Determination of rehabilitation - R309(a) and A36(3)(c)

Persons who are described under A36(1)(a), (b) or (c), and A36(2)(a), (b) or (c) are inadmissible to Canada on grounds of criminality.

The IRPA introduces the deemed rehabilitation class of persons who are described under A36(2)(b) and (c).

The IRPA provides authority for the Minister to approve the rehabilitation of persons described in A36(1)(b) or (c) and A36(2)(b) or (c). The granting of rehabilitation removes the grounds of inadmissibility, and is granted for meritorious cases when the Minister or the delegated authority is satisfied that:

• the person concerned meets certain criteria;
• has been rehabilitated;
• and is highly unlikely to become involved in any further criminal activities.

The National Parole Board has the authority to grant and issue pardons to persons described in A36(1)(a) and A36(2)(a) who have been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment. Neither deemed rehabilitation nor rehabilitation can be granted for these offences.

For further guidance, refer to ENF 2/OP 18 - Evaluating Inadmissibility.

The deemed rehabilitation provisions cannot be used to overcome inadmissibility for offences in the following situations:

• if the prescribed period of time of 5 years has not elapsed - for a person who has committed 2 or more summary offences; or
• if the prescribed period of time of 10 years has not elapsed - for a person who has committed one indictable offence; or
• person has committed one indictable offence, and then committed a subsequent summary or indictable offence; or
• person was deemed rehabilitated, and then committed a subsequent offence: any subsequent offence has the effect of removing the application of the deeming provisions for any earlier offence(s);
• an indictable offence pursuant to A36(1)(b) or A36(1)(c).

If a person who was convicted of an offence or who has committed an act or omission does not meet the eligibility criteria for deemed rehabilitation, that person may be eligible to apply for rehabilitation by presenting an Application for Criminal Rehabilitation (IMM 1444E (PDF, 1.18MB)). The client should be adequately counselled on the criminal inadmissibility criteria, and whether or not they meet the criteria to apply either for rehabilitation under IRPA or a pardon under the Criminal Records Act.

The application of the criminal rehabilitation provisions in the Act is at the discretion of the Minister or the Minister’s delegate, but these provisions do not constitute a right for persons who are criminally inadmissible to be considered under them. The officer is not required to counsel applicants on the existence or application of these provisions, but in the interest of procedural fairness, applicants should be provided with an application kit if they appear to meet the eligibility criteria and request information or an application for determination of rehabilitation.

Although officers do not have the authority to approve rehabilitation, they may nonetheless provide the client with an opinion on eligibility, and indicate whether a positive or a negative recommendation would be submitted to the delegated authority.

When a negative recommendation is likely, the officer should advise the client that the cost recovery processing fee would not be refunded if the application is refused. If a client wants to submit an application for determination of rehabilitation after being provided with a negative recommendation, an officer cannot refuse to accept an application for rehabilitation by the client.

The application for determination of rehabilitation should be processed simultaneously, if a client has submitted an application for a temporary or permanent resident visa. If a client requests rehabilitation after a refusal of a visa application, the client would have to submit another visa application.