Criminal Inadmissibility

On Victoria Day weekend the Oakland Athletics played a four-day series against the Blue Jays in Toronto. Not that it seems to have mattered to the score (I am afraid the Jays were trounced by the A’s), Oakland was playing without their star catcher Bruce Maxwell. Unfortunately, Mr. Maxwell was not able to enter Canada because he was found inadmissible to Canada on criminal grounds.

Inadmissibility means that for reasons of public policy set out in immigration law, Canadian Immigration authorities can bar an individual (and sometimes their immediate family as well) from entering Canada. The most common reasons for a finding a person inadmissible to Canada are for medical or criminal matters. For the purposes of this article I will be focusing on criminal inadmissibility.

The test for criminal inadmissibility is whether there has been the commission of an act, or conviction of a crime, which would be a summary conviction or indictable offense under the Canadian Criminal Code. Translation from the original legal: if you have been arrested for or convicted of something that would have been a Federal offense in Canada, then you are barred from entering Canada unless special permission is granted otherwise.

Most people are unaware, but in Canadian law you have a positive obligation to disclose a prior arrest or conviction when applying for entry to Canada. It is one of the few places in Canadian law where such a positive obligation exists. And for American nationals, Canadian border officials do have access to the FBI database, so it is very easy to be caught by immigration officials for non-disclosure.

In this instance Mr. Maxwell was accused of pulling a gun on a food delivery person in Arizona. He is reported to have plead guilty of disorderly conduct but has yet to be sentenced. In order to overcome such an inadmissibility, an individual must apply for a document called a Temporary Resident Permit or TRP. In instances of criminal inadmissibility, a TRP will only be granted once sentencing has been issued and completed. Reviewing officers will also want to be confident that the applicant does not present a danger to the public. Here, as the sentence has not yet been issued it cannot be completed. As the incidence allegedly included a gun, it is also unlikely that a TRP would be granted so soon after the event as there would be a general concern for public safety.

In 2005, Martha Stewart had a similar issue when she was scheduled to attend a pumpkin festival in Windsor Nova Scotia. She had previously been convicted of lying about a stock sale in connection to an insider trading investigation in the US and had been sentenced to 5 months in jail.

When speaking with your immigration lawyer be sure to disclose any criminal issue you may have and allow them to properly analyse the matter so that it can be dealt with appropriately before you travel to the border. It may be an uncomfortable discussion but it is an important and confidential one.


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