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
Contents
For the Defense - Volume 1, Issue 3 - 2016 - 1
For the Defense - Volume 1, Issue 3 - 2016 - 2
For the Defense - Volume 1, Issue 3 - 2016 - Contents
For the Defense - Volume 1, Issue 3 - 2016 - 4
For the Defense - Volume 1, Issue 3 - 2016 - 5
For the Defense - Volume 1, Issue 3 - 2016 - 6
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