Duress reflects a core principle of Canadian criminal law. It recognizes that individuals who act involuntarily should not be held criminally liable, as doing so would offend fundamental constitutional protections.
But how does this principle apply in the Canadian immigration context, where an individual can be found criminally inadmissible based on a foreign conviction?
The Federal Court of Appeal recently provided important guidance on this issue. In Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90, the Court of Appeal confirmed that where the evidence raises a serious issue of duress, immigration decision-makers should consider whether that defence was practically available in the foreign proceeding before treating the conviction as equivalent to a punishable offence in Canada.
The case involved a Colombian national who was convicted outside of Canada of drug trafficking after acting under threats from a terrorist group. The Immigration Division (ID) applied the traditional equivalency test and found the individual criminally inadmissible under section 36 of the Immigration and Refugee Protection Act (IRPA). This test asks whether the foreign offence, had it occurred in Canada, is equivalent to an offence under an Act of Parliament. Because the equivalent offence of drug trafficking is a federal offence in Canada, the ID found the individual criminally inadmissible.
Although the individual did not challenge the guilty plea or the Canadian equivalency of the offence, she submitted before the ID that her actions resulted from coercion, and that the defence of duress, while formally recognized in Colombian law, was not on the evidence available to her. The ID declined to consider this argument on the basis that duress had not been raised in the foreign proceedings. The Federal Court upheld that approach as reasonable.
The Court of Appeal disagreed, finding the analysis unduly rigid. It held that, in assessing criminal inadmissibility based on a foreign conviction, decision-makers are not confined to a purely formal comparison of offences but must also consider whether a defence such as duress was effectively unavailable due to coercion or other extenuating circumstances. Where this is established, the conduct should be treated as involuntary and therefore not equivalent to a punishable offence in Canada.
The Court clarified that where duress is made out on the evidence, the individual would not have been criminally liable in Canada. This requires a contextual analysis, including whether threats or coercion made it unrealistic to invoke the defence in the foreign proceedings, effectively depriving the individual of access to it.
In Rodriguez Anzola v. Canada (Citizenship and Immigration), the Court confirmed that inadmissibility under section 36 of the IRPA must be assessed consistently with Canadian criminal law principles. The decision marks a measured shift away from a strictly formulaic approach, emphasizing that equivalency must be grounded in substance and informed by both the factual context of the offence and the real-world availability of defences in foreign jurisdictions.
If you are facing an admissibility issue, please do not hesitate to contact us for assistance.
