Last Updated on February 16, 2013
Under Canadian immigration law, no immigrant and with exception, no visitor shall be granted admission where the immigrant has been convicted outside of Canada of an offence that, if committed in Canada would constitute an offence that may be punishable by way of indictment under any Act of Parliament by a maximum term of imprisonment of less than ten (10) years.
In such instances, applicants are inadmissible to Canada by virtue of section 19(2)(a.1) of the Immigration Act.
Applicants who have been convicted on a charge of driving a motor vehicle while intoxicated or while the person’s ability to operate a motor vehicle is impaired by alcohol or drugs, will be assessed as being inadmissible to Canada. The Canadian Criminal Code prohibits and classifies such occurrences as constituting an indictable offence or an offence punishable on summary conviction and renders the individual liable, where the offence is prosecuted by indictment, to imprisonment for a term not exceeding five years.
Although this is a mixed offence where the Crown or State may choose to proceed either by way of summary conviction or by way of indictment, the choice of trial procedures followed by prosecuting authorities abroad is irrelevant. A foreign conviction whose Canadian equivalent is a mixed offence will be considered for immigration purposes, as an indictable offence.
In some cases an accused will enter a plea of nolo contender (no contest) which is often followed by a judicial finding of guilt. Where a finding of guilt is pronounced by the Court, an applicant will be faced with an inadmissibility as described hereinabove.
Applicants who fall within this unfortunate situation are inadmissible until they have satisfied the Minister that they have rehabilitated themselves and that at least five (5) years have elapsed since the expiration of any sentence imposed for the offence.
As Canadian immigration law recognizes that a person’s past criminal conviction(s) should not forever bar his/her admission to Canada if he/she appears to have re-established himself/herself as a law abiding member of society, the Act provides for relief from the criminal inadmissibility provisions.
Applicants who are nearing the statutory time requirement for approval can now begin readying an application for Canadian permanent residence. Immediately following the anniversary date, the application can be filed with three letters of recommendation from either public officials, respectable private citizens or clergymen and which need not refer to the conviction. As well, a Request For Rehabilitation fee will be levied. Applications of this nature will require an additional period of time to process.