Our experience, skill, knowledge, expertise and dedication will fight for you through the litigation process, no matter how complex it may become. We have numerous reported cases of successful judicial review applications in Federal Court and Immigration & Refugee Board decisions.
The following advice is given to you to make you more comfortable in giving testimony at trial:
Answer as truthfully and accurately as possible. Don’t try to memorize your answers in advance as it is important that you make a sincere impression before the Judge or jury. Likewise, don’t exaggerate or attempt to mislead, for in doing so you will only create problems for you when it comes to your cross-examination.
Don’t guess. Answer only what you know or can remember, and feel free to tell the Court if you can’t recall or if you don’t know a certain fact. Similarly, where times, measurements, or other figures are concerned, give an estimate unless you are absolutely sure of the exact answer. Emphasize that it is only an estimate.
Listen carefully to the question to make sure you understand it. Ask to have it repeated if you don’t understand it.
Think about your answers before giving them, but don’t be so slow that you give the impression of being reluctant to answer.
Pay attention to the person asking the questions, whether it is a lawyer or the Judge, and do not look for a response from me or anyone else in the courtroom. It looks bad if you appear to be seeking approval for your answers. Your answers should be sincere and candid at all times.
If the other lawyer or the Judge objects to a question being asked, do not answer until the objection has been dealt with and do not interrupt the lawyers or the judge while they are discussing the point.
I will ask you questions first. Please advise me prior to trial if you wish to make use of notes while testifying, as you may be required to produce them during your cross-examination. In any event, witnesses usually are not allowed to refer to notes during their testimony.
When I am examining you, I cannot assist you in making your answers. The questions I ask will tend to be open-ended. Answer only the question you are asked and no more. Do so loudly and clearly. If I continue asking you the same type of questions, it is because you have not given me the answer I am looking for. If this happens, pause and take your time and try to remember our discussions about your evidence.
The lawyer on cross-examination is only doing their job as best as they know how.
Do not respond to their questions with hostility, but be firm in your answers. Do not be intimidated by their questions or manner of asking them.
The lawyer will usually be looking for yes or no answers. Generally, a yes or no answer is sufficient; however, if you feel that a yes or no answer will not tell the whole story, qualify it briefly.
After the opposing lawyer asks you questions, I am entitled to ask you further questions to clarify what you said during the cross-examination.
Please note that I am not allowed to speak with you prior to asking these questions.
Also, I may elect to ask no questions if I feel that to do so would not help the case.
Refer to the Judge as either: “Your Honour”, Sir or Madam.
Answer in the same manner as in General Comments, above.
This is not intended to be an exhaustive discussion for everyone. Please make an appointment with us to discuss any concerns you have in your particular case.
When charged with a criminal offence, the first opportunity of release from jail is a bail hearing. This article explains the bail process and what is happening in court. The surety is the person who comes to court to bail out the accused. The bail hearing is conducted in a courtroom. It is usually presided over by a Justice of the Peace. The Crown Attorney (prosecutor) will read in the charge and a brief summary of the allegations against the Accused. The Court is concerned about three issues. Firstly, the Court must be satisfied that the Accused will return to court. Secondly, the Court must be satisfied that if released, the Accused will not break the law. Thirdly, the Court is concerned about the strength of the case against the accused person and the impact on the administration of justice. Only if satisfied that each of the concerns have been met, will the Accused person be released on a surety bond for a specified amount of money, usually without the actual payment of cash. If the person breaches the terms of the release, the court can collect the bail money from the surety.
A Surety is someone who will come to the court and convince the court that they will supervise and control the Accused. An amount of money is pledged as a guarantee that the Accused, if released, will return to court and stay out of trouble. Usually, but not always, the Surety will have to take the witness stand and testify. The court is interested in knowing the following information about the Surety:Name, address, occupation, income, relationship to the Accused, duration of relationship to the Accused, length of time of employment, immigration status, criminal record, type and amount of assets, familiarity with the criminal record of the Accused, where the Surety wants the Accused to reside, knowledge of the Accused’s life, (residence, occupation, family, respect for the Surety), whether the Surety has ever posted bail for the Accused in the past and what the result was.Usually, there are terms concerning the release of the Accused person. The court will be interested in what the Surety knows about the Accused. The court must be satisfied that the Surety can supervise and control the Accused. The court needs information which can satisfy it that the Accused will respect and obey the Surety. This is accepted, if in the past, the Accused has sought the advice and obeyed the advice of the Surety. The court will be interested in knowing how long the Surety has known the Accused because the greater the length of time of the relationship, the more probable that the Surety knows the Accused sufficiently well to have influence over him or her. The Crown Attorney (prosecutor) will want to know when and about what the Accused has disobeyed the Surety. The Crown Attorney wants to assist the court in determining whether the Surety can truly supervise and control the Accused. If the Accused has a history of not respecting and obeying the Surety, then the court may refuse bail.In some instances, a curfew may be required of the Accused and the court will want to be sure that the Surety can supervise and enforce that requirement. If the Accused is not to live with the Surety, then the Surety must be able to demonstrate to the court methods such as daily telephone contact and visits to ensure that the curfew and residence requirements are obeyed.Assets of the Surety
The court is interested in knowing the assets of the Surety. Usually, the court will not ask for cash bail unless the Accused has been charged with a drug offence, lives more than 200 kilometres from the court or is a non-resident of Ontario. The court will want to know whether the Surety has a home, its value and the debt owing on a mortgage, if any. The court will want to know where the Surety works, for how long, and how much money the Surety is paid. The court must be satisfied that should the Accused not live up to the terms of their release, then the Surety is capable of paying the forfeited bail to the court.
The court will want to know if the Surety is facing outstanding criminal charges or has a criminal record. Such an individual is not usually desirable as a Surety. The Surety’s familiarity with the Accused’s past criminal record is desirable. Knowledge of it assures the court that the Surety knows what risk he or she is facing.
The court will be quite satisfied in learning that in the past the Surety acted as such for the Accused without any difficulty. This will assist the court in assessing the risk of releasing the Accused. Conversely, if the Surety acted as such for the Accused in the past and a breach of the bail terms occurred, then the court may find that the Surety cannot properly supervise the Accused and therefore bail can be refused.
The court can set the following terms. It can order that the Accused not have any contact directly or indirectly with an alleged victim. The Surety must ensure that this does not happen and must not act as an intermediary between these two people. The court can order a curfew. The Surety must assure the court that it will be met. The court may order that the Accused stay away from a certain place. The Surety is responsible for supervising the Accused so that this condition is obeyed. Occasionally, the court may order that the Accused, if released, must report to the police at regular intervals such asweekly or monthly. Again the Surety must ensure that this order is obeyed.
There are a number of ways of coming to Canada: as a visitor, student, temporary worker, as an immigrant sponsored by a family member, as an independent immigrant, entrepreneur or an investor. These rules within these categories are constantly changing.
Visitor to Canada.
If you are from a country which Canada has exempted from a visitor visa requirement, you need not apply for a visitor’s visa prior to coming to Canada.
Immigrating to Canada as an Independent Immigrant.
Immigrating to Canada as an Entrepreneur
Entrepreneurs
Immigrating to Canada as a self-employed person
This program is currently closed and under review.
The basic requirements for an immigrant visa are that you and your dependants must:
In addition, you must score sufficient points under the selection system.
If you are married, either you or your spouse may apply as principal applicant. Whether or not they wish to immigrate with you, you must include all your dependent children who are:
You and all of your dependants, whether or not they will accompany you, must pass background screening and medical examinations. All family members 18 years of age and over must complete their own individual application form.
In addition there are tax consequences of immigrating to Canada. For an overview please refer to the tax consequences page. You must seek advice from a tax professional for your advice on your specific circumstances.
This is not intended to be an exhaustive discussion for every immigration case. Please make an appointment with us to discuss any concerns you have in your particular case.
Information contained on this web site is to be considered general information only and is not to be construed as constituting legal advice.
Please make an appointment for advice with respect to any specific legal concern.
We would appreciate it if you would prepare for us a concise detailed personal history. Please provide us with your age, marital status, how long you have been married, if at all, occupation, work history and education.
Please advise us whether you have had any involvement whatsoever in any capacity with the police or court system. Please let us know what your credit and financial history have been in general. We always investigate whether a client has had a history that can be exploited by the opposition in cross-examination, such as a criminal record, immoral acts or bad reputation. The more respectable our client, the more vigilant we have to be. The Crown Attorney (prosecutor) can easily determine past misdeeds. Any concealment of past difficulties may be detrimental to your credibility at trial.
We require a case synopsis. We would like you to provide us with a detailed outline of the events giving rise to this case. You can prepare the facts in point form rather than in essay form. We do require precise details such as time, place and location. Provide us with weather descriptions and lighting conditions. We must know all the facts including those that do not support your defence. Please mark the top of each page “privileged for my lawyer” In this way it cannot fall into anyone’s hands and be used against you.
You must assist us with your recollection of any statements whether harmful or helpful to your case which was made to the police. Please provide us with a detailed chronological report of the circumstances in which you gave a statement to the police. Please advise us as to your state of mind and your physical well-being at the time you were speaking to the police. Naturally, we will obtain a copy of the statement from the police and review it with you.
Character evidence can have a very powerful impact in the defence of a criminal case. Evidence may be advanced to show the good character of the accused. Such evidence indicates the improbability of the accused having committed the offence. For this reason, please prepare a list of names of potential character witnesses. We will review this list with you later to determine whom we may interview. Do not discuss this case with any of those potential witnesses. We appreciate your sensitivity in discussing this matter with close and intimate friends. However, we take your case very seriously and as discussed earlier, your chances of success in this matter are proportional to the degree of preparation and hard work we both put into this case.
Further, we should warn you that there are serious risks inherent in advancing character evidence. The introduction of such evidence opens the door for the prosecution to rebut the testimony by calling evidence of bad character. Therefore you must advise us of anything that could be in your background which could have an adverse effect on the calling of character evidence.
We wish you to consider whether attending a psychiatrist or psychologist for a formulation report can assist in the defence of this case. By leading psychiatric evidence at trial in a criminal case, we can demonstrate that you do not have the abnormal personality traits characteristic of a member of an unusual or limited class of persons who alone could have committed the alleged offence. The expert that you choose must be in a position to attend the trial in this matter. Naturally the cost of this individual must be borne by you. We ask you to consider retaining such an individual and contacting us at your earliest convenience. Prior to any report being created the expert should speak with us to determine whether a report will help or undermine your case. With respect to the list of character witnesses, we will require their name, address, telephone number, marital status, occupation, personal history to you and their willingness to attend trial and testify.
Just as we are preparing an investigation on your case, the other side will be taking similar measures. Please do not discuss this case with anyone. The police may wish to re-interview you. Be aware that both oral admissions as well as signed statements can be used against you. You have the constitutional right to remain silent. Silence cannot be used against you at your trial. You also have the right to have us present if you are being questioned again. Most important, be aware that an inculpatory statement is the basis of many criminal convictions. It is not in your interest to assist the police in securing your own conviction. Therefore, although this is most difficult, it is necessary that you do not discuss this case with anyone – neither your colleagues nor your friends. You must realize that these people may be subpoenaed to testify against you.
The primary function of most witnesses is to give their recollection of events. Different people honestly perceive the same event differently. They are subject to conscious and subconscious influences. Powers of observation and recollection are affected by past events, prejudices, habits, our imagination, suggestion, state of mind, health, and the effects of alcohol or drugs at the crucial moment of the incident. If the events happen quickly and unexpectedly, or if the witness was frightened or surprised at the crucial moment, then the ability to record the event accurately may be even more negatively affected.
Other factors affecting the trustworthiness of testimony could be: the age or the intelligence of the witness; whether the witness has impaired eyesight or hearing; whether the witness was thinking of something else, such as business or family worries at the time of the event; whether the witness was interested in what was happening; whether there were any distracting sounds such as a loud radio; wakefulness; and how good the opportunity was to observe, taking into consideration such matters as distance, lighting, atmospheric conditions and obstructions.
Sounds can play tricks on the mind. Regular sounds can often assume to be heard rather than actually heard.
The opportunity to observe is not in itself enough. Interest and attention are preconditions of accurate observations. Every day, newer things are said and done in our presence which we hardly notice. Evidence given by a witness about matters in which there was no interest at the time is likely to be vague: positive statements by such a witness are likely too unreliable, as they may have been built up after the event by interference, influence, or imagination. For example, often in an ordinary road accident, bystanders are unlikely to have seen much until their attention has been attracted by a loud crash.
Where a person reports a casual conversation which was heard some months before, and which may have become important only because of a dispute, it is improbable that the person would notice and remember the exact words which were used.
There are other limitations to accuracy: if events happen quickly or there is a great deal of talking going on within a short space of time, an impartial witness will see or hear only a fraction of what is happening. Surprise, excitement and rush will make the picture confused and its detail obscured. If a witness has a personal interest or a bias, their attention will tend to be concentrated on facts or remarks that are favourable to him, to the exclusion of others. Such a witness is referring, of course, not to a deliberate choice, but to one which takes place subconsciously. It is important to realize that bias can intervene without any dishonest intention, especially as the observation ages and before memory or imagination have started to work.
A further factor which may interfere with accuracy is the presence of intense pain or shock, or strong emotion: all these things may prevent the senses from operating in a natural way, and they produce sounds or pictures which are distorted or totally imagined. A person who easily hears imaginary voices may be quite convinced that they are real. The reason is that an abnormal physical state exists when there is not enough interest in exterior happenings and the imagination takes the place of exterior senses. Strong emotion may have the same effect as shock or pain, though the effect is not so obvious. Any condition which concentrates the attention on one’s own interior feelings, mental or physical, is open to suspicion, because it draws attention away from the outside world and gives scope to the imagination.
A line of questioning will open up for the cross-examiner if the witness did not give a statement shortly after the event. This statement is used by the witness in order to refresh his or her memory before testifying. If the witness is asked to give a statement or recollect an event for the first time, perhaps weeks or months after the event, the questioner might ask the witness in the name of fairness how he could remember the event and that he may not be reporting accurately or completely what he is trying to remember so long after the event. Counsel may wish to inquire in a subtle way whether there is any reason for the witness to recall the event in question so that the details would be impressed in his memory. Was the witness interested or attentive at the time of the event so that the incident would be more accurately imprinted in their mind? An unusual event would be more readily remembered than a common place, trivial or an unimpressive event. If the witness is prepared to admit that the matter was relatively insignificant at the time and that there is no particular reason to remember, it may then cast doubt on the accuracy of the observations.
Often, imagination can take over where there is vagueness in recollection and provide details that did not exist. Witnesses may supply memory details through their imagination to compensate for undetected vagueness. The attempt to see faces in the moon is analogous to this experience. With a time outline, there is always a strong tendency to fill in the outline with what is in one’s mind rather than a true recollection. There are several factors which tend to promote this natural tendency for the imagination to supplement the memory.
The first of these factors is a sudden happening, just after the events in question, which focus the attention of the observer, whose attention was previously roaming at large in a superficial manner. An example of such a happening is the crash in a motor vehicle collision. On these occasions, the mind of the observer flashes back to the preceding time period and commences to reconstruct events from memory together with imagination. Afterwards, the vague impression received at the time of the event would be blended in with the reconstruction, and both will be remembered together as a single vivid picture of what was seen at the time.
The second factor is the effect on memory when witnesses talk among themselves and think about the dramatic incident. Each time the picture may be filled in a little, or something may be omitted, and when it is again restored, the witness’s memory will be modified.
A third factor is the effect of local rumours and discussions which the witness unconsciously absorbs and which form a prejudicial background to the evidence.
The last factor is the effect of suggestive questions and it is for this reason that an impartial investigator is careful to avoid suggestive questions in the early stages of an inquiry. The technique of insinuation, which is inherently suggestive, is brought to bear only when the evidence has been crystallized in a one-sided form.
The Ontario Court of Appeal in R. v. A.M., 2014 ONCA 769 (CanLII), http://canlii.ca/t/gf5lr stated as follows:
[9] First, every witness, irrespective of age, is an individual whose credibility and evidence should be assessed according to criteria appropriate to his or her mental development, understanding, and ability to communicate: R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, at p. 134.
[10] Second, no inflexible rules mandate when a witness’ evidence should be evaluated according to “adult” or “child” standards. Indeed, in its provisions regarding testimonial capacity, the Canada Evidence Act, R.S.C., 1985, c. C-5, eschews any reference to “adult” or “child”, preferring the terms “14 years or older” and “under 14 years of age”. An inflexible, category-based system would resurrect stereotypes as rigid and unyielding as those rejected by the recent developments in our approach to children’s evidence:W. (R.), at p. 134.
[11] Third, despite this flexibility, there are some guiding principles. Generally, where an adult testifies about events that occurred when she was a child, her credibility should be assessed according to the criteria applicable to adult witnesses. However, the presence of inconsistencies, especially on peripheral matters such as time and location, should be considered in the context of her age at the time the events about which she is testifying occurred: W. (R.), at p. 134. See also, R. v. Kendall, 1962 CanLII 7 (SCC), [1962] S.C.R. 469.
[12] Fourth, one of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath: R. v. G. (M.) (1994), 1994 CanLII 8733 (ON CA), 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 354, leave to appeal to S.C.C. refused, [1994] S.C.C.A. No. 390. Inconsistencies may emerge in a witness’ testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.
[13] Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: G. (M.), at p. 354.
[14] Fifth, A trial judge giving reasons for judgment is neither under the obligation to review and resolve every inconsistency in a witness’ evidence, nor respond to every argument advanced by counsel: R. v. M. (R.E.), 2008 SCC 51 (CanLII), [2008] 3 S.C.R. 3, at para. 64. That said, a trial judge should address and explain how she or he has resolved major inconsistencies in the evidence of material witnesses: G. (M.), at p. 356; R. v. Dinardo, 2008 SCC 24 (CanLII), [2008] 1 S.C.R. 788, at para. 31.
[15] Sixth, prior consistent statements of a witness are not admissible for their truth: R. v. Stirling, 2008 SCC 10 (CanLII), [2008] 1 S.C.R. 272, at para. 7. Mere repetition of a story on a prior occasion does not make the in-court description of the events any more credible or reliable: R. v. Curto, 2008 ONCA 161 (CanLII), 230 C.C.C. (3d) 145, at paras. 32, 35; R. v. Ay (1994), 1994 CanLII 8749 (BC CA), 93 C.C.C. (3d) 456 (B.C.C.A.), at p. 471.
Presentation to Peel Law Association on November 27, 2002
The purpose of this presentation is to explore the impact of a criminal conviction on a person’s immigration status in Canada.
On June 28, 2002, Canada repealed the Immigration Act, 1976 and replaced it with the Immigration and Refugee Protection Act, 2001 (IRPA). The Act itself is a skeleton structure upon which the Immigration and Refugee Protection Regulations, 2002 (IRPR) are grafted. Further, the rules, procedures, guidelines and other material are deemed to be incorporated into the legislation by virtue of section 92 of IRPA.
A Permanent Residence can be deported if they are convicted of any offence for which there is a possibility of at least ten years imprisonment. A Foreign National (defined in IRPA section 2 as anyone who is neither a Canadian Citizen nor Permanent Resident) may be deported along with their family upon conviction for any indictable offence.
The only way to ameliorate the harsh effects of a conviction on a Foreign National is by either the granting of a discharge pursuant to section 730 of the Criminal Code; or a conviction for one purely summary conviction offence of which there are presently thirty in the Criminal Code. [See sections 66, 83, 89, 130, 134, 173-179, 206(4), 210(2), 211, 213, 250, 335, 339(2), 264, 365, 372(2)&(3), 393(3), 423, 445, 446(2)&(6), 486(5).] This will likely provide defence counsel with an opportunity to be creative in persuading a Crown Attorney to accept a plea to a summary conviction offence (such as intimidation instead of assault or threatening) in order to avoid the harsh effects of IRPA. The Foreign National only gets one chance. A conviction arising out of more than one occurrence will make the Foreign National inadmissible.
A serious criminal Permanent Resident is someone convicted of an offence for which 10 or more years may be imposed; they are then inadmissible and subject to deportation. A quick analysis of the Criminal Code reveals that the ‘base level’ of our most popular hybrid offences such as Assault, Dangerous Driving, Impaired Driving are 5 year indictable offences; the property – Theft / Possession / Mischief Under $5000 are 2 year indictable offences. The next ‘level’ up or ‘value added’ offences: Theft / Possession / Mischief Over $5000, Assault / Dangerous Driving / Impaired with bodily harm are all 10 year indictable offences.
IRPA is retroactive in effect. A Permanent Resident or Foreign National with a conviction no matter how old is potentially inadmissible and subject to deportation.
A Permanent Resident found to be an inadmissible person may be arrested, detained, and removed from Canada without appeal if imprisoned for six months or more. Otherwise an appeal is allowed to the Immigration and Refugee Board, Immigration Appeal Division. The Foreign National has no right of appeal. A further judicial review for Permanent Residents or Foreign Nationals is allowed – with leave – to the Federal Court of Canada. However the Federal Court must hear the application within 30-90 days of the granting leave. The Federal Court may only grant leave to those applications for which there are resources to hear the application within the allowed timeframes.
An interesting side effect of IRPA is that it now allows an alert Crown Attorney to request an Immigration Officer to convoke an admissibility hearing for an accused Permanent Resident with a history of serious criminality (no matter how long ago the conviction). For some offences (IRPR s.246), the person will be considered a ‘danger to the public’ and have difficulty obtaining their release from what the Supreme Court of Canada refers to as an ‘administrative detention’.
For a criminal law practitioner, some unintended consequences quickly become readily apparent. If you take a fairly common GTA scenario, a recently immigrated family have their first encounter with the criminal justice system: the accused is charged with assault causing bodily harm on his wife after coming home drunk one evening and beating her severely. He advises his defence lawyer to fight the charge all the way to trial because he didn’t do it and she won’t show for trial anyway. A trial date is set, she shows up for trial, testifies, and he is convicted. In this scenario two dilemmas become apparent. For defence counsel, the accused must be warned at an early point in the process that if he is convicted there exists a very real possibility that he may be deported. The same result occurs where the family are foreign nationals who have not yet secured permanent resident status and the charge is simple assault.
Defence counsel may also wish to advice the accused person that if they are convicted of a crime of sexual assault or domestic violence that they will be barred from the ability to sponsor any family member for five years in the future pursuant to IRPA section 133(1)(e).
The above article was current as of November 2002. Since that time, some noteworthy updates have occurred: For the Canadian Government’s perspective please refer to Citizenship and Immigration Canada’s fact sheet at www.cic.gc.ca For a judicial interpretation of the immigration consequences in a criminal context see R. v. Kanthasamy , [2005] B.C.J. No. 510 (C.A.) In Atwal v. Canada (MCI), [2004] F.C.J. No. 63, 2004 FC 293 (T.D.), the court ruled that pre-sentence custody time should be added to the length of a sentence when determining if the permanent resident has been “punished in Canada by a term of imprisonment of at least two years,” as required by IRPA s.64(2). An excellent memorandum produced by Legal Aid Ontario can be accessed at www.research.legalaid.on.ca
The second most asked frequently question relates to visiting the territory of Canada’s largest trading partner. The following should be considered only as a guide. A USA Attorney practicing Immigration Law should be consulted to determine what effect USA law has on your particular set of circumstances.
Effect of Criminal Convictions on Entry into the United States of America
A Canadian citizen may be excluded from and be inadmissible to the United States for criminal convictions. Sections 1182(a)(2)(A)(i)(I) and 1182(a)(2)(A)(i)(II) (formerly sections 212(a)(2)(A)(i)(I) and 212(a)(2)(A)(i)(II)) of the Immigration and Nationality Act (INA) set out the prohibitions on entrance to the United States on criminal grounds. An immigrant or non-immigrant is inadmissible to the United States if she or he has been convicted of, or has admitted to committing, the essential elements of a crime of “moral turpitude,” or any drug offence. The U.S. Code of Federal Regulations (22 CFR 40.21(a)) defines moral turpitude as “the moral standard prevailing in the United States.”
Moral turpitude has been defined as referring to conduct that is “inherently base, vile, or depraved, contrary to the accepted roles of morality and the duties owed between men and men, either one’s fellowman or society in general.” Examples of crimes of moral turpitude include assault with intent to commit serious bodily harm, theft, including attempts and conspiracy to commit such a crime, controlled substance violations and commercialized vice such as gambling, assault with a dangerous weapon, gross indecency, kidnapping, and prostitution.
A person convicted of only one crime of “moral turpitude” will not be excluded if the crime was committed when he or she was under 18 years of age and the person’s sentence was completed more than five years before the application for admission to the U.S. If, however, the person under 18 was tried and convicted as an adult for a felony involving violence (as defined under Title 18 of the U.S. Code), he or she is excludable: 22CFR40.21(2)(B). If a person has been convicted of or admits to having committed, a single crime of “moral turpitude,” and the crimes carries no more than a maximum penalty of one year and the person is actually sentenced to less than six months in prison, the person is not inadmissible and may enter the United States without permission: section1182(a)(2)(A)(ii)(I) and section1182(a)(2)(A)(ii)(II) of INS. Unlike crimes of moral turpitude, the commission of a drug crime without criminal intent or knowledge is grounds for exclusion: section1182(a)(2)(C) of INS. The same section renders inadmissible those individuals whom an officer has “reason to believe” is an “illicit trafficker.”
A person convicted of two or more offences, when the aggregate sentence imposed was five years or more, is excludable, regardless of whether the offences arose out of single incident and regardless of whether the offences involved moral turpitude: section1182(a)(2)(B) of the INA.
At one time absolute discharges did not trigger ineligibility to enter the USA, however recent US Federal Court rulings have indicated that all absolute and conditional discharges are to be treated as convictions because a court has imposed findings of guilt. Canadian pardons or “expungements of a penal record” are not recognized by the United States. Only pardons granted by the President of the United States or a Governor of a State are recognized by the Immigration and Naturalization Service: 22 CFR 40.21(a)(5).
A Canadian citizen who has been convicted of a crime or admitted to a crime of moral turpitude or drug-related crimes must make an application for a waiver in order to gain admission to the U.S.A. on a non-immigrant basis.
Grounds for the waiver are provided for in section 1182(h) of the INA. A waiver is the grant of multiple entry into the United States over a given period of time (often five years). This is not to be confused with being ‘paroled’ into the United States, which is a one-time temporary grant of entry into the United States for a period of short duration.
A Foreign National charged with a criminal offence is often in a uniquely difficult situation. In order to be released, they must successfully proceed through two release hearings.
The first is a bail hearing in the criminal justice system. This is usually before a justice of the peace. The justice of the peace must be satisfied that; first the person will return to court when required to so. Secondly, the Justice of the Peace must be satisfied that the person will abide by all of the terms and conditions set for their release and not commit any further criminal offences. Normally the Crown Attorney has the onus of showing why the person should be detained; however, if the person has outstanding charges or is not ordinarily resident in Ontario, the onus is reversed and the person must show the court why they should be released.
Once released by the court, the second hearing is a detention review before a member of the Immigration & Refugee Board, Immigration Division. For practical purposes, the hearing proceeds as a reverse-onus hearing. If the detained person is charged with an offence as specified in the Immigration & Refugee Protection Regulations (such as sexual assault), the person is not eligible for release. If they are eligible to be released, they must satisfy the Board Member that their release is in the public interest. If the person is not released, their case will proceed through the criminal court as if the person were out of custody. The court will not usually consider any time that the person in detention as credit for their criminal offences in the event they are found guilty.
This is not intended to be an exhaustive discussion for everyone. Please make an appointment with us to discuss any concerns you have in your particular case.
Probably the question I am most frequently consulted on is: what are the options for a person charged with a criminal offence who is neither a Canadian Citizen nor a Permanent Resident of Canada. The answer is very complex, given the wide range of factors that must be taken into account. I will attempt to provide a simplified explanation using a fairly common fact scenario.
Let us assume a foreign national arrives in Canada at Toronto’s Lester B. Pearson International Airport. He arrives with a false passport, meaning that it is not in his true name nor issued to him by a government authority. He will usually be interviewed by an immigration officer upon arrival. He will try to maintain his false identity. The immigration officer will ask a series of questions and likely have concerns about his true identity either because they were previously alerted to the person coming into Canada or because of suspicions raised by the passport or answers to questions.After the immigration officer confronts the foreign national with their suspicions and advises the person that they are not being allowed into Canada, the person will often continue to maintain their false identity.The immigration officer will ask them if they fear to return to their country of nationality. The person will usually respond in the negative. The immigration officer will likely issue a removal order against the person and order them held in custody. Often they will continue to maintain the false identity even after the immigration officer advises them that they are being disbelieved. Usually the person will only admit to the falsehood, once they arrested by the Police and charged with the offence of entering Canada by using a false passport contrary to section 117 or 126 of the Immigration & Refugee Protection Act.
After arrest, the person will be transported to the courthouse in Brampton, Ontario. The first step is usually an appearance before a Justice of the Peace of the Ontario Court of Justice for the purpose of reading the criminal charge and ascertaining whether the person should be released from custody (for the criminal charge) pending disposition of the charge. In some cases, relatives or friends may request to be surety (bondsperson) for the person charged. Often, neither the person in custody nor the potential surety are properly prepared to conduct the hearing and are unsure how to proceed. To make matters worse the person is also subject to an immigration hold because they are neither a Canadian Citizen nor a Permanent Resident of Canada.
The following is a simplified series of explanations for illustration purposes only.Caution should be used in applying this to any given person’s situation.Every person’s situation is unique and requires a thorough analysis by a lawyer before proceeding.
A judicial interim release (bail) hearing before a Justice of the Peace.
Plead guilty before a Judge.
Plead not guilty and set a date for trial.
If on an immigration hold and seeking a release from the immigration system, must appear for a hearing before a member of the Immigration Division of the Immigration and Refugee Board of Canada:
At the same time the above procedures are happening, if the foreign national wishes to remain in Canada, they may apply for a Pre-Removal Risk Assessment (PRRA).
All criminal convictions or sentences can be appealed to either the Superior Court of Justice or the Ontario Court of Appeal depending on mode of prosecutorial proceeding.
Any immigration decision can be reviewed by the Federal Court of Canada:
This is not intended to be an exhaustive discussion for everyone.Please make an appointment with us to discuss any concerns you have in your particular case.
The police have just arrived at your door and charged you with committing a criminal offence. What do you do now?
Most people in Canada and the United States (and undoubtedly everywhere else) who are confronted by the police become very anxious. After all, we feel that if we don’t answer a police officer’s question that we will find ourselves in jail. The reflex response is to tell the police officer why we are not involved in the offence we are being charged with, assuming that if satisfied with our explanation, the police officer will let us go. Good idea, right? Well, maybe not. Anything you say which will help the police convict you, can be used against you in court. Anything you say explaining that you had nothing to do with the crime even if on videotape cannot be used to help you in court. In other words, only bad statements can be used not good ones. This is why in Canada and the United States you have the right, and should exercise that right, to remain silent and speak to a lawyer right away. Note however, that if an immigration officer questions you either at a port of entry or otherwise, it is against the law to not answer the questions truthfully.
One of the most asked and most misunderstood questions relates to discharges.
If I plead guilty to an offence and receive an absolute or conditional discharge, what does it mean?
The short answer is that you have a limited-time record but not a conviction for the offence. The long answer is obtained from the following two excerpted pieces of legislation:
The Criminal Code defines a discharge as:
730. (1) Where an accused, . , pleads guilty to or is found guilty of an offence ,… the court before which the accused appears may, … , instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).
…
(3) Where a court directs under subsection (1) that an offender be discharged of an offence, the offender shall be deemed not to have been convicted of the offence.
Section 6 of the Criminal Records Act states that:
6.1 (1) No record of a discharge under section 730 of the Criminal Code that is in the custody of the Commissioner or of any department or agency of the Government of Canada shall be disclosed to any person, nor shall the existence of the record or the fact of the discharge be disclosed to any person, without the prior approval of the Minister, if
(2) The Commissioner shall remove all references to a discharge under section 730 of the Criminal Code from the automated criminal conviction records retrieval system maintained by the Royal Canadian Mounted Police on the expiration of the relevant period referred to in subsection (1).
The anxiety of being charged with a criminal offence can have profound consequences. It usually creates a great deal of stress and uncertainty in people’s lives. One of the first questions on the mind of a person charged with a criminal offence is: how long before it is all over?
Like most things involving the legal system, that seemingly simple question has a complicated answer. It may become clearer once a simplified overview of criminal procedure is provided.Once you have been charged with a criminal offence, you will be required to attend court. If you are held by the police for a bail hearing, you will likely be brought to court as soon as a court is sitting, usually the next day. If released by the police, a court date will be chosen for you, usually in 2-6 weeks from the date charged with the offence.
After the bail procedure is completed, or if released by a police officer, you will required to attend assignment court. That first assignment court date is an opportunity to obtain disclosure of the case against you. The disclosure may include witness and police statements, audiotapes, videotapes and pictures depending on the nature of the charge against you. Disclosure may or may not be available on the first or even second court appearance. In either case, you will be asked to return on a date of your choosing. Once you have disclosure, you should review it with your lawyer to determine whether any legal defences are available to you. Likely a meeting with a Crown Attorney (prosecutor) and your lawyer will be required to determine how long a trial will likely last and also to canvass what likely penalty the prosecutor will be seeking either on a plea of guilty or if found guilty after a trial. If the case is complex or will take more than ½ a day for trial, usually a meeting with the prosecutor and a Judge, called a judicial pre-trial will be required. The same issues of trial length, legal procedures and penalty will be discussed. The discussions will then be reviewed with you for you to decide which of the options you wish to choose. Depending on the availability of disclosure, the initial ‘intake’ period could take either a few weeks or months. A trial date is then set often 6-9 months into the future. If the charge is an indictable offence and you have elected a preliminary inquiry and trial by Judge and Jury, the assignment court and pre-trials will be repeated in the Superior Court of Justice after your preliminary inquiry is completed.
An excellent article has been written that provides guidance on how to calculate the time from sentencing to parole eligibility date. Unfortunately, the author of the article is unknown.
This is not intended to be an exhaustive discussion for every criminal case. Please make an appointment with us to discuss any concerns you have in your particular case.
This article was the subject of address to the Peel Criminal Lawyers’ Association on December 12, 2012.
Information contained on this web site is to be considered general information only. Nothing on this Web Site is to be construed as constituting legal advice.
Please make an appointment to see us with respect to any specific legal concern.
Canada Immigration Low Income Cut-off (LICO) Values For Sponsoring Family Members for Permanent Residence are revised every year. Please make an appointment or consult Canada Immigration’s website for the current values.
Personal information for Spouse detailing:
This is not intended to be an exhaustive discussion for everyone. Please make an appointment with us to discuss any concerns you have in your particular case.
Please provide as much information as possible in advance by fax, mail or e-mail
This is not intended to be an exhaustive discussion for everyone. Please make an appointment with us to discuss any concerns you have in your particular case.
Please note that not all applicants will necessarily require all of these documents.
Please provide as much information as possible in advance by either fax or mail.
Please send the original documents in order that they can be notarized for you.
Personal information for each person (applicant) over 18 years of age detailing:
For each parent, child and sibling:
This is not intended to be an exhaustive discussion for everyone. Please make an appointment with us to discuss any concerns you have in your particular case.
Please provide as much information as possible in advance by fax, mail or e-mail.
Original documents will be notarized for you.
Personal information for each person (applicant) over 17 years of age detailing:
This is not intended to be an exhaustive discussion for everyone. Please make an appointment with us to discuss any concerns you have in your particular case.
Where a sponsorship has been refused because a person is inadmissible on medical grounds for Permanent Residence in Canada, the sponsor may appeal the decision to the Immigration and Refugee Board, Immigration Appeal Division.
The documents from a medical practitioner should be available in timely manner so that they may be filed and served in accordance with the Rules of the Immigration and Refugee Board, Immigration Appeal Division; currently Rule 30(4) stipulates that all medical documents including expert opinions must be disclosed at least 60 days prior to the start of the hearing.
Generally, the following documentation will be necessary to present to the Board:
New medical assessment for the refused applicant. Assessment should include:
Extent to which employable and productive in Canada.
It would be highly advisable to conduct the tests in the country where the applicant resides. The tests and interpretation should be done in consultation with a Canadian physician who can interpret the results from a Canadian perspective and appear in court to testify at the hearing.
All costs associated with the testing, assessment, consultation and medical testimony must be borne by the sponsor or the applicant. Private financial arrangements with each of the physicians that do not involve financial liability on the part of the lawyer must be done in advance of the tests and hearing to the satisfaction of the physicians.
This is not intended to be an exhaustive discussion for everyone. Please make an appointment with us to discuss any concerns you have in your particular case.
Your relative when applying for their temporary resident visa at the Immigration Section of the Canadian Embassy / High Commission should provide as much information as possible in order to facilitate and succeed in their applications. They should include all your documentation, which should be notarized. Please call and make an appointment to come to our office and we can notarize your documentation for you.
Copies of your record of landing or Canadian citizenship, your spouse’s record of landing or citizenship
Copies of your record of employment and t4 slips for both you and your spouse, original letters from your employer stating the length of service, description of job and the amount of annual income.
If you own a house, a copy of your title and property tax bill
If there is a compelling reason for the visitor visa application please provide proof, copies of documents:
If you are paying for the tickets provide proof (letter) from the travel agency with travel itinerary, travel insurance, etc.
Letter from your bank that shows your net worth so that you can prove that you are capable of maintaining your relative while they are visiting you in Canada.
This is not intended to be an exhaustive discussion for everyone. Please make an appointment with us to discuss any concerns you have in your particular case.
Please provide as much information as possible in advance by fax, mail or e-mail.
Original documents will be notarized for you.
Please provide as much information as possible in advance by fax, mail or e-mail.
Original documents can be notarized for you.
List of absences for the past five years by date (dd/mm/yyyy) including location and reason for absence.
Information contained on this web site is to be considered general information only. Nothing on this Web Site is to be construed as constituting legal advice. Please make an appointment with respect to any specific legal concern.
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