Despite US Supreme Court's gift to Donald Trump, he could be banned from Canada as a convicted felon

In an increasingly politically contentious environment, the desire to keep criminals out seems to be a rare point of consensus. It has 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 tried to dismantle many of the changes made to Canadian immigration law by the previous Conservative government, it left the Faster Removal of Foreign Criminals Act in place. Even people whose lives are in danger and who might otherwise be considered refugees are being excluded from the refugee class for serious criminal acts.

So how does Canadian law respond to a potential U.S. president who is a convicted felon?

Read more: Trump convicted in hush money trial, but will it hurt his poll numbers? Here's why voters often overlook politicians' ethical failings

Complex case

On the surface, Canadian immigration law provides a simple answer: anyone convicted of a criminal offence is inadmissible. But there are several reasons why this simple rule might not apply to Donald Trump.

In the case of convictions outside Canada, the first step is to determine whether the offence in question is also an offence in Canada. Trump has been convicted on 34 counts, but he is pushing to have those convictions overturned following the U.S. Supreme Court ruling that granted him immunity from prosecution for actions he committed while president.

Read more: Supreme Court's loss of legitimacy may lead to political violence

It is almost certain that the elements of at least one of these 34 offences correspond to charges under the Criminal Code of Canada (including fraud or falsification of books or documents) or the Canada Elections Act, which has dozens of offences in the financial category.

U.S. President Donald Trump leaves the G7 leaders' summit in La Malbaie, Quebec, in June 2018. THE CANADIAN PRESS/Sean Kilpatrick

Some of the charges against him could be classified as serious criminality and others as ordinary criminality under Canadian immigration laws.

The distinction between these categories has nothing to do with whether someone could travel to Ottawa for a state dinner. Trump’s large number of convictions and the diversity of options under Canadian law mean that legal arguments over the intricacies of Trump’s situation could be long and complex. But lengthy legal debates are unlikely to be necessary.

With respect to state visits, Canadian immigration law provides exceptions to criminal inadmissibility on humanitarian and compassionate grounds or for reasons of public order.

The provision that would allow a state visit despite a criminal record is built into a routine mechanism that is theoretically available to everyone: exceptions. The humanitarian and compassionate exceptions might be a stretch for Trump, and they are notoriously vague anyway. Public policy, on the other hand, is a simpler possibility. The minister in charge can easily grant this exemption. A foreign leader would not even need to know when such an exemption applies to his or her own case.

Inadmissibility for security reasons

The most interesting hypothesis, however, does not concern Trump's convictions. The charges that are still pending are more important in determining admissibility to Canada.

Some of the allegations against Trump, which have not yet been tested in court, relate to a less common category of security inadmissibility grounds. Security inadmissibility is related to, but distinct from, serious and ordinary criminality. It includes engaging in or inciting the subversion of a government by force, as well as engaging in an act of subversion against a government, institution or democratic process, as understood in Canada.

These provisions are very similar to those that Trump has been accused of in connection with the events of January 6, 2021.

Read also: By provoking the mob at the Capitol, Trump is moving the United States closer to a banana republic

The fate of these charges was called into question by the Supreme Court's decision, but that has no bearing on Canada's response. Indeed, the basis of the grounds for inadmissibility is participation in the act in question.

There is no need to provide proof beyond a reasonable doubt, nor to hold a trial in any form, nor even to lay formal charges. The many provisions of criminal law designed to protect the rights of an accused are rarely present in inadmissibility cases. The principle of exclusion of criminals is a broadly enabling principle.

Other security inadmissibility provisions include terrorism and endangering human life, but both of these are below subversion of democratic processes in the list of security inadmissibility categories.

Donald Trump speaks at a recent campaign rally in Chesapeake, Virginia. (AP Photo/Steve Helber) Making Exceptions

These rules are not without complexity. Even in the case of a serious or ordinary crime, a conviction outside Canada is not necessary, proof of the criminal act is sufficient.

While the Canadian equivalent of a pardon is important, a foreign pardon is merely a consideration. Canadian rules also provide for a form of rehabilitation, meaning that after a period of time, some of the barriers to criminality will disappear.

Another reason why the events of January 6 are a more interesting hypothesis is that security inadmissibility is final. Rehabilitation through the passage of time is not possible. In fact, security inadmissibility is treated so seriously that it cannot be overturned on the basis of humanitarian and compassionate considerations. A public policy exemption would still be possible, but granting it would likely attract intense political scrutiny, particularly in the case of an American president.

Read more: Supreme Court makes it harder to sue Trump for obstruction, with ruling narrowly defining law used against him and Jan. 6 rioters

All of this means that while it can be argued that Trump may no longer be admissible to Canada, he can travel there if the Canadian government decides to admit him.

The Trump example is a clear illustration of how the “keep criminals out” principle gives way to the “do what the government of the day wants” principle most of the time when it comes to immigration.

Sources 1/ https://Google.com/ 2/ https://theconversation.com/despite-the-u-s-supreme-courts-gift-to-donald-trump-he-could-be-barred-from-canada-as-a-convicted-felon-232888 The mention sources can contact us to remove/changing this article

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