Thread: Legal issues
View Single Post
Old 09-13-2014, 08:06 AM
  #7  
MaxThrustPower
Gets Weekends Off
 
Joined APC: Aug 2014
Posts: 104
Default

I neglected to mention another concern for convicted felons: entry into Canada. Since many airline pilots need to be able to fly freely into Canada, this becomes an issue for the employer to consider. I don’t know of any other countries that have a law as particular as Canada.

Where the issue arises most often these days is due to prior convictions for DUI in the states which is more harshly punished in Canada. I posted this info on another thread about DUI’s related to flying, but it certainly also applies in this situation.

History: After 9/11, the Canadian Parliament wrote legislation that would restrict the entry of people into Canada that might pose a threat to society. Besides terrorists and people who might be a health risk to the public or financial burden to the state, it includes a clause related to past criminal activity. The way the wording is written, even a single DUI that is a misdemeanor in the U.S. could be reason for denial or entry. Certainly, I would imagine that many offenses that are felonies in the U.S. would also apply. The law was called the Immigration and Refugee Protection Act and went into effect on January 1, 2003.

The specific paragraph of the law is in Division 4 (Inadmissibility), Paragraph 36 (Serious Criminality). It reads:

Serious criminality

  • 36. (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for
    • (a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed;
    • (b) having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; or
    • (c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years.
  • Criminality

(2) A foreign national is inadmissible on grounds of criminality for
  •  
    • (a) having been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment, or of two offences under any Act of Parliament not arising out of a single occurrence;
    • (b) having been convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, or of two offences not arising out of a single occurrence that, if committed in Canada, would constitute offences under an Act of Parliament;
    • (c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an indictable offence under an Act of Parliament; or
    • (d) committing, on entering Canada, an offence under an Act of Parliament prescribed by regulations.
  • Application

(3) The following provisions govern subsections (1) and (2):
  •  
    • (a) an offence that may be prosecuted either summarily or by way of indictment is deemed to be an indictable offence, even if it has been prosecuted summarily;
    • (b) inadmissibility under subsections (1) and (2) may not be based on a conviction in respect of which a record suspension has been ordered and has not been revoked or ceased to have effect under the Criminal Records Act, or in respect of which there has been a final determination of an acquittal;
    • (c) the matters referred to in paragraphs (1)(b) and (c) and (2)(b) and (c) do not constitute inadmissibility in respect of a permanent resident or foreign national who, after the prescribed period, satisfies the Minister that they have been rehabilitated or who is a member of a prescribed class that is deemed to have been rehabilitated;
    • (d) a determination of whether a permanent resident has committed an act described in paragraph (1)(c) must be based on a balance of probabilities; and
    • (e) inadmissibility under subsections (1) and (2) may not be based on an offence
      • (i) designated as a contravention under the Contraventions Act,
      • (ii) for which the permanent resident or foreign national is found guilty under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, or
      • (iii) for which the permanent resident or foreign national received a youth sentence under the Youth Criminal Justice Act.
You can apply for temporary or permanent permission to travel to Canada regardless of the prior conviction. The Canadian officials may or may not approve the permit, depending on the offense and other factors. Without a permit, Canadian Customs and Immigration officers still have some discretion in who they admit. Attempting entry is a roll of the dice unless you have processed the required paperwork. Border officers are pretty strict about "recent" offenses (less than 5 years ago) but MAY be more lenient about distant offenses.

You will need to fill out the Temporary Resident Permit (TRP) application (IMM Form 5257) and process it before traveling to Canada. It can take up to six months to process a TRP. A TRP application is only valid for ONE YEAR, so if you go this route, you will need to keep applying for a new permit every year. It's not the best solution for a professional pilot who needs regular uninhibited access in and out of Canada. However, if your offense (and any probationary period) is less than five years old, this is the ONLY way to obtain permission for entry.

The law adversely affected Canadian tourism. Consequently, on March 1, 2012 Canada issued a new policy which may allow U.S. travelers into the country despite having a criminal conviction on their record. The policy was implemented as part of Canada‘s “Tourism Facilitation Action Plan” (TFAP).

Under the new policy, U.S. citizens traveling to Canada MAY be allowed across the border if:
  • They have only a SINGLE criminal conviction on their record and;
  • They were not sentenced to any jail time for that conviction
This law allows the $200 processing fee to be waived but you still have to fill out the TRP. It is suggested that this is done in advance but can be submitted upon arrival at the border.

Customs and Immigrations officers have access to U.S. criminal databases, so your passport will likely flag your identity if you have criminal issues. Lying on the TRP application may cause you to get barred from entry into Canada for a very long time. (See Paragraph 40 of the act – Misrepresentation.)

From the Canadian government website, "a temporary resident permit lets you enter or stay in Canada if:
  • it has been less than five years since the end of your sentence or
  • you have valid reasons to be in Canada.
If you have a valid reason to travel to Canada, but you are inadmissible, we may issue you a temporary resident permit. An immigration or border services officer will decide if your need to enter or stay in Canada outweighs the health or safety risks to Canadian society"

Customs and Immigration will review the application and make a determination based on:
  • The nature of conviction
  • The date of the last conviction
  • What type of sentence you were given
  • Your reason for the travel to Canada
If you meet the criteria, you may apply for a PERMANENT Permit showing you have been "rehabilitated." If you choose this route, buckle your seat belt. You’re in for a long, bureaucratic process that may or may not grant you permission. Once again, from the Canadian government website:

"You can apply for individual rehabilitation to enter Canada. The Minister, or their delegate, may decide to grant it or not. To apply, you must:
  • show that you meet the criteria*, (*note: see this link for details)
  • have been rehabilitated and
  • be highly unlikely to take part in further crimes.
Also, at least five years must have passed since:
  • the end of your criminal sentence (this includes probation) and
  • the day you committed the act that made you inadmissible."
The application for permanent entry is called an "Application for Criminal Rehabilitation" (IMM Form 1444). The documents checklist (IMM Form 5507) details all the extensive information you must gather and submit with your application. It's a lot to do, involving a national FBI certificate (background check) as well as "Police Certificates" from anywhere you've lived for at least six months since age 18. And, you also submit complete official court records from your criminal past. The basic fee for processing this application is $200 Canadian (a little less U.S.D.) If the offense(s) are serious enough to be elevated to the Minister for approval, the fees can rise to $1000 Canadian (a little less U.S.D.)

http://www.cic.gc.ca/english/pdf/kit...s/IMM1444E.pdf
http://www.cic.gc.ca/english/pdf/kit...s/IMM5507E.pdf
http://www.cic.gc.ca/english/pdf/kit...s/IMM5310B.pdf

Obtaining a Police Certificate:
How to obtain a police certificate - United States

There are Canadian Visa offices in the U.S as well as regional Consulate offices. Either or both of them may be helpful in answering questions, obtaining the required documentation, and processing forms.

(Consulate Offices are in Atlanta, Boston, Chicago, Dallas, Denver, Detroit, Houston, Los Angeles, Miami, Minneapolis, New York, Philadelphia, Raleigh, San Diego, San Francisco, Seattle, and Washington DC.)

Canadian Consulates in the United States » ezbordercrossing.com

There are even more Visa application offices. See this link for more information.

Find your closest visa application centre
MaxThrustPower is offline