Can You Enter Canada with a Criminal Record?
By Patricia Bagnas( formerly Castro) and R. Reis Pagtakhan
Taking a trip to Canada, for some, involves obtaining a passport and planning a trip. For others, it may not be as easy. Some Americans are under the presumption going to Canada is a“ fool’ s errand.” They have a criminal conviction they think prevents them from crossing the border because they are“ inadmissible” to Canada under Canadian law- meaning they will be unable to enter Canada. This is not always the case.
Some Americans( with qualifying criminal convictions) can in fact take that trip they have always wanted to take up north, but it may involve much more than showing up at a port of entry or pre-flight clearance. To erase a criminal conviction for Canadian immigration purposes, some Americans may have to go through a process commonly known as“ Rehabilitation,” either through a Canadian Consulate or making the application at a Canadian Port of Entry before a Canada Borders Services Agency officer. It is important to know the type of options a foreign national1 has when seeking to enter Canada and what the quickest options may be for most Americans with a prior qualifying criminal conviction.
What Does it Mean to Have a Qualifying Prior Criminal Conviction?
Not all criminal convictions preclude a foreign national from entering Canada. The key distinction is whether the foreign criminal conviction is considered a qualifying criminal conviction. Meaning, whether the criminal conduct constitutes as an offence under Canadian federal law.
Unlike the United States, Canada’ s provinces and territories do not have separate criminal statutes apart from the federal government, i. e., criminal offenses are dictated by federal law. Thus, the foreign conviction must fall under a federal statute to be a qualifying criminal conviction.
For example:
An individual convicted of careless driving( which is a Canadian provincial or territorial offense) in 2025, pursuant to N. D. C. C.§ 39-39-01( 1), would not necessarily be considered inadmissible to Canada. While an individual convicted of driving under the influence( which is a Canadian federal offense) in 2025 pursuant N. D. C. C. § 39-08-01( 1)( a)( 1) will likely be inadmissible and may be precluded from entering Canada.
The difference is not the severity of the offense or even the sentence ordered by a judge. The main difference between the convictions is whether the offense violated a federal law or a provincial or territorial law. Specifically, in Manitoba, a careless driving offense is prohibited by The Highway Traffic Act, a provincial law. 2 Whereas driving under the influence is prohibited by the Criminal Code of Canada, which is a federal law.
Since careless driving is not a crime under federal law, it would likely not render a foreign national inadmissible, unlike the driving under the influence conviction. 3
What Does it Mean to be Inadmissible to Canada on Grounds of Criminality?
If a foreign national has a qualifying criminal conviction, they will likely be deemed inadmissible to Canada.
Like the U. S. system, Canada separates its criminal offenses between severe and less severe. In Canada, instead of using misdemeanor or felony to describe the severity level, Canada distinguishes its criminal offenses as either summary or an indictable offense.
Indictable offenses are considered serious offenses and involve different procedures as compared to summary offenses. Specifically, an indictable offense may involve arresting the foreign national and involve much more serious punishments under the Canadian Criminal Code. 4 Whereas summary offenses are less severe comparatively. 5
The severity level of the offense is important in the immigration context, because it often dictates the type of criminality the foreign national engaged in. Criminality is a concept in Canadian immigration law that divides foreign national convictions into two categories, criminality and serious criminality.
Criminality is defined in Canada’ s Immigration and Refugee Protection Act as“ having been convicted... of an offence that, if committed in Canada, would constitute an indictable offense....” 6 While serious criminality involves“ a foreign national who is... convicted... of an offence that,... would constitute an indictable offense... punishable by a maximum term of imprisonment of at least 10 years....” 7 The distinction between criminality and serious criminality involves, namely, if the maximum term of imprisonment is at least 10 years.
Patricia Bagnas( formerly Castro) is a Canadian and American corporate immigration lawyer advising businesses and individuals on Canadian and U. S. immigration matters. Bagnas obtained her juris doctor from the University of North Dakota and is currently an associate lawyer at MLT Aikins LLP.
Reis Pagtakhan is a Canadian corporate immigration lawyer with more than 29 years of experience advising businesses and individuals on Canadian and U. S. immigration matters. He is currently a partner at MLT Aikins LLP.
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