By Catherine Dauvergne
In the increasingly contested politics of immigration, an intention to “keep criminals out” seems like a rare point of consensus. It’s been a cornerstone of migration regulation around the world for almost as long as such regulation has existed.
Examples abound. When Prime Minister Justin Trudeau’s Liberal government sought to dismantle many of the previous Conservative government’s changes to Canadian immigration law, it left in place the Faster Removal of Foreign Criminals Act. Even people whose lives are endangered and would otherwise be refugees are excluded from the refugee category for serious criminal acts.
So how does Canadian law respond to a potential American president who’s a convicted felon?
Complex case
At first blush, Canadian immigration law provides an easy answer: anyone convicted of a criminal offence is inadmissible. But there are several reasons why this simple rule may not prevail for Donald Trump.
In the case of convictions outside of Canada, the first step to consider is whether the offence in question is also an offence in Canada. Trump has been convicted of 34 felony counts, though he’s pushing for the convictions to be overturned in the wake of the United States Supreme Court’s ruling that granted him immunity from prosecution for acts he committed while president.
It’s almost certain that the elements of at least one of those 34 offences matches charges under Canada’s Criminal Code (including fraud or falsifying books or documents) or Canada’s Elections Act, which has dozens of offences in the finance category.
Some of the charges against him would qualify as serious criminality and others as ordinary criminality under Canadian immigration laws.
The distinction between these categories is not germane to the question of whether someone could pop up to Ottawa for a state dinner. The large number of Trump convictions — and a variety of options in Canadian statutes — means that legal arguments about the intricacies surrounding Trump’s situation could be long and complex. But it’s unlikely lengthy legal debates will be required.
In terms of a state visit scenario, Canadian immigration law allows for exceptions to criminal inadmissibility on humanitarian and compassionate grounds or for public policy reasons.
The provision that would allow for a state visit despite a criminal record is set out in a routine mechanism theoretically available to anyone: exceptions. Humanitarian and compassionate exceptions might be a stretch for Trump, and they’re notoriously vague anyway. Public policy, however, is a more straightforward possibility. The minister responsible can easily grant this exemption. A foreign leader would not even need to know when such an exemption is applied in their own case.
Security inadmissibility
The more interesting hypothetical, however, is not about Trump’s convictions. Charges that are still outstanding are more important in considering admissibility to Canada.
Some of the allegations against Trump, which are yet to be tested in a court of law, relate to a less common category of inadmissibility — security grounds. Security inadmissibility is related to, but distinct from, serious and ordinary criminality. It includes “engaging in or instigating the subversion by force of any government,” and “engaging in an act of subversion against a democratic government, institution, or process as they are understood in Canada.”
These provisions sound quite a lot like what Trump has been accused of in relation to the events of Jan. 6, 2021.
The fate of those charges has been thrown into doubt with the Supreme Court decision, but that has no bearing on how Canada responds. That’s because the key to inadmissibility grounds is “engaging in” the act in question.
There is no need for proof beyond a reasonable doubt, no need for a trial in any form or even for formal charges. The many provisions of criminal law aimed at protecting the rights of an accused are scarcely present in matters of immigration inadmissibility. The “keeping criminals out” principle is a broadly enabling one.
Other security inadmissibility provisions include terrorism and endangering lives — but both of these come below subverting democratic processes on the list of security inadmissiblity categories.
Making exceptions
There’s no shortage of intricacy in these rules. Even with serious or ordinary criminality, an actual conviction outside of Canada is not required — evidence of the criminal act will suffice.
And while the Canadian equivalent of a pardon will matter, a foreign pardon is simply a consideration. The Canadian rules also provide for a form of rehabilitation, which means that after a certain amount of time, some criminality barriers will lapse.
Another reason why the Jan. 6 events are the more interesting hypothetical, however, is because security inadmissibility is forever. Rehabilitation by passage of time is not available. In fact, security inadmissibility is treated so seriously that it cannot be overridden on the basis of humanitarian and compassionate considerations. A public policy exemption would still be possible, but it would likely attract intense political scrutiny to grant it, especially in the case of an American president.
All of this means that while there is an argument to be made that Trump might no longer be admissible to Canada, he can travel to Canada if the Canadian government chooses to admit him.
The Trump example is a clear illustration that the “keep criminals out” principle will yield to the “do what the government of the day wants” principle more often than not when it comes to immigration.
Catherine Dauvergne is Professor of Law at the University of British Columbia.
The Conversation arose out of deep-seated concerns for the fading quality of our public discourse and recognition of the vital role that academic experts could play in the public arena. Information has always been essential to democracy. It’s a societal good, like clean water. But many now find it difficult to put their trust in the media and experts who have spent years researching a topic. Instead, they listen to those who have the loudest voices. Those uninformed views are amplified by social media networks that reward those who spark outrage instead of insight or thoughtful discussion. The Conversation seeks to be part of the solution to this problem, to raise up the voices of true experts and to make their knowledge available to everyone. The Conversation publishes nightly at 9 p.m. on FlaglerLive.
JimboXYZ says
[comment disallowed. Disinformation.—FL]
Joseph Barand says
Let him go but then don’t let him return, just make sure his pane is full of other terrorists wearing red hats. Save one seat for his Communist Escort.
Richard says
And so can Walz because of his dui
Tony mac says
False. Walz was never convicted of a DUI. The charge was dismissed. Unlike Trump who is a convicted criminal, Mr Walz will enjoy his trip to Canada should it come to be.
Richard says
Better read up there Mac.. do some research and comeback and talk.
Tony Mac says
Richard — Walz pleaded guilty to a reduced charge of “reckless driving”…a misdemeanor. He was find and lost his license for 90 days. He is not a convicted felon like Trump, ergo, he would not be refused admission to Canada or any other number of countries that will not permit a felon to enter.
From Newsweek:
Walz was working in Alliance, Neb. when he was pulled over for driving 96 mph in a 55 mph zone, according to the original police report filed by the Dawes County Sheriff’s Office. Arresting officers noted a strong odor of alcohol, and Walz failed a field sobriety test with a blood alcohol level of 0.128, well above the legal limit.
Initially charged with DUI and speeding, Walz negotiated a plea deal, reducing the charges to reckless driving. His attorneys noted during hearings that Walz had offered to resign from his teaching position at Alliance High School, including his coaching role, following the arrest.
Ultimately, Walz pleaded guilty to the reduced charge, resulting in a $200 fine and court costs. The DUI charge was dropped as part of the plea agreement, and Walz faced a 90-day license suspension.
The Democratic vice-presidential candidate has been transparent about the incident over the years, using it as a pivotal moment in his life.
No Political Affiliation says
“Somebody’s doing the raping.” said Donald J Trump, the rapist.
LT C says
Not gonna be enforced. Even the Canadians know that conviction is BS lawfair against a political opponent.
DaleL says
Whether Canada chooses to enforce its laws or not is up to them.
I would like to believe that in the United States even a rich and powerful have to obey the same laws as you and I do. It has been shown beyond reasonable doubt that Mr. Trump reimbursed the hush money payment made to Stephanie Clifford (aka Stormy Daniels) by his “fixer” Micheal Cohen. Micheal Cohen was convicted of making a felony campaign contribution. Mr. Cohen spent time in prison for his crime. Mr. Trump paid Micheal Cohen by falsifying business records in New York. Under New York law, it is a crime to falsify business records. It is a felony to falsify business records to hide a felony. These crimes occurred prior to and immediately after the 2016 election, before Mr. Trump was president.
The conviction is not BS. Because it is a conviction is a state court, should Mr. Trump be elected president, he cannot pardon himself. In addition, Mr. Trump is the defendant in other court cases. He has also lost repeatedly in the E. Jean Carroll civil defamation trial and has been ordered to pay $83 million.
It is unfortunate that the American legal system moves so slowly, especially as to the rich and powerful, that Mr. Trump wasn’t locked up decades ago.
PC says
Ha, Ha…
I can assure you Trump doesn’t want to visit SOCAIALST Conrad Trudeau !!!
Chris says
Canada is better to visit then the madman in North Korea. According to Frump they are “best friends”, he can stay there too and do us all a favor! Frump can run the Donald Frump presidential library in the prison.
Laurel says
“Ha, Ha…
I can assure you Trump doesn’t want to visit SOCAIALST Conrad Trudeau !!!”
Okay, that was bizarre.
By the way, who the hell is “Conrad Trudeau”?
Rudy says
All you anti-American Trump haters can pack your belongings and move to Canada. America won’t miss you one bit.
Sherry says
Awwwww rudy. . . what ya gonna do when Kamala Harris takes her rightful place as the First Woman President of the USA on Jan. 20th 2025? Move to Russia with the rest of the “true US Citizen/neighbor haters”?
Tony Mac says
Does your request include many of us vets who are disgusted with Trump’s comparison of the Presidential Medal of Freedom with the Congressional Medal of Honor?
This from the Commander of the VFW — “…These asinine comments not only diminish the significance of our nation’s highest award for valor, but also crassly characterizes the sacrifices of those who have risked their lives above and beyond the call of duty.
When a candidate to serve as our military’s commander-in-chief so brazenly dismisses the valor and reverence symbolized by the Medal of Honor and those who have earned it, I must question whether they would discharge their responsibilities to our men and women in uniform with the seriousness and discernment necessary for such a powerful position. It is even more disappointing when these comments come from a man who already served in this noble office and should frankly already know better.
While the Presidential Medal of Freedom maybe our nation’s highest civilian award, the Medal of Honor is more sacred as it represents the gallantry and intrepidity of courageous and selfless service members, often at the cost of grievous wounds and even their lives. It’s because of our Medal of Honor recipients that great Americans like Miriam Adelson have the freedom to live to their fullest potential and make such lasting contributions to our great nation.
How in the name of all that’s Holy, can anyone support a convicted felon and a person who called veterans “…suckers and losers…”? How are you even content to put a criminal in the Oval Office, commanding the very troops he despises?
Pitiful, really…
Ed P says
Tony Mac,
How? The bigger question should be why.
Why do both the right and left believe the other is too radical? Why do they think each is morally bankrupt? Why do the Republicans and the Democrats both see the opponent having the wrong positions on the border, economy, crime, abortion, and every other view? Why do they each fervently believe the other side is on the wrong side of history? Answer why and the how becomes clear.
Liberals can’t be wrong? Conservatives can’t be wrong? Do people vote for a candidate or against a candidate? Does any candidate not have flaws?
Up is down, down is up and fear is driving the day.
Think about it.
“United we stand, divided we fall”….time is ticking away for we the people.
DaleL says
Rudy, what about those Americans who love our country and Constitution, but for that very reason hate Mr. Trump?
It was at Mr. Trump’s request that a crowd formed, became a mob, and stormed the Capitol on January 6th. He is attempting to avoid trial (justice) for attempting to illegally overturn his loss in the 2020 presidential election. It was Mr. Trump who took boxes and boxes of government documents to Mar-a-Lago. It took a search warrant to get most of them back. That doesn’t seem very American, does it? Mr. Trump is a convicted felon. He reimbursed his “fixer”, Micheal Cohen, with funds from his business accounts, which he falsified. Mr. Trump has been found guilty in civil court of business falsification and ordered to pay hundreds of millions of dollars. Mr. Trump lost the E. Jean Carroll defamation of character case. It was determined that he committed sexual assault and defamed his victim. He has been ordered to pay $83 million dollars to her.
Mr. Trump is a proven liar, defamer, and convicted felon. He is a bitter, nasty, really weird (cannibal Hannibal Lector weird) old man. To support such a person is anti-American.
Sherry says
Character, Morals and Credentialed Facts First! We should all come together from a place of truth, ethics, integrity, honor and honesty under our constitutional laws. From a place of courage and positive loving kindness, where our open minded leaders selflessly provide honest and honorable service to “ALL” the people of the United States equally.
Those words most closely define the Democratic Party. . . NOT the party of a “convicted felon”!
VOTE DEMOCRATIC!
Ed P says
Sherry,
The problems associated with voting a straight party line ticket is that you will inevitably pass up “better” candidates. The current polarized political climate does not induce us or our elected officials to accept the “better” policy if their opposition owns it. Look at the blow back VP Harris is taking for agreeing with Trump on tip tax.
There is nearly zero policy information being presented and candidates are heralded on their “character “ or personality. Both matter, but policy is certainly equally important.
Democracy should be the exchange of ideas, compromise, and doing what is best for the constituents. That has been highjacked and replaced with irrational division. I’m wrong and you’re right is all that’s left.
Even at our level at Flagler Live , you automatically reject any idea I may post and even refuse to capitalize my name in a response.
When your requested credentialed facts are presented, you do not appear to accept them.
Here’s a baseball analogy. A major league batter who hits .333 would probably make the Hall Of Fame. Yet he was out .666% of the time or twice as often.
Ask yourself when was the last time the media allowed YOU to form your own opinion. We must not fall into the trap of thinking any of them are unbiased or correct. We must listen to everyone and perform critical thinking instead of being told what we should or should not think.
I actually agree with you about Fox but also feel similarly about mainstream media. None of them just report the news. They all have a slant and preference.
DaleL says
The proposal of no taxes on tips is not new. Representative Phil Crane made that proposal in 1982. The proposal also would not significantly affect U.S. tax revenue or benefit the majority of tipped workers.
Two thirds of tipped workers earn so little money that they don’t pay any federal income tax.
Tipped workers would benefit more if the federal minimum wage were adjusted for inflation and they were not in a separate lower tier. It is at $7.25 per hour and has not been increase since 2009. Adjusted for inflation, the minimum wage should be $10.63 today. Raising the base pay would increase these workers contribution to Social Security which in the short term would help the system. In the long run it would then provide these minimum wage workers with a better retirement.
Laurel says
DaleL: Having no tax on tips will actually hurt tipped employees, just as no tax on Social Security will hurt beneficiaries. Trump is trying to buy off votes, at the voters’ expense.
I was in the restaurant business for 15 years, and those employees made well below minimum wage as the tips were considered to be their income. Employers paid as little as $2 per hour, and sometimes, even under. That $2 an hour was taxed, and the tips were supposed to be claimed and counted towards social security benefits. Very often, employees would not claim these tips as it was cash. Tips on credit cards were claimed as there was a record. This effected the amount the employee’s got as a benefit from social security, which was greatly reduced. I have no idea if current restaurant employees are paid minimum wage, by their employers, or below as generation was.
With removing the tax on social security, the lack of tax will undermine the system, making it fail. Instead, if tax on social security is removed (which I would like) the system should be fixed first. I heard one economist state that by simply taxing $0.07 per hour to an employee, and matching $0.07 per hour from the employer, the system would be repaired.
Here’s the double whammy on Trump’s plan:
No tax on tips? No tax on social security? The system fails.
Trump: “I love the uneducated.”
Sherry says
@ed. . . yet you apparently are still passionately supporting a convicted felon who sexually assaulted and defamed his victim, who was found guilty of fraud and still has indictments pending against him. That tells me all I need to know about you and your personal values. You are not worth the time it has taken to type these few words.
Ed P says
Sherry,
Agree….you are right and I am wrong. Be dammed policies.
Only if Mary Poppins were running….ahhhhh
Signed,
Worthless
Ray W. says
Where is the old Ed P? What have you done with him? The new Ed P reasons! Whether I agree with him does not matter. Thank you.
I hope for the day when FlaglerLive commenters of all kinds exercise reason based on intellectual rigor. The many different viewpoints just might enrich us all.
There are several reasons why I seldom comment on local elections, unless one of the candidates maliciously attacks another. Indeed, there are many subjects that I avoid. But I will always oppose the politically malicious among us, just as I will oppose those who seek to disinform and misinform.
One of our founding fathers, James Madison, praised those who set aside their personal party animosities during to Constitutional Convention to create a proposed Constitution; he deemed them “virtuous.” Of those who could not set aside party animosities. He deemed them “pestilential.”
Can it be argued that Madison was one of the first to put into print the idea of country over party or self?
Sherry says
Dear Ray W. . . Generally I agree with your reasoning and your desire for intellectual rigor. When I have the ample time, and the subject is of interest, there is something to be learned from some of your postings. Thank you!
However, beyond the pure intellect there is the value of character, of heart and soul, of consciousness, and of living in a present, caring “mindful” way. There are valid questions of character, of ethics, of integrity. Part of my personal spirituality is to chose who I associate with and to practice detaching myself from those who I consider to be toxic.
Each of us must determine how we personally spend each treasured moment of our lives. It is my opinion that we should not be suffering fools gladly. Just as you, like me, do not tolerate the rants of Dennis or the nonsense of Jimbo. Is that intolerance “pestilential”?
With those two, “I” generally try to disregard their writings in general. . . my time is simply too precious, and generally they are not attacking me personally. On the other hand, Ed P, is a troll. I’ve called him out on that practice a couple of times, but to no avail. Going forward, I’ll just place him in that “basket” with the others and do my best to ignore anything he writes. As I’ve already indicated to him, my valuable time is much better spent elsewhere.
Rita says
Well if he is elected President, any country that doesn’t want him to visit also doesn’t want our money or trade. It’s that simple. We as a nation use to support our President NO MATTER WHAT, We need to do that again. United we stand, Divided we fall.