By Andres Rueda

An individual who is criminally inadmissible to Canada will be eligible to apply for rehabilitation after five years have passed since the individual completed his/her sentence.  A sentence can include imprisonment, a fine, or probation.

Next to probation, the payment of a fine is a type of sentence that can significantly extend a person’s sentence for Canadian immigration purposes.  The reason is because the payment of fines are often staggered over a period of time.  This is especially the case in the United States, where, for example, I have seen fines of $2000 stretched over twenty $100 monthly payments.

The Supreme Court of Canada recently released a decision which makes me wonder whether there may be a potential argument that a fine imposed outside of Canada should not be counted for the purpose of determining eligibility to apply for rehabilitation if the inadmissible person can argue that he/she simply cannot pay it.

In R v. Topp, 2011 FC 43, the accused used his brokerage business to defraud Canada Customs of $4.7 million.  The Crown sought a $4.7 million fine in addition to imprisonment.  The trial judge sentenced the accused to imprisonment but declined to impose a fine because she was not satisfied as required by s. 734(2) of the Criminal Code that the accused was able to pay a fine.

Section 734(2) of Canada’s Criminal Code provides that:

Except when the punishment for an offence includes a minimum fine or a fine is imposed in lieu of a forfeiture order, a court may fine an offender under this section only if the court is satisfied that the offender is able to pay the fine or discharge it under section 736.

In upholding the trial judge’s decision, the Supreme Court noted that an affirmative finding that an offender is able to pay is therefore required before a find can be imposed.  In declaring this principle, the Supreme Court cited its previous decision in R v. Wu, 2003 SCC 73, where it noted that:

A means inquiry is now a condition precedent to the imposition of a fine except where otherwise provided by law.

A potential client is criminally inadmissible to Canada.  He sent me a fax which demonstrates that although the offense occurred several years ago, he is simply unable to pay the huge fine that the court imposed against him.  As I read this fax I can’t help but wonder… Can the Supreme Court of Canada’s decision in Topp be applied to argue that Citizenship and Immigration Canada should not consider the fine for the purpose of determining when the eligibility for rehabilitation begins?

The test for determining whether an individual is inadmissible to Canada is closely inter-twined with the criminal justice system of every country that that person has lived in.  The determining factor for whether an individual is inadmissible to Canada or not is whether the person was convicted.  It is not what the sentence was.

Our immigration system’s emphasis on convictions over sentences bears little resemblance to how the criminal-justice system of most countries work.  Most people who are charged with an offense are more concerned with what their sentence will be (“will I receive jail time?”) as opposed to whether they are convicted.   Accordingly, plea-bargaining has become the hallmark of most states’ criminal-justice system.  Individuals who probably would not be convicted of their serious original charge are more than willing to avoid the risk of being convicted by pleading guilty to a lighter offense in exchange for little to no sentence.

Unfortunately, this leads to the trend of there being a lot more people with criminal records out there then there otherwise would be if people did not succumb to plea-bargaining, and if prosecutors not able to so rely on bargain results.   The Journal of Law, Economics and Policy recently published an article highlight this relationship between plea-bargaining and overcriminalization.  The article is titled “Overcriminalization 2.0: The Symbiotic Relationship between Plea Bargaining and Overcriminalization”, and can be downloaded here.

Some key excerpts include:

There is an enormous problem with plea bargaining, particularly given that over 95% of defendants in the federal criminal justice system succumb to the power of bargained justice.

(Citing the United States Supreme Court)  This is not to say that guilty plea convictions hold no hazard for the innocent or that the methods of taking guilty pleas presently employed in this country are necessarily valid in all respects. This mode of conviction is no more foolproof than full trials to the court or to the jury. Accordingly, we take great precautions against unsound results, and we should continue to do so, whether conviction is by plea or by trial. We would have serious doubts about this case if the encouragement increased the likelihood that defendants, advised by competent counsel, would falsely condemn themselves.

(Citing another study) [T]he results of our research suggest that some defendants who perhaps were innocent, and a larger group who probably would have been acquitted had the case gone to trial, were nonetheless induced to plead guilty.

I receive a phone call from at least one person a week who says something along the lines of “I was charged with a DUI.  I totally didn’t do it.  However, the prosecutor told me that I could either risk facing jail time, or plead guilty to the reduced charge of Negligent Driving, and face only a couple hundred dollar fine.  That’s less than what hiring a lawyer to even go to the court house would cost!”

Unfortunately, the result is that because of the guilty plea the individual becomes inadmissible to Canada.

Overcriminalization abroad and in Canada is not the fault of Canadian immigration authorities.  It is not practical for Citizenship and Immigration Canada and the Canada Border Services Agency to take plea bargaining into consideration when encountering an individual with a criminal record.  However, I do believe that the criminal justice system, and its prosecutors and defense attorney’s alike, have a responsibility to the accused that they force plea bargains upon to fully explain the consequences of a criminal conviction even if there is barely a sentence.