US Plea Bargains and Inadmissibility to Canada

October 14, 2021

The jury trial is a foundation of American liberty. It was one of the indictments in the Declaration of Independence and it is guaranteed by the Sixth and Fourteenth Amendments to the American Constitution.

However, in the 21st century, few criminal defendants ever face a jury trial. According to estimates by the Bureau of Justice Assistance, 90 to 95 percent of both federal and state criminal cases are resolved through plea bargains, where the accused gives away their right to a jury trial in exchange for leniency in the sentencing process. The leniency can come in the form of shorter jail sentences or no jail time at all.

While this leniency might avoid jail time, it could result in a criminal defendant being declared inadmissible to Canada. Depending on the severity of the criminal conviction, the potential bar of admission could be 5 years, 10 years, or permanent.

Criminal Inadmissibility to Canada

Canada and the United States have been sharing data on criminal convictions since December 13, 2012. Through this arrangement, Canadian immigration officials gain access to the US National Crime Information Center’s National Data Exchange (N-DEx). The information that is shared is enough to identify any US citizen who has had a criminal conviction in Canada or the United States.

Not all crimes will result in inadmissibility. Rather, it depends on how Canadian criminal law classifies the offense.

Under Canadian criminal law, there are three types of offenses:

  • summary offenses;
  • indictable offenses; and
  • hybrid offenses.

This system is similar to the misdemeanor and felony standards used in the United States. Summary convictions are similar to misdemeanors, while indictable convictions are similar to felonies. Hybrid convictions are offenses where the prosecution decides how to proceed.

Under s. 36(2) of the Immigration and Refugee Protection Act, (S.C. 2001, c. 27), a foreign national (including a US citizen) who wishes to enter Canada for any reason is inadmissible if they are convicted of:

  • 2 or more summary offenses; or,
  • 1 single indictable offense.

Hybrid Offenses

One may discover that they are inadmissible to Canada despite only being convicted of a single misdemeanor. 

Under Canadian criminal law, hybrid convictions are where the Crown may elect to proceed on a summary or an indictable basis and most offenses are treated as hybrid offenses. Under Canadian immigration law, all hybrid convictions are treated as “indictable convictionsâ€, regardless of the foreign prosecutor’s intent. Therefore, even minor misdemeanors rise to the level of an indictable offense and the foreign national will find themselves inadmissible.

Permanent Inadmissibility

A foreign national would be inadmissible to Canada on grounds of serious criminality if one of the following is true:

  1. If the foreign criminal conviction is equivalent to a Canadian federal offense that carries a maximum sentence of 10 years or more; or
  2. if in Canada, a foreign national was sentenced to a criminal sentence of 6 months or more.

Furthermore, if a foreign national was in jail for six months or more while in Canada, they are inadmissible to Canada.

Many US citizens have had impaired driving charges, which carry a 10 year or more sentence. A single conviction is sufficient to render one inadmissible.

Overcoming Inadmissibility

Once a person is declared criminally inadmissible, they are barred from entering Canada. However, this bar can be overcome in several ways.

Deemed Rehabilitation

A foreign national can be deemed rehabilitated by operation of law. A person will be eligible for deemed rehabilitation, depending on certain factors:

  • the seriousness of the crime committed;
  • the passage of a certain amount of time:
    • 10 years for an indictable offense;
    • 5 years for two or more summary convictions;
  • whether the person has committed more crimes since; and
  • whether the offense is punishable by a sentence of 10 years or more in Canada.

There is no application for deemed rehabilitation as such; however, one must present the information to an officer and there are means by which to try to obtain a record of an officer finding that the automatic deemed rehabilitation provisions apply.

Individual Rehabilitation

If deemed rehabilitation does not apply then one might be able to apply for individual rehabilitation.

Individual rehabilitationwill only be granted where a person can show:

  • that at least five years has passed since the commission of their last offense (in certain instances) or where there was a conviction, then the completion of all elements of their criminal sentence;
  • that they have been rehabilitated; and
  • they are unlikely to commit future crimes.

Temporary Resident Permit

A foreign national who is inadmissible and not rehabilitated must apply for a Temporary Resident Permit if they wish to enter Canada. They will need to show, amongst other things, that they are not a risk to Canadians and have a compelling reason to enter Canada for a specific period.

Criminal inadmissibility to Canada can be complicated; therefore, we recommend that a foreign national speak first to a Canadian immigration lawyer well in advance of planning of travel to Canada.