2010 May - Download PDF

 

CRIMINALITY AND IMMIGRATION

How do criminal convictions affect my immigration status – this question is something that we are often asked and it is important question because criminal convictions can have a long-term negative affect on your immigration status. When the new immigration law came into force in 2002, it became a lot easier to become criminally inadmissible to Canada with more serious consequences.

According to the Immigration law of Canada, permanent residents (i.e. a person who is not a Canadian citizen yet but has the legal right to live in Canada) and foreign nationals (i.e. those who do not have permanent legal status in Canada like visitor, foreign students, temporary workers) who have been convicted either in Canada or abroad of certain criminal offences may be denied admission to Canada or deported from Canada if they are criminally inadmissible.

Criminal offences under Canada’s criminal code are divided into three kinds: indictable offences which are the more serious offences and which carry longer terms of imprisonment, summary convictions which are the less serious offences usually punishable by less than 2 years imprisonment and hybrid offences which can be prosecuted as either indictable or summary. Most offences in the Criminal Code are hybrid offences and it is the crown attorney or prosecutor (the lawyer who is representing the Canadian government in prosecuting the offence) to decide whether the offence is summary or indictable.

According to the Immigration law, a permanent resident or foreign national is inadmissible to Canada for serious criminality if they are convicted in Canada of an offence punishable by a maximum term of imprisonment of at least 10 years or of an offence for which a term of imprisonment of more than 6 months was imposed. For example, assault with a weapon is a hybrid offence and if prosecuted as an indictable offence, is punishable by a maximum term of 10 years imprisonment. So for example if while you are arguing with someone and you grab an object and throw it at that person,
you could be inadmissible to Canada for serious criminality.

In addition, a foreign national can also be criminally inadmissible to Canada if they have been convicted in Canada of a) an indictable offence or b) two offences not arising out of a single occurrence or c) convicted outside of Canada of an offence that if committed in Canada would constitute an indictable offence under our Criminal code or of two offences not arising out of a single occurrence that if committed in Canada would constitute offences under our Criminal code.

Unfortunately, according to the Immigration Act now, if the offence you were convicted of is a hybrid offence, the Act treats it as if the offence was an indictable offence even if it was prosecuted summarily. Thus, Immigration will automatically treat minor offences as major offences.

What are the consequences of being criminally inadmissible to Canada?

If you are a permanent resident who is criminally inadmissible to Canada for serious criminality, you could be deported from Canada. If you are a foreign national who is inadmissible because of serious criminality or criminality, you cannot be given landed immigrant status until you have proven you are rehabilitated or pardoned. A foreign national who was convicted outside of Canada of an offence is considered rehabilitated if 5 years has passed since completion of any sentence for the offence and the person has demonstrated they have rehabilitated by not committing any more offences, living a stable lifestyle and showing remorse for their offence.

For offences committed in Canada, a pardon can be issued by the National Parole Board of Canada for the offence. You can apply for a pardon if 3 years has passed since completing the sentence for a summary offence, 5 years for an indictable offence and you have not had any other new charges or convictions during the 3 or 5 years.

Permanent Residents

If you are criminally inadmissible to Canada because of serious criminality, Canada Immigration will arrange an interview for you to decide whether a report should be written to have to appear at a hearing. At this interview, all of the circumstances of your life, past and present will be examined. You have the right to bring a legal representative to the interview and any supporting documentation or evidence which you think will demonstrate why your permanent resident status should not be taken away. For example, the best interests of your dependent children in Canada will be affected, the offence was an isolated incident for which you feel great remorse and you would suffer great hardship if forced to return to your country of origin.

If after the interview, a decision is made to write the report, you will be asked to appear at an admissibility hearing. At that hearing, the Immigration adjudicator will decide if you have contravened the Immigration Act by being convicted of an offence seen as serious criminality. At the hearing, if indeed there is proof of conviction of such an offence, a removal order will be issued. The Adjudicator has no discretion to look at all of the circumstances of your case. After the removal order is issued, you have the right to appeal the removal order to the Immigration Appeal Division which has the power to hear evidence about all the circumstances of your case and why you should not be deported. However, if you were imprisoned for two years or more for your offence, you lose your right to appeal to the Immigration Appeal Division.

Conclusion

With the way the Immigration Act treats criminal inadmissibility, it is very important if you have been charged with a criminal offence and are a permanent resident or foreign national to understand how your sentence and the way the offence is prosecuted will affect your immigration status.

Your criminal lawyer should also be made aware of your immigration status so that he or she can best decide how to defend you to avoid dire immigration consequences. For example, the length of your imprisonment is very important and how the offence is tried, whether summarily or by indictment. Also, if possible, instead of conviction, your lawyer can try to bargain for a discharge instead for more minor offences because discharges will not lead to criminal inadmissibility.

 

NEWS CHANGES FOR WORKERS

Minimum Wage Increased to $10.25/hour

The general minimum wage in Ontario will be raised from $9.50/hour to $10.25/hour effective March 31 2010. This minimum wage increase will apply to most workers whether you are working in full time job, part time job or a temporary job arranged by a work agency. Even if your wage is calculated by piece-rate, the $10.25/hour minimum wage still applies to you.

For students under 18 and working not more than 28 hours per week or during a school holiday, their minimum wage will be raised from $8.90/hour to $9.60/hour. For liquor servers their minimum wage will be raised from $8.25/hour to $8.90/hour.

Wage Earner Protection Program (WEPP)

You may apply to the Wage Earner Protection Program (WEPP) for unpaid wages, vacation pay, termination pay and severance pay owed to you during the six months before your employer declared bankruptcy or subject to a receivership. If your employer does not declare bankruptcy or is not subject to a receivership then you are not eligible for WEPP. However if your employer has applied for bankruptcy protection but not bankruptcy you are not eligible for WEPP. The maximum payment from WEPP is about $3,323 for individual claims.

Once you have received a copy of the information provided to Service Canada by the trustee or receiver appointed in your employer’s bankruptcy/receivership, you may apply for WEPP on-line at Service Canada. You may also make the application at a Service Canada Centre. You have to submit a proof of claim to the trustee/receiver at the Service Canada Centre.

If you have questions on minimum wage or you are not sure you are receiving the new minimum wage, or your workplace may be going bankrupt, you can seek legal advice from a legal clinic or call the Ministry of Labour at 416-326-7160 to find out more details about these programs.

 

Holograph Wills – Testators Beware!

By: Rita Chrolavicius, L.L.B, Barrister & Solicitor
 

From time to time, we have inquiries about whether a person can write their own will without the help of a lawyer. Below is an article on holograph wills which we have reprinted with the permission of the Advocacy Centre for the Elderly.

“A man who dies without a will has lawyers for his heirs” (Anonymous)

A will that is written completely in the hand of the testator and signed at its end by the testator is considered to be a valid will in Ontario. Such wills are known as “holograph wills”. They do not need to be witnessed. However, they do need to be drafted in a way that makes it clear that the document is meant to be a will or a “testamentary instrument”, intending to leave property after the death of the testator. It is also a good idea to date the will, although individual claims.

A will that is written completely in the hand of the testator and signed at its end by the testator is considered to be a valid will in Ontario. Such wills are known as “holograph wills”. They do not need to be witnessed. However, they do need to be drafted in a way that makes it clear that the document is meant to be a will or a “testamentary instrument”, intending to leave property after the death of the testator. It is also a good idea to date the will, although this is not mandatory to make it a valid will in Ontario.

An example of the holograph will that I learned as a law student was the case of Cecil Harris, a Saskatchewan farmer who was pinned under his tractor on June 8, 1948. On the tractor’s fender, he scratched out the words, “In case I die in this mess, I leave all to my wife – Cecil Harris”. The court considered this to be a valid holograph will, and the tractor fender was admitted into probate. The fender is now permanently on display at the University of Saskatchewan Law Library.

Holograph wills are useful in cases of emergency. I do not recommend that they be used by anyone who really cares about what happens to their property after death. There are many cases involving holograph wills where the estate is worth hundreds of thousands or even millions of dollars. If the deceased relies on a holograph will to make bequests, litigation will likely result about the following types of disputes:

  • whether the will is valid; 
  • ambiguous or contradictory language; 
  • partial intestacy, missing pages, location of signature; 
  • proof that the will is in the handwriting of the deceased; 
  • alterations to the will.

Another major problem with holograph wills is that they can easily go missing. I suspect that there are many cases where holograph wills have been kept in a secret place and are not found after death. I have heard of other cases where next of kin remove documentation and there is subsequently suspicion that a holograph will has been destroyed because the person removing the documentation did not like the contents of the will.

The same problems that arise with holograph wills also arise with attempts to make handwritten changes to wills. Any alteration on the face of the document will have no effect except to validate the words that can no longer be seen. There has been litigation about what kind of lights or devices can be used to try to see what words were written underneath a manually altered portion of the will. Altering an existing testamentary instrument will guarantee problems with proving the will.

Where problems arise with any will, the cost of hiring lawyers to fight about these problems will be born by the potential beneficiaries, relatives of the deceased or by the estate itself. There are cases where the whole estate has been consumed by legal fees, and potential beneficiaries receive nothing, or, even worse, are out-of-pocket for substantial sums of money.

There is a tendency to begrudge the cost of a lawyer to do something as straightforward as a simple will. This is false economy. In addition to preparing a will, a lawyer can keep the original will or a true copy of the will in a safe place, as well as retain a file that contains notes and information about the testator’s competence and intentions, next of kin, property and assets. Lawyers can also discuss estate planning issues with clients. Individuals should pay as much care and attention to what happens to their property after they pass away as they do to what happens to their property while they are alive.