Question & Answer – Location of Rehab Application (IR-09)

The following is an e-mail exchange between an immigration representative and Citizenship and Immigration Canada (“CIC”) regarding criminal rehabilitation applications.  Criminal rehabilitation applications are the process through which certain criminally inadmissible individuals can apply to become admissible to Canada, and resolve their inadmissibility.

Please note that what I have reproduced below should not be viewed as legal advice.  I obtained a copy of this internal CIC question and answer through an Access to Information Act request the (“ATI”).  The reproduction of question and answer has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada.  Please e-mail me if you want a copy of the original question and answer contained in the ATI.

Question – May 20, 2013

Dear Madam, Sir,

My client is a foreign national who filed a PR application based on the spousal category from outside Canada (i.e. in CPC Mississauga). He also needs an Approval for Rehabilitation, however, and is currently temporarily in Canada on a TRP.

At the Immigration Summit last November in Toronto, I heard a GIC representative suggest that the PR sponsorship and the Rehab should be submitted together to CPC Mississauga. Therefore, that is what I did for my client. However, CPC Mississauga returned the Rehab application, stating that I need to file it in the correct visa office.

Can you please advise where the Rehab needs to be filed? Since I plan to renew my client’s TRP through Vegreville, should I file the Rehab there at the same time?

Thank you for your guidance.

Answer – May 24, 2013

Good day and thank you for your question.

Rehabilitation applications can be sent to regional Citizenship and Immigration Canada (CIC) offices if the client is in Canada or to an overseas visa office, where the client is residing.

Unfortunately, we cannot provide you with specific details on the location of the offices as we don’t have information about the location of the client.

We recommend that you communicate with the call centre for CIC for further clarifications and details. You may reach the call centre by calling 1-888-242-2100.

That’s not really much of an answer from CIC, and it’s probably because they’re unsure why CPC-M returned the rehabilitation application instead of forwarding it to the visa post with the rest of the immigration application. 


Question & Answer – Expungements and Inadmissibility (IR-05)

The following is an e-mail exchange between an immigration representative and Citizenship and Immigration Canada regarding the immigration consequences of foreign expungements for individuals who otherwise may be inadmissible to Canada.  

Please note that what I have reproduced below should not be viewed as legal advice.  The adaptation of the question and answer has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada.

Question – May 7, 2013

Greetings,

My name is __________ and I am a Canadian Immigration Lawyer based in ______.

When Burke Thornton was the Program Manager in Buffalo he had confirmed with headquarters that the state of California expungment (under s. 1203.4) is equivalent to a full expungement in Canada. Could you kindly confirm that California’s expungement procedure (1203.4) which allows you to state to any private individual/institution that you were never convicted of an offence for which you received an expungement is equivalent to a Canadian pardon?

Thank you very much.

Answer – May 27, 2013

Good day and thank you for your question.

CIC assesses inadmissibility on a case by case basis.

In cases of a foreign expungement, a criminal equivalency is usually done to establish whether the foreign country’s legal system is based on similar foundations and values as Canada’s and to look at the circumstances under which the expungement was granted and if it can be accepted as mitigating circumstances in Canada.

An expungement in the State of California is not automatically an equivalent to a record suspension (formerly called “pardon”) in Canada. Getting a foreign pardon or expungement, is not an automatic equivalency to Canada’s system nor is it a “green light” to enter Canada. A proper assessment needs to take place. I hope that this answers your question and please do not hesitate to communicate with us should you have further questions.

It is also important that people understand the distinction between “sealed records” and “expungements.”  While Citizenship and Immigration Canada generally deems expungements to not be a conviction, the sealing of an arrest record does not resolve an inadmissibility.  

It is even more important that people with either expungements or sealed records not lie when they answer whether they have ever been arrested.  


RIMbits Revealed (May 2010)

The following are some excerpts from the May 2010 RIMbits.  RIMbits are messages sent from National Headquarters to missions overseas.  The May 2010 RIMbits on admissibility consisted of seven questions and answers.  I have reproduced three of them for free below.

Please note that the questions and answers below should not be viewed as legal advice.  Rather, they are simply reproductions of how CIC senior management answered specific questions from visa offices in May 2010.

Seized Travel Document

Q) We were notified by the authorities that a permanent resident travelling on a Canadian travel document has been charged with: (1) ______ (2) _____ and (3) _____. According to local authorities, the permanent resident has been released on bail with the condition that she surrender her travel document and that “Stop Orders” are placed with the Immigration exit controls at airports.  We have been formally requested not to issue a new travel document to this permanent resident “until the matters have been disposed.”  

As the charged person is not a Canadian, the Consular Section has referred this case to us.  Although she has not done so at this point, it is possible that in the near future, this permanent resident may request from the visa office a Permanent Resident Travel Document or other documents to facilitate her return to Canada.  Would you have any advice on what we may and may not consider if the permanent resident applies for a PRTD before the judicial proceedings have come to a conclusion? 

(A) The permanent resident’s Canadian travel document has been seized by local authorities in connection with a legal matter.  It is not lost or stolen, and she will get it back when the legal process is completed.  Thus, even if Passport Canada issued replacement travel documents overseas, it would not be inclined to do so in this case.

To issue a PRTD, a travel document is required.  Although the permanent resident might meet residency requirements for a PRTD, her circumstances would preclude a Single Journey Travel Document.  Avoiding prosecution is not the exceptional circumstance usually required for issuance of a SJTD.

IAD-granted special relief overcoming the requirement for an ARC

(Q) The subject arrived in Canada and was accepted as a Convention refugee five years later.  His application for landing was later refused, however, due to multiple criminal convictions.  He was ordered deported at his appeal hearing and the IAD concluded that he was a danger to Canadian society. 

The subject submitted an FC1 application to our office; this application was refused for criminal inadmissibility pursuant to paragraphs 36(1)(a) and 36(2)(a) or IRPA.  Subsequently, the subject was given a pardon and the IAD allowed the appeal.  

We would like to confirm that we are not bound by the IAD’s favourable comments to grant an ARC.

(A) Although the IAD does not have the jurisdiction to consider the requirements to obtain an ARC on its own, it does have the jurisdiction through its authority under A65 and A67(3) to consider whether special relief should be granted to members of the family class.  Special relief may overcome the requirement to obtain an ARC.  In this case, the IAD found that the applicant was a member of the family class.  The requirement to obtain an ARC was put before the IAD and consequently, the IAD was required to consider this in rendering its decision.

Hong Kong “Spent” Criminal Convictions

(Q) From time to time we see police certificates which list prior convictions with the note that they are considered spent according to s. 2(1) of the Hong Kong Rehabilitation of Offenders Ordinance.  Does the Hong Kong ordinance have the same effect as the Canadian and UK provisions?

(A) A spent conviction in Hong Kong is not equivalent to a pardon in Canada.  The equivalent offence under the Canadian Criminal Code should be looked at in determining admissibility as usual.

The issue was raised and settled in Federal Court in “Kan v. Canada”.

Briefly, in the Burgon decision (referred to in Kan), the courts ruled that British legislation did create the same condition as a pardon and that individuals rehabilitated under this legislation were not inadmissible.  The argument was made in Kan that the Hong Kong ordinance had the same effect.  However, the Federal Court determined that subsection 2(1) of the Rehabilitation of Offenders Ordinance is not equivalent to a pardon in Canada because it only has effect until the individual is again convicted of an offence in Hong Kong.  Further, subsection 2(1) is subject to numerous specified exceptions and does not have the effect of “cleansing the individual of any stain that the conviction caused” (Burgon).

Applicants may inadvertently incorrectly declare that they do not have any convictions believing that a “spent” convictions means that it no longer exists.


Supreme Court Clarifies Elements of Conspiracy

On March 1, 2013, the Supreme Court of Canada (the “SCC“) in R v. J.F., clarified the elements of the offence of conspiracy.  The decision has immigration implications because people who have been convicted of conspiracy may be inadmissible to Canada.

 

Section 465 of Canada’s Criminal Code criminalizes the offence of conspiracy.  Conspiracy is a form of inchoate liability.  In other words, the actual result of the conspiracy need not occur for someone to be convicted under s. 465.  For example, a person can be convicted of “conspiracy to commit murder” even if the murder does not occur.  Furthermore, members in a conspiracy need not personally commit, or intend to commit, the offence which each has agreed should be committed.  Any degree of assistance in the furtherance of the unlawful object can lead to a finding of membership as long as agreement to a common plan can be inferred and the requisite mental state has been established.

Aiding or abetting the formation of an agreement between conspirators amounts to aiding or abetting the principals in the commission of the conspiracy.  Party liability is limited, however, to cases where the accused aids or abets the initial formation of the agreement, or aids or abets a new member to join a pre‑existing agreement.  The SCC ruled that acts that further the unlawful object of a conspiracy are not an element of the offence of conspiracy.  Aiding or abetting the furtherance of the unlawful object does not establish aiding or abetting the principal with any element of the offence of conspiracy.  However, the SCC noted that where a person, with knowledge of a conspiracy, does or omits to do something for the purpose of furthering the unlawful object, with the knowledge and consent of one or more of the existing conspirators, this provides powerful circumstantial evidence from which membership in the conspiracy can be inferred.  Specifically, the Court stated that:

In my view, where a person, with knowledge of a conspiracy (which by definition includes knowledge of the unlawful object sought to be attained), does (or omits to do) something for the purpose of furthering the unlawful object, with the knowledge and consent of one or more of the existing conspirators, this provides powerful circumstantial evidence from which membership in the conspiracy can be inferred.  To be precise, it would be evidence of an agreement, whether tacit or express, that the unlawful object should be achieved.  Ultimately, that issue is one for the trier of fact, who must decide whether any inference other than agreement can reasonably be drawn on the evidence.

A Note on Attempted Conspiracy

It is important to note that there is no such thing in Canada as “attempted conspiracy.”  In R. v. Déry, 2006 SCC 53, the SCC noted that:

When applied to conspiracy, the justification for criminalizing attempt is lost, since an attempt to conspire amounts, at best, to a risk that a risk will materialize.

This differs with some US States, and accordingly any foreign convictions for “attempted conspiracy” would not result in inadmissibility to Canada.


Questions About the Electronic Travel Authorization Initiative

Since my blog post on Friday I’ve received several questions about the Electronic Travel Authorization initiative revealed in the second 2012 Budget Implementation Act.

The most common question was how much it will cost a person to apply to the program.

The Government of Canada has not yet announced how much it will charge applicants to the program.  In the United States, the Electronic System for Travel Authorization costs $14.00, and is valid for 2 years. (Only $4.00 goes to the cost of administering the program.  The remaining $10.00 goes to tourism promotion.)  In Australia, applicants can choose to pay AUD 20.00 for a 12 month authorization, or AUD 105.00 for a long term authorization valid for the duration of an applicant’s passport.  These comparisons obviously don’t reveal how much Canada will charge, however, they provide an indication of what the “norm” for these types of programs are.

Another question was why applicants will have to go to the Citizenship and Immigration Canada website to apply for an Electronic Travel Authorization when the airlines through which they booked their flights to Canada already collect this information.

I don’t know the answer to this question, but I would suspect that it because the airlines do not want to hold seats while Citizenship and Immigration Canada determines whether someone is admissible to Canada.  The Electronic Travel Authorization can simply be part of the price of an airline ticket because of the complications involving flight refunds if authorization is refused.

The final, and in my opinion the most significant question, was whether the Electronic Travel Authorization programs means that Port of Entry Temporary Resident Permit (“TRP”) applications will become obsolete.  Currently, an individual who is inadmissible to Canada can board an air-plane and apply for an urgent TRP to enter Canada when the individual appears before the Canada Border Services Agency.  This will no longer be possible if people are prevented from boarding the plane.

Presumably, people who would have been admitted to Canada under a TRP at the Port of Entry will now have to apply for such permits at Canadian missions abroad.  Processing times for such applications are already lengthy, and unless Citizenship and Immigration Canada increases resources abroad, are going to increase dramatically.

I’m not sure how the Government of Canada plans on addressing this, but it is imperative that they do so that straight forward TRP applications which would have been made at the Port of Entry (a process which was encouraged under the Tourism Facilitation Action Plan) do not clog the system, causing unnecessary personal and economic hardship.


Useful Rehabilitation Decision

It’s not often that you see a Federal Court decision specifically discussing whether an officer’s decision to reject an Application for Criminal Rehabilitation was reasonable.  That’s why I read the just released decision in Hadad v. Canada (The Minister of Citizenship, Immigration, and Multiculturalism), 2011 FC 1503, with much interest.

The case affirmed several important principles of rehabilitation applications, including that:

  • The Minister should take into consideration the unique facts of each particular case and consider whether the overall situation warrants a finding that the individual has been rehabilitated.
  • That rehabilitation is forward looking.
  • That an officer commits a reviewable error if he/she attributes too much importance to the fact that an applicant has past criminal activity as opposed to the likelihood that the applicant would be involved in future or unlawful activity.

I have embedded in this post Justice O’Keef’s discussion of these principles.

 


R v. Topp, Fines, and Criminal Inadmissibility

 

By Andres Rueda

An individual who is criminally inadmissible to Canada will be eligible to apply for rehabilitation after five years have passed since the individual completed his/her sentence.  A sentence can include imprisonment, a fine, or probation.

Next to probation, the payment of a fine is a type of sentence that can significantly extend a person’s sentence for Canadian immigration purposes.  The reason is because the payment of fines are often staggered over a period of time.  This is especially the case in the United States, where, for example, I have seen fines of $2000 stretched over twenty $100 monthly payments.

The Supreme Court of Canada recently released a decision which makes me wonder whether there may be a potential argument that a fine imposed outside of Canada should not be counted for the purpose of determining eligibility to apply for rehabilitation if the inadmissible person can argue that he/she simply cannot pay it.

In R v. Topp, 2011 FC 43, the accused used his brokerage business to defraud Canada Customs of $4.7 million.  The Crown sought a $4.7 million fine in addition to imprisonment.  The trial judge sentenced the accused to imprisonment but declined to impose a fine because she was not satisfied as required by s. 734(2) of the Criminal Code that the accused was able to pay a fine.

Section 734(2) of Canada’s Criminal Code provides that:

Except when the punishment for an offence includes a minimum fine or a fine is imposed in lieu of a forfeiture order, a court may fine an offender under this section only if the court is satisfied that the offender is able to pay the fine or discharge it under section 736.

In upholding the trial judge’s decision, the Supreme Court noted that an affirmative finding that an offender is able to pay is therefore required before a find can be imposed.  In declaring this principle, the Supreme Court cited its previous decision in R v. Wu, 2003 SCC 73, where it noted that:

A means inquiry is now a condition precedent to the imposition of a fine except where otherwise provided by law.

A potential client is criminally inadmissible to Canada.  He sent me a fax which demonstrates that although the offense occurred several years ago, he is simply unable to pay the huge fine that the court imposed against him.  As I read this fax I can’t help but wonder… Can the Supreme Court of Canada’s decision in Topp be applied to argue that Citizenship and Immigration Canada should not consider the fine for the purpose of determining when the eligibility for rehabilitation begins?

 


Plea Bargaining and Canadian Immigration

The test for determining whether an individual is inadmissible to Canada is closely inter-twined with the criminal justice system of every country that that person has lived in.  The determining factor for whether an individual is inadmissible to Canada or not is whether the person was convicted.  It is not what the sentence was.

Our immigration system’s emphasis on convictions over sentences bears little resemblance to how the criminal-justice system of most countries work.  Most people who are charged with an offense are more concerned with what their sentence will be (“will I receive jail time?”) as opposed to whether they are convicted.   Accordingly, plea-bargaining has become the hallmark of most states’ criminal-justice system.  Individuals who probably would not be convicted of their serious original charge are more than willing to avoid the risk of being convicted by pleading guilty to a lighter offense in exchange for little to no sentence.

Unfortunately, this leads to the trend of there being a lot more people with criminal records out there then there otherwise would be if people did not succumb to plea-bargaining, and if prosecutors not able to so rely on bargain results.   The Journal of Law, Economics and Policy recently published an article highlight this relationship between plea-bargaining and overcriminalization.  The article is titled “Overcriminalization 2.0: The Symbiotic Relationship between Plea Bargaining and Overcriminalization”, and can be downloaded here.

Some key excerpts include:

There is an enormous problem with plea bargaining, particularly given that over 95% of defendants in the federal criminal justice system succumb to the power of bargained justice.

(Citing the United States Supreme Court)  This is not to say that guilty plea convictions hold no hazard for the innocent or that the methods of taking guilty pleas presently employed in this country are necessarily valid in all respects. This mode of conviction is no more foolproof than full trials to the court or to the jury. Accordingly, we take great precautions against unsound results, and we should continue to do so, whether conviction is by plea or by trial. We would have serious doubts about this case if the encouragement increased the likelihood that defendants, advised by competent counsel, would falsely condemn themselves.

(Citing another study) [T]he results of our research suggest that some defendants who perhaps were innocent, and a larger group who probably would have been acquitted had the case gone to trial, were nonetheless induced to plead guilty.

I receive a phone call from at least one person a week who says something along the lines of “I was charged with a DUI.  I totally didn’t do it.  However, the prosecutor told me that I could either risk facing jail time, or plead guilty to the reduced charge of Negligent Driving, and face only a couple hundred dollar fine.  That’s less than what hiring a lawyer to even go to the court house would cost!”

Unfortunately, the result is that because of the guilty plea the individual becomes inadmissible to Canada.

Overcriminalization abroad and in Canada is not the fault of Canadian immigration authorities.  It is not practical for Citizenship and Immigration Canada and the Canada Border Services Agency to take plea bargaining into consideration when encountering an individual with a criminal record.  However, I do believe that the criminal justice system, and its prosecutors and defense attorney’s alike, have a responsibility to the accused that they force plea bargains upon to fully explain the consequences of a criminal conviction even if there is barely a sentence.