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BORDER INFRACTION CONSEQUENCES

IMMIGRATION STATUS ISSUES MAKE APPEALS A NO BRAINER

While the consequences of border infractions, either under the Customs Act (“CA”) or Proceeds of Crime (Money Laundering) and Terrorist Financing Act (“PCMLTFA”), are generally not that severe, the situation may be very different for non-citizens of Canada.

Depending on how an infraction is handled by the CBSA—and what is disclosed on immigration or citizenship applications—infractions linked to the CA and PCMLTFA can trigger inadmissibility under the Immigration and Refugee Protection Act (IRPA) or prohibitions under the Citizenship Act. Consequently, as a preventative measure, non-citizens should appeal border infractions under the relevant legislation to head off any potential quasi-criminal prosecutions and protect their status in Canada.

Why Are Appeals of Border Infractions Important?

Under the CA and PCMLTFA, in addition to laying border infractions against an individual, the CBSA also has the discretion to review such matters for prosecution and lay charges for quasi-criminal offences.

Both the CA and PCMLTFA contain a number of hybrid offence provisions, which means the CBSA/Federal Crown has the discretion to prosecute such offences summarily or by indictment.  The maximum term of imprisonment by indictment under both Acts is five years (with maximum imprisonment terms for summary proceeding being 6 months for CA; two years less a day for PCMLTFA).

Given that an individual may be subject to potential lengthy prison terms for offences originating out of border infractions, appeals of infractions are a crucial tool to head off offence prosecutions.  The appeal effectively doubles as an opportunity to provide submissions that may dissuade the CBSA from laying quasi-criminal charges.

What Are the Possible Immigration Consequences?

If a Permanent Resident (“PR”) or Foreign National (“FN”) is convicted of a quasi-criminal offence arising out of a border infraction, they may be rendered inadmissible under s. 36 of the IRPA in the following ways:

• Serious Criminality – PRs & FNs – if convicted in Canada of an offence and a term of imprisonment of more than six months has been imposed.
• Criminality – FNs – if conviction in Canada for an offence punishable by indictment, or two offences not arising from a single occurrence.

With respect to the above categories of inadmissibility, s. 36(3)(a) of the IRPA also deems hybrid offences to be indictable offences!

Similarly, there is a prohibition against grants of citizenship under s. 22 of the Citizenship Act where a person is convicted of an indictable offence four years before their citizenship application.

Misrepresentation & Immigration Risks

A PR or FN may also be rendered inadmissible in Canada under s. 40 of the IRPA if they misrepresent or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of the IRPA.  Accordingly, misrepresenting facts related to a border infraction on an immigration application could lead to a serious immigration headache!

Similarly, an individual’s citizenship may be revoked under s. 10(1) of the Citizenship Act if they obtained it by false representation or by knowingly concealing materials facts.  Individuals may also be barred from grants of citizenship for the same reason.

Takeaways

Border infractions may not end at the border, and can cause problems with an individual’s immigration status in Canada.  Appeals are recommended to head off potential quasi-criminal prosecutions!

For help with a border infraction, please click here.

Download a PDF copy of this Blog here.