Criminality is a common ground for inadmissibility to Canada. A simple interpretation of “inadmissible” means that you are not allowed to enter Canada. I had a case in 2019 where the subject Mr. X’s visa application was refused for marijuana/cannabis issue for the first time and retained me for the second attempt, and got approved.
There are two background information the readers need to be aware. One, in June 2018, Canada passed Bill C-45 to legalize, or more accurately put, to regulate the cannabis production, distribution, sale and possession, etc. Two, Bill C-45 does not legalize international transport of cannabis. In other words, cross-border travelling (entering or leaving, both directions) with cannabis is very likely to make you face arrest and prosecution, unless otherwise permitted by the law.
Mr. X was an international student of Canada. One time when he tried to drive his own car to cross the border to the United States in 2016, a CBP officer noticed a leftover butt of cannabis in Mr. X’s car. He was further examined with interview noted into the system, and was fined, before he was released and kicked back to Canada. That being said, Mr. X was arrested and prosecuted. Mr. X’s B1/2 visa to the United States was cancelled, and he never applied for a new one again.
After Mr. X graduated in 2018, he applied for a work permit in Canada. In 2019, he travelled back to his home country, and tried to apply for a visa to enter Canada as a returning worker. The application was refused. There were two reasons on the refusal letter. One, the subject did not truthfully answer the questions put forward in the application. In almost all types of application, IRCC puts similar questions as “Have you been refused to enter for any country or been refused for any type of visa?” Mr. X put “no”, and was caught by the IRCC, and face potential consequences for misrepresentation. Two, Mr. X carried cannabis when crossing the border from Canada to the States, which is a potential ground for criminality (for example illegal exportation on the side of Canada, and illegal importation on the side of the States).
There are at least seven issues around this case before filing another application for a Canadian visa:
One, does Mr. X has a criminal record in the United States? If so, which specific crime did Mr. X committed? The specific crime determines the specific maximum punishment, the lowest threshold of the amount of cannabis, etc.
Three, how much information is shared between Canadian’s IRCC/CBSA and the United States’ CBP? Just like in Canada, how government agencies handle personal information is regulated under relevant laws and regulations.
Four, when Mr. X applied for work permit in 2018, when he was asked by the same type of question in the application, he did not mention the unhappy incident on the US border, and the application was approved. Therefore, what could happen when in 2019, another immigration officer found that he did not release this information put forward to him in 2018? Can this immigration officer cancel Mr. X’s work permit by ruling that Mr. X should not acquire his work permit in the first place? Can the immigration officer even make Mr. X inadmissible to Canada for another five years for misrepresentation? (Retrospectivity issue) The term misrepresentation, in simplified interpretation, means the officer determines that you provide false information (such as lies), and may rule that you are not allowed to enter Canada for five years, pursuant to IRPA section 40:
40 (1) A permanent resident or a foreign national is inadmissible for misrepresentation
(a) for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act;
(2) The following provisions govern subsection (1):
(a) the permanent resident or the foreign national continues to be inadmissible for misrepresentation for a period of five years following, in the case of a determination outside Canada, a final determination of inadmissibility under subsection (1) …
Five, does Mr. X face potential criminal charge in Canada? If so, which specific crime did Mr. X committed? The type of criminality in the context of immigration laws could include: conviction, conditional/absolute discharge, discharge with probation order, or just merely commission. For example, if one carries cannabis and was found by a CBSA officer at the airport, and he admits so in the examination, he could face removal procedure, without being arrested. In this case, he still “commits” the crime, without have a conviction from the criminal court.
Six, is Mr. X inadmissible to Canada for criminality issue? Once again, the specific crime under Canadian Criminal Code determines the specific maximum punishment, the lowest threshold of the amount of cannabis, etc. There are many possible grounds related to cannabis issue, such as procurement (where you get it, who do you buy it from), possession (how much amount), production (with or without license, how much amount), trafficking, exportation (smuggling). If Mr. X is deemed by the officer to commit a crime in the US, but not in Canada (because of the Bill C-45 legalization), did his commission triggers the condition of dual criminality under the IRPA? To explain “dual criminality”, if you commit a crime outside Canada, your action must be recognized as a crime in Canada’s Criminal Code as well. For example, if you are convicted of being a homosexual in some country, you will not be deemed to be a criminal in Canada, because being homosexual is not a crime in Canada.
Seven, Bill C-45 was passed in 2018, but Mr. X’s border incident happened in 2016. What should the immigration officer refer to when he makes the determination in 2019? (Again retrospectivity issue)
The applicant’s visa was successfully granted and came back to Canada. If you have similar questions that may become a problem for your status in Canada, you are welcome to contact with me.
这是一个涉及Criminality的案子，legal issue比较复杂，但案情是很简单的：X持学生签证期间，2016年开车去美国玩儿的时候被CBP officer看到车里有一个抽到剩了一个烟屁股的大麻，于是做了笔录，罚款，美国签证被cancel，禁止入境。后来X转成了工作签证，但是护照上贴的入境签证过期了要重新申请，这回被移民官发现了CBP的犯罪记录，于是拒签了，理由是没有如实回答申请表里的问题（任何类型的签证申请都问拒签史）。2019年找到我重新申请，后来批下来了。
这里至少涉及了以下问题：
1. X在美国是否有犯罪记录？
2. 如果在美国有犯罪记录，那么是犯了哪个section？（这个会决定相应的punishment是什么，比如最低的量刑门槛是什么，多少克，法定最高刑是多久）
3. 美国的CBP和加拿大移民局到底share了多少information？（跟加拿大法律一样，美国的法律对于如何使用个人信息的权限是有规定的，你在美国政府的个人信息，在什么情况下，像中国政府或者加拿大政府这样的第三方可以获取，都有相应的规定）
4. X在转成工作签证的时候，没有提这段拒签史，这是否有追溯时效，即撤销工作签证。X最近护照贴签申请拒签，也没有提拒签史，这是否有追溯时效，即判定misrepresentation (简单来说就是你在申请里提供了不实信息)，加罚5年不得入境。
5. X在加拿大是否有犯罪记录？（中文里的犯罪记录这种说法比较模糊，在加拿大刑事系统里，至少有这么几种可能的形式： conviction, conditional/absolute discharge, discharge with probation order，或者仅仅是commission。假如你坐飞机带drug进加拿大，被CBSA抓到，如果移交警方，后来又提出公诉，最后被定罪，经过这一套完整的才叫conviction。如果是有被抓到，但是给你做了笔录之后直接驱逐出境，没有法院审判，那你只能算有一个commission，但这也是广义上的犯罪记录）。
6. X在加拿大移民法框架下，算不算inadmissible？刑法对移民事务的影响那太多了，比如某个罪名的最高刑是多久，直接影响你是否inadmissible to Canada； 再比如具体给了多少刑期，也直接影响你是否inadmissible。移民法还规定了dual criminality的原则，即：如果你在外国犯了法，那么你的行为在本国是否也构成犯罪？比如同性恋在伊朗是犯罪，但是加拿大不算，所以在伊朗因此被定罪，申请加拿大签证没有任何问题。
7. X的案情可能涉及加拿大刑法里的哪些罪名？跟drugs有关的罪很多，获取（obtain）这个过程有可能犯罪，比如你怎么买，跟谁买；持有（possession）有可能犯罪，比如超过一定量；生产有可能犯罪（production），比如自己在家种，超过多少株；运输（trafficking）可能犯罪，比如拿去卖；出口（export）这个过程有可能犯罪，比如smuggle到美国去。同一种drug，针对不同的罪名，量刑的标准是不一样的。
8. 从2018年开始，加拿大有关大麻的法律更新了，那2016年的事情是应该按照当时的法律还是现在的？(追溯力问题)
这位客人后来在我的帮助下顺利获批入境了，目前正在攒加拿大的工作经验用于将来的移民申请。如果您遇到类似的问题，欢迎联系我。