For the Defense - Volume 1, Issue 3 - 2016 - 53

milestone (when the sentence for the offense was completed) has a corresponding remedy which is examined in depth in this article. These rules will apply to a wide array of individuals who are inadmissible to Canada due to previous criminal conduct: pilots, flight attendants, truck drivers, performing artists, bankers, businessmen and students. While most of the aforementioned applicants have had conviction(s) for DUI, a number of applicants have been convicted of fraud, theft, possession of narcotics and assault. These clients may need to travel to Canada because of the industry they are in or because of a special event. Thus the reason for travel varies in accordance with the individual traveler. While many clients may need to enter Canada for business purposes, others may want to visit for leisure travel. The most important thing to remember is that the only relevant information for determining inadmissibility is whether the individual would be criminally prosecuted if the acts supporting the criminal conduct occurred in Canada. The severity of the offense under United States law does not matter. I. Pre-Conviction Phase There are several strategies that the criminal defense attorney in the charging jurisdiction can do to help their client mitigate the effects of future admissibility to Canada. Pleading down The most common offenses in Canada are hybrid offenses which are offenses the Crown can choose to prosecute either by summary conviction (without the right to a jury & a more streamlined process with lighter penalties) or by indictment (jury trial & harsher penalties). Provincial offenses are less serious than federal offenses and typically do not result in inadmissibility; all criminal statutes in Canada are Federal law. However, especially when it comes to driving offenses, there is some overlap between federal and provincial jurisdictions and defense attorneys have some room to plead down offenses in their country to avoid inadmissibility. This can have important repercussions on the client's admissibility to Canada, as it means that the offense may no longer be of the severity that would make the client inadmissible. There are times where a defense attorney can negotiate their client's charge to a less serious or slightly different offense. Plea bargaining can downgrade the offense from what would be considered an equivalent indictable or hybrid offense to an equivalent summary offense or provincial offense, which would remove the inadmissibility altogether. Thus negotiating the charge to a more advantageous Canadian equivalent charge can help the client avoid inadmissibility. If a traveler is not convicted, he or she will not be inadmissible to Canada. If there is no way to reduce the offense through a plea bargain to avoid admissibility, the next best option is to advocate that the sentence, including probation, be as short as possible. In doing so, an application for relief can be submitted to the Canadian Consulate either in Los Angeles or in New York as quickly as possible. It is always advantageous for defense attorneys to reduce the length of an imposed sentence, including shortening the probationary period of any sentence. In an effort to shorten the sentence, defense attorneys may exchange higher fines for less probation, or agree for the client to complete a counseling program or class instead of probation. Shortening probation periods, driver's license suspensions, jail times, and the number of community service hours needed to complete all of the terms of a sentence will allow the client to apply for criminal rehabilitation that much sooner. A driver's license suspension does not automatically trigger inadmissibility, unless it is the result of a criminal conviction. In such cases, the period of inadmissibility and required passage of time to become eligible for relief will include the time it takes to complete the driver license suspension. Unless they are open source, the Canadian authorities do not have access to Americans' DMV records. Canadian authorities do have access to the NCIC database, which only shows criminal convictions. In the state of Pennsylvania, for instance, firsttime offenders may benefit from an Accelerated Rehabilitative Disposition (ARD).4 By completing ARD, the charges may be dismissed or expunged when the program is completed. This avenue Vol. 1, Issue 3 | For The Defense 53

Table of Contents for the Digital Edition of For the Defense - Volume 1, Issue 3 - 2016