
How do they decide whether to approve my application for criminal rehabilitation?
Just because you are eligible to apply for criminal rehabilitation, does not mean that you will be approved. To succeed, the reviewing officer must be satisfied that you no longer pose a risk to re-offend.
To make this determination, the officer will first look at the nature and severity of the offense. How serious was it? How long ago did it occur? Was it out of character, or part of a pattern of criminality? Why did you commit the offense? What was going on in your life at the time that led you to offend, and is this ongoing? You may have offended because of a drug or alcohol addiction, a bad crowd, or psychological, financial, or other personal problems.
Ultimately, the officer will want to see proof that you have addressed these underlying issues, and are now in a stable and positive personal, social and economic situation. If you were convicted of impaired driving, was it related to alcohol abuse, and if so, have you successfully completed addiction counselling? Have you taken courses related to dangers of impaired driving? If you were convicted of assault, have you completed anger management or relationship counselling? If you committed a property offense, have you now established a steady, legitimate source of income, and stabilized your finances? In all cases, the officer would like to see that you have normalized your personal circumstances, including through education, employment, financial stability, and family and community ties. If you have truly rehabilitated, the evidence will tell the tale.
What happens to my application?
If your application is approved, you will no longer be criminally inadmissible. Provided that you meet all other requirements, you will be free to enter Canada, and won’t have to worry about a discretionary TRP to enter.
On the other hand, if your application is denied, you may wish to appeal the decision to Canada’s Federal Court. Alternatively, you may wait and apply again once more time has passed, and your personal situation has improved further. In the meantime, you may still request to enter Canada on a TRP, if you can demonstrate that your need to enter Canada on a short-term basis outweighs the risk you pose to the public. In our next blog, we will discuss the factors that the officer will consider in a TRP application.
In the end, criminal rehabilitation is a highly individualized assessment, involving the personal discretion of an officer. It can be difficult to know if you qualify, or what information and evidence you need to present. As with any immigration application, it is advisable to speak to a lawyer before proceeding. Give our office a call or click here for an assessment. We have successfully processed many such applications, and would be happy to help you be next!
