Criminality and Serious Criminality ground for Inadmissibility Section S 36

Criminality and Serious Criminality ground for Inadmissibility section S. 36

Criminality and Serious Criminality ground for Inadmissibility section S 36 of the Immigration and Refugee Protection Act IRPA. This section covers foreign nationals who have committed or been convicted of a foreign offence outside Canada as opposed or compared to committing an offence at the point of entry or within Canada. The legislative provisions are covered in Section S 36(1)(b)-(c) and S 36(2)(b)-(c) of Immigration and Refugee Protection Act (IRPA).

Criminality and Serious Criminality ground for Inadmissibility section S 36

The below legislative provisions require further elaboration of Criminality and Serious Criminality ground for Inadmissibility section S 36, the statute of law under Section S 36(1)(b)-(c) and S 36(2)(b)-(c) of Immigration and Refugee Protection Act (IRPA).

It is important to note that persons deemed inadmissible under serious criminality S 36 (1) noted S. 36(1) of IRPA will be ineligible to make a refugee claim prescribed in Protecting Canada’s Immigration System Act PCISA, 2012, C 17, S 34.

Sections S 36(1)(c) and S 36(2)(c) do not require a conviction, a charge, or even an arrest for the person applying to enter Canada to be deemed inadmissible to Canada. These provisions have been used to deem applicants inadmissible to Canada on sevral assurances including refugee claims in Canada and at the port of entry POA (reference: “Peter Edelmann, Update on Criminal Inadmissibility, Canadian Bar Association National Immigration Conference, Montreal: May 11 2013, at 3”), hence Criminality and Serious Criminality ground for Inadmissibility section S 36 may still apply.

The scope of these provisions are important to take into consideration under special circumstances where the processing officer has received intelligence or credible information indicating the person applying to enter Canada may have committed an offence and the foreign authorities provide information that the person in question would be or may be under investigation and charged, the person applying to enter Canada in question is subject to a warrant, or the person applying to enter Canada is fleeing prosecution from foreign authorities (fugitive). Criminality and Serious Criminality ground for Inadmissibility section S 36 may deem the applicant inadmissible to Canada.

Criminality and Serious Criminality ground for Inadmissibility section S 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 punishable 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.

Marginal note: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 punishable 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 prescribed by regulations.

Marginal note:Application
(3) The following provisions govern subsections (1) and (2):

(a)an offence that may be prosecuted either summarily or by way of indictment is deemed to be an indictable offence, even if it has been prosecuted summarily;
(b)inadmissibility under subsections (1) and (2) may not be based on a conviction in respect of which a record suspension has been ordered and has not been revoked or ceased to have effect under the Criminal Records Act, or in respect of which there has been a final determination of an acquittal;
(c)the matters referred to in paragraphs (1)(b) and (c) and (2)(b) and (c) do not constitute inadmissibility in respect of a permanent resident or foreign national who, after the prescribed period, satisfies the Minister that they have been rehabilitated or who is a member of a prescribed class that is deemed to have been rehabilitated;
(d)a determination of whether a permanent resident has committed an act described in paragraph (1)(c) must be based on a balance of probabilities; and
(e)inadmissibility under subsections (1) and (2) may not be based on an offence
(i)designated as a contravention under the Contraventions Act,
(ii)for which the permanent resident or foreign national is found guilty under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, or
(iii)for which the permanent resident or foreign national received a youth sentence under the Youth Criminal Justice Act.

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

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

Be convicted of an offence outside Canada;
Offence convicted if committed in Canada, would constitute an offence under an Act of Parliament; and,
Offence convicted if committed in Canada is punishable by a maximum term of imprisonment of at least 10 years.

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

Committed an act outside Canada that is an offence in the foreign country;
Offence convicted if committed in Canada, would constitute a Federal offence under an Act of Parliament; and,
Offence convicted if committed in Canada is punishable by a maximum term of imprisonment of at least 10 years.

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

Be convicted of an offence outside Canada; and
Offence convicted if committed in Canada, would constitute a federal offence under an Act of Parliament; OR
Be convicted of two (2) offences not arising from a single occurrence; and
Offences convicted of must have equivalency in Canada for a Federal offence under an Act of Parliament.

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

Committed a criminal act outside Canada that is an offence in the foreign country; and,
Act committed is an Offences in Canada must have equivalency in Canada for a Federal offence under an Act of Parliament.

Indictable offence covers both indictable and hybrid offences. As such, an indictable offence under the IRPA covers most of the offences in the Criminal Code (IRPA s. 36(3)).

Burden of Proof - criminal inadmissibility

In order to render a person entering Canada inadmissible the burden of proof rests with the Minister (Crown) to provide sufficient evidence, proof, to establish a ground of inadmissibility under in this case S 36 Criminality of the IRPA.

Standard of Proof - criminal inadmissibility

The standard of proof for the ground of inadmissibility described in Section 36, Criminality, is reasonable grounds to believe (IRPA, s. 33). Reasonable grounds to believe’ applies only to findings of fact and not law and requires something more than mere suspicion. The only exception is s. 36(1)(c), which must be established on a balance of probabilities [IRPA, s. 36(3)(d)].

“Reasonable grounds to believe for criminal inadmissibility” require lower proof than evidence required under the “balance of probabilities for criminal inadmissibility”.

Criminal Equivalency - Criminal Inadmissibility

To establish S 36(1)(b)-(c) or S 36(2)(b)-(c), the Crown must establish and provide the criminal equivalency between the convicted offence or act alleged punishable in Canada by Federal law. Immigration case law provides some rules and guidance on how to detemine equivalency depending on what information is available to the courts.

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

If the person applying to enter Canada have committed an act a conduct that is found to be an offence and punishable under Act of Parliament, then there is equivalency. If the same conduct is not found to be an offence and punishable under an Act of Parliament then there is no equivalency. Hence of the applicant has committed a offence in a foreign country that was not indictable offence in that foreign country it might still be considered ground for inadmissibility if the offence is an indictable offence in Canada.

Effect of Discharges and Pardons

Foreign pardons or discharges are not automatically recognized and effective in Canada under section 36 of the IRPA unless the foreign country laws are:

1) The foreign legal system as a whole must be similar to that of Canada;

2) The aim, content, and effect of the specific foreign law must be similar to Canadian law;

3) There must be no valid reason not to recognize the effect of the foreign law.

Rehabilitation

Section S 36(3)(c) of IRPA and sections 17 and 18 of the Immigration and Refugee Protection Regulations ‘IRPR’ set the criteria for deemed rehabilitation and when persons are eligible to apply for rehabilitation. Once a person has applied and was approved rehabilitation, the person applying to enter Canada will be deemed admissible to Canada for those convictions or offences for which they have received approved rehabilitation.

Section 36(3)(c) IRPA:

(c) the matters referred to in paragraphs (1)(b) and (c) and (2)(b) and (c) do not constitute inadmissibility in respect of a permanent resident or foreign national who, after the prescribed period, satisfies the Minister that they have been rehabilitated or who is a member of a prescribed class that is deemed to have been rehabilitated;

Thus, section 36(3)(c) states that persons seeking rehabilitation must satisfy the Minister that he or she is rehabilitated after the prescribed period (five years as per regulations below) OR if they are a member of one of the prescribed classes that is deemed to have been rehabilitated (classes listed in s. 18 of the IRPR below).

Section 17 and 18 IRPR:

section 17 allows persons to apply to Citizenship and Immigration Canada (CIC) for a rehabilitation order if 5 years has elapsed since the completion of any sentence imposed.

Section 18 of the IRPR covers persons who may be deemed rehabilitated if one of the following applies:

10 years has passed since completion of sentence if convicted of a single foreign offence equivalent to an indictable offence in Canada
10 years has passed since the commission of a single foreign offence equivalent to an indictable offence in Canada
5 years has passed since completion of sentence if convicted of two foreign offence which would be the equivalent to summary offences in Canada
5 years has passed since completion of sentence if convicted of two offences in Canada which can only be proceeded with summarily
36 (1) (a), s. 36 (1) (b), s. 36 (2) (b), sections s. 36 (1) (c) and s. 36 (2) (c) s. IRPA 17 and s. 18 IRPR