Criminal Inadmissibility: A Legal Overview -

Criminality and Serious Criminality ground for Inadmissibility Section S 36

Criminality and Serious Criminality : Ground for Inadmissibility section S. 36

Criminal inadmissibility Canada is one of the most important issues in Canadian immigration law because it can affect a person’s ability to enter Canada, remain in Canada, or continue with an immigration application. Under section 36 of the Immigration and Refugee Protection Act (IRPA), criminal inadmissibility is divided into criminality and serious criminality, and the consequences can be serious for both foreign nationals and permanent residents. In some cases, a finding of serious criminality may also affect whether a person can make a refugee claim. This page explains the main grounds of inadmissibility under section 36, including foreign convictions, acts committed outside Canada, criminal equivalency, burden of proof, standard of proof, rehabilitation, and the effect of pardons or discharges

Criminality and Serious Criminality ground for Inadmissibility section S 36

Criminal inadmissibility Canada rules are mainly found in section 36 of the Immigration and Refugee Protection Act(IRPA). This section explains when a foreign national or permanent resident can be found inadmissible because of criminal conduct in Canada or outside Canada. In simple terms, section 36 separates these cases into serious criminalityand criminality. Serious criminality can apply to both foreign nationals and permanent residents, while criminality under subsection 36(2) applies to foreign nationals.

It is important to note that a finding of serious criminality can also affect refugee protection. In the situations set out in section 101 of IRPA, a person may be found ineligible to make a refugee claim because of serious criminality. That is why section 36 cases can have consequences beyond entry to Canada and can also affect protection claims.

It is also important to note that sections 36(1)(c) and 36(2)(c) do not always require a conviction. In some cases, a person may still face inadmissibility if they committed an act outside Canada that was an offence where it happened and that would also be an offence in Canada. In other words, the immigration issue is not always limited to a court conviction alone.

Because of this, officers do not look only at the title of a foreign offence. They also look at the facts, the foreign law, the Canadian equivalent offence, and the available evidence to decide whether section 36 applies.

Serious criminality – Section 36(1)

A permanent resident or foreign national may be inadmissible for serious criminality if they were convicted in Canada of an offence that carries a maximum sentence of at least 10 years, or if they were convicted in Canada and actually received a sentence of more than 6 months. This is one of the most serious forms of criminal inadmissibility in Canada because it can affect status, removal, and refugee eligibility.

A person may also be inadmissible for serious criminality if they were convicted outside Canada of an offence that, if it had happened in Canada, would be punishable by a maximum sentence of at least 10 years under Canadian law. In these cases, Canadian immigration authorities do not look only at the name of the foreign offence. They look at what the equivalent offence would be in Canada.

Serious criminality can also apply even without a conviction. If a person committed an act outside Canada that was an offence where it happened, and that same act would be an offence in Canada punishable by a maximum sentence of at least 10 years, they may still be found inadmissible

Criminality – Section 36(2)

A foreign national may be inadmissible for criminality if they were convicted in Canada of an offence punishable by indictment, or if they were convicted of two offences under an Act of Parliament that did not arise from a single event. This is a lower threshold than serious criminality, but it can still lead to refusal of entry or refusal of an immigration application.

A foreign national may also be inadmissible for criminality if they were convicted outside Canada of an offence that, if committed in Canada, would amount to an indictable offence. The same rule can also apply where the person has two foreign convictions that did not arise from one single occurrence and would both be offences in Canada.

Criminality can also exist without a conviction. If a foreign national committed an act outside Canada that was an offence where it happened, and that same act would be an indictable offence in Canada, they may still be inadmissible

Application – section 36(3)

Section 36 also explains how these rules must be applied. First, an offence that can be prosecuted either summarily or by indictment is treated as an indictable offence for immigration purposes, even if it was actually prosecuted summarily. This matters because many offences that seem less serious can still count as indictable offences in immigration law.

Second, a person cannot be found inadmissible on the basis of a conviction if there is a valid record suspension in place or if there has been a final acquittal. This means not every past conviction will continue to support inadmissibility forever.

Third, the foreign-conviction and foreign-act provisions in sections 36(1)(b), 36(1)(c), 36(2)(b), and 36(2)(c) may no longer create inadmissibility where the person has, after the prescribed period, satisfied the Minister that they have been rehabilitated, or where they belong to a class that is deemed rehabilitated.

Fourth, where the issue is whether a permanent resident committed an act described in section 36(1)(c), the decision must be made on a balance of probabilities.

Finally, inadmissibility under section 36 cannot be based on an offence that is designated as a contravention, an offence dealt with under the old Young Offenders Act, or an offence for which the person received a youth sentence under the Youth Criminal Justice Act

In simple terms, criminal inadmissibility Canada under section 36 is not limited to convictions in Canada. It can also apply to foreign convictions, conduct outside Canada, and offences that have a Canadian equivalent. That is why section 36 must always be reviewed carefully before a person applies to enter Canada, make an immigration application, or raise a refugee claim.

Requirements of Inadmissibility for Serious Criminality or Criminality under the Immigration and Refugee Protection Act (IRPA) – Criminality and Serious Criminality ground for Inadmissibility section S 36

To establish criminal inadmissibility Canada under section 36, decision-makers usually look at a few basic questions. Was there a conviction, or is the case based on the person committing an act? If the matter happened outside Canada, was it an offence where it happened? Would that same conduct amount to an offence in Canada? And if so, does it meet the threshold for serious criminality or criminality under section 36?

Another important point is that offences that can be prosecuted either summarily or by indictment are treated as indictable offences for section 36 purposes. This matters because many applicants assume a hybrid offence is minor, but for immigration law it is treated as indictable.

It is also important to understand that inadmissibility cannot be based on every past criminal matter forever. Section 36 says that a final acquittal, and a valid Canadian record suspension, can change the analysis. Rehabilitation and deemed rehabilitation can also matter in some foreign offence cases

Ground for Inadmissibility for Serious Criminality Section S 36(1)(b)

Section 36(1)(b) deals with a person who was convicted outside Canada of an offence that, if committed in Canada, would be punishable by a maximum term of imprisonment of at least 10 years. This section is about a foreign conviction, but the real legal test is the Canadian equivalent offence.

To prove inadmissibility under section 36(1)(b), the usual points are:

The person was convicted outside Canada.
If the same conduct had happened in Canada, it would amount to an offence under an Act of Parliament.
The Canadian equivalent offence would be punishable by a maximum term of at least 10 years.

Ground for Inadmissibility for Serious Criminality Section S 36(1)(c)

Section 36(1)(c) is important because a conviction is not required. A permanent resident or foreign national may still be inadmissible for serious criminality where they committed an act outside Canada that was an offence where it happened and that, if committed in Canada, would be punishable by a maximum term of at least 10 years.

The main points under section 36(1)(c) are:

The act happened outside Canada.
The act was an offence in the foreign country where it happened.
If committed in Canada, the same act would amount to an offence punishable by a maximum term of at least 10 years.

For permanent residents, section 36(3)(d) adds an important rule: a determination under section 36(1)(c) must be based on a balance of probabilities.

Ground for Inadmissibility for Criminality Section S 36(2)(b) (Criminality)

Section 36(2)(b) applies to foreign nationals only. It covers a person who was convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable offence, or of two offences not arising from a single occurrence that, if committed in Canada, would also constitute offences under an Act of Parliament.

The usual points under section 36(2)(b) are:

There was a conviction outside Canada.
The offence, if committed in Canada, would amount to an indictable offence.
Or there were two separate offences, not from one single event, that would also be offences in Canada.

This is the lower criminality threshold. Unlike serious criminality, it does not require the Canadian equivalent offence to carry a maximum term of 10 years.

Ground for Inadmissibility for Criminality Section S 36(2)(c) (Criminality)

Section 36(2)(c) also applies only to foreign nationals, and again, a conviction is not required. It applies where a person committed an act outside Canada that was an offence where it happened and that, if committed in Canada, would constitute an indictable offence.

The main points under section 36(2)(c) are:

The person committed an act outside Canada.
The act was an offence in the foreign country.
If committed in Canada, the act would amount to an indictable offence.

This section is one reason why criminal inadmissibility Canada cases can arise even where there is no final conviction abroad

Burden of Proof - criminal inadmissibility

The burden of proof depends on the person’s immigration status. Where the matter involves a permanent resident or a foreign national already authorized to enter Canada, the burden rests on the Minister to establish inadmissibility.

For a foreign national who has not been authorized to enter Canada, the burden rests on that person to show that they are not inadmissible. Even so, the Minister still presents the evidence first because the Minister is the party bringing the inadmissibility allegation.

Standard of Proof - criminal inadmissibility

The general inadmissibility standard in sections 34 to 37 of IRPA is reasonable grounds to believe. Section 33 says this standard applies to facts that have occurred, are occurring, or may occur. This is a lower standard than proof beyond a reasonable doubt, and immigration proceedings are not criminal trials.

At the same time, reasonable grounds to believe is more than mere suspicion. It must be based on credible information. One important exception is a permanent resident case under section 36(1)(c), which must be decided on a balance of probabilities

Criminal Equivalency - Criminal Inadmissibility

Criminal equivalency is a key part of any criminal inadmissibility Canada analysis. When an offence happened outside Canada, the legal question is whether the foreign offence or conduct has a Canadian equivalent under an Act of Parliament.

This means officers do not look only at the name of the foreign offence. They compare the foreign law, the facts of the case, and the possible Canadian offence to decide whether the essential elements match. That is why equivalency often becomes the most important issue in section 36 cases.

Committed an Act (No conviction) – S. 36(1)(c), S. 36(2)(c)

A person does not always need a conviction to be found inadmissible. For sections 36(1)(c) and 36(2)(c), the issue is whether the person committed an act outside Canada that was an offence where it happened and that would also be an offence in Canada.

In simple terms, the immigration analysis can still move forward even where the foreign case did not end with a conviction. The focus is on the act itself, the foreign law, and the Canadian equivalent offence.

Effect of Discharges and Pardons

The effect of a pardon or discharge depends on where it was granted. If a person received a Canadian record suspension or pardon, IRCC says they are no longer inadmissible because of that conviction and can likely enter Canada. Section 36 also says inadmissibility cannot be based on a conviction where a valid Canadian record suspension remains in effect.

A foreign pardon or discharge is different. It is not automatically treated the same way in Canada. Canadian authorities may still need to assess the foreign legal system and the effect of the pardon before deciding whether inadmissibility remains.

Rehabilitation

Rehabilitation is one of the main ways to overcome criminal inadmissibility Canada for foreign offences or acts outside Canada. IRCC explains that rehabilitation means the person is not likely to commit new crimes. In general, at least five years must have passed since the end of the sentence, including probation, or since the act that made the person inadmissible.

If a person is not yet eligible for rehabilitation, another possible option is a Temporary Resident Permit, if the travel to Canada is justified in the circumstances and the person does not pose an unacceptable risk.

Section 17 and 18 IRPR

Section 17 of the Immigration and Refugee Protection Regulations sets the prescribed period for rehabilitation under paragraph 36(3)(c) of the Act. In general, the period is five years after the completion of the sentence for matters under sections 36(1)(b) and 36(2)(b), and five years after committing the offence for matters under sections 36(1)(c) and 36(2)(c), provided there has not been a later disqualifying conviction.

Section 18 of the Regulations deals with deemed rehabilitation. It covers certain people who may be treated as rehabilitated without a separate approval, but only if they meet the legal conditions. In broad terms, section 18 includes:

A person convicted outside Canada of one indictable-equivalent offence punishable in Canada by a maximum term of less than 10 years, where at least 10 years have passed since sentence completion.
A person convicted outside Canada of two or more summary-equivalent offences, where at least 5 years have passed since completion of the sentences.
A person who committed one act outside Canada that would be an indictable offence in Canada punishable by a maximum term of less than 10 years, where at least 10 years have passed since the act.

Even where section 18 may apply, the person still has to meet the additional conditions set out in the Regulations. That is why deemed rehabilitation should always be assessed carefully before travel or before filing an immigration application.

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