If you have any criminal history anywhere in the world, the background questions on a Canadian eTA, visitor visa, study permit or work permit application must be answered accurately — even where the record was sealed, expunged or pardoned, and even where your local police certificate now comes back clean. An inaccurate answer does not simply risk a refusal on criminal grounds; it can add a separate finding of misrepresentation under section 40 of the Immigration and Refugee Protection Act, with consequences that outlast the original offence. This article explains when the duty to disclose arises and how to handle it.
Key Takeaways
- The statutory background questions on IRCC’s online forms must always be answered truthfully. Omissions count.
- A clean police certificate or a sealed record is not a reason to answer “no”. Foreign relief does not automatically remove Canadian immigration consequences.
- Never travel to a Canadian port of entry without verifying admissibility in advance; at the border, all questions asked must be answered honestly.
- Where a record exists, the better practice is to pre-empt the issue with admissibility submissions rather than wait for a procedural fairness letter (PFL).
- A misrepresentation finding is a separate ground of inadmissibility from criminality — and it is not cured by later disclosing the truth.
Where the duty to disclose comes from
IRCC’s online application forms include statutory background questions about arrests, charges, convictions and other interactions with law enforcement. Those questions are part of the application. Answering them inaccurately — including by leaving something out — is what turns a manageable criminal admissibility issue into a compounded problem, because misrepresentation under IRPA s. 40 is its own ground of inadmissibility, separate from the criminality analysis under s. 36.
Two client assumptions cause most of the damage:
- “My record was sealed, so there is nothing to declare.” Sealing, expungement or a foreign pardon may or may not be recognized for Canadian purposes, and that assessment belongs to IRCC, not to the applicant. The existence of the underlying matter still has to be disclosed.
- “My police certificate is clean, so I have no record.” A certificate reflects what a particular authority discloses at a particular time. It is not a legal determination that no offence occurred.
If you are not sure whether an old matter is a conviction at all, that question is answered by the records, not by the label — see our article on what counts as a conviction in Canadian immigration.
The eTA problem
Electronic travel authorization applications are short, and that is precisely the risk. They are often completed by someone other than the traveller — a travel agent, an airline representative, an assistant — who works quickly and answers the background questions on the traveller’s behalf.
The traveller remains responsible for the answers. Before an eTA is submitted, review every background question personally and confirm each answer is accurate. If an eTA has already been submitted with an inaccurate answer, get advice promptly; the analysis differs depending on whether the person has travelled on it.
At the port of entry
Two rules apply, and they operate together.
First, do not go without checking. No one with any criminal history should present at a Canadian port of entry before their admissibility has been verified. A border examination is the worst place to discover an equivalency problem, because the officer can refuse entry, and in some cases the CBSA can issue a removal order.
Second, answer honestly. At the border, every question asked must be answered truthfully. Whether a traveller must volunteer a criminal record that is not asked about is a judgment call that depends on the circumstances, and it is one to work through with counsel before travelling rather than at the primary inspection line. What is clear is that inaccurate answers to questions that are asked create exposure under s. 40 on top of any s. 36 issue.
Recourse in the temporary resident context is limited. There is no right of appeal to the Immigration Appeal Division, access to the Immigration Division is not automatic, and judicial review is available only in appropriate cases. Prevention is the whole strategy.
Pre-empting the procedural fairness letter
Where a client has a criminal record, the stronger approach is to address admissibility in the application itself rather than wait to be asked. Submissions filed up front can set out the disposition, the governing foreign statute, and the equivalency analysis against the Canadian offence — framing the issue before an officer forms a view of it.
If a PFL does arrive, the response should generally include:
- All related police and court records — charging documents, the disposition or judgment, and the sentence imposed
- State/provincial and national police certificates
- A direct treatment of criminal equivalency: whether a conviction resulted at all, and what the equivalent Canadian offence would be
- Any pardon, expungement or set-aside order, with the statute it was issued under
A PFL is not a formality. It is the applicant’s opportunity to put the full record and the legal analysis in front of the decision-maker, and it should be treated with the same care as a submission to a tribunal. For the broader framework, see our page on misrepresentation under IRPA s. 40.
Building in a fallback
Where there is a realistic prospect that an officer will make an adverse admissibility finding, a temporary resident permit application can be prepared as a fallback — filed with the applicable fees alongside the response, so that a discretionary remedy is already before the decision-maker if the criminality finding is made.
The same logic applies proactively. Where a client may be found criminally inadmissible, a TRP application can be filed together with the TRV, study permit or work permit application rather than after a refusal. A TRP asks the Minister or the Minister’s delegate to waive inadmissibility on a discretionary basis, on the strength of a need to come to Canada that outweighs any risk. It is discretionary, not automatic, and it does not resolve the underlying inadmissibility permanently — see our temporary resident permit guide.
What your lawyer will ask you
Expect a thorough intake. Counsel will typically ask whether you have ever had any interaction with police anywhere in the world — including driving offences and tickets — and will follow up if the answer is hesitant. That is not suspicion; it is the only way to avoid discovering a second matter after a filing has been made.
In an employer-sponsored file, be aware that an undisclosed record can put employer and employee interests in conflict. These situations are best handled through clear terms at the outset about what information is shared with whom.
FAQ
My conviction was expunged. Do I still have to declare it?
Declare it. A foreign expungement, sealing or pardon does not automatically remove Canadian immigration consequences, and whether it is recognized is a question for IRCC to assess on the evidence you provide.
My police certificate came back clean. Is that enough?
No. A police certificate reports what an authority discloses; it does not decide whether an offence occurred or whether you are admissible. If there is an underlying matter, disclose it and address it.
A travel agent filled in my eTA. Am I responsible for the answers?
The answers on your application are yours. Review every background question before submission, and get advice if an inaccurate answer has already been filed.
What happens if I omit something and IRCC finds out later?
Omission can support a misrepresentation finding under IRPA s. 40, which is a separate ground of inadmissibility from criminality. That is why the omission usually costs far more than the original offence would have.
Should I apply for a TRP before or after a refusal?
It depends on the file, but a TRP can be filed proactively with the underlying application, or alongside a PFL response as a fallback, so that a discretionary remedy is already before the officer.
Disclaimer: This article is for general information only and is not legal advice. Immigration law and IRCC/ESDC policy change frequently, and every case turns on its own facts. Reading this article does not create a lawyer–client relationship. Obtain advice tailored to your situation before you act.
Talk to a Canadian immigration lawyer. BridgePoint Law advises individuals and businesses across Canada — and on Canada–US–China cross-border matters — on criminal record disclosure and admissibility submissions. Book a consultation with our team in Toronto and Kingston. We work in English, Mandarin, and Cantonese.