The Immigration and Refugee Protection Act (IRPA) provides that a permanent resident or a foreign national convicted in Canada of a crime with a possible sentence of at least 10 years imprisonment is inadmissible, regardless of the sentence imposed. If a person is found inadmissible, he or she will be denied a visa, refused entry to, or removed from Canada.
Thus, the key question to ask is: Which offences under the Criminal Code are punishable by a maximum term of imprisonment of at least 10 years?
For example, Aggravated assault, under the Criminal Code of Canada, is an offence that carries a maximum sentence of 14 years.
Aggravated assault
268 (1) Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant.
Punishment
(2) Every one who commits an aggravated assault is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
It is clear that if you are convicted of aggravated assault, you are inadmissible.
Then, what about Assault with a weapon or causing bodily harm? The criminal Code provides that:
Assault with a weapon or causing bodily harm
267 Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years or is guilty of an offence punishable on summary conviction who, in committing an assault,
(a) carries, uses, or threatens to use a weapon or an imitation thereof,
(b) causes bodily harm to the complainant, or
(c) chokes, suffocates, or strangles the complainant.
The maximum sentence of Assault with a weapon or causing bodily harm is not more than 10 years. As discussed above, under the immigration law, if you are convicted of a crime with possible sentence at least 10 years, you are inadmissible. Does the term “not more than 10 years” fall under the provision? Does the offence with the term “not more than 10 years” have a possible sentence of “at least 10 years”?
This was the issue discussed at the Federal Court in Sun v. Canada (Minister of Citizenship and Immigration), [2011] F.C.J. No. 902.
In fact, in Sun, the only issue was whether the term “not exceeding ten years” in the Criminal Code falls within the maximum term of “at least 10 years” in the IRPA, or “less than 10 years” in the Immigration and Refugee Protection Regulations (“IRPR”)
The court acknowledged that the term “not exceeding ten years” in the Criminal Code means ten years or less. On the other hand, the term “less than 10 years” means up to 9 years, 364 days.
On the other hand, the term “at least 10 years” in the IRPA, means ten years or more. Both “not exceeding ten years” and “at least 10 years” overlap a day. Therefore, any offence that has the maximum imprisonment of “not exceeding ten years” is considered serious criminality, and any person convicted of such offence, is inadmissible.
