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If this were not confusing enough,
there is the current Washington State Toxicology Lab fiasco where years
of science have been ignored by managers, supervisors, and employees
alike in favor of sloppy practices and “helter skelter” procedures
geared toward convictions rather than unbiased legitimate scientific
procedures and practice.
Such disregard for the most basic scientific method, as well as the
justice system in general, has resulted in thousands of breath test
results being found inadmissible or so completely unreliable that
prosecutors are choosing to forgo attempts to admit them at trial.
Speaking of “admissibility,” planning on going to Canada with a DUI or
other criminal conviction? Not so fast! How many times has a client
asked, “Does this conviction mean that I cannot go to Canada?” The
pre-9/11 answer was easy, but, post 9/11, the sharing of information
between the two nations has made the answer this question so complex
that it borders on the need to practice exclusively within this area.
“What Many Attorneys Do Not Know…”
In this brave new world, the border guards have more “double speak”
and security than Orwell’s 1984 Big Brother. Currently, thousands of
unsuspecting people are turning up at the Canadian border expecting
clear-sailing across, only to find that they are turned away. Even if
your DUI was 20 years ago, you are at risk for being turned around and
refused entry.
According to the Canadian Consulate's
website, “it is important to understand that you are entering another
country and what many attorneys do not know is that, driving while under
the influence of alcohol is regarded as an extremely serious offense in
Canada.''1 If you must travel to Canada, and you have any sort of
criminal conviction, recent or decades old, you should apply for "a
Minister's Approval of Rehabilitation" to wipe the record clear. This
inadmissibility is just the edge of the wedge.2
If you don't need to travel to Canada, don't think you won't need to
clear your record as it is just a matter of time before agreements are
signed with governments in destinations like Japan, Indonesia, and
Europe.
Before wading into the labyrinth of foreign immigration policy, there
are things that need to be done to ensure a smooth application process
and successful entry into the Great White North. If you are counsel at
the time of a plea and maintaining an eye towards admissibility,
consider the information and technicalities below when contemplating how
a plea deal is structured.
Permanent resident or foreign nationals (essentially our non-Canadian
citizen clients) are inadmissible to Canada, as described in section 36
of Canada’s Immigration and Refugee Protection Act, if:
1. they have been convicted in Canada of an offense under an Act of
Parliament punishable by a maximum term of imprisonment of at least ten
years, or convicted of an offense under an Act of Parliament where a
term of imprisonment of more than 6 months was imposed;
2. they have been convicted of an offense outside of Canada and if it
were committed in Canada would be an offense under the Act of Parliament
punishable by a maximum term of imprisonment of at least ten years; and
3. they committed an act outside of Canada that is an offense in the
place where it was committed and if it were committed in Canada would be
an offense under the Act of Parliament and punishable by a maximum term
of imprisonment of at least ten years.
The majority of our clients fall under numbers (2) and (3). The
determination as to whether a person has committed an act under (3) is
made upon a balance of probabilities.
Canadian Criminal Law
To be clear, it must be understood that there are two levels of
criminal law in Canada. There are those offenses created under an Act of
Parliament at the federal level and those created at the provincial
level that are not pursuant to an Act of Parliament. Consequently,
inadmissibility stems only from convictions if the foreign conviction is
equivalent to the crime enacted under Parliament and within certain
sentences with respect to imprisonment. This, however, is further
complicated by the fact that Canada has three classes of convictions:
summary conviction offenses, indictable offenses, and hybrid offenses.
A summary conviction is an offense where the punishment upon conviction
may not exceed $2,000.00 and six months imprisonment, or both.
Convictions under these statutes or their international equivalent do
not render one inadmissible to Canada. Many statutory offenses created
by individual provinces are summary conviction crimes and as such are
not Acts of Parliament, thus not convictions resulting in
inadmissibility.
An indictable offense is a criminal offense, where punishment may exceed
that of a summary conviction in monetary terms as well as imprisonment
up to and including life. Indictable offense maximum punishments are
usually defined within the criminal statute. For instance, Murder in the
First Degree is indictable and punishable by life imprisonment. Under
the Refugee Act, a person is excludable because this is a conviction
where the maximum imprisonment is at least ten years. The issue as to
whether the creation of the statute was done pursuant to an Act of
Parliament is irrelevant at this point.
A hybrid offense is one where the prosecuting authority (called the
Crown) may choose to prosecute “summarily” or by “indictment.” Generally
speaking, the alleged facts of the case are what determine the method of
prosecution. Most crimes in Canada are hybrid offenses. One example is
Criminal Mischief — an offense that includes everyone who commits
mischief who willfully destroys or damages property; renders property
dangerous, useless, inoperative, or ineffective; obstructs, interrupts
or interferes with the lawful use, enjoyment or operation of property;
or obstructs, interrupts or interferes with any person in the lawful
use, enjoyment or operation of property. This crime fairly covers at
least two Washington offenses that come to mind right away.
Another hybrid offense is Impaired Driving (the Canadian DUI staute),
which includes those who operate a motor vehicle, or vessel, or operate,
or assist in the operation of an aircraft or railway equipment, or have
care or control of a motor vehicle, vessel, aircraft or railway
equipment — whether it is in motion or not, while the person’s ability
to operate the vehicle, vessel, aircraft, or railway equipment is
impaired by alcohol or a drug; or having consumed alcohol in such a
quantity that the concentration in the person’s blood exceeds eighty
milligrams of alcohol in one hundred milliliters of blood. As one can
see, this Canadian statute fairly covers numerous equivalent alcohol
related charges in Washington such as DUI, Physical Control, Minor
Operating, and perhaps a charge in the not-too-distant future of
assisted DUI!
The mandatory minimum punishment for Impaired Driving for a summary
conviction prosecution of Impaired Driving is, if first offense, a fine
of not less than $600; for a second offense not less than 14 days
imprisonment; and for each subsequent offense not less than 90 days but
no more than six months. If prosecuted by way of indictment, punishment
shall be for imprisonment for no more than five years.
Considering a first offense DUI conviction for equivalency purposes and
admissibility into Canada, offenses that may be prosecuted by way of
summary or indictment are deemed indictable, even if actually prosecuted
summarily. A first offense DUI conviction is subject to one year jail
and $5,000 fine which seems to indicate that a conviction for a first
offense DUI in Washington does not render one inadmissible. But “A
foreign national is inadmissible for having been convicted of an offense
outside of Canada if it would constitute an indictable offense created
under an Act of Parliament.” As stated earlier, if there is a choice of
prosecution, indictable is the presumed method of prosecution. By
comparison, a permanent resident convicted of a foreign DUI is saved
from exclusion because under the Refugee Act they are specifically
excludable only when their offense is punishable for at least ten years,
whereas foreign nationals are excludable due to the fact the criminal
conviction is deemed an indictable offense.
How Criminal Equivalency Is Determined
The procedure for determining equivalency has been articulated and
determined by the Canadian Federal Court of Appeal in Steward v. Canada.
The court held that whatever the names given the foreign offense(s) or
the words used in defining them, the essential elements must be
determined and one must be satisfied that those elements correspond
since it is expected that there will be various differences statutory
words used from country to country as well as state to state.
Furthermore, the court went on to state that equivalency is determined
in one of three ways:
Comparing the precise wording in each statute both through documents (if
available) and through the evidence of an expert(s) in foreign law with
a view to determining the essential ingredients of the respective
offense(s); By examining the evidence adduced before the adjudicator,
both oral and documentary, to ascertain whether that evidence was
sufficient to establish that the essential ingredients of the offense in
Canada have been proven in the foreign proceedings, whether precisely
described in the initiating documents soaring that statutory provisions
of the same words; and by a combination of the two methods
What Counts as a Conviction?
Keep in mind that this equivalency proceeding only needs to be
determined if and when there is a conviction. As mentioned above, this
is the time you can help your clients safely overcome inadmissibility at
the time of a plea.
To Canada, a conviction is “a finding of guilt by a competent authority,
or a plea of guilty to an offense.” A conviction, however, does not
exist where it is set aside on appeal (stay), if there is an absolute or
conditional discharge under the Canadian Criminal Code, or if a person
is granted a pardon and such pardon is equivalent to a Canadian pardon.
“Absolute and conditional discharge” is when there is a conviction yet
there is no minimum punishment or, where the maximum punishment is less
than 14 years. In this instance, the court may discharge the defendant
completely or after fulfillment of conditions imposed by the court. An
absolute discharge is immediate and the defendant is deemed not to have
been convicted.
A foreign pardon is not automatically equivalent to these and must be
examined carefully. This is because by Canadian standards a pardon
completely erases the conviction and is based upon the merits of the
case, whereas a foreign pardon may be motivated by considerations other
than those deemed valuable by Canada. An example would be a presidential
pardon on the eve of departure from the office and not rooted in merit
or justice, but rather appears that the pardon was “purchased.”
A foreign disposition is considered a conviction for admissibility
purposes when there is a suspended sentence, suspended sentence with a
fine, imprisonment with or without parole, an unsuccessful appeal of a
criminal conviction, or conviction(s) in absentia.
Since U.S. convictions vary from state to state in terminology and
effect, it is up to the Canadian Immigration and Canadian Border
Services Agency officials to interpret the most common terms to
determine whether there is a conviction under Canadian law. For purposes
of Washington State lawyers:
A deferred sentence equates to a Canadian conviction by virtue of
equating to a suspended sentence in Canada.
A deferred prosecution is not a conviction as it translates to a
deferral and that is indicative of the fact that no trial on the merits
has taken place and equal to a Canadian stay.
A “deferral of judgment” is not a conviction because if the conditions
imposed in the deferral are fulfilled, the judgment finally rendered is
one that may a finding of Not Guilty. This seems to indicate that a
stipulated order of continuance (SOC) is not a conviction rendering on
inadmissible and is a better alternative to a deferred sentence if
possible.
An “Alford Plea,” or any plea similar to nolo contendre (I will not
contest it), is a conviction.
In the alternative any statement by the prosecuting authority where it
is clear that they will no longer prosecute (nolle prosequi) does NOT
equate to a conviction for Canada. For attorneys Washington State, a
voluntary dismissal by the state is likely an equivalent to this, but
would require a showing that the outcome is no conviction.
A sealed record is not evidence of inadmissibility if it is sealed due
to the conviction being entered when the person was a minor. A record
sealed for other purposes may render the person inadmissible if it was
sealed by way of agreement between prosecuting authority and the person
convicted.
Finally, a record that is “expunged” is not a conviction, as Canada
defines “expunged” to mean “strike out; obliterate; mark for deletion;
deemed to have never occurred.
Rehabilitation
A foreign national is not deemed inadmissible if, after the
prescribed time period, he or she satisfies the Minister that he or she
has been rehabilitated or is a member of the proscribed class that is
deemed to be rehabilitated. Rehabilitation after a conviction for an
offense deemed to be serious criminality (conviction under Act of
Parliament punishable by max imprisonment of at least ten years)
requires no criminal convictions for a minimum of five years after the
completion of the imposed sentence. Therefore, if probation is part of
the sentence, the time period begins at the termination of probation.
Those convicted outside of Canada of an indictable offense under an Act
of Parliament that is punishable by a maximum term of imprisonment of
ten years are deemed rehabilitated when the following is true:
It is at least ten years since the termination of the sentence imposed,
the person has not been convicted in Canada of an indictable offense
under an Act of Parliament (this language seems to indicate that there
can be no other indictable convictions at all), the person has been
convicted in Canada of any summary convictions within the last ten
years, the person has not been convicted of an offense outside of Canada
that would be Indictable under Act of Parliament, and
the person has not in the last ten years been convicted outside Canada
of more than one offense that, if committed in Canada, would be a
summary conviction.
A person with two or more summary conviction offenses outside of Canada
is a member of the “rehabilitated” class if:
at least five years have elapsed since the termination of the sentence;
he or she has no indictable convictions under Act of Parliament in
Canada; and
he or she has not been convicted outside of Canada of an offense
equivalent to a conviction under Act of Parliament; the person has not
before the last five years been convicted in Canada of more than one
summary conviction under an Act of Parliament, nor any convictions for
any indictable offense.
Persons who have committed no more than one act outside of Canada that
is an offense in the place committed, and if committed in Canada would
be Indictable under Act of Parliament if all the following conditions
met. The offense is punishable in Canada by a maximum term of less than
ten years; at least ten years have elapsed since the day the offense was
committed; the person has not been convicted in Canada of an Indictable
offense under and Act of Parliament; the person has not been convicted
in Canada of any summary conviction within the last ten years, nor
convicted of more than one summary conviction offense before the last
ten years, the person has not been convicted of a summary conviction
outside of Canada, there is no conviction that equates to a conviction
in Canada under an Act of Parliament.
There can be no rehabilitation if less than five years has elapsed from
the date of the offense for someone convicted of two summary offenses;
nor can the be rehabilitation for someone convicted of an indictable
offense where there is less than ten years elapsed from the day after
the completion of the sentence (including probation) nor is there
rehabilitation available for someone has two indictable offense
convictions, nor is there rehabilitation available for a person was
deemed rehabilitated (mostly by the passage of time) but then committed
a subsequent offense.
As the foregoing demonstrates knowledge of both systems is necessary to
successfully aid our clients in gaining admissibility, if they are
inadmissible. I say if, because contrary to popular belief, not all
convictions render the person inadmissible. For example, possession of
marijuana if actually less than 30 grams is not an excludable offense.
In this case, the best thing we can do for our clients in this scenario
if pleading guilty is specifically state how much marijuana was in their
possession. That way your client will remain admissible because
possession of such a small amount is NOT a crime Canada and there is no
equivalency. Remember it must equate to an actual crime in Canada.
Subsequently, upon entry to Canada, if the proper documentation is
presented, that next trip to Whistler where they intended to enhance
their snowboarding skills by loading a bowl with Olympic Gold Medalist,
Ross Rebliati at the 2010 Olympics, they can thank you, their counsel,
for ensuring admission.
In order to help our clients, past and present alike, retain a clean
copy of their judgment and sentence that legibly shows the charge, the
statute, and the sentence as well as a copy of the statute as it was
written at the time of the charge, conviction, and punishment. Also make
sure you can easily find any documents that relate to the probation
conditions, or transfer from active probation status to inactive
probation (if applicable), any comments made by the Judge at the time
you deem worthy of keeping and purchasing the tape/cd from the court,
any probation reports, and if a deferred sentence is imposed, make sure
you draft an order that clearly shows that the charge is dismissed. If
you take the time to save these documents with an eye towards your
clients future travel plans you will provide them with the start that
they need to successfully become rehabilitated.
Jonathan Rands practices DUI defense in the Bellingham office of Fox
Bowman Duarte, PLLC. He can be reached at
jrands@foxbowmanduarte.com
and through
www.foxbowmanduarte.com.
Notes
1. I would like to thank Sam Hyman, of Burns Fitzpatrick Rogers &
Swartz, Vancouver BC, for taking the time to speak with me about this
issue as well sharing with me his knowledge and expertise on this
subject.
2. For more comprehensive information on offenses that prohibit entry to
Canada, go to the Canadian Consulate's Web site at
www.geo.international.gc.ca/can-am/seattle/visas/inadmissible-en.asp
, and for more information on visiting Canada, go to
www.cic.gc.ca . I also recommend
consulting a Canadian Immigration Attorney for final review and handling
of documents necessary to enter Canada subsequent to a conviction.
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