Canada's decision to turn away controversial Florida Pastor Terry Jones has ignited a debate over what factors determine whether a person can enter the country.
Border agents can turn away any non-Canadian citizen or permanent resident looking to visit based on a number of factors, including past criminal convictions, health or financial problems, and a general risk to security.
“Everybody else has to satisfy the [Canada Border Services Agency] that they ought to come in, but to some extent it’s at the discretion of the person who is hearing your story,” said David Cohen, an immigration lawyer and senior partner at Campbell Cohen based in Montreal.
“You don’t have the right to just walk in.”
Jones, known for igniting controversy for burning a Qur'an, was denied entry to Canada for a speaking engagement in Toronto on Thursday. He said the CBSA cited a previous peace bond infraction in the U.S. and an incident related to a disputed honorary doctorate in Germany as reasons for the refusal.
The CBSA would not comment on the incident, citing privacy reasons, but did provide a broad outline about how such decisions are reached.
"Admissibility of all travellers seeking to enter Canada is considered on a case-by-case basis based on the specific facts presented to the border services officer, by the applicant, at the time of entry," the emailed statement said. "It is up to the person to demonstrate that they meet the requirements to enter and/or stay in Canada."
The statement said a number of factors are used to determine admissibility including security, human or international rights violations, serious or minor criminality, health, non-compliance, misrepresentation and inadmissible family members.
The office of Immigration Minister Jason Kenney told CBC News the government does not have the power to keep Jones out of the country.
However, the Conservatives have proposed Bill C-43, the faster removal of foreign criminals act, which would give the immigration minister powers to determine who can be kept out of — or allowed in — the country.
Cohen said there are three main areas that border guards focus on when determining whether a person can enter the country, including criminal convictions and health or security issues, although sometimes general circumstances come into play.
“If you show up with a U-Haul trailer and all of your belongings in them, and you drive up from the U.S. and you say, ‘I’m here to visit Canada,’ they may be suspicious, “ he said. “It kind of looks like you’re going to, as they say, centralize your mode of living here.”
The mandate of the CBSA is to protect Canada, Cohen said, so they will turn away persons with a highly contagious virus or an airborne, communicable disease.
Having a criminal record is another oft-cited reason for entry refusal, although its effect is dependent on the type of conviction and the passage of time. The CBSA website notes that persons with records should be “prepared to discuss their criminal convictions.”
The CBSA said "most criminal convictions … including a conviction of driving under the influence, make individuals inadmissible to Canada."
However, Cohen said a person found guilty of a single minor offence, such as disturbing the peace, can sometimes be allowed to enter the country.
If a person has several minor convictions, they can be denied unless they have been deemed rehabilitated by the CBSA. If 10 years have passed, a person is automatically considered rehabilitated, but can apply to be considered for rehabilitation if five years have passed, Cohen said.
Serious crimes, defined as any that would result in a 10-year sentence or more if convicted in Canada, are never automatically deemed to be rehabilitated, although a person can also apply to be rehabilitated after five years.
“Many crimes in Canada have a maximum 10-year sentence or more because we want to give the judge as much leeway as possible,” he said.
Importantly, Cohen said, the time period begins once a sentence has actually been served and, in the case of relatively minor crimes, a fine has been paid. Failing to do the latter, for instance, can make a person ineligible to enter the country even if years have elapsed since the initial incident.
According to the CBSA, a pardon received in the home country where an offence has occurred can be assessed and the person could then be allowed entry to Canada. A person can also apply for a temporary resident permit if the required five years have not elapsed, which is how former media magnate Conrad Black, who was born in Montreal, was able to enter the country after he was released from a U.S. prison.
A person convicted of an offence — such as drinking and driving — who served no jail time and committed no other acts that would make them ineligible can also enter the country under a recently approved tourism facilitation plan, the CBSA said in a statement. The program waives the $200 fee for a temporary resident permit for a single visit.
Cohen said the CBSA also has leeway to turn away a person based on general security concerns according to information contained in the Immigration and Refugee Protection Act.
A person can be turned away if he or she took part in espionage or subversion against a government, or engaged in terrorism or any acts of violence that might endanger Canadians.
Another clause makes a person inadmissible for “being a danger to the security of Canada,” which Cohen described as something of a “catchall.”
The impact of the events of the Sept. 11, 2001, attacks, not surprisingly, have also had an important impact on the ability of many people to enter Canada, Cohen said.
This is largely a result of better information sharing between governments, primarily between Canada and the United States, he said.
In the past, a person may have been able to say they had no criminal convictions but that changed after 9/11.
“Your past is now on display for the Canadian border agents,” Cohen said.
Although a person can apply to have their case reviewed or possibly appealed – as Terry Jones suggested he would do – it’s not practical for many, Cohen said.
It can sometimes be a lengthy and costly process to appeal which deters many who were simply trying to get across for a short-term visit, he said.
Cohen said some Canadians “raise their eyebrows up” when there is not a clear, defined reason for turning away a person.
“The fact that we don’t like somebody or what they do, generally doesn’t mean that we keep people from entering Canada,” he said.