A permanent resident or a foreign national is inadmissible on grounds of serious criminality for having been convicted in Canada of an offence 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.
๏ปฟ๏ปฟInadmissibility does not arise where an offense is pardoned or where there is record suspension, rehabilitation, or for discharges (conditional or absolute). However, inadmissibility for organized criminality is not based on a conviction.
The significance of collateral immigration consequences will depend on the facts of the case and a sentencing judge may take immigration consequences into account, provided that the sentence ultimately imposed is proportionate to the gravity of the offence and the responsibility of the offender. Pham, 2013 SCC 15
There are no appeal rights to the Immigration Appeal Division (IAD) by a foreign national if the foreign national or permanent resident is found to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality.
An enforcement officer makes the determination for inadmissibility if they are of the opinion that the person concerned is inadmissible. Such an officer will make a report and transmit to the Minister in this regard.
The Evidentiary standard for commencing the admissibility process is LOW under the law. The facts that constitute inadmissibility include facts arising from omissions and, unless otherwise provided, include facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur.
While inadmissibility for criminality in Canada is based on convictions, inadmissibility for foreign criminality can arise from the commission of an offence, assessed on the low evidentiary standard.
In the case of a foreign national sentenced to a term of imprisonment in Canada, a removal order is stayed until the sentence is completed.
The Criminal Code places onus on accused who are not ordinarily resident in Canada to establish why their detention in custody is not justified. Foreign nationals can be considered ordinarily resident in Canada and formal legal status is but one factor, others include:
- Whether accused has submitted a claim for refugee status๏ปฟ๏ปฟ
- Possession of a temporary work permit๏ปฟ๏ปฟ
- Steps being taken to obtain status or to review/appeal/judicially review any removal order
- Otherwise having a residence and roots in the community๏ปฟ๏ปฟ
- The length of time spent in Canada with knowledge and approval of the immigration authorities.
If in considering all of the factors, there is an element of permanence or a settled purpose to establish ordinary residence, the accused is to be considered ordinarily resident.
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