There are quite number of visa applicants with criminal records.
Hello, I’m Rheanne from SK Immigration & Law
Today’s topic is, quite a heavy one, a crime
I’ll be talking about how Canadian PR processing changes if the applicant has a criminal history
In principle, the Immigration of Canada does not allow those with severe criminal history or health issues to enter Canada.
But I have seen quite number of applicants with criminal history going through visa processing
The interesting thing is that every single one of them look at their crimes very differently
Some worry too much about their crimes that are not severe while some do not even think about their severe crimes seriously.
They tend to be very optimistic about their convictions thinking that it’s not a problem since they haven’t been imprisoned for it
So, we’ll see how the processing gets affected by the applicant’s criminal history, if you can apply for a PR with one, and which crimes are considered problematic in visa and PR processing
Q1. How would the previous criminal history in my home country be processed differently in Canada?
First off, I’ll tell you the list of crimes from abroad that the Immigration of Canada does not take seriously
It’s the criminal law of Canada that determines the seriousness of crime not based on the law of the country that the crime was convicted in
For example, South Korea regulated its marriage law and used to charge for adultery.
They also charged for breach of “civil defence”.
However, both these crimes are not considered as one nor charged in Canada.
Each country has its own legislatures to look at different crimes in different ways. Therefore, they also charge punishment differently.
The key point here is to think about how your previous crime would be charged here in Canada
That means every crime that has been prosecuted is a subject to be examined.
If you were investigated without being charged, had a withdrawal of prosecution, or closing without charges - you’ll be a subject to be examined.
Q2. How serious would my previous crime be based on Canadian criminal law?
Every crime in Canada is considered differently based on its seriousness.
“Summary Offence” is any offence that is considered less serious than indictable offences. There’s also a “Hybrid Offence” where the prosecutor can choose, based on factors such as the seriousness of the accused’s actions, to proceed with the offence as either a summary offence or as an indictable offence.
First is a summary offence.
To be considered as a summary offence, the accused’s actions will be as follows: possess cocaine, cannabis, other drugs and controlled substances; public nudity; raising prohibited animals; money laundering, theft under $5,000, and etc.
If you have convicted a similar crime, it’s likely that the criminal law of Canada will charge it as a summary offence.
Second is an indictable offence.
It includes 1st and 2nd degree murder; manslaughter; infanticide; motor vehicle offences causing death; attempt murder; sexual assault level 2 and 3; kidnapping, etc.
Road rage incident, motor vehicle offence causing any harm against the person (such as drink driving), indictable sex offences against children, are all considered as an indictable offence in Canada.
Third, hybrid offence.
A hybrid offence is the one where most of applicants get rejected for in their PR processing.
It includes impaired driving, driving over .08, refuse to give breath sample, road rage, etc.
Violence is considered as a hybrid offence unless violence with weapons or causing severe injuries to the person – this will be considered as an indictable offence.
Prostitution brokering, sexual violence, or prostitution transaction is considered a hybrid offence but if its against the person under the age of 16, it will be considered as an indictable offence.
It’s way stricter in Canada compared to South Korea.
I’ve mentioned about possession of pornography of underage minors.
Just by possessing, saving a file, or even watching a pornography of underage minors on your computer, you can be accused of a severe crime in Canada.
This reminds me of the Nth Room case that took place in South Korea
If it was to happen in Canada, it could have been accused and charged as a very serious and severe crime
Most of crimes in Canada refers to hybrid offence
Even though the crime falls under the same sector, the visa or PR processing is likely to be rejected or denied depending on its seriousness, repetitiveness, and intentions.
However, it is likely that it will not be a problem or charged if the crime is not applied under the federal criminal law of Canada or the crime took place when the accused was a minor.
On the other hand, it becomes a very tough one if the accused was imprisoned for over 6 months in his country.
But I have seen and handled a case where one of my clients had an imprisonment over a year due to his involvement with South Korea’s democratic uprising back in 1980s (the movement which paved the way and eventually brought democracy to South Korea).
I was sorry and grateful for him while working on his case.
We wrote an appeal for his case, and he was able to get his PR without any questioning.
Q3. How long do I have to wait from the time of my accused crime until I’d be able to apply for a visa?
The next important thing to know about criminal history is that the accused has been living his life in a different way than he previously did after committing a crime. This is important because it proves the accused will not commit additional crime in the future.
So, it would be better with longer period of time with no additional charges after the incident.
The duration of time is calculated after your punishment is completed.
That means after you pay all the fines if you’re fined, after you’re released from imprisonment, and after your probation period ends.
Based on Canada’s federal criminal law, they don’t take it seriously if the accused committed only one summary offence and his punishment had already completed 5 years ago.
A lot of you may assume that they will not take it seriously with a criminal history after 10 years.
To be clear, that only applies when the accused committed one, summary offence over ten years ago. This is different than the accused with one indictable offence made five years ago.
There’s a regulation that says the summary offence that has been over ten years will be rehabilitated but this does not mean it will be automatically rehabilitated.
The accused will still be the subject of examination and most of them get passed but it is not guaranteed.
Then if you have a criminal history that is more serious than these, would it be impossible for you to apply for a visa or a PR in Canada?
No, it’s not.
The Immigration of Canada only tends to prohibit the possibility of foreigners entering Canada, committing a crime in here.
They see it as that a person with a criminal background, is likely to commit a crime in Canada as well.
They call it rehabilitation if the accused did not commit any additional crime after their first offence over at least five years.
This is basically getting rid of the reasons for not being able to enter Canada through this.
The accused get a chance to explain what has exactly happened and get examined on his crime.
The result can change depending on the way of appeal so it is crucial that you find a professional who can help you with your rehabilitation.
However, this process only applies to your visa and PR application in Canada through the Immigration, not in the country that you have committed crime in.
Today, we’ve went over criminal history and a visa processing.
It's important that you check your criminal records in advance just in case.
Some tend to worry too much about their summary offence which can be rehabilitated.
The important thing is to determine the seriousness of your offence concisely.
Please check the availability of rehabilitation if you have any criminal offence.