Criminal inadmissibility and the equivalency test
Overview
Section 36 of the Immigration and Refugee Protection Act (IRPA) makes persons inadmissible to Canada for criminality. Serious criminality (s 36(1)) applies to both permanent residents and foreign nationals convicted of an offence punishable by a maximum of 10 years imprisonment, or sentenced to more than 6 months. Criminality (s 36(2)) applies only to foreign nationals and covers convictions for indictable offences or two or more offences under different Acts. For foreign convictions, Canada applies an equivalency test to determine whether the foreign offence corresponds to a Canadian criminal offence.
Criminal inadmissibility is one of the most common grounds of inadmissibility encountered at Canadian ports of entry. Many persons are unaware that a criminal record from any country — including minor historical convictions — can render them inadmissible to Canada.
The consequence of serious criminality is that the person loses their right of appeal to the IAD if a removal order is made. This is a critical distinction from ordinary criminality.
Legal basis
- IRPA s 36(1) — serious criminality: applies to permanent residents and foreign nationals; conviction for an offence carrying a maximum of 10+ years, or a sentence of more than 6 months actually imposed
- IRPA s 36(2) — criminality: applies to foreign nationals only; conviction for a hybrid or indictable offence (not prosecuted summarily), or two or more summary offences under different Acts
- IRPA s 36(3) — the equivalency rule: for foreign convictions, the officer must determine whether the foreign act corresponds to a Canadian criminal offence
- IRPA s 64 — persons inadmissible under s 36(1) for serious criminality have no right of appeal to the IAD
How it works
Serious criminality vs. criminality
| Category | Who it affects | Threshold | IAD appeal right |
|---|---|---|---|
| Serious criminality (s 36(1)) | PRs + foreign nationals | Max penalty 10+ yrs, or sentence >6 months | No (s 64) |
| Criminality (s 36(2)) | Foreign nationals only | Indictable offence, or two+ summary offences | Yes |
The equivalency test (s 36(3)(b))
When a person has a conviction from outside Canada, CBSA or IRCC must determine whether that conviction is equivalent to an indictable offence in Canada. The equivalency test involves:
- Identifying the elements of the foreign offence
- Finding the closest corresponding Canadian offence
- Assessing whether a person who committed the foreign act could have been convicted under Canadian law
The test is not based on how the offence is classified in the foreign country (e.g., a misdemeanor in the US may be equivalent to a hybrid or indictable offence in Canada). It focuses on the conduct, not the foreign classification. Driving Under the Influence (DUI) in the United States, for example, is commonly treated as equivalent to impaired driving under the Criminal Code of Canada — which can be an indictable offence.
Overcoming criminal inadmissibility
There are three main ways to overcome criminal inadmissibility:
- Deemed rehabilitation: applies automatically after a set period has passed since the sentence was completed (10 years for serious criminality; 5 years for lesser offences), provided no further offences
- Individual rehabilitation: a formal application to IRCC; available after the relevant waiting period; requires demonstration of good character and unlikelihood of reoffending
- Temporary Resident Permit (TRP): a short-term discretionary entry permit for persons with unresolved inadmissibility; requires justification of the need to enter Canada