tag:blogger.com,1999:blog-14625833044396259372024-03-22T01:25:03.866-04:00Golish Criminal Law BlogThis is the blog of Kenneth W. Golish, Windsor criminal defence lawyer.Kenneth Golish, Lawyerhttp://www.blogger.com/profile/11374316760983165439noreply@blogger.comBlogger16125tag:blogger.com,1999:blog-1462583304439625937.post-64435490136444643602018-08-05T13:29:00.000-04:002018-08-05T13:29:07.544-04:00Ontario Superior Court throws out conviction for allegedly refusing a roadside demand<br />
Not only is it an offence in Canada to drive while impaired or over the legal limit, it is also an offence, of equal consequence, to refuse to provide samples of your breath, even for screening purposes.<br />
<br />
I was counsel at trial and on the appeal on an allegation of refusing a roadside demand. The decision of Hebner, J. is found at<a href="http://canlii.ca/t/ht4q4" target="_blank"> R. v. Drouillard,</a> 2018 ONSC 4295 (CanLII). The case involved a roadside demand made when the driver was seated in her vehicle. The entire demand process was recorded by a video camera worn by the police officer making the demand. The officer felt that the subject was not making a genuine effort in any of the seven attempted blows and, for that reason, she was charged with a refusal. Perhaps curiously, in this three-minute interaction, after the fourth try, she made a statement refusing to co-operate further. She was however offered another opportunity which she accepted.<br />
<br />
The trial judge found essentially that the offence was completed at that point. The appeal court disagreed and determined that the whole exchange had to be seen as one transaction. Justice Hebner ruled that, because there was no evidence about the machine itself, it would be difficult to conclude beyond a reasonable doubt that the subject was really refusing.<br />
<br />
She was acquitted on the appeal.Kenneth Golish, Lawyerhttp://www.blogger.com/profile/11374316760983165439noreply@blogger.comtag:blogger.com,1999:blog-1462583304439625937.post-17375794045121664782011-05-12T15:01:00.000-04:002011-05-13T16:40:31.264-04:00Ontario's Civil Remedies survives another challenge and avoids another.I was counsel in <a href="http://www.ontariocourts.on.ca/decisions/2011/2011ONCA0363.htm"><em>Ontario (Attorney General)</em> v.<em> 8477 Darlington Crescent</em></a>, 2011 ONCA 363 decided 2011-05-10, by Doherty J.A. of the Court of Appeal for Ontario. Watt and Epstein JJ.A. agreed with his reasons.<br />
<br />
<tab>Consistent with the decision in <a href="http://www.canlii.org/en/ca/scc/doc/2009/2009scc19/2009scc19.html"><em>Chatterjee</em> v.<em> Ontario (Attorney General)</em></a>, 2009 SCC 19, the court upheld a challenge to the provisions of the Ontario <a href="http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_01r28_e.htm"><em>Civil Remedies Act, 2001</em></a>, but allowed a narrow discretion for relief from forfeiture. Interestingly, the court agreed with the Attorney General's assertion that mortgage payments derived from illegal activities tainted the entire property. Therefore, the properties were proceeds. That was sufficient to uphold the decisions below, without dealing with the challenge to Part III of the <em>Act</em> regarding instruments.Kenneth Golish, Lawyerhttp://www.blogger.com/profile/11374316760983165439noreply@blogger.comtag:blogger.com,1999:blog-1462583304439625937.post-47026715315145375412011-02-16T16:54:00.000-05:002011-02-16T16:54:12.814-05:00Long probation termsThe maximum probation term in Canada is three years. Not everyone is entitled to probation. Thus, if an individual receives a sentence of more than two years in jail, probation cannot--I repeat cannot--be part of the sentence. Thus probation is actually a sentencing option theoretically reserved for less serious offenses, the idea being that for certain offenders, both society and the offender benefit from a suspended sentence or a shorter term in prison, coupled with the appropriate period of probation. <br />
<br />
The length of a probation term is still not something that should be decided lightly. Sometimes, but I will say, not that frequently, a prosecutor will demand the term of probation be for the maximum period and defence counsel do not complain about the proposed term. However, unless there is rehabilitative purpose to the length of the term, the length of term should not be longer for a purpose other than for rehabilitation. This principle may be drawn from the case of <strong><em>R. </em>v. <i><span class="term0 lmrp" id="g0-0">Ziatas</span></i></strong> <a class="reflex-caselaw" href="" name="reflex-caselaw-52970698"></a>(1973), 13 C.C.C. (2d) 287 (Ont. C.A.). The point was a little different as it concerned a probation condition not the length of the term. There, the condition not to drive a vehicle was considered purely punitive, not rehabilitative. However, by the same principle, the length of the term should be based on consideration that are not strictly punitive.<br />
<br />
Today, the Court of Appeal for Ontario in<a href="http://www.ontariocourts.on.ca/decisions/2011/2011ONCA0133.htm"> R. v. Blais</a>, 2011 ONCA 133 (CanLII) 2011-02-16, made this statement that actually is helpful in instances where the prosecution seeks a lengthy probation term, in the absense of a significant criminal history:<br />
<br />
<blockquote>[2] In the light of the appellant’s extensive record, and the rehabilitative objective of a probation order, a three-year term is appropriate. At the sentencing hearing, the appellant expressed his intent to turn his life around. We view the probation order as promoting his ability to do so.</blockquote>Kenneth Golish, Lawyerhttp://www.blogger.com/profile/11374316760983165439noreply@blogger.comtag:blogger.com,1999:blog-1462583304439625937.post-44752695956271658112011-01-21T10:07:00.001-05:002018-06-29T19:15:45.324-04:00Almost a Year of Sentencing Truth<span style="color: black;">I</span>t seems difficulty to get away from thinking about the problems in the recent <a href="http://www2.parl.gc.ca/HousePublications/Publication.aspx?Docid=3965396&file=4"><span style="color: black;"><em>Truth in Sentencing Act</em>, Bill C-25</span></a><span style="color: black;">, legislation. The anniverary of the implementation of that legislation is coming up on February 22.</span><br />
<span style="color: black;"><br />
</span><br />
<span style="color: black;">The important provisions are the amended portions of s. 719:</span><br />
<blockquote class="statutecurrent">
<em><span style="color: black; font-size: x-small;">Determination of sentence</span></em><br />
<span style="font-size: x-small;"><br />
<span style="color: black;"></span></span><br />
<span style="color: black; font-size: x-small;">(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.</span><br />
<span style="font-size: x-small;"><br />
<span style="color: black;"></span></span><br />
<em><span style="color: black; font-size: x-small;">Exception</span></em><br />
<span style="font-size: x-small;"><br />
<span style="color: black;"></span></span><br />
<span style="color: black; font-size: x-small;">(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8).</span><br />
<span style="font-size: x-small;"><br />
<span style="color: black;"></span></span><br />
<em><span style="color: black; font-size: x-small;">Reasons</span></em><br />
<span style="font-size: x-small;"><br />
<span style="color: black;"></span></span><br />
<span style="color: black; font-size: x-small;">(3.2) The court shall give reasons for any credit granted and shall cause those reasons to be stated in the record.</span><br />
<span style="font-size: x-small;"><br />
<span style="color: black;"></span></span><br />
<em><span style="color: black; font-size: x-small;">Record of proceedings </span></em><br />
<span style="font-size: x-small;"><br />
<span style="color: black;"></span></span><br />
<span style="color: black;"><span style="font-size: x-small;">(3.3) The court shall cause to be stated in the record and on the warrant of committal the offence, the amount of time spent in custody, the term of imprisonment that would have been imposed before any credit was granted, the amount of time credited, if any, and the sentence imposed.</span> </span></blockquote>
<span style="color: black;"></span><br />
<br />
<br />
<br />
<br />
<dd><div align="justify">
<span style="color: black;">It appears judges have accepted that credit on only a 1:1 proportion is the standard and enhanced credit is only available in exceptional circumstances. The new 1:1 is now the old 2:1 and current thinking appears to be along the lines that any enhancement must be justified in the same manner as "better than 2:1" was allowed before. </span></div>
</dd><dd><div align="justify">
<span style="color: black;"><br />
</span></div>
</dd><dd><div align="justify">
<span style="color: black;">Respectfully, this is not the correct approach because, while Parliament has fixed the norm at 1:1, Parliament did not declare that enhanced credit be limited to extraordinary circumstances. In fact, nothing prevents the exception from applying in even the majority of cases. Parliament only declared enhanced credit is available "if the circumstances justify it." The requirement does not have to be a difficult standard to meet, nor is there any special evidence that is necessary. Appropriate submissions should be enough.</span></div>
</dd><dd><div align="justify">
<span style="color: black;"><br />
</span></div>
</dd><dd><div align="justify">
<span style="color: black;">The problem with the former system is that the public perceived that prisoners were deliberately delaying trials and pleas to get the benefit of enhanced credit. While there is no doubt this happened, the current preference for limited credit for pretrial custody puts many prisoners at a disadvantage. This is simply not fair. Therefore, offenders who do not delay in having their matters heard in court can be said to come under the category of cases where "the circumstances justify it."</span></div>
</dd><dd><div align="justify">
</div>
</dd><dd><div align="justify">
<span style="color: black;">A recent case in the Court of Appeal for Ontario, supports these arguments. See </span><a class="outlink" href="http://www.ontariocourts.on.ca/decisions/2011/2011ONCA0001.htm" target="_top"><span style="color: black;"><em>R.</em> v.<em> Monje</em></span></a><span style="color: black;">, 2011 ONCA 1 (CanLII) 2011-01-04, sitting Laskin, Armstrong and LaForme JJ.A. The author of the decision is H.S. LaForme J.A. Although decided for a matter before the Truth in Sentencing regime, this case is extremely important because it recognizes that the question of parol eligility is a factor in the giving appropriate credit for time-served. I have argued the point that the old 2:0 credit system is not the new 1:0 credit, that 1.5 credit is justified in many, if not most, instances because it is more reflective of the actual sentence an offender should serve.</span></div>
</dd><span style="color: black;"></span><br />
<blockquote>
<span style="color: black;">[25] In conclusion, the appeal judge is in error by treating the court’s jurisdiction over post-sentence custody as being the same as that over pre-sentence custody. He failed to appreciate and consider that the pre-sentence custody served by the appellant does not count towards his eligibility for parole or statutory release. In other words, he failed to take into account a relevant consideration in assessing credit for the appellant’s pre-sentence custody. This constitutes an error in principle and the sentence imposed by the appeal judge is not entitled to deference. </span></blockquote>
<span style="color: black;"></span><br />
<br />
<br />
<br />
<br />
<dd><div align="justify">
<span style="color: black;">We will remember the Court of Appeal for Ontario, even before the enactment of this legislation, was of the view that prisoners who were likely to serve their entire sentence should not be getting enhanced credit. Therefore, as long as an offender is likely to earn remission after sentence and has not delayed proceedings unnecessarily, he or she should be entitled to 1.5:1 credit before. Of course, this still leaves open other grounds for consideration. </span><span style="color: black;">There is but another circumstance that justifies enhanced credit. It is where an offender has gone to trial and ended up being found guilty, but to a lesser degree of culpability than originally alleged, for instance, by being found guilty of fewer charges, or in less aggravating circumstances. In such a situation, the proof is in the pudding. Thus, an offender should not be punished for exercising his or her right to a trial and for that reason, the benefit of an enhanced credit might also be given to an offender who is still found guilty, but who clearly demonstrate that his or her defence had merit.</span></div>
</dd><br />
<div align="left">
<span style="color: black;"></span></div>
Kenneth Golish, Lawyerhttp://www.blogger.com/profile/11374316760983165439noreply@blogger.comtag:blogger.com,1999:blog-1462583304439625937.post-7295552869927325122010-10-29T10:05:00.000-04:002010-10-29T10:05:18.047-04:00Charter Values, Charter RemediesIt was all over the news that on October 13, 2010, the Court of Appeal for Ontario declared that a lower court judge was in error in ordering a woman to remove a facial cover, a niqab, at a preliminary hearing. The case is called <a href="http://www.ontariocourts.on.ca/decisions/2010/october/2010ONCA0670.htm"><em>R</em>. v. <em>N.S</em></a> and pitted the interest of the witness's right to religious freedom against an accused right to a fair trial. The result was not surprising and will no doubt be embraced by a large majority of both the public and the legal community.<br />
<br />
The court decided that the preliminary hearing judge should have conducted an inquiry into whether the witness should have been allowed to testify in the manner she desired. This meant too that she should have told of her right and afforded the opportunity to consult her own counsel. <br />
The court noted a "quandary faced by the preliminary inquiry judge":<br />
<ul><li>[47]<span style="font-family: "Times New Roman";"> </span>. . . Both M---d.S. [the accused] and N.S. [the witness] have powerful claims that seem to lead to diametrically opposed conclusions. At least at first blush, it would appear that the constitutional values in issue collide. Faced with an apparent collision of constitutional values, a court must first attempt to reconcile the rights so that each is given full force and effect within the relevant context..</li>
<li>[48]<span style="font-family: "Times New Roman";"> </span>Reconciliation of apparently conflicting rights requires that no <i>Charter</i> right be treated as absolute and that no one right be regarded as inherently superior to another: <i>R. v. Mills</i>, [1999] 3 S.C.R. 668, at para. 61; <i>Dagenais</i>,<i> </i>at p. 877; <i>R. v. Crawford</i>, [1995] 1 S.C.R. 858, at para. 34. Nor can the reconciliation of competing rights be addressed in the abstract without regard to the specific factual context...</li>
</ul>The interesting aspect of the case the I wish to focus on is not the decision itself, but what court said about the <em>Charter</em>. What was interesting was that the process for getting the matter heard was generated by what is commonly called an application for a <em>Charter </em>remedy. The court simply said this was not necessary. While a discrete application is often the only way to get relief, frequently invoking the <em>Charter</em> separately it is not necessary. In this instance, the decision about whether the witness could testify in the manner she proposed was a decision that was part of the judge's responsibility in controlling the proceedings before him or her. In a fundamental way, it was no different from the decision to allow a witness to wear sunglasses. The comparison was the appeal court's way of illustrating the question. In the sunglass situation, the witness might have a medical reason for having them. On the other hand, the glasses might be a mere fashion statement and therefore allowing the witness that privlege might effect the fairness of the trial.<br />
The simple fact is that the mere invocation of the <em>Charter </em>is not necessarily a request for a <em>Charter </em>remedy. In many instances, it is simply a matter of applying <em>Charter </em>principles to the interpretation of a statue or rule and there is no need for special notice to the other party.Kenneth Golish, Lawyerhttp://www.blogger.com/profile/11374316760983165439noreply@blogger.comtag:blogger.com,1999:blog-1462583304439625937.post-78974255230900362832010-10-24T16:05:00.000-04:002010-10-24T16:05:23.796-04:00Anyone who has done one or two of these applications can make a career out of doing applications for othersFrom other lawyers, I have recently heard unfavourable comments about organizations who promote themselves as expert in obtaining pardons. At least one organization now offers, for an increased fee, an expedited service. The simple fact is that a pardon application requires three basic processes. Each must be completed correctly, else the whole process will be delayed. The first is obtaining certified copies of the court charges, the second is a CPIC records check and the third is completion of the application form. <br />
In my <a href="http://golishlaw.blogspot.com/2010/06/new-pardon-regime.html">recent blog</a> about amendments to the <em>Criminal Records Act</em>, I commented about "anyone who has done one or two of these applications can make a career out of doing applications for others. This is evident in the significant growth of organizations that offer pardon removal services."<br />
<br />
I don't know about who is following my blog, but after posting that entry, some woman with a toll-free number called me in response asking if I was interested in her doing a guest column. I didn't bother calling back because I was pretty sure the guest column was going to be a promotion for some not-for-profit pardons organization. (The 'not for profit' claim is probably misleading because, no doubt, the person who runs the deal pays himself or herself a salary based the organizations net profit.)Kenneth Golish, Lawyerhttp://www.blogger.com/profile/11374316760983165439noreply@blogger.comtag:blogger.com,1999:blog-1462583304439625937.post-52189129789377809852010-08-26T13:45:00.000-04:002010-08-26T13:45:13.320-04:00Last Year's Legal Aid Job Action: Are we any better off?In the myth of Cumaean Sibyl, she asks Apollo for as many years as grains of sand in her hand. She is said to have lived for a thousand years while Apollo let her face and body waste away. Of course, her mistake was she forgot to ask for eternal youth.<br />
<br />
I was reminded of this story recently looking back at the Ontario criminal lawyers job action last year. We withheld services in legal aid matters in key areas, particularly murder prosecutions. The government ended up negotiating a deal with us. Here we were, a bunch of smart lawyers, who to boot had hired another bunch of smarter labour lawyers, to obtain, in theory, a better delivery of legal aid services to the public, and more money for legal aid lawyers. With some reservations, I wrote in an <a href="http://golishlaw.blogspot.com/2010/01/showdown-at-high-noon-legal-aid-boycott.html">earlier blog</a>, that I thought the deal looked pretty good.<br />
<br />
The result was a pay increase across the board, spread out over five years, together with some kind of understanding to create a mechanism for reviewing the rate in the future. This all looked pretty good at the time. The problem was there was no committment from the government to fund these increases. It was not like we weren't aware of the funding issue because, just about the time our job action started, we complained about the inadequacy of the '$150,000,000' of additional money promised by the Ontario government. <br />
<br />
All this left Legal Aid Ontario (LAO) with the task of paying out the same money in a different way. LAO had already begun doing this in one way, and that was this: If a legal aid applicant is not facing a jail sentence, he or she is not entitled to legal aid. However, the process for making that determination should be static, not dynamic: It should be based on the correct constitutional approach that does not vary with budge constraints. Nonetheless, LAO embarked on a plan that has seen far more refusals based on that question than anytme before. Thus, persons who were routinely granted certicates are no longer getting those certificates, leaving many more individuals unrepresented or being aided <em>pro bono. </em>This was not the only change in the operation of the plan. <br />
<br />
One other has been in the reduction of discretionary allowances. The plan has built-in tariff limits. No kind of service is exempt. A lawyer is expected to devote a controlled number of hours on any particular case. For instance, the tariff limit on a summary guilty plea is six hours, including all court appearances and preparation time. For the most serious matters, the preparation time is limited to 15 hours, but more preparation time is available depending on the number of days in court, and other tariff enhancements, including actual court time. These can substantially increase the maximum tariff for any particular case. For even experienced lawyers, it is not uncommon for the time expended to exceed the tariff maximum. In my own practice, I would guess that in about 1/3 or my legal cases I spend more time than the tariff allows. Often, it is only one to three hours, but it can be substantially more. From my experience, and the experience of other lawyers I know or have heard from, these allowances have been practically routine. However, this is the case no more. On this change, I cannot yet speak from actual experience, as it appears this practice has only developed in the past few months since after the first increase took effect on February 1, 2010. The fact is I am still waiting to have several discretionary requests processed.<br />
<br />
Other changes also have impacted on keeping lawyer incomes down. One little measure has been the practice of extending the period in which current certificates can be amended. This period was previously five months. Now it is up to a year. This means that new matters are paid at the rate when the certificate was issued, not when it is amended. <br />
<br />
I hear that our association is trying to resolve these problems with the Attorney General. This is something else for us to wait and see about.Kenneth Golish, Lawyerhttp://www.blogger.com/profile/11374316760983165439noreply@blogger.comtag:blogger.com,1999:blog-1462583304439625937.post-76939902621804081122010-06-22T10:12:00.001-04:002010-08-17T16:08:02.735-04:00Civil Remedies and the Criminal LawI wrote a three-part article in about the problem of civil remedies legislation. Unfortunately, the Supreme Court of Canada took a different view about the right of the provinces to seize and forfeit property that has a criminal taint to it, in Ontario under the <em><a href="http://www.e-laws.gov.on.ca/DBLaws/Statutes/English/01r28_e.htm">Civil Remedies Act, 2001</a></em>. <br />
<br />
The case, in my view, was one of those ones where it is said bad cases make bad law. The precise issue before the court was whether or not the Province of Ontario could sieze and forfeit in excess of $29,000 cash seized from a young man in a car, without the person being prosecuted for a criminal offence and without any other proceedings being taken under the <em>Criminal Code of Canada. </em>I am now exploring this problem in another multi-part <a href="http://www.golishlaw.com/comment/2010-05.htm">commentary</a>.Kenneth Golish, Lawyerhttp://www.blogger.com/profile/11374316760983165439noreply@blogger.comtag:blogger.com,1999:blog-1462583304439625937.post-50769220603784138832010-06-19T22:51:00.001-04:002010-08-23T13:58:31.968-04:00The New Pardon RegimeThe <a href="http://laws.justice.gc.ca/en/C-47"><em>Criminal Records Act</em>,</a> the enactment that sets out the <a href="http://www.golishlaw.com/crimlawt/pardon.htm">procedure</a> for obtaining a criminal pardon, all of sudden is in dire need of revision, only because one sex offender received one three years ago and because Karla Homolka is eligible to apply for one on July 5, 2010. See the <em>Globe and Mail</em> article "<a href="http://www.theglobeandmail.com/news/politics/mps-agree-to-head-off-homolkas-bid-for-pardon/article1606885/">MPs agree to head off Homolka’s bid for pardon</a>"<br />
<br />
Although this has all the elements of political pandering in the extreme, it is probably the case that the current law is too generous in providing a waiting period as short as three years and making the granting of pardons contingent only on the passage of time.<br />
<br />
As well, you won't hear me complain about there being more work for lawyers to do.<br />
<br />
When I mean work, I first mean the obvious challenge to the issue of retroactive application. If a person is convicted when the old regime was in place, shouldn't he or she have the benefit of the pardon benefits that existed at the time?<br />
<br />
Next, lawyers will probably play a more significant role in the pardon application process as the proposed legislation will require candidates for pardons to demonstrate their entitlement. Right now, anyone who has done one or two of these applications can make a career out of doing applications for others. This is evident in the significant growth of organizations that offer pardon removal services. <br />
<br />
It will be interesting to see what develops.Kenneth Golish, Lawyerhttp://www.blogger.com/profile/11374316760983165439noreply@blogger.comtag:blogger.com,1999:blog-1462583304439625937.post-41800527815255337732010-05-06T12:10:00.000-04:002010-05-06T12:10:24.236-04:00Changing release conditionsI have been busy with different projects and files and haven't had a chance to work on this blog. To start this post, I note its Thursday and I am back at the barristers' lounge on a duty counsel day. <br />
<br />
I want to discuss a problem I have, which is unique and interesting. A client was released on an undertaking. The prosecutor now wants to have the undertaking reviewed under s. 503(2.3) and has proposed a number of more onerous conditions be added to the original release. I have never seen this provision used, although I have heard that it has been done. I have frequently applied to vary conditions that police have imposed.<br />
<br />
The corresponding provision that allows a released person to apply for a variation is 503(2.2). The governing principles that apply are self-evident, that the individual is entitled to a fresh hearing, not a review. The reason is that an accused who is custody, must accept the terms in order to be released. The acceptance of such terms is not voluntary and it is therefore fair that the accused have the option of requiring the prosecutor to establish the legitimacy of those terms.<br />
<br />
The situation is different when the police set terms. Presumably, they are in a proper position to judge what terms are appropriate, or whether or not terms should be set by justice of the peace. In that situation, is a prosecutor entitled to a fresh hearing, the same way an accused has such a right? No case authority gives guidance on the correct principles. However, it seems to me that there must be a demonstrated change of circumstances and that it is not enough for the prosecution to say the police were in error and therefore the court should correct that error. The police and the prosecution are arguably a single entity for these purposes. As they say: "You made your bed..."Kenneth Golish, Lawyerhttp://www.blogger.com/profile/11374316760983165439noreply@blogger.comtag:blogger.com,1999:blog-1462583304439625937.post-54526552265364876592010-03-22T21:20:00.002-04:002010-04-04T11:35:40.912-04:00Surety guarantees now?I was on vacation for two weeks and have spent much of the last two catching up and there has hardly been any spare time to work on this blog. To start this piece, of course, I am back at the courthouse barristers's lounge on Monday morning between court appearance.<br />
<br />
There is always something different to notice if you are gone for any period of time. On being back, the one thing that came to my attention was the new surety affidavit form for proposed sureties in bail matters. I have already commented on it in court because, in my view, the information contained in it is incorrect. <br />
<br />
The <a href="http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/sureties.asp">Ministry of Attorney General</a> has a pamphlet available with surety information. The creation of that document was done with care and I can find nothing in the webpage and document entitled, <a href="http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/sureties.asp">"What Sureties Need to Know"</a> that I would disagree with. The difference between the pamplet and the new form and the problems with the new form are these:<br />
<ol><li>That there is no suggestion in the new form that a surety may not be entitled to be relieved of the obligation to pay the full amount of the bail;</li>
<li>The statements that the surety guarantees the good conduct of the accused are questionable;</li>
<li>The statement that the surety could be imprisoned are questionable.</li>
</ol>If the statements in the form are not accurate, this will have no impact on the situation where a surety is prepared to take on the obligation in any event. The problem of course is when the form scares off a surety and an accused has to remain in custody for that reason.<br />
<br />
The Court of Appeal for Ontario case of <a class="outlink" href="http://www.canlii.org/en/on/onca/doc/2009/2009onca732/2009onca732.html" target="_top"><em>Canada (Attorney General)</em> v.<em> Horvath</em></a>, 2009 ONCA 732 (CanLII) 2009-10-20, authored by Rosenberg J.A., involved the application to estreat bail in extradition matters for failing to appear in court. The amount of bail sought to be estreated was significant.<br />
The court noted that on the one hand, efforts by sureties were to be recognized and should go to mitigation.<br />
However, it was still important for the integrity of the system for entirety of the bail to be at risk.<br />
<blockquote>[41] I agree that the “pull of bail” is an important factor that serves as a reminder that, in attempting to do what is just and fair towards the sureties, the courts must be careful not to undermine the effectiveness of the bail system.<br />
Our system depends upon accused attending court and if accused came to believe that they could fail to attend court without their sureties suffering any penalty, the surety system would be ineffective. ... </blockquote>The court also noted that as general rule, for smaller amounts $5,000 and under, the full amount of bail should be estreated. The case stands for the proposition that where the accused does not attend court, the surety's best efforts are only a factor. However, it must be the case that where bail is sought to estreated because of a breach, the surety's best efforts must be a more important consideration. <br />
<br />
Interestingly the court commented on the need for sureties to have accurate information about their obligations. Attached to the decision was a form proposed or actually used by the Attorney General of Canada. It makes such statements as the surety must pay the full bail if there is a breach of one of the terms and that the surety guarantees the good behaviour of the accused.<br />
<br />
Without being specific, the court commented that the use of the form was a good idea, but that the form should be modified in accordance with the courts reasons. <br />
<br />
Interestingly, the form--<a href="http://www.golishlaw.com/blog/suretycaution.pdf">download pdf file</a> from golishlaw.com site--now being circulated, includes no statement as to its authorship, and essentially copies the basic form used in the <em>Horvath</em> case. Moreover, the only modification is the additional threat to the proposed surety of a jail term:<br />
<br />
<em><span style="font-size: x-small;">OBLIGATIONS OF A SURETY and CONSEQUENCES OF BREACH</span></em> <br />
<blockquote><em><span style="font-size: x-small;"></span></em><br />
<em><span style="font-size: x-small;">1) I understand that if approved as surety by the Justice, I am promising to pay the full amount of the bail set opposite my name on the recognizance, if the accused person does not attend court as required or if he/she does not comply strictly with a term of bail or if he/she commits a criminal offence while on bail.</span></em><br />
<em><span style="font-size: x-small;">2) I understand that if the accused person breaches any term of the bail or commits a criminal offence, I must immediately report this to the police.</span></em><br />
<em><span style="font-size: x-small;">3) I understand that it is my responsibility to prevent any breach of the bail terms but if a breach does occur, the court may seek payment from me of the full amount of the bail set opposite my name on the recognizance, even if I supervised the accused person to the best of my ability,.</span></em><br />
<em><span style="font-size: x-small;">4) I understand that if I do not meet a financial obligation ordered by the court, I may be imprisoned. </span></em> </blockquote>It is interesting that the court noted that while s. 773 does actually provide that a surety may be committed to prison in default, the judges were "told by counsel that there is no reported case of any surety having been imprisoned in Ontario in over 100 years." That said, it seems improper to put these statements in. The authors of the form should have simply relied on the statements set out in the official Attorney General "<a href="http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/sureties.asp">What Sureties Need to Know</a>" document.Kenneth Golish, Lawyerhttp://www.blogger.com/profile/11374316760983165439noreply@blogger.comtag:blogger.com,1999:blog-1462583304439625937.post-5104086428714324792010-02-16T11:20:00.001-05:002010-03-07T18:03:46.454-05:00Ubi jus ibi remediumThe recent Supreme Court case of <a href="http://www.canlii.org/en/ca/scc/doc/2010/2010scc3/2010scc3.html"><em>Canada (Prime Minister)</em> v. <em>Khadr</em>,</a> 2010 SCC 3 (CanLII) is but another dilemma of recognizing rights under the <em><a href="http://laws.justice.gc.ca/en/charter/">Canadian Charter of Rights and Freedoms</a></em>. <br />
<br />
The result in this case is interesting when we think about the common law principle that says for every right there must be a remedy, in Latin, <em>Ubi jus ibi remedium. </em>The <em>Charter</em> includes its own statement about this:<br />
<blockquote><h2 class="Subheading"><a href="http://www.blogger.com/" name="anchorbo-ga:l_I-gb:s_24"><span style="font-size: x-small;">Enforcement</span></a></h2><div><span style="font-size: x-small;"></span></div><div class="Border" id="se:24"><span style="font-size: x-small;"><em>Enforcement of guaranteed rights and freedoms</em></span><br />
<br />
<div class="SecSubSec"><b><a class="anchorLabel" href="http://www.blogger.com/fr/charte/1.html#codese:24" name="codese:24"><span style="font-size: x-small;">24.</span></a><span style="font-size: x-small;"> </span></b><span style="font-size: x-small;">(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. </span></div></div><div class="Border" id="se:24-ss:_2_"><br />
<span style="font-size: x-small;"><em>Exclusion of evidence bringing administration of justice into disrepute</em></span><br />
<div class="SecSubSec" style="font-weight: normal;"><br />
</div><div class="SecSubSec" style="font-weight: normal;"><span style="font-size: x-small;"><span class="IndentLabel">(2)</span> Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.</span> </div></div><div class="Border" id="bo-ga:l_I-gb:s_25-h1"></div></blockquote>The headnote in <em>Canada (Prime Minister)</em> v. <em>Khadr</em>, outlines these facts:<br />
<blockquote><span style="font-size: x-small;">K, a Canadian, has been detained by the U.S. military at Guantanamo Bay, Cuba, since 2002, when he was a minor. In 2004, he was charged with war crimes, but the U.S. trial is still pending. In 2003, agents from two Canadian intelligence services, CSIS and DFAIT, questioned K on matters connected to the charges pending against him, and shared the product of these interviews with U.S. authorities. In 2004, a DFAIT official interviewed K again, with knowledge that he had been subjected by U.S. authorities to a sleep deprivation technique, known as the “frequent flyer program”, to make him less resistant to interrogation. In 2008, in <i>Khadr v. Canada</i> (“<i>Khadr 2008</i>”), this Court held that the regime in place at Guantanamo Bay constituted a clear violation of Canada’s international human rights obligations, and, under s. </span><a class="reflex-statute reflex-statute-section" href="http://www.blogger.com/en/ca/const/const1982.html#sec7"><span style="font-size: x-small;">7</span></a><span style="font-size: x-small;"> of the <i>Canadian Charter of Rights and Freedoms</i>, ordered the Canadian government to disclose to K the transcripts of the interviews he had given to CSIS and DFAIT, which it did. After repeated requests by K that the Canadian government seek his repatriation, the Prime Minister announced his decision not to do so. K then applied to the Federal Court for judicial review, alleging that the decision violated his rights under s. 7 of the <i>Charter</i>. The Federal Court held that under the special circumstances of this case, Canada had a duty to protect K under s. 7 of the <i>Charter</i> and ordered the government to request his repatriation. The Federal Court of Appeal upheld the order, but stated that the s. 7 breach arose from the interrogation conducted in 2004 with the knowledge that K had been subjected to the “frequent flyer program”.</span></blockquote>The court concluded that while Khadr's rights were violated, in this case, he was not entitled to the remedy of requiring the government to take action on his behalf. The problem for Khadr is not very different from that of others whose rights are violated, but who have no effective remedy. <br />
<br />
For the criminal defendant this situation can be played out in two or three different ways. Here is one example that I hear about frequently from my clients. Upon arrest, a person is suppose to be informed of what he or she is being arrested for, and given notice that they are entitled to contact counsel and be afforded the opportunity to contact counsel. I hear the complaint that "they didn't read me my rights" often enough to accept that these claims are usually true. However, what I usually have to tell these clients is that the violation gets them nothing. The fact is that the hypothetically guilty person can usually only beat a charge if he or she can keep critical evidence from being admitted. Thus if all the evidence that is needed for the prosecution arises before a person's rights are violated or the evidence is gathered independently of any rights violation, the defendant gets no benefit from the violation in his or criminal trial.<br />
<br />
Moreever, even if a court finds that a person's rights were violated, in Canada, that does not lead to an automatic exclusion of evidence. In that instance, a court must balance competing interests. If a court finds that excluding the evidence would bring the administration of justice into disrepute, it must admit the evidence nonetheless. This is the test required under s. 24(2) of the <em>Charter. </em><br />
<br />
Exclusion of evidence is not the only remedy available however. Khadr was seeking a remedy under s. 24(1). What he was asking for is not the typical relief sought under that provision. The more typical relief sought is the remedy of a stay of proceedings in a criminal case, the equivalent of an acquittal. The remedy is a stay can arise in a variety of circumstances. This will happen, for instance, if there is an unacceptable delay in the prosecution of the case, or where important evidence is destroyed or even where the defendant's personal integrity is severely violated at the time of his or her arrest. However, in these circumstances, it is just any breach that will result in a stay of proceedings. The breach must be serious enough that the only fair way for a court to provide the appropriate relief is to put a halt to the case.<br />
<br />
It is still always the case that there is a remedy. If no other remedy is available, it is probable the person whose rights were violated is entitled to damages. The damages however do not have to be large and as most breaches would probably not lead to large awards and because lawyers don't advise clients to seek damages and because clients don't ask lawyers about that remedy, the reality is <a href="http://en.wikipedia.org/wiki/Lawsuit">lawsuits</a> for <em>Charter</em> breaches just don't generally happen. <br />
<br />
The <a href="http://www.theglobeandmail.com/news/national/omar-khadrs-civil-suit-against-ottawa-seeks-10-million/article1458313/">story</a> hit the news after the case was decided that Khadr's lawyers were seeking $10 million damages against the government. Actually, they were looking to increase the amount they previously claimed. He will probable get some substantial award, whether it is one that is settled or made by a court.<br />
<br />
The lesson in all this is that there will always be a remedy available, just not necessarily the remedy you want or the one worth pursuing.Kenneth Golish, Lawyerhttp://www.blogger.com/profile/11374316760983165439noreply@blogger.comtag:blogger.com,1999:blog-1462583304439625937.post-45497690548949289822010-02-05T13:38:00.001-05:002018-08-04T17:24:13.239-04:00Offsetting a prosecutor's discretionIt is now Friday, and fifth day I have been working on this piece at the one of the courthouse law library computers. However, my time here has been short.<br />
<br />
As long as I have been practicing criminal law, I am always surprised by the variety of situations that I encounter. While there is are typical client situations, legal questions, and practical problems that occur regularly, there is always something new, a new circumstance or new idea.<br />
<br />
Here is something of a new idea that came to me recently. It has to do with a prosecutor's choice to proceed by indictment instead of summary conviction. In Canadian criminal law, most offence sections are hybrid: a prosecutor may elect to proceed by summary conviction or by indictment. When the election is summary, the maximum penalty is usually significantly shorter. One other benefit to a summary election to the defendant is the waiting period to apply for a pardon is three years, instead of five. See <em><a href="http://www.golishlaw.com/crimlawt/classoff.htm">Classification of Offences</a></em>.<br />
<br />
Most hybrid cases proceed by summary conviction, not indictment. There are times, when an indictable election is required. First, prosecutors will make such election when the six month limitation period has expired. In those situations, my philosphy is to offer to waive the limitation period. Second, there will usually be an election by indictment when a number of charges are bundled together and at least one of them is purely indictable. If the case ends up being resolved by a plea to one or more of the lesser charges, I would also ask the prosecutor to change his or her election. Finally, it is frequently the case where an indictable election is appropriate simply because of the seriousness of the offence or because the offender has a long record.<br />
<br />
In the case I have before the provincial court, the prosecutor has insisted on proceeding by indictment. He said he was doing so for the sake of having the remedy of a longer mandatory weapons prohibition. The prosecutor is not asking for jail, but even if he were, the jail time would certainly be less than the maximum available on summary conviction. My client has no record and the circumstances only involved threatening conduct. No immediate or lasting harm came to anyone and there were significant triable issues.<br />
<br />
From one perspective or another, one can see the circumstances of any case at various positions along the spectrum of less serious to more. Originally, I was of the view that a discharge would not be an appropriate way to deal with the matter, that a harsher disposition was in order, namely, jail or a suspended sentence. There is no question it is a case for probation, but for the very reason that the prosecutor has taken an objectively unreasonable position on the Crown election, I am urging the court to impose a lesser punishment, being a conditional discharge, not a suspended sentence. In either case, he is getting probation. I am basically arguing that one of the factors that tips the balance in favour of a discharge as opposed to a suspended sentence is the fact that the prosecutor is proceeding by indictment. The judge has put the case over for a presentence report, so I will have to report on the result later.Kenneth Golish, Lawyerhttp://www.blogger.com/profile/11374316760983165439noreply@blogger.comtag:blogger.com,1999:blog-1462583304439625937.post-56352562132867255272010-01-25T19:39:00.004-05:002010-01-25T21:00:14.605-05:00Showdown at High Noon: the Legal Aid Boycott<div class="separator" style="clear: both; text-align: center;"><a alt="view from barristers' lounge to Detroit" href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhtUrkjGK5nMyEHMs9XYqxrM0W823pVBoRkevqX2u-t5S_m3l0j6R5Is_zRHyQ_UMetQLDpfrp56csF0ekbLb-O9j7S2m9Hv_x1C54LJU9rsHjZXXBOqTIhuRhmHRK5GDahubRtnAIQ6Kg/s1600-h/2010a-005-DSC04178.jpg" imageanchor="1" style="clear: left; cssfloat: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" height="150" mt="true" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhtUrkjGK5nMyEHMs9XYqxrM0W823pVBoRkevqX2u-t5S_m3l0j6R5Is_zRHyQ_UMetQLDpfrp56csF0ekbLb-O9j7S2m9Hv_x1C54LJU9rsHjZXXBOqTIhuRhmHRK5GDahubRtnAIQ6Kg/s200/2010a-005-DSC04178.jpg" width="200" /></a><br />
</div><div style="border-bottom: medium none; border-left: medium none; border-right: medium none; border-top: medium none;">It is Monday again and I happened to have been back in the barristers’ lounge at the Windsor court with some free time. I had more than a few minutes, while I was on a break on a case where the arguments were presented in writing and we were waiting to hear if the judge wanted something more or was just going to give her decision without further argument. In the end she reserved.<br />
</div><br />
<div style="border-bottom: medium none; border-left: medium none; border-right: medium none; border-top: medium none;"><a alt="barristers' lounge workstations" href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg0VGm0p_O1cpgMg5EB-aIMg2OoCFbprRvFl7HBAE1GNz-uLb1lBLp2UrLII4d7wZWJGvDZ3VE_Rlp6YcU67pRYYm0pWdeT1kXKgMl1Oq0s7YaHacYPnJTjtAKocrC1NxAwPKelrbWWv98/s1600-h/2010a-004-DSC04177.jpg" imageanchor="1" style="clear: right; cssfloat: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" height="150" mt="true" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg0VGm0p_O1cpgMg5EB-aIMg2OoCFbprRvFl7HBAE1GNz-uLb1lBLp2UrLII4d7wZWJGvDZ3VE_Rlp6YcU67pRYYm0pWdeT1kXKgMl1Oq0s7YaHacYPnJTjtAKocrC1NxAwPKelrbWWv98/s200/2010a-004-DSC04177.jpg" width="200" /></a>The latest news is the settlement of the Ontario criminal lawyers legal aid boycott. As I remember, the boycott began last spring. It started in Toronto and then rolled out across the province, mainly involving murder and “guns and gangs” cases. The <a href="http://www.criminallawyers.ca/">Criminal Lawyers Association</a> executive ended up negotiating a deal with the Province of <a href="http://www.attorneygeneral.jus.gov.on.ca/english/news/2010/20100124-lao-nr.asp">Ontario</a>. What each is saying about the deal is a little different. It is not clear now whether there will be some formal ratification vote of the members or if it will be accepted by an <em>ad hoc</em> consensus, but in any event, it looks to be an accomplished fact.<br />
<br />
Most of the membership appears to be happy about the settlement, but from my perspective, I am not sure about whether I think it is a good deal or not. I am inclined to think it is, as a lot of naysayers predicted that in this economy, there was no sympathy for criminal lawyers. As well, our legal rate exceeds rates everywhere else in Canada. <br />
</div><div style="border-bottom: medium none; border-left: medium none; border-right: medium none; border-top: medium none;"><br />
</div><div style="border-bottom: medium none; border-left: medium none; border-right: medium none; border-top: medium none;">That said, for starters, it remains to be seen whether a proper review mechanism will be part of the new regime. Also, although we didn't demand parity with prosecutors, the deal is shy of the original modest demands we made and it will take a full five years before the promised increases take effect.<br />
</div><br />
It was really a brilliant strategy on the part of the executive to boycott only major cases. With that approach, we were able to achieve significant solidarity. The reality was that with most of covered cases being murder prosecutions, the accused were not getting bail anyways, and for the majority of them, time was on their side. So most lawyers could hold firm without it impacting on their practice at all. On the other side, the province was thus in some significant difficulty because more and more major cases were going undefended, meaning more and more prosecutions were in significant jeopardy. <br />
<br />
There was however a deadline that the executive set for itself and criminal lawyers were on the brink of having to enlarge their work action. Yet that would no doubt have resulted in some loss of solidarity. The province was in a bind too, to get their major cases on track again. So at eleventh hour, the parties settled and there was no showdown.Kenneth Golish, Lawyerhttp://www.blogger.com/profile/11374316760983165439noreply@blogger.comtag:blogger.com,1999:blog-1462583304439625937.post-31839231709050578732010-01-18T19:05:00.003-05:002010-01-18T21:05:52.196-05:00First PostI have practiced criminal law for longer than I care to say. In embarking on this blog journey, it appears I should have some focus, even something more specific than the very general subject of Canadian criminal law. On the other hand, I am not sure I need to be specific about anything. It might be simply enough to write about my experiences and thoughts as they relate to my daily practice.<br />
<br />
Let me then have the opportunity to develop this blog and when I have figured out if I have a special theme, I can let my reader or readers know. I say reader or readers to imply there will be at least one reader, for starters, myself.<br />
<br />
I have figured I would create a log on a regular basis, but do not plan on making it daily. Confidentiality requirements will not permit me to detail my activities, as I might otherwise be able to do. That said, nothing prevents me from reporting about many of my experiences.<br />
<br />
Today, for instance, was extremely slow. Most days for me will involve a court appearance of sort or the other. There are several kinds: There might be one or more trials, or preliminary hearings, or bail hearings, many of these are only set to take a day or less. Today, I had none and so nothing to prepare for. Of course, there are always things to do in the office in the management of files, but today I had to be over in court for adjournments and to do duty counsel. Because there was nothing pressing at the courthouse, I was able to start working on my blog in the barristers' lounge right on the 6th floor of the building.<br />
<br />
I am the most senior duty counsel in Windsor. Why I still do it, I wonder. Sometimes, the work can be demanding, but being assigned to do bail court in Windsor normally does not require much of a challenge. I will probably have more to write about this in later blogs, but for now, I will just say a bail court posting requires me to speak to cases on behalf of unrepresented individuals or for other lawyers. Normally, at least six or seven hearings would be scheduled in the bail court, but today there was only one, then another, neither of which proceeded. It was not even necessary for me to speak to either case because their lawyer or lawyers were there when the matters were called. The court finished early, before lunch.<br />
<br />
So I started my first blog...Kenneth Golish, Lawyerhttp://www.blogger.com/profile/11374316760983165439noreply@blogger.comtag:blogger.com,1999:blog-1462583304439625937.post-51814636138688790872007-06-20T20:11:00.000-04:002018-06-27T15:07:25.561-04:00Criminal grounds for admissibility to the United States<br />
<div class="MsoNormal">
During my years in practice, I have had occasion to
represent persons who have problems with inadmissibility to the US on criminal
grounds.<span style="mso-spacerun: yes;"> </span>This article only covers those
grounds.<span style="mso-spacerun: yes;"> </span>However, other grounds include
those relating to health issues, proper immigration documents,
misrepresentation--(see s.<span style="mso-spacerun: yes;">
</span>212(a)(6)(C))--or immigration offences.<span style="mso-spacerun: yes;">
</span>Certain criminal exclusionary grounds do not require actual prosecution
or conviction.<span style="mso-spacerun: yes;"> </span>They involve suspected
drug trafficking--(see s. 212(a)(2)(C))--suspected terrorist activity, former
Nazi activity, and prostitution-related intentions or activities.<span style="mso-spacerun: yes;"> </span>To see all the exclusionary grounds, go to s.<span style="mso-spacerun: yes;"> </span>212 of the Immigration and Naturalization
Act..<o:p></o:p></div>
<div class="MsoNormal">
<br />
This article only covers situations involving prior
records.<span style="mso-spacerun: yes;"> </span>However, even without a prior
record, a person will not be admitted to the US if a Department of Homeland
Security, formerly, <a href="https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-2006.html#0-0-0-202" target="_blank">Immigration and Naturalization (INS)</a> officer knows or
reasonably believes that a person seeks entry to engage solely, principally, or
incidentally in any unlawful activity.<span style="mso-spacerun: yes;">
</span>See the <span style="background-color: white; color: red; font-family: "Times New Roman", serif; font-weight: 700;"><a href="https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/act.html" target="_blank">IMMIGRATION AND NATIONALITY ACT</a>, </span> s.<span style="mso-spacerun: yes;"> </span>212(a)(3)(A),<br />
<o:p></o:p></div>
<div class="MsoNormal">
Basics of Exclusionary Grounds:<span style="mso-spacerun: yes;"> </span>Under s.<span style="mso-spacerun: yes;">
</span>212(a)(2)(A), other than for political offences, a person is not
admissible to the US if he or she <o:p></o:p></div>
<div class="MsoNormal">
1.<span style="mso-tab-count: 1;"> </span>Has been
convicted of or admitted to committing a crime of moral turpitude,<o:p></o:p></div>
<div class="MsoNormal">
2.<span style="mso-tab-count: 1;"> </span>Has been
convicted of or admitted to a violation of any country's laws relating to
controlled substances, including simple possession of any amount, or<o:p></o:p></div>
<div class="MsoNormal">
3.<span style="mso-tab-count: 1;"> </span>Under s.
212(a)(2)(B) if the person has been convicted of two or more offences,
regardless of whether they arose out of the same set of circumstances and
regardless of whether any moral turpitude was involved, when the aggregate
sentences involved confinement for five years or more.<o:p></o:p></div>
<div class="MsoNormal">
It is important to note that all exclusionary grounds are
lifetime bans, unless otherwise provided.<span style="mso-spacerun: yes;">
</span>However, a lifetime ban does not necessarily stop a person from getting
a waiver of his or her exclusionary grounds.<span style="mso-spacerun: yes;">
</span>Thus it is still possible for an individual to visit or immigrate to or
even become a citizen of the United States.<o:p></o:p></div>
<div class="MsoNormal">
Canadian Pardons and Discharges:<span style="mso-spacerun: yes;"> </span>The US does not recognize pardons from
other countries.<span style="mso-spacerun: yes;"> </span>A Canadian pardon,
except perhaps a free pardon-- for these purposes means absolutely
nothing.<span style="mso-spacerun: yes;"> </span>Canadian discharges, on the
other hand, are an interesting problem.<span style="mso-spacerun: yes;">
</span>As a matter of Canadian law, although a discharge is considered a finding
of guilt, it is not a conviction.<span style="mso-spacerun: yes;">
</span>However, the Immigration and Naturalization Act provides a different
definition and any discharge might be considered a basis for exclusion from the
US:<o:p></o:p></div>
<div class="MsoNormal">
Definitions s 101 <a href="https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-101/0-0-0-195.html" target="_blank">(48)(A) </a>The term
"conviction" means, with respect to an alien, a formal judgment of
guilt of the alien entered by a court or, if adjudication of guilt has been
withheld, where-<o:p></o:p></div>
<div class="MsoNormal">
(i) a judge or jury has found the alien guilty or the alien
has entered a plea of guilty or nolo contendere or has admitted sufficient
facts to warrant a finding of guilt, and<o:p></o:p></div>
<div class="MsoNormal">
(ii) the judge has ordered some form of punishment, penalty,
or restraint on the alien's liberty to be imposed.<br />
It appears that Homeland Security considers a conditional discharge the
equivalent of a conviction, but an absolute discharge is not.<span style="mso-spacerun: yes;"> </span>Thus a discharge involves an adjudication of guilt being withheld, and since a conditional
discharge involves some form of punishment, it is considered a conviction.<span style="mso-spacerun: yes;"> </span></div>
<div class="MsoNormal">
<o:p></o:p></div>
<div class="MsoNormal">
<br />
<span style="color: blue;">What is a crime of moral turpitude?</span>:<span style="mso-spacerun: yes;"> </span>A crime of moral turpitude would include
such crimes as fraud, theft, housebreaking, kidnapping, robbery, murder, arson,
forgery, rape or sexual assault.<span style="mso-spacerun: yes;"> </span>Certain
other crimes are not crimes of moral turpitude, for instance, impaired
driving.<span style="mso-spacerun: yes;"> </span>Crimes such as simple assault,
causing a disturbance or joyriding are not crimes of moral turpitude.<span style="mso-spacerun: yes;"> </span>Even manslaughter, in most instances, is not
a crime of moral turpitude.<span style="mso-spacerun: yes;"> </span>An individual
convicted of such a crime is not excludable as long as he or she has no other
convictions or his or her total sentences do not exceed five years.<span style="mso-spacerun: yes;"> </span>However, where an offence involves some
element of reckless conduct, such conduct may constitute a crime of moral
turpitude.<span style="mso-spacerun: yes;"> </span>Close examination of the
statutory provision is necessary, but in Canada these may include dangerous
driving and criminal negligence causing death.<o:p></o:p></div>
<div class="MsoNormal">
<br />
<span style="color: blue;">Single crime exception-crimes of moral turpitude</span>:<span style="mso-spacerun: yes;"> </span>See s.<span style="mso-spacerun: yes;">
</span>212(a)(2)(A)(ii) The single crime of moral turpitude exception applies
when the offence is punishable by a year or less and the sentence imposed does
not exceed six months.<span style="mso-spacerun: yes;"> </span>Another single
crime exception applies to offences committed when a person is under the age of
18 as long as five years has elapsed from the date the sentence was
completed.<span style="mso-spacerun: yes;"> </span>The single offence exception
does not appear to apply to convictions for two or more offences, even when
they arise out of the same incident.<span style="mso-spacerun: yes;"> </span>The
single crime exception does not apply to drug convictions at all.<span style="mso-spacerun: yes;"> </span>However, it is not clear whether an
individual may be entitled to both exceptions, that is, one minor crime and one
crime committed under the age of 18 years.<o:p></o:p></div>
<div class="MsoNormal">
Is a 12-month conditional sentence the same as 12-months in
jail?:<span style="mso-spacerun: yes;"> </span>In some instances--in
calculating if an individual has received total sentences of five years for
offences including other than crimes of moral turpitude--this question might
have to be answered in order to determine if a person is inadmissible.<span style="mso-spacerun: yes;"> </span>We find this definition in the Immigration
and Naturalization Act:<span style="mso-spacerun: yes;"> </span><o:p></o:p></div>
<div class="MsoNormal">
Definitions s. 101 (a) As used in this Act-<o:p></o:p></div>
<div class="MsoNormal">
(48)(B) Any reference to a term of imprisonment or a
sentence with respect to an offense is deemed to include the period of
incarceration or confinement ordered by a court of law regardless of any
suspension of the imposition or execution of that imprisonment or sentence in
whole or in part.<o:p></o:p></div>
<div class="MsoNormal">
Under the Criminal Code, a judge may impose a term of
probation or a conditional sentence.<span style="mso-spacerun: yes;"> </span>A
term of probation does not involve any term of imprisonment and no term of
imprisonment is suspended thereby.<span style="mso-spacerun: yes;"> </span>The
term in a probation order is the term of probation, not the term of
imprisonment suspended.<span style="mso-spacerun: yes;"> </span><o:p></o:p></div>
<div class="MsoNormal">
<br />
In 1996, Canada introduced conditional sentences.<span style="mso-spacerun: yes;"> </span>It allows judges, where the sentence would
otherwise be less than two years, to imposed an alternative sentence to be
served in the community.<span style="mso-spacerun: yes;"> </span>In substance, a
conditional sentence is more like a term of probation than a term in jail.<span style="mso-spacerun: yes;"> </span>Although the Supreme Court of Canada has
stated house arrest should be the rule for conditional sentences, it is not
mandatory.<span style="mso-spacerun: yes;"> </span>Moreover, house arrest is
also an option for a term of probation.<span style="mso-spacerun: yes;">
</span>The most important indicator of the substantive nature of the sentence
is the pronouncement by the Supreme Court that a conditional sentence should
normally be longer than an equivalent term in prison.<span style="mso-spacerun: yes;"> </span>This clearly suggests that the length of a
conditional sentence cannot be included in calculating the total period an
individual's jail sentences.<span style="mso-spacerun: yes;"> </span>Nonetheless,
it appears the Department of Homeland Security views conditional sentences for
these purposes as jail sentences.<o:p></o:p></div>
<div class="MsoNormal">
<br />
<span style="background-color: #eeeeee;"><span style="color: blue;">Admissions of crime:</span></span><span style="mso-spacerun: yes;"><span style="background-color: #eeeeee;"> </span>
</span>Under what circumstances does an admission of crime constitute a basis
for exclusion?<span style="mso-spacerun: yes;"> </span>Clearly the admission must
be voluntary.<span style="mso-spacerun: yes;"> </span>Here is an example of the
issue of voluntary admissions.<span style="mso-spacerun: yes;"> </span>Many
persons crossing the border bring drugs with them.<span style="mso-spacerun: yes;"> </span>For small quantities involving the possession
of marijuana, US Customs officials normally do not institute prosecutions.<span style="mso-spacerun: yes;"> </span>Instead an administrative penalty is imposed
along with a demand that the offender sign an acknowledgment of
responsibility.<span style="mso-spacerun: yes;"> </span>For many years, the INS
considered this equivalent to an admission, making the individual inadmissible.<span style="mso-spacerun: yes;"> </span>That interpretation had some problems because
such an acknowledgment would seem to be a matter of compulsion.<span style="mso-spacerun: yes;"> </span>To my knowledge, Homeland Security no longer
adheres to the view that such acknowledgments are admissions for these
purposes.<span style="mso-spacerun: yes;"> </span>That being the case and given
the fact that Homeland Security does not exclude an individual who only has an
absolute discharge, it is not at all clear what kind of admission of criminal
responsibility would make a person inadmissible.<span style="mso-spacerun: yes;"> </span>Some INS inspectors have used this provision
after eliciting incriminating answers from prospective entrants.<span style="mso-spacerun: yes;"> </span>Beyond that, it appears in many instances
that an admission in a judicial setting--a statement made under oath or in open
court--may or may not be included.<span style="mso-spacerun: yes;"> </span>What
is clear is that any admission to a US government official, particularly, a
Homeland Security inspector, would qualify.<span style="mso-spacerun: yes;">
</span>However, in my view, a simple statement made in other context would not.<o:p></o:p></div>
<div class="MsoNormal">
<br />
<span style="color: blue;">Examples of Inadmissibility Problems</span><o:p></o:p></div>
<div class="MsoNormal">
<br />
Canadian Client A:<span style="mso-spacerun: yes;">
</span>Has a 1999 conviction for impaired driving ($500 fine) and one for a
1990 assault by summary conviction (6 months probation).<span style="mso-spacerun: yes;"> </span>At the age of 17, she received an absolute
discharge for marijuana possession after pleading guilty.<span style="mso-spacerun: yes;"> </span>Client is admissible because she only has one
crime of moral turpitude conviction and the single crime exception
applies.<span style="mso-spacerun: yes;"> </span>The absolute discharge is not
counted as a conviction.<o:p></o:p></div>
<div class="MsoNormal">
<br />
Canadian Client B:<span style="mso-spacerun: yes;">
</span>In 1990 he received a conditional discharge--after pleading not guilty
and having a trial--for marijuana possession.<span style="mso-spacerun: yes;">
</span>Client is inadmissible because this counts as a conviction.<o:p></o:p></div>
<div class="MsoNormal">
<br />
Canadian Client C:<span style="mso-spacerun: yes;">
</span>In 1980 she was found guilty of manslaughter after a trial for first
degree murder.<span style="mso-spacerun: yes;"> </span>The sentence was eight
years in jail.<span style="mso-spacerun: yes;"> </span>Client is probably
admissible because the Criminal Code definition of manslaughter is probably not
a crime of moral turpitude.<span style="mso-spacerun: yes;"> </span>However, a
conviction for manslaughter, may arise in a number of circumstances.<span style="mso-spacerun: yes;"> </span>For instance, a person who has no intention
to harm, but only to commit an assault is guilty of manslaughter if the assault
results in death.<span style="mso-spacerun: yes;"> </span>On the other hand, a
crime that might otherwise be murder could be reduced to manslaughter by reason
of provocation or drunkenness.<span style="mso-spacerun: yes;">
</span>Therefore, it may be necessary to examine how the verdict of
manslaughter came about because one type of circumstance may amount to a crime
of moral turpitude, but another might not.<span style="mso-spacerun: yes;">
</span>In this example, assuming it is not a crime of moral turpitude, the five
year total sentence provision applies only to multiple convictions.<span style="mso-spacerun: yes;"> </span>Of course, an individual would not be
admissible if he or she has a five-year-plus sentence for manslaughter coupled
with any other conviction whether for a crime of moral turpitude or not and
regardless of any additional jail sentence.<o:p></o:p></div>
<div class="MsoNormal">
<br />
Canadian Client D:<span style="mso-spacerun: yes;">
</span>He was found guilty of a 1995 sexual assault.<span style="mso-spacerun: yes;"> </span>The prosecutor proceeded by summary
conviction and D received two months in jail.<span style="mso-spacerun: yes;">
</span>With no other convictions, client is probably admissible because the
maximum sentence under the Criminal Code was six months by way of summary
conviction.<span style="mso-spacerun: yes;"> </span>However, the same
prosecution by summary conviction today involves an 18 month maximum and the
single crime exclusion would not apply.<o:p></o:p></div>
<div class="MsoNormal">
<br />
Canadian Client E:<span style="mso-spacerun: yes;">
</span>He was found guilty of a 1998 sexual assault.<span style="mso-spacerun: yes;"> </span>The prosecutor proceeded by summary conviction
and D received four months in jail.<span style="mso-spacerun: yes;"> </span>When
he was released he decided to appeal the conviction.<span style="mso-spacerun: yes;"> </span>The conviction was overturned two months
later at the same time leave to appeal was granted.<span style="mso-spacerun: yes;"> </span>It appears that whether an appeal is out of
time or not when launched, for US immigration purposes, the person stands
convicted until the conviction is overturned.<span style="mso-spacerun: yes;">
</span>In this case however, since the client's appeal was out of time--he only
had 30 days--he needed leave to appeal.<span style="mso-spacerun: yes;">
</span>Therefore, until the appeal was allowed, the case was not under appeal
and he stood convicted.<o:p></o:p></div>
<div class="MsoNormal">
<br />
Kim Campbell, former Prime Minister of Canada:<span style="mso-spacerun: yes;"> </span>She told the press she had once used a
controlled substance.<span style="mso-spacerun: yes;"> </span>As Prime Minister,
Kim Campbell would never have been refused entry to the US for this
statement.<span style="mso-spacerun: yes;"> </span>As a private citizen, her
statement would probably not make her excludable anyway.<o:p></o:p></div>
<div class="MsoNormal">
Note Regarding American Indians Born in Canada:<span style="mso-spacerun: yes;"> </span>Persons who qualify under the definition of
"American Indians born in Canada" cannot be excluded under these
provisions.<span style="mso-spacerun: yes;"> </span>However, to qualify they
must have at least 50% American Indian blood and therefore spouses and children
of such persons must qualify on their own.<span style="mso-spacerun: yes;">
</span>American Indian blood simply refers to persons of native ancestry.<o:p></o:p></div>
<div class="MsoNormal">
<br />
What You Need to Know When Crossing the Border<o:p></o:p></div>
<div class="MsoNormal">
Questions at the Border:<span style="mso-spacerun: yes;">
</span>INS inspectors may question persons seeking entry into the United
States.<span style="mso-spacerun: yes;"> </span>Questions may relate to an
individual's past criminal record.<span style="mso-spacerun: yes;">
</span>Inspectors even have the authority to require the individual to submit
to questions under oath.<span style="mso-spacerun: yes;"> </span>Persons seeking
entry to the United States should be very careful to answer questions in a
truthful manner.<span style="mso-spacerun: yes;"> </span>An untruthful answer
may automatically create another ground of inadmissibility, namely
excludability for misrepresentation.<span style="mso-spacerun: yes;"> </span>See
s. 212(a)(6)(C)).<span style="mso-spacerun: yes;"> </span>A person might be
questioned about whether he or she has ever been arrested or charged with a
criminal offence.<span style="mso-spacerun: yes;"> </span>If a person has been
charged or arrested, but not convicted, he or she is not excludable from the
United States.<span style="mso-spacerun: yes;"> </span>However, if a person
falsely claims he or she has not been arrested, that may be considered a
material misrepresentation, regardless of whether that person was ever
convicted of anything.<span style="mso-spacerun: yes;"> </span>The test of
materiality is that a material misrepresentation cuts off a line of inquiry
that may lead to some substantive information concerning the person's
admissibility or reasons for entry.<o:p></o:p></div>
<div class="MsoNormal">
A person with any kind of criminal record should not attempt
to cross the border without first determining whether his or her record is
sufficient to bar entry.<span style="mso-spacerun: yes;"> </span>However, even
when no bar exists, persons seeking entry to the US need to be prepared to
answer questions like the following:<o:p></o:p></div>
<div class="MsoNormal">
Have you ever been arrested?<o:p></o:p></div>
<div class="MsoNormal">
Have you ever been charged?<o:p></o:p></div>
<div class="MsoNormal">
Have you ever been refused entry to the United States?<o:p></o:p></div>
<div class="MsoNormal">
<br />
<span style="color: blue;">Questions That Do not Have to be Answered:</span><span style="mso-spacerun: yes;"><span style="color: blue;"> </span> </span>The US Constitution protects everyone, even
persons without any immigration status, at least in respect of certain
fundamental rights.<span style="mso-spacerun: yes;"> </span>The protection against
self-incrimination may arise in this context.<span style="mso-spacerun: yes;"> </span>Thus, no one is required to admit to having
committed a crime or even to answer questions that may tend to prove it.<span style="mso-spacerun: yes;"> </span>One may simply say "I refuse to answer
that question on the grounds that it may incriminate me."<span style="mso-spacerun: yes;"> </span>However, a question about being arrested in
the past or charged or refused entry to the US is not a question the answer to
which might be incriminating. This is only the opinion of the author, and it may be the case that the right to protection from self-incrimination does not apply in this circumstance.<o:p></o:p></div>
<div class="MsoNormal">
<br />
<span style="color: blue;">Pending Charges:</span><span style="mso-spacerun: yes;"><span style="color: blue;"> </span>
</span>INS inspectors have access to the Canadian Police Information Computer
(CPIC) which includes details of pending charges.<span style="mso-spacerun: yes;"> </span>Most INS inspectors will refuse to admit
persons who have pending charges, even in the absence of any previous
conviction.<span style="mso-spacerun: yes;"> </span>In most instances this
policy would be in error unless the officer knows or reasonably believes the
individual in question seeks entry to engage solely, principally, or
incidentally in any unlawful activity.<span style="mso-spacerun: yes;">
</span>See s.<span style="mso-spacerun: yes;"> </span>212(a)(3)(A), Nonetheless,
it appears to be a common policy to refuse entry to persons with pending
charges, at least if those charges, upon conviction, would make the person
inadmissible. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<br />Kenneth Golish, Lawyerhttp://www.blogger.com/profile/11374316760983165439noreply@blogger.com