One of the more common grounds of deeming someone inadmissible for immigration to Canada, such as permanent resident applications, is evidence of past criminal activity. More specifically, it is what the Immigration and Refugee Protection Act refers to as either “criminality” or “serious criminality”.
The recent case Garcia v. Canada (Citizenship and Immigration) provides a good example of the factors that will be considered in deciding whether or not someone with a history of criminal activity (or in this case, an alleged history of criminal activity) will be deemed admissible or not. The case also serves to demonstrate that even when there is evidence of such activity, all is not necessarily lost. The Garcia decision is notable as it was not just an alleged case of criminality, but “serious criminality”.
Section 36 of the Immigration and Refugee Protection Act (“IRPA”) covers the criteria on which a permanent resident or a foreign national will be deemed to be inadmissible to Canada on the grounds of “serious criminality” or “criminality”. If the applicant has been convicted in Canada of a charge which has a maximum sentence of at least 10 years or if it has resulted in an actual sentence of at least six months imprisonment, then they are considered to have a history of “serious criminality”. The section also covers criminal activity committed outside Canada. If the applicant has been convicted of a crime in a foreign jurisdiction which, if it had been committed in Canada, would be punishable by a maximum term of at least 10 years then they will also fall under the “serious criminality” designation.
However, the definition does not stop there. Section 36(1) (c) also covers situations where someone has committed a “serious” criminal act (again, using the maximum term of 10 years or more criteria), but has not been convicted for it. It was this particular section that applied to the circumstances of the Garcia case.
Inadmissibility Due to Assault Causing Bodily Harm
The Garcia case involved an applicant whose application for permanent residence was initially refused because her husband was found criminally inadmissible to Canada under Section 36(1) (c) of the IRPA. (It’s important to recall that a family member can also render an applicant inadmissible due to criminal history or other reasons.) The grounds of inadmissibility was based on a 2006 bar fight in which the husband had been involved in the Philippines. The charges in the Philippines were later withdrawn because the person who had been injured in the fight had filed what’s known as in the Philippines an “Affidavit of Desistance”. This affidavit stated that the accused had no intention to injure him and that if the victim was called to testify against the accused, his testimony would exonerate him.
Back in Canada, a visa officer considering the application concluded that the husband’s acts in the bar brawl amounted to assault causing bodily harm under Sections 265 and 267 of the Criminal Code and that there were reasonable grounds to believe the offence had occurred. Because assault causing bodily harm carries with it a maximum term of 10 years, this meant that the applicant would be deemed inadmissible on the grounds of serious criminality. Section 36(1) (c) in particular indicates that you don’t have to have been convicted of a serious crime if there is a reasonable belief that you committed the criminal act, the inadmissibility will still apply.
However, upon appeal to the Federal Court of Canada, the court found that the officer’s decision was unreasonable and unfair. The court found that the visa officer failed to conduct a proper assessment of the elements required of the Canadian offence assault causing bodily harm. The most significant issue was a lack of assessment of whether the defence of self-defence applied, and a failure to adequately assess the evidence as a whole. Because the criminal charges were dropped and there had been no trial, it was unfair and unreasonable for the visa officer to fail to consider or evaluate whether the husband had been acting in self-defence during the brawl. The court also thought it was unfair for the visa officer to assume that the Affidavit of Desistance and subsequent withdrawal of the charges resulted from a settlement between the prosecutors and the accused, rather than because the complainant subsequently realized he was at fault and thus wanted the charges withdrawn.
As such, the decision to deem Garcia inadmissible was quashed and the matter was sent back to immigration to be reconsidered by a different visa officer.
As we’ve discussed “serious criminality”, it makes sense to point out that this is not the only criminal law grounds that someone can be deemed to be inadmissible to Canada. Section 36 (2) covers non-serious criminality (just referred to as “criminality”). We can examine this sub-section of the clause in greater detail in a future blog, but to summarize, if an applicant has been convicted of an indictable offence (or if outside Canada, the equivalent of an indictable offence) or has had more than one summary conviction (similar to what might be called “misdemeanour” offence in the United States), then they can also be deemed to be inadmissible.
The distinction between indictable offences constituting serious criminality and indictable offences constituting criminality, or between indictable offences and summary conviction offences can often be complicated, particularly when the offences occurred in a foreign jurisdiction. As the Garcia case demonstrates, the visa officers deciding on cases can make errors in their assessment of applications. Therefore, it’s highly recommended to have legal representation to help guide you through the application process and provide the best possible applications which will stand the greatest chance of being successfully granted, whether these applications be for work permits, student visas or permanent resident applications.
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