Some Highlights:
A Foreign National (FN) is inadmissible if they have been convicted of any hybrid or indictable offence. Like a PR they are also inadmissible for serious criminality if convicted of an offence which could be punished by ten years imprisonment, but again a conviction for any hybrid or indictable offence will make a FN inadmissible. Convictions for two summary offences (pure summary offences, those that cannot be prosecuted by indictment) will render a FN inadmissible.
FNs are screened for criminal related inadmissibility more thoroughly, and enforcement is significantly more strict than it is for PRs.
And, since FNs only have temporary status in Canada, they generally need to make applications that will require disclosure of crime-related matters, in contrast to PRs who can often avoid bringing criminal charges to IRCC's attention . . . such that it appears many PRs are not subjected to inadmissibility proceedings even if they have been convicted of a solitary, isolated offence constituting serious criminality
unless they are involved in multiple criminal offences, or involved in more serious instances (such as driving while impaired resulting in injuries to other persons), or the case is otherwise notorious or in some way high profile.
As others have observed, inadmissibility is a complex subject with many, many variables. As you have observed, driving while impaired is considered a very serious matter in Canada, as illustrated by the fact that the law allows for the imposition of imprisonment for up to
TEN YEARS as a penalty.
This is not "
talk to lawyers" stuff.
This is hire (pay for) lawyers to specifically review the specific facts of your case (which means not just YOUR account of the facts, but at the least reviewing in detail whatever records there of the matter). Then rely on the lawyer or lawyers you have hired (hired after you have done enough homework to be confident you have hired competent, reputable, and experienced lawyers).
You referenced me multiple times. I am no expert. While I have followed issues in regards to serious criminal inadmissibility applicable to Permanent Residents, it appears you are NOT a PR. What constitutes serious criminality is defined the same for PRs and Foreign Nationals, but FNs are also inadmissible for "
criminality" as defined in Section 36(2) IRPA. You have quoted section 36(1), the serious criminality provisions. But you are also subject to the far lower threshold for inadmissibility prescribed in Section 36(2).
As much as I have followed and researched cases involving serious criminality as applied to PRs, I am way, way shy of being an expert on that subject. In contrast, I have NOT at all followed (not for many years anyway) how the inadmissibility for criminality provisions apply to FNs.
In other words, concurring with others here, get assistance and advice from a competent lawyer, a lawyer you have hired to actually give you specific advice based on ALL the available information . . . and knowledge of the applicable law as well.
All that said: the main thing is whether you have been convicted of a criminal "
offence" in Canada, as defined by an Act of Parliament. "
Violations" of provincial traffic provisions are NOT "
offences." You can respond to questions accordingly, if the question is about convictions. I have not been paying any attention to IRCC transactions or applications by FNs. I do not know what questions are asked. The questions asked are often broader in scope than just what would constitute grounds for a determination of inadmissibility based on criminality.
Note, for example, technically a FN will be inadmissible if they have driven a vehicle while impaired in the U.S. even if they were not charged, let alone not convicted (not sure anyone would fess up to this absent some kind of record of the incident, but just doing the act itself meets the definition of criminal inadmissibility prescribed in Section 36(2)(c) IRPA).
First part first:
"Let’s say I tick no to the criminal conviction question since it’s not a criminal charge ( lawyers confirmed this ) but don’t disclose the offence although it’s best to do so."
Is it an "
offence" or not? If it is an "
offence" it for sure will need to be disclosed. However, a provincial traffic citation for a
violation of provincial regulations is generally NOT an offence (even though the same conduct could result in the Crown prosecuting it as an offence). My sense is you are referencing a violation, NOT an offence as such.
Even if there is some kind of charge that is NOT an offence, however, that does not necessarily mean there is no need to disclose. Be sure to read the questions carefully and answer them as best you can based on what you know and understand. As previously noted, the questions asked are typically broad enough to require disclosure outside (in addition to) what would constitute grounds for inadmissibility.
As long as you answer the questions honestly there is almost no likelihood an officer "
gets confused." And unless there is something in your record that shows you have been charged with a criminal offence, and you did not disclose that offence, there is near zero likelihood an officer would allege misrepresentation. Contrary to the occasional rant otherwise, generally IRCC officials know what they are doing and they do it competently. There can be disagreement with some of their conclusions and actions, and they make mistakes, but for the most part they do a good job figuring this stuff out.
