If you are looking to sponsor your spouse for PR in Canada, special measures must be taken if they have been charged or convicted of a criminal offence in the past. Even if a spouse is inadmissible, there are ways to overcome the inadmissibility. The method that is utilized to overcome inadmissibility depends on the nature of the offence, the time that has passed, and the number of offences.
What is Criminality?
Generally, people with criminal convictions are not allowed to come to Canada.
Under Canada’s immigration law, if you have committed or been convicted of a crime, you may not be allowed into Canada. In other words, you may be “criminally inadmissible.”
This includes both minor and serious crimes, such as: theft, assault, manslaughter, dangerous driving, driving while under the influence of drugs or alcohol, and possession of or trafficking in drugs or controlled substances. You can find a list of criminal offences in the Criminal Code of Canada and the Controlled Drugs and Substances Act.
If you were convicted of a crime when you were under the age of 18, you may still be able to enter Canada.
What can you do?
Depending on the crime, how long ago it was and how you have behaved since, you may still be allowed to come to Canada, if you:
- convince an immigration officer that you meet the legal terms to be deemed rehabilitated, or
- applied for individual rehabilitation and were approved, or
- were granted a record suspension, or
- have a temporary resident permit.
Deemed rehabilitation, under Canada’s immigration law, means that enough time has passed since you were
convicted that your crime may no longer bar you from entering Canada.
You may be deemed rehabilitated depending on:
- the crime,
- if enough time has passed since you finished serving the sentence for the crime and
- if you have committed more than one crime.
In all cases, you may only be deemed rehabilitated if the crime committed outside Canada has a maximum prison term of less than 10 years if committed in Canada.
Rehabilitation means that you are not likely to commit new crimes.
You can apply for individual rehabilitation to enter Canada. The Minister, or their delegate, may decide to grant it or not. To apply, you must:
- show that you meet the criteria,
- have been rehabilitated and
- be highly unlikely to take part in further crimes.
Also, at least five years must have passed since:
- the end of your criminal sentence (this includes probation) and
- the day you committed the act that made you inadmissible.
Record suspension or discharge
If you want to apply for a record suspension (formerly known as a pardon) for a conviction in Canada, check with
the Parole Board of Canada. If you get a Canadian record suspension, you will no longer be inadmissible.
If you received a record suspension or a discharge for your conviction in another country, check with the visa office that serves the country or region where you live. It will tell you if the pardon is valid in Canada. This will help make sure that when you arrive in Canada, a border services officer has enough information to decide if you can enter Canada. The officer will still check to make sure you are not inadmissible for other reasons.
Temporary resident permit
A temporary resident permit lets you enter or stay in Canada if:
- it has been less than five years since the end of your sentence or
- you have valid reasons to be in Canada.
Spouse with Criminal Records or Offences
Convictions or offences outside Canada
If your spouse is outside Canada and has committed or has been convicted of a crime outside Canada, they may be
able to overcome this criminal inadmissibility. This doesn’t apply to spouse applying from within Canada and
with a conviction or offense outside Canada.
Your spouse can apply for rehabilitation either:
- before you submit the sponsorship application, or
- by submitting the rehabilitation application with your application for sponsorship. If you choose this option, IRCC will assess your eligibility as a sponsor and do the first assessment of the permanent resident application. However, they will only assess the spouse’s admissibility after they get a decision about their rehabilitation application.
If the offence would have been prosecuted summarily in Canada, and if your spouse was convicted of two or more of these offences, the period for rehabilitation is at least five years after they’ve finished serving the sentences.
Convictions or offences in Canada
If your spouse has a criminal conviction in Canada, they must ask for a record suspension (formerly a pardon)
from the Parole Board of Canada (PBC) before becoming admissible to Canada. Your spouse should not fill out the
Permanent Residence (PR) application until they have their record suspension.
To be considered for a record suspension under the Criminal Records Act, a set period of time must pass after the end of the sentence. The sentence may have been payment of a fine, period of probation, or a prison term.
If your spouse has had two or more summary convictions in Canada, they may no longer be inadmissible if:
- It’s been at least five years since they finished serving all sentences
- they’ve had no other convictions.
What is your specific situation?
Spouse only charged with an offense, but never convicted
Despite never being convicted, the charges still must be disclosed, with all facts presented, including the relevant court documents. Failure to present these documents upfront in the application upon submission can delay the application. IRCC must receive all relevant information in order to perform a proper assessment. The fact that a charge is not appearing on a Police Background Check does not absolve an individual from providing all the necessary information. All charges must be disclosed (even the dropped charges), otherwise there is risk of the application being refused for Misrepresentation, even if an individual is found to be not “criminally inadmissible.” Refusal for misrepresentation leads to a bar on entering Canada for 5 years.
Spouse convicted of only one offence of non-serious criminality and 10 years have passed
If 10 years have passed since the latter of the offence, end of sentence, parole, community service, or fine being paid, a spousal sponsorship application can be submitted, along with written arguments and evidence requesting Deemed Rehabilitation to overcome the Criminality.
Spouse convicted of one or more offences, including serious criminality, and 5 years have passed
If 5 years have passed since the latter of the offence, end of sentence, parole, community service, fine being paid, A spousal sponsorship application can be submitted, along with an Individual Rehabilitation application and the corresponding fee ($200 or $1,000, depending on the seriousness), with written arguments and evidence requesting Criminal Rehabilitation to overcome the Criminality.
If less than 5 years have passed or the offence occurred in Canada, and your spouse is not eligible for Deemed Rehabilitation or Criminal Rehabilitation
Instead of waiting for 5 years to pass to become eligible to apply for Individual Rehabilitation or Pardon, you
could request relief under Humanitarian and Compassionate (H&C) provisions in the Immigration Law. In any
Permanent Resident (PR) application, relief can be requested to overcome either an ineligibility or
inadmissibility. Well drafted written arguments and sufficient evidence must be provided to overcome
inadmissibility through consideration of H&C factors.
The relevant section of Immigration and Refugee Protection Act (S.C. 2001, c. 27) which is used to overcome criminal inadmissibility is:
Humanitarian and compassionate considerations — request of foreign national 25 (1) Subject to subsection (1.2), the Minister must, on request of a foreign national in Canada who applies for permanent resident status and who is inadmissible — other than under section 34, 35 or 37 — or who does not meet the requirements of this Act, and may, on request of a foreign national outside Canada — other than a foreign national who is inadmissible under section 34, 35 or 37 — who applies for a permanent resident visa, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.
Note: Sections 34, 35 and 37 refer to offences related to Security (Espionage, Terrorism, etc), Human or international rights violations, and Organized Criminality. Individuals involved with these types of offences cannot use H&C reasons to overcome inadmissibility. For all other offences, IRCC can be requested for consideration of H&C factors.
Get in Touch for more information or for assistance in overcoming inadmissibility and sponsoring your spouse for PR in Canada.