Foreign convictions can easily result in inadmissibility to Canada if the offence is equivalent to a proscribed offence here. A pardon, however, can overcome such a finding.
There are different terms for the “Pardon” concept which, in effect, acts to set aside the stain of a finding of guilt. For example, the UK Rehabilitation of Offenders Act automatically pardons eligible individuals without the need for an application. This does not however, obviate the applicant’s obligation to disclose their prior criminal law interaction on applications to Canada. The pardon may well be acceptable for IRCC, and the person concerned may well be found admissible, but non-disclosure may result in an allegation of misrepresentation.
Not all pardons or findings setting aside guilt are made equal. A foreign pardon does not bind Canada’s hands. If confronted by a foreign pardon or expungement, an Officer must assess whether it is an instrument worthy of recognition.
In Saini, the person concerned was convicted in Pakistan of hijacking; he was sentenced, paroled, and released. He then entered Canada on a false identity. When his past criminality came to light, he submitted a pardon from Pakistan. The pardon was essentially disregarded (both parties filed expert evidence as to the effect and nature of the Presidential Pardon) and the Department proceeded with removal proceedings. Saini sought judicial review and the Federal Court agreed, finding:
- a valid pardon “cannot be ignored in our country and … by an immigration officer”;
- The “Pakistani judicial system [is] somewhat similar to ours” and [adopting the statement in Burgon] that it “a grave assault on the Canadian sense of justice” if the Canadian immigration department would deem a person convicted of an offence when the person is deemed not to be convicted of the same offence in the jurisdiction where the offence was allegedly committed; and
- While hijacking “is a serious offence” the applicant “has been cleansed of that conviction” and should not face deportation as a result
The Federal Court of Appeal (strongly) disagreed, finding the nature of the offence provided a basis to depart from the principle of comity. The Court looked to the comments of Justice Bora Laskin’s comments in Brooks where he stated that the law of another country cannot be
“controlling in relation to an inquiry about criminal convictions to determine whether immigration to Canada should be permitted”. Thus, it is clear that Canadian immigration law governs whether a foreign discharge or pardon will be recognized, not any foreign law.”
As a result, a foreign pardon or expungement is not automatically applied. The Court of Appeal in Saini set out a three-part test to determine the threshold to recognize a foreign pardon:
To summarize, our jurisprudence requires that three elements must be established before a foreign discharge or pardon may be recognized: (1) the foreign legal system as a whole must be similar to that of Canada; (2) the aim, content and effect of the specific foreign law must be similar to Canadian law; and (3) there must be no valid reason not to recognize the effect of the foreign law...
The individual relying on the foreign pardon must establish and prove with evidence that the foreign legal system is similar (not “somewhat similar”). The legal systems need to be similar but not identical. The Court of Appeal allowed for the “rare” instance where this may be obvious. The closest legal systems to that of Canada would be that of the UK which provided most of the DNA to our legal and democratic system and certain other Commonwealth siblings such as Australia and New Zealand. In other cases, it may be necessary and advisable to obtain credible, cogent and reliable information regarding the foreign legal system and their pardon regime sufficient to draw parallels to our own.
This is a challenging area of immigration law and individuals concerned about admissibility should contact experienced counsel for guidance.