Morley Law Office

Canadian Immigration Lawyer Kingston

Currently Viewing Posts Tagged Criminality

Blind Justice


What is justice?  Is it about establishing responsibility, imposing punishment, or getting revenge?  If there is a place for compassion within justice, what is that place?

In honour of National Acadian Day, I would like to share with you a favourite story of mine that addresses these issues.  It was incorporated within Evangeline: A Tale of Acadie, Henry Wadsworth Longfellow’s classic tale of love and loss, set against the background of the deportation of the Acadians.

“Once in an ancient city, whose name I no longer remember,

Raised aloft on a column, a brazen statue of Justice

Stood in the public square, upholding the scales in its left hand,

And in its right a sword, as an emblem that justice presided

Over the laws of the land, and the hearts and homes of the people.

Even the birds had built their nests in the scales of the balance,

Having no fear of the sword that flashed in the sunshine above them.

But in the course of time the laws of the land were corrupted;

Might took the place of right, and the weak were oppressed, and the mighty

Ruled with an iron rod. Then it chanced in a nobleman’s palace

That a necklace of pearls was lost, and ere long a suspicion

Fell on an orphan girl who lived as maid in the household.

She, after form of trial condemned to die on the scaffold,

Patiently met her doom at the foot of the statue of Justice.

As to her Father in heaven her innocent spirit ascended,

Lo! o’er the city a tempest rose; and the bolts of the thunder

Smote the statue of bronze, and hurled in wrath from its left hand

Down on the pavement below the clattering scales of the balance,

And in the hollow thereof was found the nest of a magpie,

Into whose clay-built walls the necklace of pearls was inwoven.”

A story upon which we should all reflect, in my view.  For more information, please contact my office at (613) 542-2192, visit me at, connect with me on LinkedIn and follow me on Twitter (@lesmorley) and on Facebook!


House Arrest & Deportation

THANH TAM TRAN left Vietnam in 1989 and became a permanent resident of Canada.  Twenty-four years later he was convicted in British Columbia of producing marihuana and given a 12-month conditional sentence.  Such a sentence is imposed as a term of imprisonment, but one which, because of the relatively innocuous nature of the particular offender, may be served in the community on strict terms and conditions.  In popular parlance a person on conditional sentence is said to be under “house arrest” because they usually must remain in their house either around the clock or during certain specified hours.

Conditional sentences were introduced in 1995 in response to what was perceived to be the too-frequent imposition of jail sentences.They are only available where the sentence to be imposed is under two years, the crime committed does not have a minimum sentence and the sentencing judge is satisfied that community safety will not be threatened by the house arrest of the offender.  They are useful because the offender may be able to continue to work or otherwise provide for himself or his family while under sentence, or may attend school or medical appointments.  They also save the government a good deal of money by reducing the jail population.  Compliance is monitored, and if the offender breaches the sentence, there is a hearing, and he may be committed to jail for the balance of the term.

When the immigration authorities employed Mr. Tran’s conviction as a basis for referring him for deportation, he applied to the Federal Court to stop the process from going further.  He argued that, according to the terms of the law, his conditional sentence was not serious enough to warrant the termination of his permanent resident status and removal from Canada.  The central question for determination by the Court in his case was whether or not Mr. Tran’s sentence met the threshold for his deportation.

Under Canada’s immigration statute a permanent resident may be ordered deported if he has been convicted of a crime which drew a sentence of six months in jail or more, or for which a maximum sentence of ten years in jail or more might be imposed.  Was Mr. Tran’s 12-month conditional sentence such a sentence?

Justice O’Reilly of the Court found that it was not.  He concluded that, while a conditional sentence may in some circumstances be characterized as a term of imprisonment, the context of the characterization is critical.  Conditional sentences, he noted, were conceived for those offenders who do not require actual incarceration, and not for those who have been engaged in “serious criminality”, as contemplated under Canadian immigration law.  The threshold in the immigration statute relates to actual time in prison, not time spent under house arrest, the Court observed.

Also addressed in the decision was the issue of the maximum possible sentence for the offence which the Court found should be assessed as of the date of conviction, not the date of its referral to the immigration decision-maker.  Further, the Court found the Immigration Officer’s referral to be unreasonable because it relied on arrests and charges as evidence of Mr. Tran’s ongoing criminal behaviour, although they were unproven allegations.

However the key aspect of this case going forward is the finding regarding conditional sentences.  If, as Justice O’Rielly found, they may not be described as terms of imprisonment, then those permanent residents sentenced to house arrest for periods of up to two years less a day may not be deportable.  Further, those already ordered deported for offences for which conditional sentences were imposed or who have been sponsored by a spouse but found inadmissible in similar circumstances may have a remedy to challenge that deportation that could include the right of appeal to the Immigration and Refugee Board (Immigration Appeal Division).

It should be noted that the Federal Court did certify two questions for the appeal of its decision respecting Mr. Tran, one on the conditional sentence issue and the other on retroactivity.   In the circumstances these issues cannot be said to be resolved and caution should still be exercised in making submissions respecting the sentencing of permanent residents.

You can review Mr. Tran’s case online here.

You Spin the Wheel

ACCORDING TO  POLICE OFFICERS, motorist Matthew Duncan resisted arrest.  Was a crime actually committed?  Mr. Duncan said “no”, and made his case forcefully, first, to the officers; and then to the Ontario Court of Justice, before which he represented himself.  In the entertaining judgment of Justice Fergus ODonnell in R v. Duncan the issue of guilt or innocence is resolved, after a long journey through what the court referred to as a “hodgepodge of irrelevancies”.

Mr. Duncan’s problems began when, during the early morning hours, he turned his car into the parking lot of his apartment building without first signaling his intention to do so.  Unfortunately for him police officers witnessed the alleged transgression, and requested that Mr. Duncan identify himself.  Thereafter the stories of the officers and Mr. Duncan diverge, with the former maintaining that no identification was provided, that warnings were given, that an arrest was attempted, and that resistance was presented; and with the latter denying the allegations.

The proceedings at court were described by Justice ODonnell in Alice-in-Wonderland terms.  Given that Mr. Duncan raised a host of jurisdictional issues, all of which were found to be meaningless, what could have been a quick trial was not completed at the end of the first day.  The judgment makes clear that this was a waste of everyone’s time, and Justice ODonnell notes with amused frustration what he characterized as the case’s “slight detour through territory that might have confused Lewis Carroll”.

Mercifully, despite Mr. Duncan’s presentation, the Court determined that the charge should be dismissed, not because of the jurisdictional issues that Mr. Duncan had exhaustively presented, but because there was no legal basis for the underlying arrest.  The court found that there was no need to have signalled a turn because of the absence of traffic in the vicinity at the time of the incident and therefore, as there was no basis for the arrest, Mr. Duncan was entitled to resist it.

It seems that, in his verbal perambulations, Mr. Duncan “momentarily hit upon the concept that would ulimately lead to his acquittal”.  In describing the proceedings, the Court referred to the old adage about a room full of monkeys typing on a room full of typewriters from which is eventually produced the great Canadian novel.  Justice ODonnell was careful, however, to explain that Mr. Duncan, who was described as a “rather pleasant young man” was not actually being likened to a monkey.

An experienced criminal lawyer might have negotiated the same or a better resolution to this matter early on, without the need of a trial.  Had one been retained, a lot of time and energy invested in the proceedings could have devoted to more useful pursuits, not only by Mr. Duncan, but also by the Court, court staff and the prosecutor.  In the end, while this case turned out well for Mr. Duncan, it should be noted that he had the prospect of the court proceedings hanging over his head for a protracted period both pending the trial and its resumption on a second day, and that he would appear to have missed at least two days of work to attend it.  Still, most self-represented litigants do not fare so well as he did.

Last spring a report on the subject of the “doing it yourself” was released by Dr. Julie Macfarlane, a lawyer and professor at the University of Windsor’s law school.  It concluded that there were a “range of negative consequences experienced” by the self-represented litigant:

These include depletion of personal funds and savings for other purposes, instability or loss of employment caused by the amount of time required to manage their legal case themselves, social and emotional isolation from friends and family as the case becomes increasingly complex and overwhelming, and a myriad of health issues both physical and emotionally.  The scale and frequency of these individually experienced consequences represent a social problem on a scale that requires recognition and attention.  The costs are as yet unknown.

To these consequences of not retaining counsel might be added another: the absence of legal analysis and context in the presentation of the case can cause the justice of the self-represented litigant’s position to be obscured or missed altogether.  In other words, their case may not be heard.

Self-representation is growing in the courts and before administrative tribunals, to the exasperation of judges and opposing counsel who must try to be fair even though they may be unable to understand the direction, the relevancy or even the nature of the argument being advanced.  Retaining counsel to make one’s argument is rarely inexpensive, but it has the virtue of allowing litigants to effectively participate in the proceeding.  Often a settlement-oriented approach, informed by a knowledge of the relevant law, can not only allow one’s story to be properly heard, but save time and money as well.

Still, despite its problems, self-representation has been actively promoted by Citizenship and Immigration Canada in documentary proceedings, such as those involving skilled worker or sponsorship applications.  Sometimes, as was the case for Mr. Duncan, things may work out in the end.  In other cases they do not, serious injustices are done, and the damages to families and futures becomes permanent.  When you represent yourself, you spin the wheel, and you take your chances.

Can Rehabilitation Applications be Granted at a Port of Entry?

YOU MAY BE CRIMINALLY INADMISSIBLE to Canada if you were convicted of a crime outside the country.  Sometimes you may be inadmissible even if you were not convicted, if the immigration authorities believe you committed a criminal act outside Canada that also would have been criminal if committed in Canada.

If one is criminally inadmissible to Canada, Canadian immigration law prohibits your admission.  Those who are outside of the country may not enter.  Those who are inside Canada may be removed.  Relief from this inadmissibility may be obtained temporarily by applying for and obtaining a Temporary Resident Permit.  If you wish to be able to live in Canada, relief from inadmissibilty for committing a crime in Canada may be secured by obtaining a pardon.  To permanently overcome inadmissibility for committing a crime outside Canada, you must establish rehabilitation.  To be successful, before applying, you must ensure that you are eligible, and this usually involves the passage of a substantial amount of time.

As stated, the objective of the rehabilitation process is to address and overcome inadmissibility for out-of-Canada offences.  It does not address offences committed in Canada.  If you apply for rehabilitation to overcome inadmissibility for a crime committed outside Canada, and the application is granted, you may be admitted to Canada immediately without the necessity of ever having to establish rehabilitation again, unless you re-offend.

The usual forum for a rehabilitation application is a visa post, usually a Canadian embassy overseas, and the process of considering the application takes months – sometimes many months – to complete.  The advantage of having rehabilitation applications determined at a Port of Entry – an immigration office at at an airport, border crossing or other point of entry to Canada – is that the process may be concluded very quickly, possibly in an hour or so. 

You may file your rehabilitation application at a Port of Entry if:

  • your inadmissibility relates to “criminality”, as opposed to “serious criminality”, as defined in immigration legislation; and
  • you are a national of a country from which no visa is required to enter Canada.

The Port of Entry can also deal with requests to assess whether or not rehabilitation may be deemed under immigration rules.

Whether the rehabilitation is or is not deemed, applications made at a Port of Entry should be clear and straightforward, and should be well-documented.  Officers at Ports of Entry are generally very busy, and are not keen to accept applications for rehabilitation.  In appropriate cases, however, they may be convinced to consider and grant such applications, a fact that we re-confirmed when I filed an application at a nearby Port of Entry recently.

Criminality and Refugee Claims

FEW WILL DENY that it is generally best to avoid criminal trouble.  Engaging in criminality risks not only a loss of liberty, but also the possibility that in future doors of opportunity will be closed, possibly for good.  A criminal breach of trust, for instance, may effectively put an end to the pursuit of some careers.  If convicted of domestic violence, one may lose custody of or even access to one’s children.    If one is convicted of impaired driving, there will be a driver’s license suspension, with a possible loss of employment, if the job requires a license.

Most of us can agree that we are responsible for our wilful actions, and that some adverse consequences of criminal behaviour are usually appropriate.  However, we may differ respecting how long the consequences should be borne, and the extent to which they should compromise an offender’s future.  These are more difficult questions.  What if the offender, for instance, was convicted of violent crimes: should he be forever denied protection from persecution because of these convictions?  That is the issue that was raised in the case of Mr.Luis Alberto Hernandez Febles.

Mr. Hernandez Febles left his native Cuba in 1980, and settled in the United States.  There he was twice convicted of the crime of assault with a deadly weapon.  Alcohol abuse was a key factor in his offending.  After 1993, however, he committed no further offences and steadfastly maintained sobriety.  His remorsefulness was acknowledged.  Still, because he had been convicted of the assaults he eventually lost his immigration status in the United States, and was required to leave.  He came to Canada.

Here he applied for refugee status based on the persecution he had experienced in Cuba, which had been accepted as fact in the United States.  He disclosed that he was convicted of crimes in the United States.  He was found to be ineligible to make a refugee claim in Canada because of his crimes.  Here is the question that Canadian justice had to answer: in determining whether or not Mr. Hernandez Febles should be given refugee protection, should it have been considered that 15 offence-free years had passed, whether or not he was currently a danger to the public, or whether he had been rehabilitated?

Mr. Justice Evans of the Federal Court of Appeal found that such considerations were irrelevant.  The tests for ineligibility and exclusion are simply not the same”, he wrote, and “The scheme of [the Immigration and Refugee Protection Act] suggests to me that when Parliament intends to make rehabilitation relevant, it says so expressly.”  The Court specifically rejected the notion that remorsefulness may be considered in determining whether exclusion from refugee protection is justified, even though there is provision for the possibility that this could happen in the handbook of the United Nations High Commission for Refugees.

The consequences of criminal convictions may be devastating in their scope and, it seems, can last a very, very long time.  Indeed, they may last forever.  Sometimes turning over a new leaf is simply not enough.

To read this case, the citation for which is Luis Alberto Hernandez Febles v. Canada (Minister of Citizenship and Immigration) 2012 FCA 324, click here