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The Canadian and American economies are integrated and heavily dependent on each other. The Canadian and American cultures are relatively similar, sharing the English language. These factors tend to blur the existence of an international border between the two countries. However, due to the events of Sept. 11, 2001, there is now greater emphasis on the existence and enforcement of the Canada/U.S. border, resulting in changes to the legislation and a shift in attitude of immigration officials on both sides of the border. Immigration officials are now operating with a heightened level of vigilance and diligence, so that even an experienced, legitimate business traveler can expect greater scrutiny and interrogation at a port of entry. On entering Canada, a question commonly asked of travelers is, “Have you ever been arrested, charged or convicted of a criminal offense?” This question may be asked no matter whether the person is an executive of a multinational corporation, a celebrity, an artist, a professional athlete or a tourist. Nor does it matter whether the traveler is coming for a two-day business trip, a two-year work assignment or a two-week holiday. If he or she answers “yes,” immigration officials may find that the person is inadmissible to Canada. The decision to admit a person to Canada rests with the immigration officer. Many factors can contribute to the officer’s assessment and decision-making. Travelers are often nervous when speaking to persons of authority, anxious about their tight travel itinerary, nervous in general about flying or anxious about an important business meeting once they get to their destination. These sociological factors can inadvertently affect the assessment made by an immigration officer. When immigration officials pose the question about past criminal offenses, even experienced businesspeople who have traveled back and forth between Canada and the United States dozens of times may be caught off guard by being asked this personal and probing question about their past behavior. They may be defensive or, in some cases, indignant about being asked the question. They may have a past indiscretion from their youthful days and may be unsure how to answer the question, primarily because they are under the impression that their indiscretion was so many years ago that it could not possibly be of any significance. Common examples of offenses that would result in a finding of inadmissibility include driving while under the influence of alcohol, common assault or possession of a controlled substance, such as marijuana. A traveler who is not truthful in answering an immigration official’s question may make matters worse. At minimum, his or her credibility will be at issue. A provision under the Canadian Immigration and Refugee Protection Act (IRPA) authorizes an immigration officer to deny entry to a foreign national (i.e., someone who is not a Canadian citizen or a permanent resident of Canada) for two years on the basis of a misrepresentation made by the foreign national. Grounds for denial There are two categories of inadmissibility to Canada on criminal grounds: serious criminality or criminality. Either can result in being refused entry to Canada, but the former renders entry to Canada impossible without prior preparation. In either case, the obstacle can often be overcome, but likely not at the border. In order to distinguish between the two categories, the actual legislation under which the person was charged or convicted must be reviewed to determine the maximum term of imprisonment provided for under the particular offense. When the offense is punishable by way of 10 years or more of incarceration, regardless of the actual sentence imposed, this foreign national is inadmissible on serious criminal grounds if it is an offense that equates to a Canadian offense. If an individual is convicted of an offense that, if committed in Canada, would constitute an indictable offense or two offenses not arising out of a single occurrence, that if committed in Canada would constitute an offense under an Act of Parliament, the foreign national is criminally inadmissable. Most Canadian immigration officials have no legal training and it is impossible for them to be knowledgeable of the potential sentences for literally hundreds of thousands of criminal offenses under both the Canadian legislation and the foreign laws of all other countries that may arise as issues at the border. Accordingly, the burden will immediately shift to the person seeking entry to Canada to satisfy the immigration officer that he or she does not meet the definition of an inadmissible person on either serious criminal grounds or criminal grounds. Although both Canada and the United States share some information relating to criminal records, this information is not always considered to be complete or accurate, since computer record-keeping is still relatively new and errors in data entry can occur. Since few travelers would carry a current police record or copies of the relevant legislation under which they may have been charged, arrested or convicted, it is highly unlikely that they will be able to satisfy a Canadian immigration official that they are admissible to Canada. Instead, it is most likely that they will be denied entry and turned away. Even those individuals who may not have actually been tried and convicted but were merely arrested or charged with an offense could find themselves still inadmissible, since the legislation provides that they merely would have had to be charged with the offense, not necessarily been convicted of the offense. Accordingly, in this circumstance the individuals would have to satisfy the immigration officer on a balance of probabilities that there was insufficient evidence that they committed the offense. Typically, if there is an outstanding warrant for arrest, police reports, newspaper articles and statutory declarations from foreign authorities demonstrating that an offense has been committed, Canadian immigration authorities will err on the side of concluding the individual is inadmissible, at least until such time as the matter has been tried. Equivalency assessments In addition to the need to provide evidentiary documentation to immigration officials, including a current police record and copies of the relevant legislation in the case of an individual who has been convicted or who has committed an offense outside of Canada, an equivalency assessment must be completed to determine whether or not the offense committed or convicted of outside of Canada would constitute an offense under an act of Canadian legislation. Equivalency can be determined in three ways: By comparison of the precise wording in each statute both through documents and, if available, through the evidence of an expert or experts in the foreign law with a view to determining the essential ingredients of the respective offenses. By examining the evidence produced before the immigration officer, to ascertain whether that evidence was sufficient to establish that the essential ingredients of the offense in Canada have been proven in the foreign proceedings, whether precisely described in the initiating documents or in the statutory provisions in the same words or not. By a combination of the two. Again, immigration officers have insufficient legal training to make such determinations on the spot at a port of entry. Accordingly, the typical result is again to turn the individual away and have him or her apply in advance through a Canadian consulate in the United States. In Canada, most offenses under the Canadian Criminal Code are hybrid offenses and can be prosecuted either summarily or by way of indictment, at the election of the Crown Attorney. For the purposes of determining inadmissibility under � 36(2) of IRPA, even offenses that were or can be prosecuted summarily in Canada are deemed to be indictable offenses. Hence many offenses that may appear to be minor and were treated as misdemeanors in the United States may be punishable by way of indictment in Canada and will therefore be deemed to be indictable offenses. A determination that the Canadian equivalent offense is an indictable offense will lead to a conclusion that the foreign national is inadmissible under � 36(2) of IRPA. In Canada, individuals under the age of 18 are charged under the Young Offenders Act. Offenses committed under the Young Offenders Act are not considered offenses that would make an individual inadmissible. Therefore, if the foreign national was under the age of 18 at the time of the conviction, his or her offense will not likely equate to an offense under an act of Canadian Parliament. Exceptions to inadmissability There are a number of exceptions with respect to the rule pertaining to inadmissibility to Canada on grounds of criminality. For example, if individuals can establish that they have obtained a pardon for the conviction or the criminal record has been expunged, they may be admissible to Canada. IRPA also introduced rules that would in some circumstances deem an individual to be rehabilitated after a certain number of years has passed since the completion of the sentence imposed with respect to the offense. Few businesspeople would be aware of these specific rules and their application. Even fewer businesspeople would be prepared with the necessary documentation to satisfy the immigration officer that they met one of these exceptions. In the majority of cases, the allegation of inadmissibility can be addressed and usually overcome with the proper documentation and legal analysis from an experienced Canadian immigration lawyer. Recently, IRPA has been amended to specify that only authorized representatives may represent, advise or consult with a person who is the subject of a proceeding or application before the Minister of Citizenship and Immigration, an immigration officer or a board member of the Immigration and Refugee Division. Authorized representatives are defined as members in good standing of a Canadian provincial bar, the Chambre des Notaires du Qu�b�c or the Canadian Society of Immigration Consultants (CSIC). Recently incorporated, CSIC regulates Canadian immigration consultants. A note of caution: Although many CSIC members are qualified and experienced practitioners, most lack the legal training required to analyze criminal legislation and determine whether it equates to a Canadian offense. IRPA also provides immigration authorities with the discretion to admit individuals to Canada even if they are inadmissible. In these circumstances, the immigration officer must be satisfied that the risk posed to the Canadian public was minimal and typically there must be some evidence that the probative value of admitting the foreign national outweighs the risk to the public. Due to the public scrutiny and often much publicized media attention in circumstances in which an individual is admitted to Canada and later commits an offense-or information comes to light that the individual had a criminal history-it is understandable that many immigration officers are reluctant to exercise their discretion under this provision of IRPA. Again, the advice of a Canadian immigration lawyer and proper planning in advance of attempting to enter Canada will increase the likelihood that the immigration officer will exercise such discretion. Typically a Canadian immigration lawyer will ensure there is sufficient documentation to demonstrate that the businessperson poses a low risk by being admitted to Canada. In conclusion, travel to and from Canada and the United States has become much more complicated post-Sept. 11. The rules governing the admission to Canada have changed, and the climate in which we live has certainly affected the way even ordinary business people are treated. No matter how integrated the Canadian and American economies are, an international border exists between the two countries. Travelers will find that there is greater onus on them to prove their eligibility for admission to Canada regardless of the circumstances for which they seek admission. When there are economic or business interests involved, it is not only prudent, but in many circumstances necessary, to seek legal advice in advance of traveling to Canada in order to minimize the chance that the individual will be denied entry to Canada for criminal or other reasons. Barbara Jo (B.J.) Caruso, an associate in the Toronto office of Gowling Lafleur Henderson, is certified by the Law Society of Upper Canada as a specialist in citizenship and immigration law and is a member of the Organization of Professional Immigration Consultants. She can be reached at [email protected].

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