 Canada Bound, Eh?
Canadian immigration consequences of
DUI
and other criminal convictions.
BY JONATHAN RANDS
There is a wealth of information out there regarding DUIs.
Unfortunately,
much of this information is completely untrue, half-true, or a firmly
established urban myth. (Remember the penny in the mouth will fool the
Breathalyzer?) This is because DUI law, in the form of statutes, Washington
Administrative Code, Washington State Patrol Breath Test Section Procedures
and Protocols, as well as a myriad of DOL regulations and case law
interpreting them, seems to change almost weekly.
Add to this mix the fact that the recent
supreme court decision in City of Fircrest v. Jensen seems to be interpreted
in as many ways as there are district court judges, and the previously clear
rules on admissibility of a breath test are now clearly unclear.
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.
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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