Last 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.

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 earlier blog, that I thought the deal looked pretty good.

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.
 
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 pro bono.  This was not the only change in the operation of the plan. 
 
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.

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. 

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.

Civil Remedies and the Criminal Law

I 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 Civil Remedies Act, 2001. 

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 Criminal Code of Canada.  I am now exploring this problem in another multi-part commentary.

The New Pardon Regime

The Criminal Records Act, the enactment that sets out the procedure 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 Globe and Mail article "MPs agree to head off Homolka’s bid for pardon"

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.

As well, you won't hear me complain about there being more work for lawyers to do.

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?

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. 

It will be interesting to see what develops.

Changing release conditions

I 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. 

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.

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.

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..."

Surety 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.

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. 

The Ministry of Attorney General 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, "What Sureties Need to Know" that I would disagree with.  The difference between the pamplet and the new form and the problems with the new form are these:

1. 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;
2. The statements that the surety guarantees the good conduct of the accused are questionable;
3. The statement that the surety could be imprisoned are questionable.

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.

The Court of Appeal for Ontario case of Canada (Attorney General) v. Horvath, 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.
The court noted that on the one hand, efforts by sureties were to be recognized and should go to mitigation.
However, it was still important for the integrity of the system for entirety of the bail to be at risk.

[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.
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. ... 

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. 

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.

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.

Interestingly, the form--download pdf file from golishlaw.com site--now being circulated, includes no statement as to its authorship, and essentially copies the basic form used in the Horvath case.  Moreover, the only modification is the additional threat to the proposed surety of a jail term:

OBLIGATIONS OF A SURETY and CONSEQUENCES OF BREACH

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.
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.
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,.
4) I understand that if I do not meet a financial obligation ordered by the court, I may be imprisoned. 

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 "What Sureties Need to Know" document.

Ubi jus ibi remedium

The recent Supreme Court case of Canada (Prime Minister) v. Khadr, 2010 SCC 3 (CanLII)  is but another dilemma of recognizing rights under the Canadian Charter of Rights and Freedoms.

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, Ubi jus ibi remedium.  The Charter includes its own statement about this:

Enforcement

Enforcement of guaranteed rights and freedoms

24. (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.

Exclusion of evidence bringing administration of justice into disrepute

(2) 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.

The headnote in Canada (Prime Minister) v. Khadr, outlines these facts:

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 Khadr v. Canada (“Khadr 2008”), 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. 7 of the Canadian Charter of Rights and Freedoms, 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 Charter.  The Federal Court held that under the special circumstances of this case, Canada had a duty to protect K under s. 7 of the Charter 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”.

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. 

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.

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 Charter. 

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.

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 lawsuits for Charter breaches just don't generally happen. 

The story 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.

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.

Offsetting a prosecutor's discretion

It 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.

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.

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 Classification of Offences.

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.

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.

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.

Showdown at High Noon: the Legal Aid Boycott

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.

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 Criminal Lawyers Association executive ended up negotiating a deal with the Province of Ontario.  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 ad hoc consensus, but in any event, it looks to be an accomplished fact.

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. 

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.

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. 

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.

First Post

I 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.

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.

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.

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.

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.

So I started my first blog...

Criminal grounds for admissibility to the United States

During my years in practice, I have had occasion to represent persons who have problems with inadmissibility to the US on criminal grounds.  This article only covers those grounds.  However, other grounds include those relating to health issues, proper immigration documents, misrepresentation--(see s.  212(a)(6)(C))--or immigration offences.  Certain criminal exclusionary grounds do not require actual prosecution or conviction.  They involve suspected drug trafficking--(see s. 212(a)(2)(C))--suspected terrorist activity, former Nazi activity, and prostitution-related intentions or activities.  To see all the exclusionary grounds, go to s.  212 of the Immigration and Naturalization Act..

This article only covers situations involving prior records.  However, even without a prior record, a person will not be admitted to the US if a Department of Homeland Security, formerly, Immigration and Naturalization (INS) officer knows or reasonably believes that a person seeks entry to engage solely, principally, or incidentally in any unlawful activity.  See the IMMIGRATION AND NATIONALITY ACT,  s.  212(a)(3)(A),

Basics of Exclusionary Grounds:    Under s.  212(a)(2)(A), other than for political offences, a person is not admissible to the US if he or she

1.            Has been convicted of or admitted to committing a crime of moral turpitude,

2.            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

3.            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.

It is important to note that all exclusionary grounds are lifetime bans, unless otherwise provided.  However, a lifetime ban does not necessarily stop a person from getting a waiver of his or her exclusionary grounds.  Thus it is still possible for an individual to visit or immigrate to or even become a citizen of the United States.

Canadian Pardons and Discharges:    The US does not recognize pardons from other countries.  A Canadian pardon, except perhaps a free pardon-- for these purposes means absolutely nothing.  Canadian discharges, on the other hand, are an interesting problem.  As a matter of Canadian law, although a discharge is considered a finding of guilt, it is not a conviction.  However, the Immigration and Naturalization Act provides a different definition and any discharge might be considered a basis for exclusion from the US:

Definitions s 101 (48)(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-

(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

(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed.
It appears that Homeland Security considers a conditional discharge the equivalent of a conviction, but an absolute discharge is not.  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.  

What is a crime of moral turpitude?:    A crime of moral turpitude would include such crimes as fraud, theft, housebreaking, kidnapping, robbery, murder, arson, forgery, rape or sexual assault.  Certain other crimes are not crimes of moral turpitude, for instance, impaired driving.  Crimes such as simple assault, causing a disturbance or joyriding are not crimes of moral turpitude.  Even manslaughter, in most instances, is not a crime of moral turpitude.  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.  However, where an offence involves some element of reckless conduct, such conduct may constitute a crime of moral turpitude.  Close examination of the statutory provision is necessary, but in Canada these may include dangerous driving and criminal negligence causing death.

Single crime exception-crimes of moral turpitude:  See s.  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.  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.  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.  The single crime exception does not apply to drug convictions at all.  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.

Is a 12-month conditional sentence the same as 12-months in jail?:    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.  We find this definition in the Immigration and Naturalization Act: 

Definitions s. 101 (a) As used in this Act-

(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.

Under the Criminal Code, a judge may impose a term of probation or a conditional sentence.  A term of probation does not involve any term of imprisonment and no term of imprisonment is suspended thereby.  The term in a probation order is the term of probation, not the term of imprisonment suspended. 

In 1996, Canada introduced conditional sentences.  It allows judges, where the sentence would otherwise be less than two years, to imposed an alternative sentence to be served in the community.  In substance, a conditional sentence is more like a term of probation than a term in jail.  Although the Supreme Court of Canada has stated house arrest should be the rule for conditional sentences, it is not mandatory.  Moreover, house arrest is also an option for a term of probation.  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.  This clearly suggests that the length of a conditional sentence cannot be included in calculating the total period an individual's jail sentences.  Nonetheless, it appears the Department of Homeland Security views conditional sentences for these purposes as jail sentences.

Admissions of crime:    Under what circumstances does an admission of crime constitute a basis for exclusion?  Clearly the admission must be voluntary.  Here is an example of the issue of voluntary admissions.  Many persons crossing the border bring drugs with them.  For small quantities involving the possession of marijuana, US Customs officials normally do not institute prosecutions.  Instead an administrative penalty is imposed along with a demand that the offender sign an acknowledgment of responsibility.  For many years, the INS considered this equivalent to an admission, making the individual inadmissible.  That interpretation had some problems because such an acknowledgment would seem to be a matter of compulsion.  To my knowledge, Homeland Security no longer adheres to the view that such acknowledgments are admissions for these purposes.  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.  Some INS inspectors have used this provision after eliciting incriminating answers from prospective entrants.  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.  What is clear is that any admission to a US government official, particularly, a Homeland Security inspector, would qualify.  However, in my view, a simple statement made in other context would not.

Examples of Inadmissibility Problems

Canadian Client A:    Has a 1999 conviction for impaired driving ($500 fine) and one for a 1990 assault by summary conviction (6 months probation).  At the age of 17, she received an absolute discharge for marijuana possession after pleading guilty.  Client is admissible because she only has one crime of moral turpitude conviction and the single crime exception applies.  The absolute discharge is not counted as a conviction.

Canadian Client B:    In 1990 he received a conditional discharge--after pleading not guilty and having a trial--for marijuana possession.  Client is inadmissible because this counts as a conviction.

Canadian Client C:    In 1980 she was found guilty of manslaughter after a trial for first degree murder.  The sentence was eight years in jail.  Client is probably admissible because the Criminal Code definition of manslaughter is probably not a crime of moral turpitude.  However, a conviction for manslaughter, may arise in a number of circumstances.  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.  On the other hand, a crime that might otherwise be murder could be reduced to manslaughter by reason of provocation or drunkenness.  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.  In this example, assuming it is not a crime of moral turpitude, the five year total sentence provision applies only to multiple convictions.  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.

Canadian Client D:    He was found guilty of a 1995 sexual assault.  The prosecutor proceeded by summary conviction and D received two months in jail.  With no other convictions, client is probably admissible because the maximum sentence under the Criminal Code was six months by way of summary conviction.  However, the same prosecution by summary conviction today involves an 18 month maximum and the single crime exclusion would not apply.

Canadian Client E:    He was found guilty of a 1998 sexual assault.  The prosecutor proceeded by summary conviction and D received four months in jail.  When he was released he decided to appeal the conviction.  The conviction was overturned two months later at the same time leave to appeal was granted.  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.  In this case however, since the client's appeal was out of time--he only had 30 days--he needed leave to appeal.  Therefore, until the appeal was allowed, the case was not under appeal and he stood convicted.

Kim Campbell, former Prime Minister of Canada:    She told the press she had once used a controlled substance.  As Prime Minister, Kim Campbell would never have been refused entry to the US for this statement.  As a private citizen, her statement would probably not make her excludable anyway.

Note Regarding American Indians Born in Canada:    Persons who qualify under the definition of "American Indians born in Canada" cannot be excluded under these provisions.  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.  American Indian blood simply refers to persons of native ancestry.

What You Need to Know When Crossing the Border

Questions at the Border:    INS inspectors may question persons seeking entry into the United States.  Questions may relate to an individual's past criminal record.  Inspectors even have the authority to require the individual to submit to questions under oath.  Persons seeking entry to the United States should be very careful to answer questions in a truthful manner.  An untruthful answer may automatically create another ground of inadmissibility, namely excludability for misrepresentation.  See s. 212(a)(6)(C)).  A person might be questioned about whether he or she has ever been arrested or charged with a criminal offence.  If a person has been charged or arrested, but not convicted, he or she is not excludable from the United States.  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.  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.

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.  However, even when no bar exists, persons seeking entry to the US need to be prepared to answer questions like the following:

Have you ever been arrested?

Have you ever been charged?

Have you ever been refused entry to the United States?

Questions That Do not Have to be Answered:    The US Constitution protects everyone, even persons without any immigration status, at least in respect of certain fundamental rights.  The protection against self-incrimination may arise in this context.  Thus, no one is required to admit to having committed a crime or even to answer questions that may tend to prove it.  One may simply say "I refuse to answer that question on the grounds that it may incriminate me."  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.

Pending Charges:    INS inspectors have access to the Canadian Police Information Computer (CPIC) which includes details of pending charges.  Most INS inspectors will refuse to admit persons who have pending charges, even in the absence of any previous conviction.  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.  See s.  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.