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?