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Introduction P.2 I. Assessing Inadmissibility and Eligibility For 2011 NATIONAL CITIZENSHIP AND IMMIGRATION LAW CONFERENCE, GATINEAU, QC PANEL 4C LIFE AFTER CRIME – POST CRIMINALITY OPTIONS – REHABILITATION, PARDONS AND TRP GORDON MAYNARD Index Introduction p.2 I. Assessing inadmissibility and eligibility for relief p.4 II. Dealing with the client, time frames, costs and expectations. p.9 III. Preparing the Rehabilitation and associated TRP Applications p.12 IV. Submission of Rehabilitation and TRP applications. p.17 V. Pardon Applications p.20 VI. Toolkit Appendix p.24 1 2011 NATIONAL CITIZENSHIP AND IMMIGRATION LAW CONFERENCE, GATINEAU, QC PANEL 4C LIFE AFTER CRIME – POST CRIMINALITY OPTIONS – REHABILITATION, PARDONS AND TRP GORDON MAYNARD Introduction This paper is about the processes of relief from criminal inadmissibility – applications for rehabilitation or pardons. Particularly, The process of assessing inadmissibility and eligibility for relief (The Inadmissibility Toolkit Appendix) The processes of dealing with clients, estimating success, time frames, costs and managing client expectations; The processes of preparing applications for relief (which might be a determination of rehabilitation or pardon, and associated TRP), and; The processes that the client’s application passes through to obtain a determination, whether it is at the POE, inland office, visa post or at National Parole Board. There is sensibility in the Canadian scheme of criminality rendering a person inadmissible, but with the ability to temporarily or permanently remove the inadmissibility. There is a reasonable mix of hard and fast rules and requirements and the flexibility necessary to accommodate individual circumstances. The system isn’t perfect. Discretion isn’t 100% predictable. There is uncertainty compounded by the foibles of human bias and error. That’s the cost of discretion and it makes the system charming. It is the nature of the scheme and the nature of human behaviour that some applications are going to be easy and some are going to be hard. Some will require a lot of document preparation and some will not. Some will be determined quickly and some will not. This contributes to the challenge of properly informing clients as to expectations, timelines and costs. I like to quote clients a fixed rate for services, and to give them a realistic estimate of outcome and timeframe. At the outset I need to have a reasonable idea of how demanding the application preparation is going to be, what the likely timeframe for determination is and whether there is likelihood of success, or maybe at least for TRP entry before determination of the application for rehabilitation. (In the case of In-Canada convictions, it is an application for Pardon from the National Parole Board rather than rehabilitation. The application for Pardons will be discussed in the latter part of this paper). 2 2011 NATIONAL CITIZENSHIP AND IMMIGRATION LAW CONFERENCE, GATINEAU, QC PANEL 4C LIFE AFTER CRIME – POST CRIMINALITY OPTIONS – REHABILITATION, PARDONS AND TRP GORDON MAYNARD The wild card in applications for relief is the uncertain time frames for decision-making in either the rehabilitation or pardon applications. Once the file is out of our hands and into the hands of CBSA, CIC or the National Parole Board, then we have given up control and the government machinery takes over and controls the future, both in outcome and wait period. In this paper I will talk of things I know – dealing with the client, assessing and preparing the relief application, and choosing the determination process. As for what goes on behind government doors, I cannot speak of direct experience except for POE applications. I will rely upon government speakers at the CLE to offer their insight. But first, there is the need to understand criminal inadmissibility and eligibility for rehabilitation. This is not a focus of the CLE presentation, but it is a necessary appendix to this paper.... 3 2011 NATIONAL CITIZENSHIP AND IMMIGRATION LAW CONFERENCE, GATINEAU, QC PANEL 4C LIFE AFTER CRIME – POST CRIMINALITY OPTIONS – REHABILITATION, PARDONS AND TRP GORDON MAYNARD I. Assessing inadmissibility and eligibility eligibility for relief – the Criminality Toolkit (Appendix to this Paper) Assessing criminal inadmissibility and eligibility for rehabilitation involves the following questions: 1. Is there a conviction or act equivalent to an appropriate Canadian federal offence (indictable or hybrid under Canadian law), or a Canadian conviction (indictable or hybrid)? 2. Has there been a court disposition that is not a “conviction”? 3. Has there been an acceptable expungement or pardon? Can there be an acceptable expungement or pardon? 4. If there is a conviction – a. When was the sentence completed? b. Have five years or 10 years passed? I have appended a 20 page “Criminal Inadmissibility Toolkit” to this paper. It is an itemization of the issues and the places where legislation, policy guidelines, caselaw and other assorted references on each can be found. ENF 14 is a key consolidation of policy and law regarding criminal inadmissibility and relief that hasn’t been publicly available for several years. Recently it has resurfaced, thanks to Marina Sedai. Marina did an ATI request to unearth the 2008 (apparently the latest) version of the ENF 14 Operations Manual, which was only circulated internally to CBSA and CIC. Marina circulated it to CBA the listserv and I have included it as a resource document with this paper. Hopefully it is included on the CLE CD. If not, let me know and I will send you a copy (marked “Distribution limited to CIC and the CBSA”) Use ENF 14 with caution: It is not always consistent with current document checklists and other documents. For instance, the current Rehab Checklist requires police certificates from countries of residence since age 18, but ENF 14 refers to past 10 years only. Usually (but not always) the assessment of inadmissibility is straightforward...most convictions for assault, impaired driving, and significant drug possessions are going to create inadmissibility. The significant issues are usually limited to eligibility for rehabilitation and whether the inadmissibility is serious or “non-serious”. 4 2011 NATIONAL CITIZENSHIP AND IMMIGRATION LAW CONFERENCE, GATINEAU, QC PANEL 4C LIFE AFTER CRIME – POST CRIMINALITY OPTIONS – REHABILITATION, PARDONS AND TRP GORDON MAYNARD Various nuances on criminality issues have been considered over the years, including the proper approach to determining equivalency between foreign and Canadian offences, consideration of “young offender” convictions, interpretation of foreign sentences, respect for foreign pardons, calculation of the five year and ten year periods, factoring in of pre-sentence custody, and interpretation of conditional sentences of incarceration (sentences serviced in the community – usually through a home detention with provisions for access to work and school). I don’t think there are any recently contentious issues; the issues are stable for now. Case law and policy statements have covered the territory and there are multiple sources of information to guide the analysis. Here, I will briefly itemize some of the key issues associated with determining inadmissibility and eligibility for Rehabilitation under A36(3): Equivalence between foreign and Canadian offences: Usuallt there will be equivalence between the foreign and Canadian law, and the only issue is eligibility for either individual or deemed rehabilitation. But in some cases the language of the offence will be unique and distinct from the Canadian law, and legitimate issues of equivalency will arise. The lack of equivalency might be obvious (ie Japanese impaired driving offence based on 50 mg alcohol/100ml blood), or it might be contentious (equivalency to criminal fraud based on foreign tax evasion offence). There is well established case law setting out the appropriate paths for establishing equivalence – see ENF 14 (s.13,14) and OB 036 August 8, 2007. Essentially, you go through the process of comparing the statutory elements of the offence and/or the acts of the offence to determine whether it would have constituted a crime in Canada. The Toolkit lists Manual chapters, IRB materials and established caselaw regarding the equivalence process. Equivalence involving Youth offences: Cases involving offences committed before adulthood are a special category and problematic. Before IRPA and the Youth Criminal Justice Act there was the Immigration Act and the Young Offenders Act. The YOA created a separate regime for youths, separate from the criminal system for adults. The Immigration Act specifically exempted YOA dispositions from determinations of inadmissibility. The YOA did have provisions for transferring a young offender to adult court for serious offences but these were limited. 5 2011 NATIONAL CITIZENSHIP AND IMMIGRATION LAW CONFERENCE, GATINEAU, QC PANEL 4C LIFE AFTER CRIME – POST CRIMINALITY OPTIONS – REHABILITATION, PARDONS AND TRP GORDON MAYNARD Now with IRPA and the YCJA the line between criminal inadmissibility and foreign convictions of youths has become blurred. The YCJA deliberately expanded the potential for adult (criminal) sentencing of youths. It is a matter of discretion and it applies to quite a broader range of criminal offences. Potentially, young persons in Canada might receive an adult criminal sentence for any violent offence for which the Criminal Code imposes a potential sentence of more than two years. It is this broad potential for adult sentencing that exposes foreign youths to determinations
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