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

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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).

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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....

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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”.

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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.

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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 of inadmissibility under IRPA, regardless of their age.

IRPA was never satisfactorily amended to address this “creep” of inadmissibility. Instead there is a policy that foreign youths convicted abroad should not be determined to be criminally inadmissible in certain cases – and these are set out in the Guide (IMM 5312) for Criminal Rehabilitation, p 4: (and are consistent with ENF 14, ch.24)

“You are not inadmissible if:

- you were treated as a young offender in a country which has special provisions for young offenders, or - you were convicted in a country which does not have special provisions for young offenders but the circumstances of your conviction are such that you would not have received an adult sentence in Canada.”

It is the latter exemption which is problematic. The YCJA creates so many doorways to adult sentencing that it is only in limited cases that it can be said that “you would not have received an adult sentence in Canada”. In any case involving a “more than 2 year” CCC potential sentence for violent crime, a young person is vulnerable to an application for adult sentencing under the YCJA. Regardless of how unlikely that the application would succeed, it is this possibility of adult sentencing that renders the foreign youth inadmissible under IRPA.

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2011 NATIONAL CITIZENSHIP AND IMMIGRATION LAW CONFERENCE, GATINEAU, QC

PANEL 4C LIFE AFTER CRIME – POST CRIMINALITY OPTIONS – REHABILITATION, PARDONS AND TRP

GORDON MAYNARD

Convictions vs Other dispositions:

When there are foreign judicial proceedings, criminal inadmissibility is based on a finding of “conviction” (A36(1)b, A36(2)b).) Some foreign dispositions are not equivalent to convictions; they are more like our conditional and unconditional discharges. For instance, the U.S. dispositions of “deferral of prosecution” or “deferral of conviction” or “deferral of judgement” are not “convictions” for the purposes of determining inadmissibility. A listing of various U.S. dispositions and their equivalence to “conviction” is found in ENF 2, 14.2. It is an important list, not only for the possibility of U.S. dispositions that don’t equate to “convictions” under Canadian law, but also for the possibility of non-equivalent dispositions in any other country.

Foreign Pardons

A Canadian pardon relieves the recipient from the prejudice of a Canadian conviction, including the consequence of immigration inadmissibility (A36(3)).

Foreign pardons for foreign convictions are sometimes (but not generally) given the same respect.

The policy considerations are set out in ENF 14, 27 and involve consideration of equivalency of the judicial systems and requirements for and effects of pardon issuance, as well as surrounding circumstances. The FCA decision in Saini (2001 FCA 311; [2000] 3 F.C. 253) is the most recent determinative decision in a string of judicial interpretations of the policy of considering foreign pardons. The FCA decision re-affirms that recognition of foreign pardons is a restrictive policy – there are tests to be met....

“…three elements must be established before a foreign discharge or pardon may be recognized: (1) the foreign legal system as a whole must be similar to that of Canada; (2) the aim, content and effect of the specific foreign law must be similar to Canadian law; and (3) there must be no valid reason not to recognize the effect of the foreign law”.

Respect for Mr. Saini’s Pakistan pardon was shot down first because of failure to put forward evidence as to similarities between Pakistan and Canadian legal systems and law, but also because the Court was comfortable in finding that conviction for passenger jet hi-jacking was a good valid reason not to recognize the effect of the Pakistan pardon.

(Perhaps it is unfair to postulate, but it looks to me that the FC lobbed this easy pitch to the FCA just so they could smoke it out of the park.)

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2011 NATIONAL CITIZENSHIP AND IMMIGRATION LAW CONFERENCE, GATINEAU, QC

PANEL 4C LIFE AFTER CRIME – POST CRIMINALITY OPTIONS – REHABILITATION, PARDONS AND TRP

GORDON MAYNARD

My experience is that CIC regularly gives credit for pardons under the UK Rehabilitation of Offenders Act (“spent” convictions are not treated as “convictions” for the purpose of criminal inadmissibility), and for U.S. State expungements, but as a general rule foreign pardons are not going to be given respect until the three part test is demonstrably met.

For reasons set out later in this paper, the policy of recognizing foreign pardons may be much more diminished, in light of recent changes to our Pardons law.

See also: IRB IAD Removal Order Appeals Ch.7 Criminal inadmissiblity

Eligibility for Rehabilitation

Assuming that there is criminal inadmissibility; then the question is eligiblity to submit an application for rehabilitation. This is a simple matter of ensuring that five years have passed since completion of sentence, as per A36(3) and r.17., or 10 years for r.18 deemed rehabilitation.

ENF 14, s.16 and the Rehabilitation Kit Guide (IMM 5312) p.6-7 set out the different starting states for different sentences. For example -

for a suspended sentence, the five years starts from date of sentencing,

for suspended sentence and fine, the five years starts from final payment of all fine amounts.

There are a number of other examples dealing with parole, driver’s license suspension, probation, and the like.

Deemed Rehabilitation A36(3)c, r.18(1)(2), r.18.1

Deemed Rehabilitation is the automatic grant of rehabilitation in limited cases of minor criminal inadmissibility, after the clear passage of 10 years (or 5 years in the case of summary conviction inadmissibility).

The Regulations defining the prescribed class are convoluted, but ENF 14, s.7 sets out examples to illustrate the operation of the regulations.....

For example there is deemed rehabilitation when:

 2 pure summary offence convictions + 5 years passage of time since sentence completed.

 1 non-serious indictable (or hybrid) conviction +10 years passage and no new offence.

 Individual rehab. granted + new non-serious conviction + 10 years passage of time.

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2011 NATIONAL CITIZENSHIP AND IMMIGRATION LAW CONFERENCE, GATINEAU, QC

PANEL 4C LIFE AFTER CRIME – POST CRIMINALITY OPTIONS – REHABILITATION, PARDONS AND TRP

GORDON MAYNARD

II. Dealing with the client, time frames, costs and expectations.

When a criminal inadmissibility presents itself, the client and you each have immediate concerns.

Your immediate concerns are assessing the amount of work to be done and how much time you have to do it. You need the client to commit to the time frame involved, the resources needed and the risk inherent in the applications.

The client’s immediate concerns are the impact of the inadmissibility, how much will this cost and will it work?

To get a good handle on time expectations, issues, processes and costs, you need some quick information from the client:

Entry issues:

 What is the client’s nationality and status in current country of residence?

 Is the entry need urgent (as in immediate worker entry, or visitor entry for an important purpose) or is it tied to a long term immigration objective (such as a PR application)?

 Is there flexibility on purpose and timing of entry?

Criminality Issues:

The first questions to ask are:

 How many convictions do you have,  When and where were they, and  When did you finish your sentence?

I am hoping for simple perfect answers. If there is only one conviction then maybe it is a single summary offence, like for possessing a joint or small bag of pot. Or maybe causing a disturbance or personating someone in a school exam. A foreign conviction for an equivalent pure summary offence in Canada doesn’t cause inadmissibility. Even if it happened yesterday.

If it is a more serious offence (but not too serious) then maybe ten years have passed and there is “deemed rehabilitation”. (or maybe with two summary offences.)

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2011 NATIONAL CITIZENSHIP AND IMMIGRATION LAW CONFERENCE, GATINEAU, QC

PANEL 4C LIFE AFTER CRIME – POST CRIMINALITY OPTIONS – REHABILITATION, PARDONS AND TRP

GORDON MAYNARD

But if neither of these desired situations are there, then there is inadmissibility that is going to require individual rehabilitation and perhaps TRP.

Regardless of how straightforward the inadmissibility appears, you want as much of the following information from the client, straightaway:

 The date and location (neighbourhood, city and State) of the offence(s),  The Police agency involved, if any;  The date and location of court proceedings (Court name, address, month/year of proceedings)  The nature of Court proceedings – full trial? Plea? Multiple sittings? Date of Sentencing.  A brief description of the circumstances of the offence (ie in an impaired charge, was there any accident or evidence of impaired driving? Any injuries or deaths? Breathalyser result? In an assault charge, were there injuries or weapons involved?)  A brief description of the client’s dealings with police, court and sentence (was the sentence completed, incarceration? Courses ordered and attended? Fines paid?, Probation completed? When?)  Name and contact information of criminal counsel, if any.  The countries and U.S. States where the applicant has resided since the age of 18 (for six months or more).  Signed authorization for disclosure of court, police, FBI records (Needs to be notarized for FBI record release, and accompanied by a letter from client confirming that record can be sent to your office.)

Advising the Client

With this information in hand you can give preliminary advice to the client as to:

 the existence of inadmissibility,

 the processes that will be needed (TRP, Rehabilitation, at POE or at Visa office), and

 the time frames involved for preparation and for decision-making,

 the prospects for success and

 your anticipated fees.

Don’t make promises you can’t keep. At this stage you are educating the client on the distinction between TRP and Rehabilitation distinctions, the different time frames involved, the scope of documentation required and the nature of discretionary decision-making. You don’t want to

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2011 NATIONAL CITIZENSHIP AND IMMIGRATION LAW CONFERENCE, GATINEAU, QC

PANEL 4C LIFE AFTER CRIME – POST CRIMINALITY OPTIONS – REHABILITATION, PARDONS AND TRP

GORDON MAYNARD

discourage the client unnecessarily, but neither do you want to underestimate the scope of documentation and work involved, or the time that might be needed for a decision.

With experience, everyone gains the ability to distinguish between difficult applications and easy applications. “Serious Criminality (involving potential Canadian sentences of ten years or more) rehabilitation applications may take months and years and never be accompanied by a TRP, but minor inadmissibility cases can be dealt with at Port of Entry on a daily basis and in a summary manner. It may not always be to the satisfaction or comprehension of the entrant, but the process need not be complicated.

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2011 NATIONAL CITIZENSHIP AND IMMIGRATION LAW CONFERENCE, GATINEAU, QC

PANEL 4C LIFE AFTER CRIME – POST CRIMINALITY OPTIONS – REHABILITATION, PARDONS AND TRP

GORDON MAYNARD

III. Preparing the Rehabilitation and associated TRP Applications

References

 Rehabilitation Application Kit - Document Checklist (IMM 5507) (11-2008)E  Rehabilitation Application Kits – Visa Post specific instructions (ie US visa posts)

 TRP Application Kits (available from some Visa office websites for visa-exempt Countries)  ENF 14, s.12.1 (Mandatory Documents) - Old references, superceded by current IMM 5507 checklist  ENF 14, s.12.2(Optional Documents) - Old references, superceded by current IMM 5507 checklist  OP20, s.10,11,12-12.2 Temporary Resident Permits

The Rehabilitation application kit from the CIC website is straightforward as is the Document Checklist it contains. There are specific essential documents including Police certificates (ie FBI and State certificates), Court judgements, copies of statutes, the application form and fees, and there are further document required as relevant, including any documents relevant to sentence, parole, rehabilitation, etc..

Also have an eye to the Visa Post instructions, if that is where you are applying. The US offices have standardized application kit instructions that specifically require photos, which aren’t on the generic checklist.

The documents that you need to submit are rational and predictable. The decision maker needs to confirm the criminal record, know what offences were committed or convicted of, the sentences imposed and completed, and the evidence of rehabilitation.

The only requirement that can be excessive is the need for U.S. State records since the age of 18, and all other country records from the age of 18 (where the applicant resided for six months or more).

The essential immediate documents needs are court and sentencing records, and official police records. These should be sought immediately, because the police records can take time to receive.

Country and State Records:

The CIC website has excellent links for obtaining police checks from various countries and from US States.

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2011 NATIONAL CITIZENSHIP AND IMMIGRATION LAW CONFERENCE, GATINEAU, QC

PANEL 4C LIFE AFTER CRIME – POST CRIMINALITY OPTIONS – REHABILITATION, PARDONS AND TRP

GORDON MAYNARD

Obtaining Country Police Records http://www.cic.gc.ca/english/information/security/police‐cert/index.asp

Obtaining US State Certificates http://www.canadainternational.gc.ca/Detroit/offices‐bureaux/certificates‐ certificat.aspx?lang=eng&menu_id=332&menu=L

Use the CIC links as a starting point and contact the police and State sources through the internet and telephone to confirm the process and needs for records. Some US states now issue records through the internet, based on name and age. Others always require fingerprints and a few (Arizona, Louisiana) won’t issue records at all.

Court Records:

The Courts, for instance in the U.S. and U.K., have a good internet presence and can be contacted by email, fax or telephone. The U.S. courts will often confirm over telephone the records of proceeding, and will provide documents by fax or mail.

Sometimes it is helpful to consult local counsel to access the court registry records in a timely manner.

From the Courts you want to obtain  Confirmation of court proceedings and outcomes (guilt, sentence, acquittal etc)  If there was no conclusion, why? Is there a warrant issued by the Court?  Confirmation of the offence (statute) for which the client was charged  Confirmation of the offence (statute) for which the client was convicted  The sentence imposed, and completion of sentence.

From the Internet, from the Court, or from local counsel:

 Copies of the relevant Criminal or other statute offence for which the client was charged or convicted.

Recent statutes can often be obtained through the internet, but older statutes may have to be obtained through local counsel.

Foreign Court records, statutes, and records of convictions are the necessary bricks for assessing inadmissibility and options for relief. Sometimes you get lucky, and sometimes unlucky. Did the court proceeding conclude? If not, why not? What was the sentence, and was the sentence completed? Does the State or Country record match the Court record? There are opportunities for avoiding inadmissibility.

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2011 NATIONAL CITIZENSHIP AND IMMIGRATION LAW CONFERENCE, GATINEAU, QC

PANEL 4C LIFE AFTER CRIME – POST CRIMINALITY OPTIONS – REHABILITATION, PARDONS AND TRP

GORDON MAYNARD

If the applicant was convicted as a juvenile (under the age of 18?), note the requirement for a letter confirming that the country of conviction had provisions for juvenile offenders which were applied.

The Rehabilitation application form (IMM 1444) and evidence of Rehabilitation:

References

Application for Rehabilitation (IMM 1444) Items 15, 17 ENF 14, s.17 Criminal Profiles and Rehabilitation Factors OP20, s.12.2 Tables 8,9

Items 15 and 17 of the application form requires the applicant to provide a narrative describing his offence and explaining the reasons why they believe they are rehabilitated.

These are important items, and counsel needs to review these narratives critically. Although Document Checklist gives only passing reference to supporting documents about rehabilitation, it is important for counsel to give good guidance to the applicant regarding the necessity of good supporting documents.

For example:  Is the offence narrative complete and accurate? There should be no minimizing of conduct or abandoning of responsibility for conduct.  Is the narrative complete in the sense of including information relevant to the reasons for criminal conduct?  Does the rehabilitation narrative show insight into the causes of criminal conduct, and the absence of those causes today?  Does the rehabilitation narrative include recitation of all positive steps taken by applicant to remove themselves from criminal lifestyle – such as programs for dealing with addictions, anger management and the like?  Does the rehabilitation narrative include reference to all current positive lifestyle elements – including family, employment, friends, absence of negative police or court contacts?  Has supporting evidence been obtained from Court or Police officers, from family and friends, and from employers?  Supporting letters of character reference and certificates of accomplishment are valuable. The onus is on the applicant to convince the decision maker that rehabilitation is achieved; it is not a presumption after the passage of five years.

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2011 NATIONAL CITIZENSHIP AND IMMIGRATION LAW CONFERENCE, GATINEAU, QC

PANEL 4C LIFE AFTER CRIME – POST CRIMINALITY OPTIONS – REHABILITATION, PARDONS AND TRP

GORDON MAYNARD

Good rehabilitation applications are a matter of common sense. Put yourself in the place of the decision maker....

 Does the application clearly and accurately establish the criminal inadmissibility and eligibility for rehabilitation?  Is the proper equivalence made?  Are the circumstances of the offences (s) clear?  Is there reasonable evidence of rehabilitation, including lifestyle changes and evidence of support from family, employer and friends?

TIP: Tables 8,9 from the OP20 Manual, s.12.2 are an excellent listing of factors to be considered in assessing risk and rehabilitation.

Preparing the TRP Application

A TRP application is going to be submitted if entry is being sought before final determination of Rehabilitation.

A TRP application may be submitted before, concurrently with or after submission of a rehabilitation application. Generally, a copy of a rehabilitation application and the supporting documents, even if on a “FYI” basis, are going to be submitted with the TRP application.

As a general rule, if a person is eligible for rehabilitation then I want the rehabilitation application submitted concurrently or before the TRP application.

There is no generic TRP application kit available on the CIC website. But, many TRV exempt country posts have a TRP application kit available on their internet site. For instance, Buffalo, NY, Detroit, Seattle, L.A. and Washington internet sites all have a consistent TRP application packages, including checklist and form, available off their website. (See the link for “Criminal and other inadmissibilities”, on each post website.)

A TRP application based on criminal inadmissibility is going to include all the information contained in the Rehabilitation kit (criminality and rehabilitation), and additional information regarding the reasons for entry and duration of entry sought.

The TRP decision is going to be based on a balance between an assessment of inadmissibility (seriousness of criminality), evidence of on-going risk, and the need for entry. As stated on the relevant website page...

If you are inadmissible to Canada for criminal, medical or other reasons and there are compelling and urgent reasons to allow you to enter or remain in Canada, you may apply for a Temporary Resident Permit.

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2011 NATIONAL CITIZENSHIP AND IMMIGRATION LAW CONFERENCE, GATINEAU, QC

PANEL 4C LIFE AFTER CRIME – POST CRIMINALITY OPTIONS – REHABILITATION, PARDONS AND TRP

GORDON MAYNARD

The sufficiency of the “compelling and urgent reasons” for entry will vary in the circumstances of the case, particularly in the face of recent serious criminality. The compelling and urgent reasons for entry will usually involve ongoing employment requirements, or for a good family reason.

See OP20 Manual, s.10,11 and 12-12.2 for policy statements regarding “minor criminality” and considerations for entry in the face of minor, serious and non-serious criminality. There are also interesting comments regarding both criteria and requirement for NHQ concurrence before issuance of a TRP. My experience is that these are not cast in stone, at least not in the CBSA POE context of TRP applications (CBSA are masters of their own POE house, and they don’t require NHQ concurrence before issuing a TRP. However these requirements are applied inland, and they are important comments that illustrate the competing pushes and pulls that exist in criminality TRP applications.

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2011 NATIONAL CITIZENSHIP AND IMMIGRATION LAW CONFERENCE, GATINEAU, QC

PANEL 4C LIFE AFTER CRIME – POST CRIMINALITY OPTIONS – REHABILITATION, PARDONS AND TRP

GORDON MAYNARD

IV. Submission of Rehabilitation and TRP applications.

Rehabilitation applications:

When the Rehabilitation application forms are completed and the supporting documents gathered and organized, the final steps are to review and cross-check the completion of the package against standard and website checklists, and then to complete cogent, relevant submissions regarding the package.

The submissions should assist the decision maker by providing proper argument on equivalence to Canadian law, completion of sentence, eligibility for application, and categorization of inadmissibility (serious or non-serious). The submissions should provide an index respecting all documents, and representations as to rehabilitation, and the concurrent application for TRP, if any.

The completed package can be submitted through overseas posts, Ports of Entry, or Inland offices but…

If the applicant is an overseas nationality requiring TRV, then they are stuck with the overseas post as being the available post for application.

NON-SERIOUS Criminality Rehabilitation

Applications for non-serious criminality Rehabilitation ((A36(2)b,c) can be submitted to overseas posts, CBSA Ports of Entry, or to Inland CIC offices. But Port of Entry delegates only have authority to determine rehabilitation for Non-Serious Criminality and no other. The CBSA POE delegated authority is the Chief of Operations.

It is tempting to present Non-Serious Criminality Rehabilitation applications to the POE rather than overseas offices, simply for expediency. The application must be tied to an application for entry, and the POE office will sometimes encourage applicants to submit their application to a post abroad, notwithstanding their jurisdiction to determine the application.

If the evidence is clear, and the circumstances relatively straightforward, then the POE office can receive and determine the application in a matter of hours or days. The application does need to be reviewed and brought to the Chief of Operations. It is my practice to give the POE faxed reasonable notice of the pending attendance of the applicant, and the key documents. This can facilitate resolution of any issues, and ensure availability of the delegate and their timely attention to the file.

It should not be overlooked that overseas visa posts can sometimes also provide timely determination of rehabilitation and TRPs (if necessary). Again, the preparation of a well

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2011 NATIONAL CITIZENSHIP AND IMMIGRATION LAW CONFERENCE, GATINEAU, QC

PANEL 4C LIFE AFTER CRIME – POST CRIMINALITY OPTIONS – REHABILITATION, PARDONS AND TRP

GORDON MAYNARD

organized package with well crafted submissions assists in the desire for expedited processing, as does effective communication with the visa post before and during the application process. Expedited processing is not given simply because it is asked for. There needs to be a legitimate need demonstrated.

But, as a matter of usual fact, rehabilitation and TRP applications at visa offices are not usually going to be dealt with quickly. Months and years may be required.

SERIOUS Criminality Rehabilitation

In Sept. 2010 there was a significant change of delegation of authority for determination of rehabilitation of A36(1) serious criminality.

Until Sept. 2010 serious criminality rehabilitation applications submitted to visa posts abroad or inland offices were forwarded to Case Management Branch for determination by the Ministers Delegate – the Director General for Enforcement.

In Sept. 2010 more delegates at the Director and Manager levels were added to item 65 of the Instrument of Designation and Delegation.(IL 3 Manual). Overseas and Inland offices now have delegates authorized to determine rehablition for Serious Criminality. The delegates include Directors and Managers of regional inland offices, and Immigration Program Managers at Overseas offices.

Case Management Branch (NHQ) still retains the delegated authority to determine serious criminality rehabilitation, but now it is possible for these applications to be submitted and concluded at the Overseas or Inland offices, without referral to NHQ.

This is an important development that may have significant impact on the time frame for determination of Serious Criminality rehabilitation, which has been measured in years, rather than months.

TRP Applications

TRP applications can be made at overseas visa posts, ports of entry or inland immigration offices. Each of these offices has delegated authorities for determining the TRP application.

A TRP application can be made at any of these offices, regardless of whether the individual is inadmissible for serious or non-serious criminality.

There is no "waiting period” for making a TRP application. An individual can theoretically make a TRP application five minutes after being convicted for an offence.

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The TRP is a temporary solution to inadmissibility. The TRP will allow the individual to enter or remain in Canada is often or as little as the delegate determines. Or not at all.

It is always good practice to provide early notice of the application and essential documents to the POE office. This is particularly so in the case of serious criminality or non-minor criminality. Provision of the “heads-up” gives an opportunity for the officers, superintendents, manager or Chief to review the documents and provide back to you and your client any initial concern they have as to sufficiency of documents, concerns with risk, purpose of entry and availability of a decision maker. (Per IL3 Instrument of Delegation and Designation, the authority for POE TRPs is with the Chief of Operations or a Superintendent).

Early submission of materials is not a “pre-clearance”, the decision will be made following attendance of your client and consideration of all materials and information provided at examination. But a timely heads up and good discussion with the POE office can certainly pave the road and is to the benefit of both sides.

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V. Pardon Applications

For inadmissibility due to in-Canada convictions (A36(1)a, A36(2)a) there are no rehabilitation applications, there is only a Pardon under the Criminal Records Act. Issuance of a Pardon by the National Parole Board cures the inadmissibility. Until a Pardon is obtained, the inadmissibility continues, regardless of the passage of time.

Up until June 2010 the obtaining of Pardons was a straight forward process. After a waiting period of 3 or 5 years from sentence completion (depending on summary or indictable conviction), an application form would be completed and submitted to the NPB along with a fingerprint record check, court documents and local police checks. So long as the applicant had kept conviction free in the waiting period and had not had subsequent run-ins with the authorities, the Pardon would issue somewhat routinely. Perhaps too routinely.

In 2009-2010 there were 24,559 pardons processed by the National Parole Board. Two-thirds were for indictable offences; the majority for drinking and driving, assault, theft and drug-related crimes. More than 97% of the eligible pardon applications were granted.

In the Spring of 2010 the Pardons process came under fire. The 2007 issuance of pardons to former WHL coach Graham James for convictions for multiple sexual offences against minor hockey players between 1984 and 1995, was one embarrassment. Another was the fact that Karla Homolka was becoming eligible in Summer 2010 for pardons for her three manslaughter convictions.

The government proposed Bill C23 – an Act to amend the Criminal Records Act by eliminating the pardons scheme and replacing it with a scheme of “record suspensions”. Restrictions to the record suspension scheme would be extended by increasing waiting periods, by strengthening the criteria for suspension, and by designating categories of convictions for which there would never be access to record suspensions.

The Opposition parties would not accept the strictness of Bill C23, but neither could they accept the status quo – not with the summer break and Karla’s eligibility for Pardon application approaching. And so the parties negotiated common support for Bill C23A – the Limiting Pardons for Serious Crimes Act.

C23A passed into law on June 29, 2010 and amended the Criminal Records Act. It is the scheme under which Pardons are now considered.

If you download a Pardons Application from the NPB website (http://www.pbc- clcc.gc.ca/prdons/pardon-eng.shtml) you will see the changes. For one the fees have been increased to $150. Different questions are asked and different waiting periods might apply.

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Here are the key changes:

Increased Waiting Periods for some offences

The 3 and 5 year waiting periods for summary and indictable offence convictions are generally maintained, but these are bumped up to 5 and 10 years in certain cases:

5 years for a summary conviction for an offence listed in a newly created Schedule 1 of the CRA (sexual offence involving a child). You will need to provide official documentation regarding the conviction and the age of the victim; 10 years for a personal injury offence conviction (s.752 CC), for which a sentence of 2 years or more was imposed; 10 years for an indictable conviction of an offence referred to in Schedule 1 of the CRA (sexual offence involving a child). You will need to provide official documentation regarding the conviction and the age of the victim; 5 or 10 years for all convictions by a Canadian offender transferred to Canada under the Transfer of Offenders Act or International Transfer of Offenders Act (10 years for sexual offences); 5 years under the National Defence Act, if you were fined more than $2,000, detained or imprisoned more than 6 months, or dismissed from service; and 3 years under the National Defence Act, for all other service offences.

New Criteria for Granting of a Pardon

All applicants, regardless of conviction and sentence, must meet both the “good conduct” and “no convictions” tests during the waiting period. (Under the old system applicants with only summary convictions only had to demonstrate no convictions).

For offences involving the 5 or 10 year waiting periods, the applicant must also satisfy the Board that the Pardon would;

a. provide a measurable benefit to the applicant and, b. sustain their rehabilitation and c. not bring the administration of justice into disrepute.

New Authority or Obligation for Board inquiries

On application:  Board shall make inquiries regarding conduct of applicant since date of conviction  Board may make inquiries regarding any factor in determining whether pardon would bring administration of justice into disrepute. (for s.4(a) offences)

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 Board shall notify applicant in writing of proposal to refuse application for pardon, and that applicant is entitled to make representations to the Board, in writing, or with the Board’s authorization orally at a hearing.

The additional inquiries and new considerations, and the emphasis upon the absolute discretion of the Board to order or refuse to order a record suspension are significant. Particularly for 5 and 10 year waiting period convictions, a Pardon issuance is far from being a given, even where the applicant has met an extended waiting period.

We can only surmise that the time frames for determinations are going to be extended, because of the further inquiries and the greater discretion and considerations involved.

Future Changes ?

The agreement to pass C23A also included an agreement to put a further amendment package (Bill C23B) before Committee. That Bill (Eliminating Pardons for Serious Crimes Act would have put in place the scheme that the government proposed with C23 in the first place. It would eliminated Pardons altogether, replacing them with “Record Suspensions”. All waiting periods would have been 5 or 10 years. Categories of convictions would have been carved out and made perpetually ineligible for Record Suspension.

The current CRA (as amended in June 2010 by C23A) does not alter the class of persons who will never be eligible for pardons. Persons with lifetime sentences (murder convictions and persons with dangerous offender designation) will never be eligible to apply for pardons (or record suspensions) because the ten year clock never starts running.

But, under C23B, more persons would have been designated as forever ineligible for record suspensions);

a. Persons convicted of an (amended) Schedule 1 offence (various sexual offences), b. Persons convicted of more than three indictable offences (or service offences punished by two year incarceration).

Bill C23B died with the current election, by the time this paper is presented in mid May, we will know whether to expect its resurrection.

Current Pardon law and impact on IRPA consideration of Foreign Pardons.

As discussed earlier in this paper, the established case law sets a three part test for recognition of foreign pardons –

(1) the foreign legal system as a whole must be similar to that of Canada;

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(2) the aim, content and effect of the specific foreign law must be similar to Canadian law; and (3) there must be no valid reason not to recognize the effect of the foreign law”.

It is suggested that amendment of the CRA through C23A casts some question on the continued validity of some decisions to respect foreign pardon law, say at least with respect to the UK Rehabilitation of Offenders legislation. The UK legislation is fairly “automatic” – convictions are rendered “spent” upon the passage of time, without the individual assessment of good conduct or “disrepute” to the administration of justice now required for some determinations under the current CRA.

It is suggested that the stricter requirements for Canadian pardons/record suspensions will make it more difficult to find equivalent foreign rehabilitative legislation.

Finis

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Legislation

A33 Rules of Interpretation Interprétation A36(1) Serious criminality Grande criminalité A36(2) Criminality Criminalité A36(3) Application Application r17 Prescribed period Délai réglementaire (five years after sentence or after commission) r18(1) Rehabilitation Réadaptation (deemed rehabilitation) r18(2) Members of the Class Qualité r18.1(1) Prescribed Class Catégorie réglementaire (deemed rehab for summary convictions in Canada, five years)) r18.1(2) Exemption Exemption r19 Transborder Crime Crime transfrontalier

Reference Materials

Manual Provisions

ENF 14/OP 19 2008‐04‐21 Criminal Rehabilitation

This helpful Manual Chapter on determining rehabilitation has been removed from the website for a half dozen years, since 2005, but thanks to Marina Sedai an internal version dated 2008‐04‐21 was obtained through Access to Information request. A copy was circulated on the CBA listserv and I am enclosing a copy with this paper. Many of the guidelines are also available in various publicly available kits and forms, Manuals or Bulletins. The sources of information are listed here. This Manual should be used as a second resource and not as a primary tool. For instance, use the Rehabilitation Application Kit checklist as the primary guide, and then this manual for further inspiration.

5.1, 5.2 Deemed and Individual Rehabilitation 7.1‐7.5 Deemed Rehab applications, procedures at POE and Visa offices

8 Individual Rehab, procedure at CIC POE or visa office 9 Individual Rehab, Application Kit 10 Individual Rehab, Procedural Fairness 11 Individual Rehab, Interviews 12 Individual Rehab, Documentation, Mandatory and Optional

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13 Determining Equivalency 14 Converting Currency values 15 Act or Omission 16 Start date for 10 or 5 years calculations

17 Criminal Profile and Rehabilitation factors 19 Processing fee 20 Submission of Rehab application 21 Officer’s recommendation at POE, CIC and visa office 24 Young Offenders Act (out of date)

25 Pardons for Convictions in Canada 26 Pardons and Rehab both required 27 Pardons Outside Canada 28 Roles and Responsibilities

ENF 2 ‐ 3 Evaluating Inadmissiblility

3. Departmental Policy on Criminal Inadmissibility 3.1 Reasonable grounds vs Balance of probabilities 3.2 Convicted v. Commission 3.3‐3.4 Convictions in and out of Canada 3.5 ‐ 3.11 Committing an Act – Foreign Judicial Process – When to Use – Essential Case Elements – Reasonable grounds to believe/Balance of Probabilities

3.12 – 3.20 Committing on entering Canada (36(2)d) – Policy Intent – Application – Presumption of Innocence – Reasonable grounds to believe – Essential Case Elements – When to Use – Unusual Situations.

ENF 1‐ 7 Procedure: For obtaining evidence and determining equivalency

7.10 Obtaining evidence for A36(1)(a) 7.11 Obtaining evidence and determining equivalency for A36(1)(b) 7.12 Obtaining evidence and determining equivalency for A36(1)(c) 7.13 Obtaining evidence for A36(2)(a) 7.14 Obtaining evidence and determining equivalency for A36(2)(b) 7.15 Obtaining evidence and determining equivalency for A36(2)(c)

App. A Some notable inadmissibility jurisprudence

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ENF 2 ‐ 13 Relief Provisions

13.1 Overview of Relief Mechanisms 13.2 Pardons in Canada 13.3 Criminal Rehabilitation 13.4 Passage of Time 13.5 Imposed Sentences incorporating a “time served” provision 13.6 National Interest 13.7 National Interest considerations

OP20, IP1 Temporary Resident Permits (A24)

ENF 2 ‐ 14. Definitions

14.1 Committing an Act 14.2 Conviction – Include glossary of US Sentence options 14.3 Omission 14.4 Organization 14.5 Pattern of Criminal Activity 14.6 Withholding

ENF 2 App. A Determining Equivalencies – Examples of foreign laws

IL 3 Instrument of Designation and Deligation

Guides and Bulletins

Visiting Canada, Overcoming Criminal Inadmissibility Frequently Asked Questions http://www.cic.gc.ca/english/visit/faq‐inadmissibility.asp#note8

Guide for Application for Rehabilitation (IMM 5312) p.4 Young Offender proceedings – in Canada and abroad P. 4‐5 Whether conviction or offence makes you inadmissible P.6 Eligibility for Rehabilitation or Deemed Rehabilitation – the Rehabilitation period. P.7 Types of Sentences and the five year period

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Operations Bulletin 036 August 8, 2007 – Determining Equivalencies. http://www.cic.gc.ca/english/resources/manuals/bulletins/2007/ob036.asp  Current or Old law?  Current or Old exchange rates?

Obtaining Country Police Records http://www.cic.gc.ca/english/information/security/police‐cert/index.asp

Obtaining US State Certificates http://www.canadainternational.gc.ca/Detroit/offices‐bureaux/certificates‐ certificat.aspx?lang=eng&menu_id=332&menu=L

Obtaining Canadian and Foreign Law http://laws.justice.gc.ca/ ; www.google.ca

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Issues in Determining Criminal Inadmissibility

Determining Equivalency of Foreign Offences

ENF 1 Procedure: For obtaining evidence and determining equivalency

7.11 Obtaining evidence and determining equivalency for A36(1)(b) 7.12 Obtaining evidence and determining equivalency for A36(1)(c) 7.14 Obtaining evidence and determining equivalency for A36(2)(b) 7.15 Obtaining evidence and determining equivalency for A36(2)(c)

App. A Some notable inadmissibility jurisprudence

ENF 14 Determining Equivalency

13. Procedure 13.1 Canadian Statute considerations 13/2 Foreign Statute considerations

14. Converting foreign money (old or new rates?)

Operations Bulletin 036 August 8, 2007 – Determining Equivalencies. http://www.cic.gc.ca/english/resources/manuals/bulletins/2007/ob036.asp  Current or Old law?  Current or Old exchange rates?

IRB IAD Removal Order Appeals, ch 8, Determining Equivalency http://www.irb‐cisr.gc.ca/eng/brdcom/references/legjur/iadsai/roaren/Pages/index.aspx

IRB IAD Removal Order Appeals, ch 7, Criminal Grounds for Removal http://www.irb‐ cisr.gc.ca/Eng/brdcom/references/legjur/iadsai/roaren/Documents/RoaAmrChap07_e.pdf

Convictions and Acts

Guide for Application for Rehabilitation (IMM 5312) P. 4 Whether conviction or other disposition makes you inadmissible

ENF 2 3.2 Convicted v. Commission

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3.3‐3.4 Convictions in and out of Canada 3.5 ‐ 3.11 Committing an Act – Foreign Judicial Process – When to Use – Essential Case Elements – Reasonable grounds to believe/Balance of Probabilities 14.1 Definitions ‐ Committing an Act 14.2 Definitions ‐ Conviction – Include glossary of US Sentence options that are an are not “convictions” ENF 14 27. Pardons for convictions outside Canada 25. Pardons for conviction inside Canada

Completion of Sentence – Eligibility for Rehabilitation – Counting two, five and ten years

Guide for Application for Rehabilitation (IMM 5312) P. 6‐7 Waiting Periods for eligibility (Acts or Convictions, Imprisonment, suspended sentences, parole, fines, driving suspensions. ENF 14 16. Start date of the 5 and 10 year periods

Effect of Young Offender, Youth, and Youth Criminal Justice Act convictions.

Guide for Application for Rehabilitation (IMM 5312 03‐2011) P. 4 Conviction in Canada or abroad as Youth or Juvenile.

ENF 14 24, Should applicant be considered under the Young Offenders Act? (Old provision, but principles are relevant still.) A36(3)e

Deemed Rehabilitation

A36(3)e, r.18(2)a, r.18(2)b, r.18.1

ENF 14 – 7 7.1 When deemed rehabilitation provisions applicable. 7.2 When deemed rehabilitation provisions not applicable. 7.3 Applying deemed rehabilitation. 7.4 At a port of entry (POE).

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7.5 Applications at a visa office.

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TOOLKIT CRIMINAL INADMISSIBILITY CASE REFERENCES Updated April 2011

1) Determining Equivalency of Foreign Offences

See IAD publication Removal Order Appeals, ch. 8 for full discussion

Brannson v. Canada (Minister of Employment and Immigration), [1981] 2 F.C. 141 (C.A.), at 152‐154, 145, per Ryan J.A.  Do essential elements of foreign and Canadian offence correspond?  If foreign offence is broader, examine particular circumstances of offence.

Hill v. Canada (Minister of Employment and Immigration) (1987), 1 Imm. L.R. (2d) 1 (F.C.A.), at 9, per Urie J.A.  Three ways to determine equivalence: o Comparison of precise wording of each statute. o Does evidence of offence establish Canadian statute elements? o Combination of the two.

Li v. Canada (Minister of Citizenship and Immigration), [1997] 1 F.C. 235 (C.A.), at 249, 256‐258, per Strayer J.A.  Would the acts committed and punished abroad be punishable here in Canada?

2) Pre ‐ Sentence Custody ‐ time spent in pre‐trial or pre‐sentence custody which is computed by the criminal court in arriving at the person’s sentence should be considered part of the “term of imprisonment” for the purposes of determining appeal rights under subsection 64(2) or when interpreting paragraph 36(1)(a)....

Criminal law context: R. v. Fice, 2005 SCC 32, 28 C.R. (6th) 201. R. c. Mathieu, 2008 SCC 21, 56 C.R. (6th) 1.

Immigration law context: M.C.I. v. Atwal, Iqbal Singh (F.C.no. IMM‐3260‐03), Pinard, January 8, 2004; 2004 FC7; Cheddesingh (Jones),Nadine Karen v. M.C.I. (F.C., no. IMM‐2453‐05), Beaudry, February 3, 2006; 2006 FC 124.

M.P.S.E.P. v. Nazaire, Jacques Narcisse (ID A8‐00625), Ladouceur, October 23, 2008 (RefLex Issue 347);

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M.P.S.E.P. v. Ramos Pacheco, Giovanni Joaquin (ID A8‐01078), Kohler, January 9, 2009 (RefLex Issue 351). Mihalkov v. Canada (Minister of Public Safety and Emergency Preparedness) (IAD file TA7‐05378), 79 Imm. L.R. (3d) 140; Nana‐Effah v. Canada (Minister of Public Safety and Emergency Preparedness) (IAD file MA8‐02628), 79 Imm. L.R. (3d) 308.

3) Conditional Sentences – are a term of imprisonment, not an alternative to imprisonment

Criminal law context:

R. v. Fice, 2005 SCC 32, 28 C.R. (6th) 201 R v. Wu, [2003] SCC 73, December 18, 2003

Immigration law context:

Meerza, Rizwan Mohamed v. M.C.I. (IAD TA2‐21315), Hoare, September 15, 2003 (RefLex Issue 224). M.C.I. v. Santizo, Marco Antonio (Adjudication A1‐00471), Nupponen, September 27, 2001 (RefLex Issue 176). with respect to a person described in s.27(1)(d) of the Immigration Act.

M.C.I. v. Sahota, Ranjit Singh (ID A3‐02512), Iozzo, March 11, 2004. contrary Immigration Division decision

4) Foreign Pardons – The three requirement test

Canada (Minister of Citizenship and Immigration) v. Saini, 2001 FCA 311, [2002] 1 F.C. 200 Barnett v. Canada (Minister of Citizenship and Immigration) (1996), 109 F.T.R. 154; 33 Imm. L.R. (2d) 1 (F.C.T.D.). Canada (Minister of Employment and Immigration) v. Burgon, [1991] 3 F.C. 44; (1991), 78 D.L.R. (4th) 103; 13 Imm. L.R. (2d) 102; 122 N.R. 228 (C.A.) Lui v. Canada (Minister of Citizenship and Immigration) (1997), 134 F.T.R. 308; 39 Imm. L.R. (2d) 60 (F.C.T.D.)

5) Immigration Appeal Division equitable jurisdiction

Ribic, Marida v. M.E.I. (I.A.B. 84‐9623), August 20, 1985

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Chieu v Canada (Citizenship and Immigration), 2002 SCC 3 Al Sagban v Canada (Citizenship and Immigration), 2002 SCC 2 Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339

6) S. 44(2) – Reports and referrals to the Immigration Division for admissibility hearing – Scope of discretion – Permanent Residents and Foreign Nationals

Cha v. Canada (Minister of Citizenship and Immigration), 2006A FC 126 (CanLII), 2006 FCA 126, [2007] 1 F.C.R. 409, 267 D.L.R. (4th) 324, 42 Admin. L.R. (4th) 204, revg 2004 FC 1507 (CanLII), 2004 FC 1507, [2005] F.C.R. 503, 25 Admin. L.R. (4th) 198, 258 F.T.R. 54; (Foreign National)

Awed v. Canada (Minister of Citizenship and Immigration), 2006 FC 469 (CanLII), 2006 FC 469, 46 Admin. L.R. (4th) 233; (Foreign National)

Hernandez v. Canada (Minister of Citizenship and Immigration), 2005 FC 429 (CanLII), 2005 FC 429, [2006] 1 F.C.R. 3, 271 F.T.R. 257, 45 Imm. L.R. (3d) 249; (Permanent Resident)

Spencer v. Canada (Minister of Citizenship and Immigration), 2006 FC 990 (CanLII), 2006 FC 990, 298 F.T.R. 267; (Permanent Resident)

Richter v. Canada (Minister of Citizenship and Immigration), 2008 FC 806 (CanLII), 2008 FC 806, [2009] 1 F.C.R. 675, 73 Imm. L.R. (3d) 131, affd 2009 FCA 73 (CanLII), 2009 FCA 73. (Permanent Resident)

Monge Monge v. Canada (Minister of Public Safety and Emergency Preparedness), 2009 FC 809, [2010] 3 F.C.R. 291 (Permanent Resident)

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OP20 Temporary Resident Permits (Extract)

12.2. Recommendation and case summaries: Criminal inadmissibility [A36] Tables 8,9 Table 8: Information specific to criminal summaries and recommendations

[NOTE: This is a helpful listing of factors and documents used in TRP consideration for criminal inadmissibility. It is a guide worth looking at, but only a guide rather than prescription.]

Required information specific to criminal recommendations and case summaries

• Whether the client has applied for a pardon (if applicable) • Security decision (required in all criminality cases regardless of age)

The basis of prohibition including: • inadmissible class [e.g. A36(1)(a)] • name of offence (crimes committed) • date of conviction • details of sentence • Canadian equivalency by name, statute & section • Maximum penalty in Canada • Date eligible for rehabilitation

Analysis of the positive factors may include: • any public policy, national interest, or compassionate and humanitarian considerations, • brief comments on the applicant’s chances of successful settlement in Canada, (education, work skills, employment history, family support). Circumstances may include: • full background information leading up to the commission of the offence • an overview of the subject’s lifestyle at the time • date and place of occurrence of offence • factors leading up to the event, motives • details of the offence • part played by the applicant in the commission of the offence • degree of violence (including use of weapons) • involvement of drugs or alcohol (including any long term problems involving drugs or alcohol) • pattern of criminal activity (e.g. criminal lifestyle, living earned from crime, friends involved in crime, several convictions, unstable employment, weak family links, frequent change of residence

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Rehabilitation considerations including: • steps taken towards rehabilitation • likelihood of not offending again • accepting responsibility for the offence • evidence of remorse for any harm done • understanding of gravity of the offence, of the damage they have done to themselves and to others • evidence of restitution, where possible, to victims of their crimes • counselling or therapy if crime included or resulted from drug, alcohol or sexual abuse, psychological disturbance or a history of assaults (include evidence of attendance and/or successful completion of any program) • stability in employment and family life, participation in educational and skill training programs and community life

Table 9: Documents specific to criminal case summaries and recommendations

Mandatory documents: • IMM 0008 “Application for permanent residence”, if applicable • security check (required in all criminality cases regardless of age) • conviction certificate • subject’s personal written statement fully outlining/detailing circumstances of the offence • translated copy of foreign statute (mandatory when seeking advice on equivalence), and • a criminal clearance certificate obtained from the police authorities in the areas where they have resided for the past ten years (Canada: RCMP criminal clearance certificate; U.S.: FBI and state criminal clearance certificates)

Optional documents: • rehabilitation letters (character reference) • court records and transcript • probation or parole officer’s reports • pardons which do not vacate convictions retroactively • file notes • any other documentation deemed appropriate to facilitate the decision

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Legislation

Rules of interpretation Interprétation

33. The facts that constitute inadmissibility 33. Les faits — actes ou omissions — mentionnés under sections 34 to 37 include facts arising aux articles 34 à 37 sont, sauf disposition contraire, from omissions and, unless otherwise provided, appréciés sur la base de motifs raisonnables de include facts for which there are reasonable grounds to believe that they have occurred, are croire qu’ils sont survenus, surviennent ou peuvent occurring or may occur. survenir.

Serious criminality Grande criminalité

36. (1) A permanent resident or a foreign 36. (1) Emportent interdiction de territoire national is inadmissible on grounds of serious pour grande criminalité les faits suivants : criminality for

(a) having been convicted in Canada of an a) être déclaré coupable au Canada d’une offence under an Act of Parliament punishable infractionà une loi fédérale punissable d’un by a maximum term of imprisonment of emprisonnement maximal d’au moins dix at least 10 years, or of an offence under an ans ou d’une infraction à une loi fédérale Act of Parliament for which a term of imprisonment pour laquelle un emprisonnement de plus de of more than six months has been six mois est infligé; imposed;

(b) having been convicted of an offence outside b) être déclaré coupable, à l’extérieur du Canada, Canada that, if committed in Canada, d’une infraction qui, commise au Canada, would constitute an offence under an Act of constituerait une infraction à une loi Parliament punishable by a maximum term fédérale punissable d’un emprisonnement of imprisonment of at least 10 years; or maximal d’au moins dix ans;

(c) committing an act outside Canada that is c) commettre, à l’extérieur du Canada, une an offence in the place where it was committed infraction qui, commise au Canada, constituerait and that, if committed in Canada, would une infraction à une loi fédérale punissable constitute an offence under an Act of Parliament d’un emprisonnement maximal d’au moins dix ans. punishable by a maximum term of imprisonment of at least 10 years.

Criminality Criminalité

36. (2) A foreign national is inadmissible on 36. (2) Emportent, sauf pour le résident permanent, grounds of criminality for interdiction de territoire pour criminalité les faits suivants : (a) having been convicted in Canada of an offence under an Act of Parliament punishable a) être déclaré coupable au Canada d’une by way of indictment, or of two offences infraction à une loi fédérale punissable par mise under any Act of Parliament not arising out en accusation ou de deux infractions à of a single occurrence; toute loi fédérale qui ne découlent pas des

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mêmes faits; (b) having been convicted outside Canada of an offence that, if committed in Canada, b) être déclaré coupable, à l’extérieur du Canada, would constitute an indictable offence under d’une infraction qui, commise au Canada, an Act of Parliament, or of two offences not constituerait une infraction à une loi fédérale arising out of a single occurrence that, if punissable par mise en accusation ou de deux committed in Canada, would constitute offences infractions qui ne découlent pas des mêmes faits et under an Act of Parliament; qui, commises au Canada, constitueraient des infractions à des lois fédérales; (c) committing an act outside Canada that is an offence in the place where it was committed c) commettre, à l’extérieur du Canada, une and that, if committed in Canada, would infraction qui, commise au Canada, constituerait constitute an indictable offence under an Act une infraction à une loi fédérale punissable of Parliament; or par mise en accusation;

(d) committing, on entering Canada, an offence d) commettre, à son entrée au Canada, une under an Act of Parliament prescribed infraction qui constitue une infraction à une by regulations. loi fédérale précisée par règlement.

Application Application

36. (3) The following provisions govern subsections 36. (3) Les dispositions suivantes régissent (1) and (2): l’application des paragraphes (1) et (2)

(a) an offence that may be prosecuted either a) l’infraction punissable par mise en accusation summarily or by way of indictment is deemed to be ou par procédure sommaire est assimilée an indictable offence, even if it has been à l’infraction punissable par mise en accusation, prosecuted summarily; indépendamment du mode de poursuite effectivement retenu; (b) inadmissibility under subsections (1) and (2) may not be based on a conviction in respect b) la déclaration de culpabilité n’emporte of which a pardon has been granted and has not pas interdiction de territoire en cas de verdict ceased to have effect or been revoked under the d’acquittement rendu en dernier ressort ou de Criminal Records Act, or in respect of which there réhabilitation — sauf cas de révocation ou de has been a final determination of an acquittal; nullité — au titre de la Loi sur le casier judiciaire;

(c) the matters referred to in paragraphs (1) c) les faits visés aux alinéas (1)b) ou c) et (b) and (c) and (2)(b) and (c) do not constitute (2)b) ou c) n’emportent pas interdiction de inadmissibility in respect of a permanent territoire pour le résident permanent ou l’étranger resident or foreign national who, after the qui, à l’expiration du délai réglementaire, convainc prescribed period, satisfies the Minister that they le ministre de sa réadaptation ou qui appartient à have been rehabilitated or who is a member of a une catégorie réglementaire de personnes prescribed class that is deemed to have been présumées réadaptées; rehabilitated; d) la preuve du fait visé à l’alinéa (1)c) est, (d) a determination of whether a permanent s’agissant du résident permanent, fondée sur resident has committed an act described in la prépondérance des probabilités; paragraph (1)(c) must be based on a balance of probabilities; and e) l’interdiction de territoire ne peut être fondée sur

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une infraction qualifiée de contravention en vertu (e) inadmissibility under subsections (1) and de la Loi sur les contraventions ni sur une infraction (2) may not be based on an offence designated dont le resident permanent ou l’étranger est as a contravention under the Contraventions déclaré coupable sous le régime de la Loi sur les Act or an offence for which the permanent jeunes contrevenants, chapitre Y-1 des Lois resident or foreign national is found guilty under the révisées Young Offenders Act, chapter Y-1 of the Revised du Canada (1985), ou de la Loi sur le Statutes of Canada, 1985 or the Youth Criminal système de justice pénale pour les adolescents. Justice Act.

Prescribed period Délai réglementaire r.17. For the purposes of paragraph 36(3) r.17. Pour l’application de l’alinéa (c) of the Act, the prescribed period is five 36(3)c) de la Loi, le délai réglementaire est years de cinq ans à compter :

(a) after the completion of an imposed sentence, in the case of matters referred to in a) dans le cas des faits visés aux alinéas paragraphs 36(1)(b) and (2)(b) of the Act, if 36(1)b) ou (2)b) de la Loi, du moment où la the person has not been convicted of a peine imposée a été purgée, pourvu que la subsequent offence other than an offence personne n’ait pas été declare coupable d’une designated as a contravention under the infraction subséquente autre qu’une infraction Contraventions Act or an offence under the qualifiée de contravention en vertu de la Loi Young Offenders Act; and sur les contraventions ou une infraction à la Loi sur les jeunes contrevenants; (b) after committing an offence, in the case of matters referred to in paragraphs 36(1)(c) and b) dans le cas des faits visés aux alinéas (2)(c) of the Act, if the person has not been 36(1)c) ou (2)c) de la Loi, du moment de convicted of a subsequent offence other than la commission de l’infraction, pourvu que la an offence designated as a contravention personne n’ait pas été declare coupable d’une under the Contraventions Act or an offence infraction subséquente autre qu’une infraction under the Young Offenders Act. qualifiée de contravention en vertu de la Loi sur les contraventions ou une infraction à la Loi sur les jeunes contrevenants.

Rehabilitation Réadaptation r.18. (1) For the purposes of paragraph 36(3)(c) of the Act, the class of persons r.18. (1) Pour l’application de l’alinéa deemed to have been rehabilitated is a 36(3)c) de la Loi, la catégorie des personnes prescribed class. présumées réadaptées est une catégorie réglementaire.

Members of the class Qualité

(2) The following persons are members of the

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class of persons deemed to have been (2) Font partie de la catégorie des personnes rehabilitated: présumées réadaptées les personnes suivantes : (a) persons who have been convicted outside Canada of no more than one offence that, if a) la personne déclarée coupable, à l’extérieur committed in Canada, would constitute an du Canada, d’au plus une infraction qui, indictable offence under an Act of Parliament, commise au Canada, constituerait une if all of the following conditions apply, namely, infraction à une loi fédérale punissable par mise en accusation si les conditions suivantes (i) the offence is punishable in Canada by a sont réunies : maximum term of imprisonment of less than 10 years, (i) l’infraction est punissable au Canada d’un emprisonnement maximal de moins de (ii) at least 10 years have elapsed since the dix ans, day after the completion of the imposed sentence, (ii) au moins dix ans se sont écoulés depuis le moment où la peine imposée (iii) the person has not been convicted in a été purgée, Canada of an indictable offence under an Act of Parliament, (iii) la personne n’a pas été declare coupable au Canada d’une infraction à une loi fédérale (iv) the person has not been convicted in punissable par mise en accusation, Canada of any summary conviction offence within the last 10 years under an Act of (iv) elle n’a pas été déclarée coupable Parliament or of more than one summary au Canada d’une infraction à une loi conviction offence before the last 10 years, fédérale punissable par procedure sommaire other than an offence designated as a dans les dix dernières années ou de plus contravention under the Contraventions d’une telle infraction avant les dix dernières Act or an offence under the Youth Criminal années, autre qu’une infraction qualifiée de Justice Act, contravention en vertu de la Loi sur les contraventions ou une infraction à la Loi sur le (v) the person has not within the last 10 years système de justice pénale pour les been convicted outside Canada of an offence adolescents, that, if committed in Canada, would constitute an offence under an Act of Parliament, other (v) elle n’a pas, dans les dix dernières années, than an offence designated as a contravention été déclarée coupable, à l’extérieur du under the Contraventions Act or an offence Canada, d’une infraction qui, commise au under the Youth Criminal Justice Act, Canada, constituerait une infraction à une loi fédérale, autre qu’une infraction qualifiée de (vi) the person has not before the last 10 years contravention en vertu de la Loi sur les been convicted outside Canada of more than contraventions ou une infraction à la Loi one offence that, if committed in Canada, sur le système de justice pénale pour les would constitute a summary conviction offence adolescents, under an Act of Parliament, and

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(vi) elle n’a pas, avant les dix dernières (vii) the person has not committed an act années, été déclarée coupable, à l’extérieur described in paragraph 36(2)(c) of the Act; du Canada, de plus d’une infraction qui, commise au Canada, constituerait une (b) persons convicted outside Canada of two infraction à une loi fédérale punissable par or more offences that, if committed in Canada, procedure sommaire, would constitute summary conviction offences under any Act of Parliament, if all of the (vii) elle n’a pas commis l’infraction visée à following conditions apply, namely, l’alinéa 36(2)c) de la Loi;

(i) at least five years have elapsed since the b) la personne déclarée coupable, à l’extérieur day after the completion of the imposed du Canada, de deux infractions ou plus qui, sentences, commises au Canada, constitueraient des infractions à une loi fédérale punissables par (ii) the person has not been convicted in procédure sommaire si les conditions Canada of an indictable offence under an Act suivantes sont réunies : of Parliament, (i) au moins cinq ans se sont écoulés depuis le (iii) the person has not within the last five moment où les peines imposes ont été years been convicted in Canada of an offence purgées, under an Act of Parliament, other than an offence designated as a contravention under (ii) la personne n’a pas été declare coupable the Contraventions Act or an offence under au Canada d’une infraction à une loi fédérale the Youth Criminal Justice Act, punissable par mise en accusation,

(iv) the person has not within the last five (iii) elle n’a pas, dans les cinq dernières years been convicted outside Canada of an années, été déclarée coupable au Canada offence that, if committed in Canada, would d’une infraction à une loi fédérale, autre constitute an offence under an Act of qu’une infraction qualifiée de contravention en Parliament, other than an offence designated vertu de la Loi sur les contraventions ou une as a contravention under the Contraventions infraction à la Loi sur le système de justice Act or an offence under theYouth Criminal pénale pour les adolescents, Justice Act, (iv) elle n’a pas, dans les cinq dernières (v) the person has not before the last five années, été déclarée coupable, à l’extérieur years been convicted in Canada of more than du Canada, d’une infraction qui, commise au one summary conviction offence under an Act Canada, constituerait une infraction à une loi of Parliament, other than an offence fédérale, autre qu’une infraction qualifiée de designated as a contravention under the contravention en vertu de la Loi sur les Contraventions Act or an offence under the contraventions ou une infraction àla Loi sur le Youth Criminal Justice Act, système de justice pénale pour les adolescents, (vi) the person has not been convicted of an offence referred to in paragraph 36(2)(b) of the (v) elle n’a pas, avant les cinq dernières

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Act that, if committed in Canada, would années, été déclarée coupable au Canada de constitute an indictable offence, and plus d’une infraction à une loi fédérale punissable par procedure sommaire, autre (vii) the person has not committed an act qu’une infraction qualifiée de contravention en described in paragraph 36(2)(c) of the Act; and vertu de la Loi sur les contraventions ou une infraction à la Loi sur le système de justice (c) persons who have committed no more than pénale pour les adolescents, one act outside Canada that is an offence in the place where it was committed and that, if (vi) elle n’a pas été déclarée coupable d’une committed in Canada, would constitute an infraction visée à l’alinéa 36(2)b) de la Loi qui, indictable offence under an Act of Parliament, commise au Canada, constituerait une if all of the following conditions apply, namely, infraction punissable par mise en accusation, (vii) elle n’a pas commis l’infraction visée à (i) the offence is punishable in Canada by a l’alinéa 36(2)c) de la Loi; maximum term of imprisonment of less than 10 years, c) la personne qui a commis, à l’extérieur du Canada, au plus une infraction qui, commise (ii) at least 10 years have elapsed since the au Canada, constituerait une infraction à une day after the commission of the offence, loi fédérale punissable par mise en accusation si les conditions suivantes sont réunies : (iii) the person has not been convicted in Canada of an indictable offence under an Act (i) l’infraction est punissable au Canada d’un of Parliament, emprisonnement maximal de moins de dix ans, (iv) the person has not been convicted in Canada of any summary conviction offence (ii) au moins dix ans se sont écoulés depuis le within the last 10 years under an Act of moment de la commission de l’infraction, Parliament or of more than one summary conviction offence before the last 10 years, (iii) la personne n’a pas été declare coupable other than an offence designated as a au Canada d’une infraction à une loi fédérale contravention under the Act or an offence punissable par mise en accusation, under the Youth Criminal Justice Act, (iv) elle n’a pas été déclarée coupable au (v) the person has not within the last 10 years Canada d’une infraction à une loi fédérale been convicted outside of Canada of an punissable par procedure sommaire dans les offence that, if committed in Canada, would dix dernières années ou de plus d’une telle constitute an offence under an Act of infraction avant les dix dernières années, autre Parliament, other than an offence designated qu’une infraction qualifiée de contravention en as a contravention under the Contraventions vertu de la Loi sur les contraventions ou une Act or an offence under the Youth Criminal infraction à la Loi sur le système de justice Justice Act, pénale pour les adolescents,

(vi) the person has not before the last 10 years (v) elle n’a pas, dans les dix dernières années, been convicted outside Canada of more than été déclarée coupable, à l’extérieur du

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one offence that, if committed in Canada, Canada, d’une infraction qui, commise au would constitute a summary conviction offence Canada, constituerait une infraction à une loi under an Act of Parliament, and fédérale, autre qu’une infraction qualifiée de contravention en vertu de la Loi sur les (vii) the person has not been convicted outside contraventions ou une infraction à la Loi sur le of Canada of an offence that, if committed in système de justice pénale pour les dolescents, Canada, would constitute an indictable offence under an Act of Parliament. (vi) elle n’a pas, avant les dix dernières années, été déclarée coupable, à l’extérieur du Canada, de plus d’une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable par procedure sommaire,

(vii) elle n’a pas été déclarée coupable, à l’extérieur du Canada, d’une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable par mise en accusation. Prescribed class r.18.1 (1) The class of foreign nationals who Catégorie réglementaire are inadmissible solely on the basis of having been convicted in Canada of two or more 18.1 (1) La catégorie d’étrangers qui sont offences that may only be prosecuted interdits de territoire pour l’unique motif qu’ils summarily, under any Act of Parliament, is a ont été déclarés coupables au Canada de prescribed class for the application of deux ou de plus de deux infractions paragraph 36(2)(a) of the Act. punissables seulement par procédure sommaire aux termes de toute loi fédérale est une catégorie réglementaire pour l’application Exemption de l’alinéa 36(2)a) de la Loi.

(2) A member of the class prescribed in Exemption subsection (1) is exempt from the application of paragraph 36(2)(a) of the Act if it has been (2) Tout étranger qui fait partie de la catégorie at least five years since the day after the établie par le paragraphe (1) est soustrait à completion of the imposed sentences. l’application de l’alinéa 36(2)a) de la Loi si au

moins cinq ans se sont écoulés depuis le moment où toutes les peines imposées ont été purgées. Transborder crime

19. For the purposes of paragraph 36(2)(d) of Crime transfrontalier the Act, indictable offences under the following

Acts of Parliament are prescribed:

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(a) the Criminal Code; 19. Pour l’application de l’alinéa 36(2)d) de la (b) the Immigration and Refugee Protection Loi, toute infraction punissable par mise en Act; accusation contenue dans les lois fédérales ci- (c) the Firearms Act; après est précisée par règlement : (d) the Customs Act; and a) le Code criminel; (e) the Controlled Drugs and Substances Act. b) la Loi sur l’immigration et la protection des réfugiés; c) la Loi sur les armes à feu; d) la Loi sur les douanes; e) la Loi réglementant certaines drogues et autres substances.

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