SIMPLE STEPS TO MOVE TOWARDS A SOLUTION
ssues around crossing the border into Canada have been a major focus for NOTO for several years and this issue remains one of our priority initiatives. Last fall, we participated in a breakfast meeting with members of parliament that was hosted by the Canadian Federation of Outfitter Associations (CFOA), of which we are an active member. CFOA decided to make the border the lead issue in that meeting and NOTO was asked to direct the discussion.
Many of us had very productive discussions with MPs on the issue, with a number of them requesting follow-up briefing documents to help them move the issue forward. What follows below is the document that NOTO shared with the MPs we met with. This document was also shared with our colleagues in CFOA so they could use it in their follow-up with MPs, as well.
What you will see in this document is a brief summary of the underlying problem, as well as some simple steps that can be taken to help move toward a solution. We have concentrated on simple, immediate steps that can be taken by government that do not require the Immigration Act to be changed. The changes we advocate would not solve every problem our guests encounter at the border, but it does represent substantial changes that could be made easily and quickly to address some of the most common and pressing issues that we encounter.
SYNOPSIS ON THE ISSUE OF ENTERING CANADA WITH A CRIMINAL RECORD
nder the Immigration Act, individuals with criminal records may be inadmissible to Canada, either as tourists or potential immigrants. What constitutes a criminal record is how an offence would be treated in Canada. For example, the Canadian offence of Impaired Driving might be considered a simple traffic offence in another jurisdiction, but in Canada could be treated as an indictable offence. This can lead to confusion when a visitor is questioned by a border official and asked whether he has a criminal record, since he may believe that his impaired driving conviction is a simple traffic offence.
Under certain circumstances, persons with criminal records are admissible to Canada. For all but the most serious offences, a person with a single conviction who completed their sentence more than ten years ago is deemed rehabilitated. There is no formal process for deemed rehabilitation; the guest simply arrives at the border, discloses their previous conviction and the border official has the discretionary authority to admit them based on their deemed rehabilitation.
For individuals with very serious offences, more than one offence, or offences less than ten years old, the process is more formal.
It is possible to apply for granted rehabilitation if certain criteria are met. Generally, five years must have passed from the completion of the sentence for the most recent offence, and evidence of rehabilitation in the form of court documents, probation reports, and letters of reference or even a personal interview may be required. There is a fee, usually $200 but as much as $1,000 for very serious offences.
The usual procedure to apply for granted rehabilitation is to make application to the nearest Canadian consulate in the applicant’s home country. This process can be lengthy, and waits of 12 to 18 months for a determination are common.
Temporary Residency Permit
Under some circumstances, a person who is not eligible for deemed rehabilitation may be admitted under a temporary residency permit. This occurs most commonly when an individual arrives at the border unaware of their inadmissibility, and the border official determines that they would likely qualify for granted rehabilitation if they applied. This procedure allows a guest to be temporarily admitted with the expectation that they will apply for granted rehabilitation before any subsequent trips. Temporary residency permits can be granted in other circumstances, as well, such as on compassionate grounds. In all cases the border official must be satisfied that the benefit of admission outweighs the risk to the Canadian public. There is a $200 processing fee for a temporary residency permit.
Problems with these Procedures
Since deemed rehabilitation decisions are made upon arrival at the border, a guest has no advance assurance that he will be admitted.
A new determination of deemed rehabilitation is made every time the guest attempts to enter Canada and admission one time is no guarantee of future admissibility.
The uncertainty created by lack of a pre-clearance mechanism is a serious disincentive to travel to Canada
The process of applying for granted rehabilitation through consulates is extremely time-consuming.
Anecdotal reports indicate that the approval rate for applications through consulates is extremely low.
The full application fee is required, whether an application is successful or not.
Some successful Pilot Projects
Several years ago, NOTO convinced a regional Citizenship and Immigration office to undertake several small demonstration projects in order to help develop better approaches to this issue. Two new procedures were tried, on a pilot basis and both have yielded excellent results.
In order to remove the uncertainty associated with having deemed rehabilitation determinations made at the border, CIC agreed to allow us to encourage the use of remote area border crossing permits as a pre-screening mechanism. Remote area border crossing permits are intended for use by guests, such as canoeists, who will cross the border where no border facility exists. However, since they require that the guest’s background be checked before the permit is issued, they can be used as a means of verifying that a prior determination of a guest’s admissibility has been made. This allows a guest who presents at the border to demonstrate to officials there that a CIC officer has previously determined that they qualify for deemed rehabilitation.
In a second pilot project, CIC agreed to process granted rehabilitation applications in a regional office as an alternative to applying through consulates. Typical turnaround times for applications have been on the order of four to six weeks, and NOTO has received many very positive comments on the quality of service guests have received.
In our view, these two projects clearly demonstrate that many of the problems we have identified can be easily and inexpensively addressed. Some additional consideration around specific admissibility guidelines would further alleviate the problem.
Establish a simple and inexpensive pre-clearance procedure for deemed rehabilitation.
Create the resources in Citizenship and Immigration Canada offices to process granted rehabilitation applications rather than relying on the limited resources and expertise in consulates.
Reconsider the risk vs. benefit for certain categories of offences. Could provision be made for admission of a tourist whose only offence is impaired driving if they are prohibited from driving while in Canada, for example?
NOTO will continue to lobby for these proposed solutions to assist in developing a clear and transparent process for those wishing to enter Canada where they may be admissible. We encourage all levels of government as well as all tourism stakeholders to push for concrete steps to make the procedures for entry into Canada simpler and more transparent.
This article was taken from pages 20 & 21 of NOTO's "The Outfitter" publication, Spring 2008 Issue