How Criminal Convictions in Australia and New Zealand Effect Canadian Immigration

If you’re from Australia or New Zealand, you have some excellent opportunities to come to Canada either as a worker on an IEC work visa or as a permanent resident through Express Entry. It’s also easy to come as a visitor since you only need an eTA.

But, if you have any type of criminal conviction, even for certain traffic violations, you may be considered inadmissible to Canada and your immigration application could be refused. You could even be refused entry when you arrive in Canada.

We’ve outlined the most common causes for inadmissibility to Canada AND their solutions for Australians and New Zealanders below.

Driving Under the Influence of Alcohol (Drink Driving / Excess Alcohol Conviction)

Drunk driving is by far the most common reason for criminal inadmissibility to Canada for citizens of New Zealand and Australia.

What is most important to know is that due to the Cannabis Act coming into force in 2018, Drunk driving is now considered ‘serious criminality’ in Canada. However, whether your DUI conviction is considered ‘serious criminality’ or simply ‘criminality’ depends on when your conviction occurred.

If your conviction occurred before December 31, 2018, then your DUI conviction is still considered ‘criminality’. If your DUI conviction occurred on or after December 31, 2018, then it is considered ‘serious criminality.’

What’s the difference? Either way, you are inadmissible to Canada. However, the difference lies in the remedy for how you can overcome this inadmissibility. If your conviction is considered ‘criminality,’ then eventually you can be ‘deemed rehabilitated,’ which means that you will be able to come to Canada again with the passage of time.

But, if your drunk driving conviction is considered ‘serious criminality,’ you can never be considered ‘rehabilitated’ without making an official application through the Canadian embassy, and an application for criminal rehabilitation will cost you CAD$800 more than if your conviction fell under ‘criminality.

If enough time has passed since the completion of your sentence (5 years), then you can apply for criminal rehabilitation in order to no longer be considered inadmissible to Canada.

Dangerous Driving

Depending on the circumstances leading to a conviction due to the way you were driving, you may or may not be considered inadmissible to Canada. Generally speaking, if your driving was dangerous to the public, then this constitutes criminality under an Act of Parliament in Canada, which will make you inadmissible to Canada. However, if your driving was considered ‘careless’ but not dangerous to the public, then you may not be considered inadmissible.

For example, speeding can sometimes be considered ‘careless driving,’ which is not a criminal offence, but other times it can be considered ‘dangerous driving,’ which is a criminal offence and will make you inadmissible to Canada.

**Possession of Marijuana

With the Cannabis Act, possession of marijuana for personal recreational purposes (this does not include intent to distribute) is no longer a crime in Canada.

This means that your simple marijuana conviction for possession of a small amount like a joint or few grams of bud usually does not make you inadmissible to Canada. In our professional experience, officers are treating marijuana possession convictions as a non-issue, and are determining that they do not make an applicant inadmissible to Canada.

However, this is why there is an asterisk: there has not been a Supreme Court of Canada decision confirming that a marijuana conviction outside Canada does not make an applicant inadmissible to Canada if it occurred before the law changed.

If marijuana possession is your only conviction, you will likely not have any trouble. However, this still remains at the discretion of the officer making the decision.

Solutions to Inadmissibility

Permanent Solutions – Individual Criminal Rehabilitation and Deemed Rehabilitation

If 5 years have passed since you completed the sentence for your crime(s), then you are now eligible to apply for individual criminal rehabilitation.

This means you are applying to convince the Canadian government that you are no longer at risk of reoffending, and are not a danger to public safety. Some of the factors that officers consider are that you have a stable job and/or family life, you have a place to live, and that you have a lifestyle that keeps you away from criminal activity.

Individual criminal rehabilitation is different from deemed rehabilitation, which is based on the passage of time and the number and type of convictions. For a drink driving conviction before December 31, 2018, 10 years must have passed since you completed your sentence for deemed rehabilitation to be possible.

If you are applying for any type of permanent residence in Canada such as through Express Entry or even family sponsorship, you must be approved for criminal rehabilitation before you can be granted PR in Canada. The same applies for temporary residence like a work permit or visitor status – you cannot enter Canada for any reason if you are criminally inadmissible.

Temporary Solution – Temporary Resident Permit

If you are criminally inadmissible to Canada but not enough time has passed since you completed your sentence to apply for criminal rehabilitation (it has not yet been 5 years), or you only need to come to Canada for a brief time, then you can apply for a Temporary Resident Permit (TRP).

A TRP will allow you to get temporary status in Canada for a limited period of time. It can also be issued to allow for multiple entries to Canada over a period of time depending on your circumstances.
A TRP can be issued on an urgent basis if you need to enter Canada very quickly, such as for work purposes, medical treatment, or a sick relative.

TRPs will not allow you to be granted permanent residence in Canada. However, they can be a very useful stopgap until you are eligible to apply for criminal rehabilitation. A TRP issued for 6 months or longer can even allow you to get a work or study permit in Canada.
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Once your criminal rehabilitation application has been approved, then you can proceed with your Express Entry or Sponsorship application without impediment. If you are not yet eligible for criminal rehab, then you have to wait before you can apply for PR and apply for a TRP if you still need to come to Canada in the short term.

It is not always easy to determine whether your conviction makes you inadmissible to Canada, and whether it is criminality or serious criminality. The answer has a lot to do with the circumstances as well as the discretion of the officer making the decision.

Contact us if you’ve been convicted of drunk driving or any other offence from Australia or New Zealand (or anywhere else), and we can advise you if this conviction makes you criminally inadmissible to Canada.