When Canadian
inadmissibility depends on whether the Canadian equivalent offence is
punishable by a maximum of 10 years or more (the key “serious
criminality” threshold), the timing of the offence can matter.
In Tran v.
Canada, 2017 SCC 50, the Supreme Court addressed a situation where the
maximum penalty was 7 years at the time of the offence and later
increased to 14 years before conviction—and clarified that the maximum
penalty analysis is tied to the time of commission, not later changes.
The seriousness
threshold comes from IRPA s. 36.
What this
means for U.S. offences?
For U.S.
convictions, officers first do equivalency (match the U.S. offence to a
Canadian offence), then ask whether the Canadian equivalent meets IRPA s. 36 thresholds.
If the Canadian
offence’s maximum penalty changed over time, Tran supports using
the version in force when the offence was committed for the “maximum
penalty” test.
Comparative
chart: examples of “serious” Canadian equivalents and U.S. counterparts
Important: U.S. criminal law varies by state. The “U.S.
example” column below uses federal statutes (and common labels) for a
general comparison only.
Common
offence (label) | Canada
(equivalent + max penalty) | U.S.
example (federal statute + max penalty) |
Impaired
driving (DUI/DWI) | Criminal Code s.
320.19(1): up to 10 years (indictment) | State law
varies; (no single federal DUI equivalent) |
Robbery | Criminal Code s.
344: life | Bank robbery 18
USC 2113 (penalties vary by subsection; can be up to 20 years or more) |
Break &
enter (dwelling-house) | Criminal Code s.
348(1)(d): life | Burglary is
typically state law (varies widely) |
Aggravated
assault | Criminal Code s.
268(2): up to 14 years | Assault
resulting in serious bodily injury 18 USC 113(a)(6): up to 10 years |
Kidnapping | (Often
assessed under serious Canadian offences; penalties can be very high
depending on section) | 18 USC 1201: “any term of years or for life” |
Practical
takeaway
● For serious criminality based on maximum penalty,
the question isn’t just “What is the max today?”
● Under Tran, the relevant question is often “What
was the maximum penalty at the time of the offence (for the Canadian
equivalent)?”
This timing
issue is one reason why older convictions (especially older DUI/DWI histories)
can be assessed differently than newer ones when Canadian penalty frameworks
changed.
Consult
A&M Canadian Immigration Law Corporation online or call (204) 442-2786
If your U.S. offence occurred years ago, a timing review under Tran (plus equivalency) can be critical to determining whether IRPA s. 36 applies.
Disclaimer
(Educational Use Only)
This content is
for general educational and informational purposes only and is not legal
advice. Canadian immigration laws, regulations, policies, and officer practices
can change. U.S. offences vary by state, and the correct analysis
depends on the exact statute, date of offence, and court documents.
Sources
(hyperlinks)
● Tran v Canada, 2017 SCC 50 (CanLII): https://www.canlii.org/en/ca/scc/doc/2017/2017scc50/2017scc50.html
● IRPA s. 36: https://laws-lois.justice.gc.ca/eng/acts/I-2.5/section-36.html
● Criminal Code s. 320.19 (impaired driving
punishment): https://laws-lois.justice.gc.ca/eng/acts/C-46/section-320.19.html
● Criminal Code s. 344 (robbery): https://laws-lois.justice.gc.ca/eng/acts/C-46/section-344.html
● Criminal Code s. 348 (break and enter): https://laws-lois.justice.gc.ca/eng/acts/C-46/section-348.html
● Criminal Code s. 268 (aggravated assault): https://laws-lois.justice.gc.ca/eng/acts/C-46/section-268.html
● 18 USC 2113 (bank robbery): https://uscode.house.gov/view.xhtml?edition=prelim&num=0&req=granuleid%3AUSC-prelim-title18-section2113
● 18 USC 113 (assault): https://uscode.house.gov/view.xhtml?edition=prelim&num=0&req=granuleid%3AUSC-prelim-title18-section113
● 18 USC 1201 (kidnapping): https://www.law.cornell.edu/uscode/text/18/1201
