Toronto Criminal Lawyers Blog

Our clients are often concerned about the effect a criminal conviction could have on their ability to travel to the United States. If you are convicted of a criminal offence in Canada, that conviction could have repercussions on any future plans to enter the United States. The US has strict entrance laws for foreign visitors with criminal records.

Under American law, foreigners may be denied entrance to the United States if they are deemed to be “inadmissible” by the Bureau of Customs and Border Protection. There are three categories of criminal behaviour that render an individual inadmissible.

Categories of Inadmissibility

• Drugs The most common reason Canadians are denied entry to the United States is a prior drug-related conviction. Any violation relating to a controlled substance (even simple possession of marijuana) can be grounds for denying a foreigner entry to the US.
• Crimes Involving Moral Turpitude The term “crimes involving moral turpitude” (CIMTs) refers to a large category of offences which are considered to be contrary to community standards or community morals. Though there is no definitive list of CIMTs, decades of immigration cases have led to the evolution of a non-exhaustive list of crimes which are always considered CIMTs. Some examples are fraud, arson, blackmail, burglary, embezzlement, theft, counterfeiting, perjury, kidnapping, manslaughter, murder, prostitution, and rape. Simple assault or assault with a weapon are not CIMTs. However, assault with intent to kill, rape, commit a robbery, or cause serious bodily harm is a CIMT as is assault with a dangerous weapon. For a good list of crimes that are CIMTs see http://en.wikipedia.org/wiki/Moral_turpitude.
• Multiple Criminal Convictions If you have been convicted of two or more criminal offences you may be denied entry into the United States. This rule encompasses any type of offence regardless of whether it is a CIMT. The only exception to this rule is for political offences. Political offences are offences which an individual commits for a political purpose. Following the decision in Dunlayici, an offence only qualifies as a political offence if it is directed against the government and forms a part of an on-going or contemplated political struggle. This exception also tends to be limited to political offences which do not involve the use of violence.

These categories are so comprehensive that, in practice, almost any Canadian with a criminal record is likely ineligible for entry to the United States.

Convictions

A conviction for one of the offences listed above has the ability to render an individual inadmissible to the United States. However, U.S. law uses a very broad definition of the term conviction. U.S. law recognizes that an absolute discharge from a Canadian criminal court does not qualify as a conviction for immigration purposes. However, a Canadian conditional discharge is considered a conviction for US immigration purposes. This means that if you were charged with a criminal offence which falls into one of the categories of inadmissibility and you were granted a conditional discharge you are likely ineligible for entry into the United States. A conviction from a Canadian criminal court likewise qualifies as a conviction under U.S. immigration law and leads to inadmissibility.

Furthermore, under US immigration law, even if you are acquitted at trial or the charges against you are stayed, you may still be deemed inadmissible to the U.S.. This can happen in two different ways. First, if you admit to committing a crime but you are nonetheless acquitted by a Canadian court that acquittal is a deemed conviction for US immigration purposes. This could happen, for example, if you admitted to committing a crime at trial but were acquitted based on a successful claim under the Canadian Charter of Rights and Freedoms. The second way you may be deemed inadmissible, regardless of having been acquitted by a Canadian court, is if you admitted at trial to committing acts which constitute the essential elements of an offence. An acquittal (where you do not admit committing a crime or committing certain acts which constitute all the essential elements of a crime) does not render you inadmissible to the U.S.

Criminal Behaviour

There are some types of criminal behaviour which can render an individual inadmissible even if they have never been convicted of a crime. This occurs when an Immigration Officer knows or has reason to suspect that an individual has engaged in two specific types of criminal behaviour.

• Controlled Substance Trafficking If an immigration officer knows or has reason to believe an individual is or has been trafficking in a controlled substance that person may be excluded under U.S. immigration law. This rule also applies to individuals who assist, abet, conspire or collude with others to engage in trafficking.
• Prostitution and Commercial Vice If an immigration officer knows or has reason to believe that an individual is coming to the United States to engage in prostitution that person can be excluded. This rule also excludes individuals who have engaged in prostitution within the last 10 years. Individuals who attempt to procure or import prostitutes or who receive profits from prostitution (“pimps”) are also deemed inadmissible by this rule. Finally, this rule excludes individuals who an Immigration Officer believes to be traveling to the United States to purchase the services of a prostitute (“johns”).

Exceptions

There are a number of exceptions to the laws which govern this type of inadmissibility. For example, a Canadian conviction which, had it been committed in the U.S., would have been treated as an act of juvenile delinquency under U.S. federal guidelines will not count as a conviction for U.S. immigration purposes. This means that if you are convicted of a crime committed before your eighteenth birthday you likely will not be deemed inadmissible to the United States. There are also some circumstances where a single conviction for a CIMT will be overlooked for immigration purposes. If you have committed a crime and want more information on your eligibility to enter the United States visit the Bureau of Customs and Border Protection website at: http://www.cbp.gov/ or contact a local immigration lawyer.

Pardons

If you have a criminal record which renders you ineligible for entry into the United States, you may be able to enter the U.S. if you obtain an entry waiver or a criminal pardon in Canada. If you are pardoned in Canada, the offence will not appear on your record when you attempt to enter the United States. If however, you have made an unsuccessful attempt to enter the United States, the offence will already be on record with the Bureau of Customs and Border Protection, and you may have to obtain an entry waiver to enter the US.

The best way to make sure you are able to enter the United States is to avoid a criminal conviction. If you are facing criminal charges be sure to contact Kostman & Pyzer, Barristers, to ensure that a criminal accusation does not become an impediment to your ability to travel.

One of the first questions a client asks whcn charged with Domestic Assault is if there is any way that they could “get” a Peace Bond. Of course, in most  cases of domestic assault the Peace Bond is a happy ending. The charge is withdrawn. The accused avoids a criminal record. Life returns to normal. In some cases the parties have reconciled. Often, the relationships that gave rise to the allegations, cannot survive the test of bail orders restricting contact and the fact that the complainant made the accusation to the police.

The reality in the present criminal justice system is that Peace Bonds are very hard to obtain in the context of a domestic assault allegation. In some jurisdictions, it is almost impossible to obtain a Peace Bond prior to a trial date. On the trial date, where the prosecutor is of the view that the evidence in support of the allegation is not strong enough for a Court to convict, the client may be offered a Peace Bond. The nastier the allegation, the more likely that the prosecutor is going to let the Court make the call rather that be critized later if the Peace Bond creates a controversy.

Generally speaking, given the current political landscape of the offence of Domestic Assault, a Peace Bond is only available in the most minor cases. Threats of violence without any violence, or history of violence, may qualify,. This is  especially true if the allegation is of a he said she said nature, and unsupported by corroborative evidence. In these cases, the prosecution is aware of the fact that a conviction is unlikely.

A Peace Bond may also be available if the nonconsensual touching is viewed as very minor, and there is no history of violence between the parties. A push. Sometimes a slap. The fact that the accused has some indication of bruising can also be a factor which may influence a prosecutor to exercise their discretion to agree to a Peace Bond. The accused’s bruises would advance his defence that the complainant was the aggressor and he was acting in self-defence.

Most courthouses in the Greater Toronto area have one or two domestic assault court days wherein those individuals charged with domestic assault related offences, appear. In the current prevailing politic individuals charged with domestic assaul are generally offered a quick exit from the justice system. Where there is no history of domestic violence,and so long as there is no significant injury to the complainant, the average accused person is offered a conditional discharge (a guilty plea which is not technically a criminal record). The bail is varied to allow the parties to reconcile (with the complainant’s written consent). After the person completes the four month one night per week Partner Assault Response Spousal programme (anger management in a spousal context), they are placed on Probation.

At Kostman and Pyzer, Barristers, we are well informed, experienced, and familiar with the politic underlying Domestic Assault prosecution policies.  We can’t promise you a Peace Bond, but we can advance a strong argument that one should be available in the particular circumstances of your case.

The PARS Program — which stands for Partner Assault Response Services — is an important component of Ontario’s Domestic Violence prosecution strategy. It consists of a specialized counseling and educational service for those individuals who are found guilty of a domestic violence-related offence. Upon a finding of guilt, the individual will be referred to PARS either by the Domestic Violence co-ordinator or by the Probation and Parole office.

The PARS Program lasts sixteen weeks in total. During those sixteen weeks, participants learn about appropriate behaviour towards their partner and non-violent ways to deal with their anger. Participants are expected to attend the program for one hour each week. The program is available in both English and French, and translator services can be provided for most other languages.

In order to be eligible for the program, the offender must be at least 18 years old, must be referred by a courts or probation office and must agree to participate in the program. Participation in the PARS program is voluntary. However, Toronto courts will often give individuals charged with an offence an incentive to participate in PARS, by offering a reduced sentence or probation if the accused individual agrees to enter the program. In most cases, before an individual is eligible for PARS there must be a finding of guilt against them. In some cases, an individual may participate in the program on the understanding that upon successful completion, they will receive a Peace Bond. As criminal defence lawyers, we always strive to avoid a finding of guilt for our clients and urge them only to enter the PARS program if they understand that although an absolute or conditional discharge does not constitute a criminal record, it is a finding of guilt and will show up as such on CPIC the police database.

Those who live in the Toronto Area and want to learn more about the PARS program can attend an information session on the PARS Domestic Assault Program held at the 1000 Finch courthouse on Tuesdays at 1:00 p.m. in courtroom 303. You may also call 1-888-579-2888 (outside Greater Toronto Area) or 416-314-2447 (inside Greater Toronto Area) to get more information and find the PARS location nearest you.

All of the offences in the Criminal Code of Canada can be classified as summary, indictable or hybrid. The classification of an offence generally tells us how serious the offence is and what types of punishments are available to the Crown. As criminal defence lawyers operating in the city of Toronto we routinely deal with all three types of offences. If you are accused of a crime, it is useful to understand the differences between these three categories of offences to better understand the charge against you.

Summary Offences

Summary offences are minor offences which, by law, carry relatively lenient penalties. According to section 787 of the Criminal Code of Canada, summary conviction offences can be punished by a maximum of six months imprisonment, a fine of $2000, or both. Some examples of summary offences are causing a disturbance; making harassing telephone calls, taking a motor vehicle without the owner’s consent, trespassing, and communicating to obtain the services of a prostitute.

Indictable Offences

Indictable offences are considered more serious than summary offences. Indictable offences can carry serious fines and jail time up to life imprisonment.  There are three types of indictable offences.

• Section 553 Offences These are less serious indictable offences.  They are always heard in provincial court by a judge alone. In Toronto, provincial courts include Old City Hall, 2201 Finch Street West, 1000 Finch Street West and College Park. These offences carry a maximum penalty of 2 years imprisonment. Some examples are breach of recognizance, theft under $5000, failure to comply with a probation order, etc.
• Section 561 Offences These are moderately serious offences. If you are charged with a s. 561 offence, you have the right to choose whether the case will be heard in provincial or superior court and whether or not it will be heard by a jury. In Toronto, Superior Court is located at 361 University Avenue. Section 561 offences carry a maximum penalty of 14 years, although sentences are more often in the 5 to 10 year range. Some examples are sexual assault with a weapon, fraud over $5000, theft over $5000, arson, and robbery.
• Section 469 Offences These are the most serious types of offences in the criminal justice system. They are always tried in Superior Court by a judge and jury. Moreover, they carry a maximum penalty of life in prison. Some examples are: first degree murder, second degree murder, manslaughter, hijacking, kidnapping, and hostage taking.

Hybrid Offences

Many offences in the criminal code may be prosecuted as a summary offence or as an indictable offence. These are known as hybrid offences. If you are charged with a hybrid offence, at some point in the pre-trial process the Crown will be called upon to decide whether they are going to proceed summarily or by indictment. This decision is referred to as a “Crown Election”. If the Crown chooses to elect summarily, the offence will be treated as a summary offence for all practical purposes (and vice versa if the Crown chooses to proceed by indictment). Some examples of hybrid offences are sexual assault, sexual interference, and simple assault. Although these offences are called hybrid offences at the beginning of the trial process, at some point the Crown will choose to proceed summarily or by indictment. Thus, by the time these charges are dealt with (by plea, trial, or the like) they will always be designated as either summary or indictable and treated as such. The main difference between an election to proceed summarily and an election to proceed by indictment is that more severe penalties attach to indictable offences.

Procedural Differences

There are some procedural differences between how the criminal justice system proceeds with summary offences and how it proceeds with indictable offences, other than the different penalties each type carries.

• Arrest the police can arrest an individual for a summary offence without a warrant. However, if they arrest an individual for an indictable offence, the police require a warrant signed by a judge.
• Grounds for Arrest the police must observe the individual committing the offence to arrest for a summary offence. To arrest for an indictable offence, the police need only “reasonable and probable grounds” to believe that the individual they are arresting committed an indictable offence.
• Charge The accused must be charged with a summary offence within 6 months of the date the offence was allegedly committed.
  There is no time limit on when an individual may be charged with an indictable offence and individuals are frequently charged years after the offence was actually committed. This is often the case with sexual interference charges, as victims tend to come forward when they are more able to understand the nature of what happened to them. There is one exception; the Criminal Code provides that an individual cannot be charged with treason once three years have passed since the date of the alleged offence.
• Fingerprints An individual charged with a summary offence does not have to provide the police with fingerprints. If you are charged with an indictable offence, you will have to provide a copy of your fingerprints to the police.
• Trial Those charged with a summary offence who proceed to trial will be tried by a judge alone and cannot choose to be tried by judge and jury. The charge will likely be heard in a provincial court.
  An individual charged with an indictable offence may elect to be tried by a judge alone in a provincial court, by judge alone in a superior court, or by judge and jury in a superior court. There are some indictable offences to which the right to be tried by jury does not attach. These include: Theft Under $5000, Mischief Under $5000 and Fraud Under $5000.
• Pardons An individual convicted of a summary offence may apply for a pardon after 3 years from the expiry of their sentence, whereas those convicted of an indictable offence must wait 5 years before applying for a pardon.

In our experience as criminal defence lawyers, domestic assault charges are very common in Toronto courts. Individuals accused of domestic assault are often deprived of the support system usually provided by family either because of family discord or by the strict bail conditions routinely applied to those accused of domestic violence. Though these conditions are sometimes necessary to protect victims of domestic violence from retaliation by abusive partners, in other cases it is an unfortunate burden that an accused person must be separated from children, home and spouse as they await trial. Moreover, those facing these charges often find that the Toronto court system is very hard on those accused of domestic crimes. In the Toronto court system, the Crown has a zero tolerance policy when it comes to dealing with domestic assault charges. The trial process is further complicated by the special process the Toronto courts use to hear domestic matters. As criminal defence lawyers, we see first hand every day how complicated and discouraging this process can be for the thousands of men and women in the greater Toronto area accused of domestic violence each year.

What is Domestic Assault?

Domestic assault charges refer to charges which arise within the context of a domestic relationship. In other words, when an incident occurs between two or more individuals who are deemed by the Crown to be in a domestic relationship the resulting charges are labeled as domestic. A domestic relationship can be a relationship between a wife and husband (including commonlaw and same-sex partners), a girlfriend and boyfriend, children and parents (including step-children and adopted children), children and grandparents, or any other individuals who are related to one another.

Special Court Procedures

The Toronto court system segregates domestic matters from other types of charges. Domestic matters are all heard together on specific days at those courthouses which hear domestic cases. A court which hears domestic matters is referred to simply as “domestic court”. Courthouses which hold domestic court are listed below along with the dates, times, and courtrooms it takes place in:

• ¥ Old City Hall: Domestic Court every Monday and Wednesday at 2 PM in courtroom 114.
• ¥ College Park: Domestic Court every Friday at 10 AM and 2 PM in courtroom 505.
• ¥ 1000 Finch: Domestic Court every Monday and Wednesday at 9 AM in courtroom 301.
• ¥ 2201 Finch: Domestic Court every Mondays and Wednesday at 2 PM in courtroom 202
• ¥ Newmarket: Domestic Court every Tuesday at 9:30 AM in courtroom 102

The Crown Attorney in domestic court is often selected because he or she has a special interest in combating domestic violence. This usually means that he or she is an expert in this type of charge. It is highly recommended that an individual accused of a domestic crime retain criminal defence counsel as soon as possible to ensure that his or her rights are adequately represented in domestic court.

Special Programs

In many cases, the entire family is suffering because of the domestic charges. Often, it is everyone’s desire to put the charge behind them to restore the family unit. Because of the zero tolerance policy Toronto has adopted when it comes to domestic crimes, the complainant has no power or control over the proceedings once they have involved the police. For example, the complainant does not have any control over whether to press charges nor does he or she have the ability to stop the proceedings against the accused. Once the police are called the Crown and police will almost certainly press charges. The rationale for this attitude is to protect victims of domestic violence who attempt to withdraw charges out of fear for their own safety or the safety of their children. Unfortunately, in many cases these rules are detrimental to individuals who are forced into an artificial and prolonged separation due to an erroneous or minor charge of domestic violence.

In those situations involving minor charges such as an assault (not including an assault with a weapon, aggravated assault, or an assault which resulted in injury) where the accused has no criminal record, the Crown will often make an offer to the accused which would modify the accused’s bail to allow them to reunite with the complainant. In exchange the accused must plead guilty to the offence and undertake to attend a special counseling program. There are two such programs: PARS (Partner Assault Response Systems) and EIP (Early Intervention Program). These counseling programs typically run one hour a week for sixteen weeks. The program focuses on the nature of the domestic relationship and specific strategies for anger management in the context of a domestic relationship. At the end of the sixteen weeks, the program leader will prepare a report on the accused’s progress through the program. If the report is favourable, the Crown will likely agree to a request for a Conditional Discharge. A Conditional Discharge is a finding of guilt; however, it is not a criminal record. See our blog on Discharges for more information on this result. Though this option may sound appealing because it allows an accused person to reunite with their partner, it is important to remember that this does result in a finding of guilt being made against him or her by the court. We highly recommend that you consult with a lawyer before entering into either of these programs.

An information session on the PARS domestic assault program is held at the 1000 Finch courthouse on Tuesdays at 1 PM in courtroom 303.