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.

What is a Discharge?

If you are charged with a criminal offence, the criminal defence lawyers at Kostman & Pyzer, Barristers will endeavor to help you avoid a criminal record. One of the ways this can be accomplished is by obtaining a discharge under s. 730(1) of the Criminal Code. A discharge is a disposition from the Court after a finding of guilt which does not constitute a conviction and is not a criminal record.

Eligibility

Not every accused is eligible for a discharge. Discharges are only available to individuals; thus, an organization such as a corporation which has been charged with an offence cannot obtain a discharge. In addition, a discharge is only available in response to a particular category of offences. For the purposes of obtaining a discharge there are three categories of offences.

1.    Prescribed by Law – You cannot obtain a discharge for offences for which a minimum punishment is prescribed by law. For example, under s. 85(3) of the Criminal Code, using a firearm in the commission of an offence carries a minimum sentence of one year for a first offence. An individual charged under s. 85(3) would not be eligible for a discharge. Some other examples of crimes which carry minimum sentences include: knowing possession of an unauthorized firearm (second offence), possession of a weapon obtained by crime, possession of weapons for the purpose of trafficking, sexual interference, sexual exploitation of a person under 14, inviting sexual touching of a person under 14, possession of or accessing child pornography, betting, pool-selling, book-making, placing bets on behalf of others, obtaining the sexual services of a person under 18, murder, manslaughter with a firearm, attempted murder, sexual assault with a weapon, aggravated sexual assault with use of a weapon, kidnapping, hostage taking, robbery with a firearm, extortion.

2.    Offences Punishable by Fourteen Years or Life – You cannot obtain a discharge for a crime which can carry a minimum sentence of fourteen years or life. For example, pursuant to s. 745(a) of the Criminal Code first degree murder carries a mandatory sentence of life in prison. Some other examples of offences in this category include: hijacking, endangering an aircraft, several offences involving explosives, bribery of a judicial officer, perjury, fabricating evidence, incest, criminal negligence causing death, murder, manslaughter, attempted murder, accessory to murder, discharging a firearm with intent to kill, dangerous driving causing death, failing to stop at the scene of an accident knowing a person is dead, impaired operation of a motor vehicle causing death, aggravated assault, torture, sexual assault with a weapon, aggravated sexual assault, kidnapping, human trafficking, hostage taking,  criminal breach of trust, robbery, extortion, break & enter with intent, some forms of fraud, willful mischief endangering life, arson, making counterfeit money, possession of counterfeit money, conspiracy to murder, commission of an offence for a criminal organization.

3.    Other – All other offences may be resolved by way of discharge should the court see fit.

If you are charged with an offence for which a discharge is available certain criteria must be met in order to obtain a discharge.

1.    There must be a finding of guilt either as a result of a guilty plea or a finding of guilt after trial, and the offence must be one in which a discharge is eligible.

2.    The discharge is in the accused’s best interest and

3.    Ordering a discharge is not contrary to the public interest.

In determining whether a discharge is in the accused’s best interest, a judge is at liberty to consider factors such as:

•    whether the accused has been granted a discharge in the past,
•    the accused’s character,
•    the accused’s criminal history
•    whether it is necessary to enter a conviction against the accused to deter him/her from offending in the future
•    whether it is necessary to enter a conviction against the accused in order to rehabilitate him/her, and
•    that the entry of a conviction against the accused can have significant repercussion for him/her (e.g., social stigma, difficulty finding a job, etc.)

In considering whether ordering a discharge is not contrary to the public interest, a judge must consider whether a discharge should be entered to deter the general public from committing a similar offence. The overall objective of a discharge is to avoid ascribing a criminal record to an accused where the circumstances and overall character of the accused mitigate against such a disposition. A judge’s decision to order a discharge is thus very individualized depending on the accused person before them. Discharges are not applied routinely to particular crimes, nor are they more common for youth offenders than for mature offenders. The decision to grant a discharge is case specific.

Types of Discharges

There are two types of discharges which a judge can dispense. The first is an absolute discharge. Though an absolute discharge is a finding of guilt, no action is taken by the state following such an order. The individual is essentially free to go. Though the discharge is recorded by the Canadian Police Information Center, it is not entered on an individual’s criminal record. According to the decision in Bram absolute discharges should be used sparingly to deter the general public from committing crimes. However, the court in Bram also specified that absolute discharges should not be limited to the most minor of offences. Rather, this type of discharge is available for any offence in the category of offences which may be discharged.

The second type of discharge is a conditional discharge. Like absolute discharges, conditional discharges do not appear on your criminal record. However, following release on a conditional discharge, the accused will be required to undertake certain specified actions for a maximum period of three years. Some examples are:
•    a requirement that the accused undergo counseling
•    a requirement that the accused enroll in a substance abuse program or obtain treatment for substance abuse, and
•    a requirement that the accused complete a certain number of hours of community service.
Like an absolute discharge, a conditional discharge is recorded by the Canadian Police Information Center, but will not appear as a conviction on your criminal record.

Repercussions of a Discharge

The most important aspect of a discharge is that it is a finding of guilt not a criminal conviction. An individual who receives a discharge will have a criminal record within the meaning of the Criminal Records Act. The offence for which the discharge was granted will not appear as a conviction on that record however it will be temporarily noted on your criminal record as a discharge. The RCMP is obliged to remove all references to a discharge from your criminal record after 1 year for an absolute discharge or 3 years for a conditional discharge. A discharge cannot be taken into account in the future during sentencing for a subsequent conviction.

However, there are some negative consequences associated with a discharge. Though an absolute discharge may not interfere with your ability to travel to the United States, a conditional discharge may impede that ability (see Emigration (U.S.) Consequences of a Criminal Conviction). Moreover, the fact that you have received a discharge from a first offence may make it less likely that the court will grant you a discharge from any future offence. Finally, there are consequences for breaching the terms of a conditional discharge. If you are issued a conditional discharge, you are essentially on probation for the term specified in the conditions. If, during this time you fail to comply with the conditions or commit another criminal offence, you may be charged with the criminal offence of “Failure to Comply with a condition of Probation”.

If you are charged with a criminal offence, the criminal defence lawyers at Kostman & Pyzer, Barristers can assist you to obtain a discharge and keep your criminal record clean. If you have any questions about the implications of an existing discharge or are facing criminal charges, contact us at 416-658-1818.