OVERCOMING CRIMINAL IMMIGRATION INADMISSIBILITY TO CANADA & SECURING YOUR WORK OR PLEASURE TRAVEL OR IMMIGRATION

We all make mistakes. Occasionally, for some of us, a mistake leads to some sort of “conviction.” A conviction could be the consequences of parking too long in a one hour parking zone, exceeding a highway speed limit, getting in a bar fight, shoplifting some sunglasses, up through more serious offences.

I’ve had clients enter Canada dozens of time, only to be told by the Canada Border Services Agency (CBSA) on their 57th arrival after landing at a Canadian airport, or crossing at a land border, that they’re inadmissible due to criminality. They’re put back on the next return flight from where they just arrived, or told to head their vehicles back in the opposite direction and not return. These are clients who might mostly earn their livelihoods in Canada as sales reps, or have close family in Canada. They’re understandably shocked at being refused entry, especially because some of them have been previously welcomed to Canada so many time with open arms. The thing they all share in common is one or more “convictions” somewhere in their pasts, sometimes decades previously, and sometimes for acts that aren’t even considered “criminal” where they come from.

THE LAW

Section 36 of the Immigration and Refugee Protection Act governs criminal inadmissibility, explaining rather cryptically:

A foreign national is inadmissible on grounds of criminality for

(a) having been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment, or of two offences under any Act of Parliament not arising out of a single occurrence;

(b) having been convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, or of two offences not arising out of a single occurrence that, if committed in Canada, would constitute offences under an Act of Parliament;

(c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an indictable offence under an Act of Parliament; or

(d) committing, on entering Canada, an offence under an Act of Parliament prescribed by regulations.

The problem is that it can be very difficult for those visiting (or moving to) Canada to know: (1) whether the thing(s) they’ve done in the past are caught within the criminal inadmissibility drag net, and (2) even if they are caught up in inadmissibility, can they be considered to be rehabilitated?

One of the most problematic offences is impaired driving (DUI). In some countries, it's considered a regulatory highway traffic offence, and not a criminal offence. And even where it is a criminal offence, a person might not have been formally “convicted” of it. And further confusingly, while DUI is usually prosecuted in Canada as a summary conviction offence, because at the Crown’s election it can also be prosecuted by indictment it means that a single DUI can make you criminally inadmissible.

THE FIX

But there is a fix to all of these problems: criminal rehabilitation. It’s an application process which demonstrates to the Canadian government that because of the passage of time since your conviction, and because of your having stayed out of trouble since that time, you shouldn’t be excluded from Canada. It’s akin to an immigration criminal pardon! I’ve also found that unfortunately sometimes the CBSA makes mistakes, and declares criminally inadmissible people who don’t at all fall within that category, but you may still need a lawyer to correct that mistake.

While there are certainly some immigration procedures that you might try to undertake yourself, I urge you to retain a lawyer to assist with criminal rehabilitation. You might even need two lawyers - one from your home jurisdiction where the offence was committed and one in Canada - to deal with the translation of the foreign conviction into Canadian legal terms. This isn’t always necessary for countries having similar legal systems to that of Canada, like the United States, but your Canadian immigration lawyer can discuss the precise procedure with you depending on your circumstances.

THE PROCESS

Generally the rehabilitation process involves you gathering together your prior conviction information, having criminal record checks done in every jurisdiction you’ve lived for a significant time, and then a Canadian lawyer will present your rehabilitation application to the Canadian government. Some applications are more straight forward than others, depending on the number and severity of prior convictions, and how much time has passed since those convictions. You’ll usually be barred from Canada until your application has been reviewed, so the sooner you undertake the rehabilitation process, the faster you’ll have a chance of reentering Canada.

And don’t wait until you’ve been barred from Canada to start this process. If you have an upcoming visit to Canada, and have prior convictions, consult a Canadian immigration lawyer prior to your visit about whether a criminal rehabilitation application might be necessary. Even if you've been entering Canada repeatedly without a problem, don’t be lulled into a false sense of security as I’ve had clients who haven’t had entry problems for years who suddenly are banned from Canada for a year or more while we sort out the inadmissibility issue. Just because the CBSA hasn’t stopped you yet doesn’t mean that a new officer won’t take a different view of your past, and doesn’t mean that the CBSA won’t sign a new information sharing agreement giving it greater access to foreign criminal background data which might include your name.

Neither the CBSA nor the Department of Immigration, Refugees and Citizenship can give you legal advice on criminal inadmissibility. It’s one of the most complicated areas of immigration law because of the need to compare two different legal systems to see how a conviction in one system might match up with available offences in another system. So I do urge you to consult a lawyer prior to travelling to Canada so that you aren’t frustrated in work, family or tourism trip where you will have invested lots of time, planning and money. I likewise frequently refer Canadians to U.S. immigration lawyers to deal with criminal admissibility when travelling south.

Top 10 Ways to Stop Dead Internal Disputes Within Your Business Before they Arise

Media attention often focuses on business struggles between competitors, like apocalyptic patent litigation between Apple and Samsung. The popular allure of such disputes seems at least in part to be the same as the allure of athletic contests: conducted in public, among relative equals, with the perception that winner takes all.

Less talked about are internal disputes within businesses and their owners, be they two childhood friends who have tossed in some money to open a small restaurant and now can't agree on the menu, three professional dentist partners who disagree over how practice profits should be split, or four large corporations undertaking an oil and gas resource exploration joint venture who can't settle on where to drill. These internal disputes are likely more preventable than the external ones with a bit of early planning, and perhaps a little legal advice. While the type of dispute prevention will vary according to the type of business and the parties involved in the business, there are a few fundamental principles that can help everyone prevent internal disputes from ruining otherwise successful business endeavours.

Tip # 1: Plan for some business dispute DIY prevention at the same time as you plan out how you are going to dominate your market segment with your new business. Dispute prevention works best in reverse. Meaning, figure out in advance the most likely areas of dispute a month, a year or a decade down the road among the owners of your business, and then work backwards to establish contingency mechanisms to resolve at least some of those disputes. Like, what happens if a co-owner wants out before the business is profitable?  

2. Put you business agreement in writing. It doesn't have to be a lengthy document. One hundred pages won't necessarily give you any more certainty than two pages. Seriously. A complex and prolix document may only give partners more language to fight over in the future, and likely won't be well understood at the time it is signed. But the writing is key, otherwise even two people who trust each other implicitly will tend to develop differing recollections of exactly what was agreed upon as time passes after the establishment of the business relationship. I'm not saying every single action needs to be fully documented, but at least be clear on the basics. I see a lot of disputes where very reasonable people who completely trust each other go into business with very different understandings of what has been agreed upon.

3. Be clear on the businesses legal structure. This isn't something you necessarily need a lawyer for; you can probably figure it out from Internet information. But a lot of people don't know how their business is legally established, which can have lots of consequences when it comes to ownership, debt liability, taxes and sharing of business control. Your main options are as a sole proprietor, as a partnership, or as a corporation. But things can get tricky when these three basic forms get combined. Like two people who believe they are each sole proprietors, when in fact the law deems them to be a partnership. Not only small businesses can run into trouble in this area; sometimes large multinational corporations get together to jointly pursue a business opportunity, and wind up in an accidental partnership when in fact they had intended a joint venture.

4. Be clear on who owns what. Putting everything in one party's name, with a verbal understanding that the other parties actually have ownership rights because they are contributing capital to purchase assets, is one of the best ways I can think of to later wind up in court fighting over assets.

5. Be clear on who is contributing to or paying for what. When people get together in informal ways, and start contributing money to get a business going, and later continue contributing money to keep the business going, they often don't divvy up expenses by percentage. One pays the rent. Another pays the electricity. A third pays for the inventory. Although perhaps initially convenient, this way of financing a business becomes difficult to track, and can lead to later disputes over who contributed more or less to the business. 

6. Be clear on how the profits will be utilized or divided. Whether there are any profits, and whether they will be reinvested into the business or taken out to pay the personal expenses of the owners, may quickly become an issue if business partners don't agree on a strategy in advance.

7. Be clear on who is responsible for the debts. Just because you didn't sign a loan guarantee, doesn't mean that you aren't on the hook for any debts of the business.

8. Be clear on the overall purpose of the business. A successful business that starts out manufacturing and wholesaling shoes may not make an easy transition into the electric car design field. Possible, yes. Easy, definitely not. If more than one person controls the business, they will need a common vision. Sometimes putting that vision in writing up front will help remind everyone of business' purpose if vision drift starts to affect performance later on.

9. Be clear on how disputes will be resolved. It's not possible to foresee and address all manner of future business disputes, even in the most complex of written agreements. However, the parties might be able to agree on a few basic points. Like that majority vote of the partners will be decisive on certain issues. That binding arbitration will be used for other issues. Or at least that a courts of a particular jurisdiction will be the place to settle disputes through litigation.

10. Be clear on how the business will be wound up or sold if one of the owners doesn't want to continue with it. People get tired. So do businesses. Sometimes it's better just to call it a day, and start one or more new businesses, rather than continue to fight to save or control an existing business. But every business needs an escape hatch, to avoid the captain(s) and crew becoming trapped in a sinking or fighting ship.

TO BLOW OR NOT TO BLOW, THAT IS THE QUESTION

You’re on your way home, coming back from watching a hockey game at the local sports bar with friends. You’re two blocks from your residence when you make that last right turn only to meet a lineup of vehicles, with blue and red flashing lights in the distance. The police are conducting a RIDE program. Soon after a uniformed officer walks up to your driver’s side window. The officer asks you a few basic questions on your whereabouts this evening. You comply and answer his questions. The officer then informs you that he has reason to suspect that you’ve been drinking and driving and ask you for a breath sample.

Do you have a right to refuse the officer's demand?

Although the officer cannot physically force you to provde a breath sample, refusing to comply with the officer’s demand is an offense, under section 254 of the Criminal Code, with serious consequences. In fact, the penalties are essentially the same as if you had failed the Breathalyzer test. Furthermore, a conviction may affect your livelihood, your ability to travel abroad and will likely increase your insurance rates.

Generally, lawyers will tell their clients provide a breath sample, because it’s usually only after having reviewed the disclosure that a lawyer can determine what types of defence have a reasonable chance of success.

What must the prosecution prove?

When someone refuses to comply with an officer’s demand of a breath sample, the prosecution must prove beyond reasonable doubt the element of actus reus, namely that a reasonable demand was made by the officer and that you failed or refused to provide the required breath sample. The prosecution must also prove the element of mens rea, namely that understood the officers demand and that the refusal was a conscious act.

For many people accused of refusing to provide a breath sample, this may bring feelings of embarrassment, helplessness and guilt, which in return may lead them to plead guilty and just get it over with. Although there is an incentive to pleading guilty early, namely within 90 days of the offense, before doing so, consulting with a criminal lawyer as soon as possible is highly recommended. Drinking and driving offenses are very complex and the defences will vary according to the facts of your case, therefore we welcome you to call for a free initial contact with one of our criminal lawyers.

WHY A REAL ESTATE TRANSACTION IS THE SECOND BEST BARGAIN YOU'LL EVER RECEIVE IN LEGAL SERVICES

If you read my last post on wills being the best bargain you'll ever receive in legal services, you might be wondering why I rank real estate transaction as the second best bargain - instead of perhaps the first best bargain. There are a few reasons.

First, you don't have a choice in Ontario (where I mostly practice) over using a lawyer for a real estate transaction. Other places you can use non-lawyers to close a transaction, but not in Ontario. By comparison, for wills DIY is an option (though not a very good one).

Second, real estate transaction legal fees will often cost more than wills in absolute terms. Still not much, but more. However, strangely enough people don't seem to complain about real estate transaction legal fees. Perhaps because they are buying or selling a very expensive thing, because real estate agent commission fees will be many times greater than the lawyer's fees, or because they may be making a tidy profit off the real estate sale (if selling) or getting their dream home (if buying), and thus relatively modest legal fees don't seem to them to be a big deal.

Third, but real estate transactions remain a great bargain in legal services. In fact, real estate lawyer fees haven't gone up in decades! We're not just talking about fees adjusted for inflation, we're talking about real dollars fees. The $1000 transaction fee in 1971 is still the $1000 transaction fee in 2013. Amazing, isn't it. Whereas other legal fees have risen significantly, for various reasons real estate transaction legal fees have not. Notwithstanding house prices have increased many times over.

It's beyond the scope of this post to explain why these fees haven't gone up, just enjoy the fact that they haven't. And that there isn't any risk of them rising appreciably for the foreseeable future.

But just like when shopping for a lawyer to do your will, shopping for a real estate lawyer should not generally be a cheapest is best exercise. Lots can go wrong in a real estate transaction. Quite a bit of personal care and attention is required on a lawyer's part to make sure a transaction closing goes smoothly. If you simply go with whomever is cheapest, you stand a good chance of not getting much attention from the lawyer, not because the lawyer is a "bad" lawyer, but rather because with prices that low s/he simply can't afford to give much time to clients when overheads are so high.

Even for those of you reading this post who aren't in Ontario, you should still seriously consider using a lawyer for your real estate transaction. Sure, the advent of "title insurance" has meant that a number of the inquiries lawyers used to routinely make are no longer absolutely necessary, but we all know that insurance coverage often doesn't turn out to be as good or as comprehensive as we initially had hoped it would be. Better to prevent problems in advance through a lawyer conducting diligent inquiries, rather than having to fall back on insurance to compensate you (but not fix the underlying problems) later.

With fees so low, why does any lawyer even bother anymore practicing real estate law? I'll give you perhaps a surprisingly idealistic answer to this one: because many of us believe it to be an important public service. Plus many of us enjoy the client interaction in an area of "happy law" where both buyer and seller are excited by the prospect of the life-changing potential that a real estate sale or purchase brings with it. For many clients, a real estate transaction may be the only involvement they ever have with a lawyer (should they ignore my last blog post, and not consult a lawyer for a will). Sure, the legal fees earned from real estate transactions can also help pay the bills in a law office, but people need to realize what a great bargain real estate legal services are compared to the amount of legal work involved in closing a real estate transaction.

The purpose of post this isn't to somehow invoke your pity for the poor, overworked, underpaid real estate lawyer. Lawyers are grown up guys and gals who are old enough to make the decision to get out of real estate law if they decide the work isn't worth the earnings. Law is both a business and a profession, and needs to be practiced as such. Clients do us a great favour in trusting us with their legal work, and not the other way around. But a public who increasingly hears horror stories of astronomical legal fees often driven by apocalyptic litigation strategies (like in commercial or family court), needs to realize that there are legal bargains still out there where everyone can feel good at the end of the day that they were able to afford professional legal services at a very reasonable cost, which made their lives better.

WHY A WILL IS THE BEST BARGAIN YOU'LL EVER RECEIVE IN LEGAL SERVICES

One of the understandable realities of private legal practice is clients wanting to know how much a legal service is going to cost. Unlike buying a television, usually clients don't ask "how much?" so that they can shop around for the best price, because no two lawyers or the services they provide are exactly alike. Rather, clients seem to ask about price to see if they can afford the service, or to determine if hiring a lawyer to do the work is worth it to them, instead of trying to do the work themselves, or not seeking a legal solution at all to their problem.

From what I hear, rather than focusing primarily on price, picking a lawyer will often involve people coming up with answers to questions like: (1) who do I trust?; (2) who do I think is most skilled and experienced?; (3) who responds best to my needs, like quickly replying to my questions or at least returning my phone calls or e-mails?; and (4) who is most convenient, either because the lawyer offers services through the Internet so that geographic location isn't a factor, or because the lawyer happens to be physically located close to where I live or work?

Picking a lawyer solely on price may be false economy. If you're retaining a lawyer on an hourly basis, hiring one who charges 30% less per hour, but ultimately bills you 50% more time, will cost you more in the long run.

Likewise, if you're hiring a lawyer based on a block/fixed fee, which is common in many solicitor matters like the preparation of wills or the conduct of real estate transactions, picking based on price (with a preference for low over high) might mean that you have little personal contact with the actual lawyer because s/he simply can't afford to give you a lot of face time due to the very low fees which mean that in order to pay for a high overhead and still turn a slight profit, a very large amount of business needs to run through the practice that inevitably will be mostly handled by non-lawyers under the overall supervision of the lawyer.

I've been fortunate that people never decide not to hire me because of fees (hopefully because they value my experience and responsiveness to their needs), except in one area of law: wills. I often conduct litigation on behalf of clients where the bills can unfortunately mount up because of the multiple court appearances and painstaking drafting of voluminous submissions that can be required in court actions, but those clients seem very satisfied with the value for money that they receive. Perhaps because I stay engaged with them to keep them informed of court progress, and collaborate with them on overall strategy.

However, when it comes to wills, I've found people occasionally choke on cost. It doesn't happen that often, but it does happen. The unfortunate part of the price aversion is that wills are likely the best value and often the least expensive of the legal services that I offer.

I sometimes counsel prospective clients not to hire me for litigation, even though that's how I mostly earn my living, because the amount in dispute is so small that my fees could exceed their potential exposure to liability. I believe I have a public duty not to profit from people's desperation when being dragged into court, and only take on cases when it seems I can provide value to clients that outweighs the legal risks they are exposed to.

But going to a lawyer for a will is going to always pay off in the long run. The risks of not seeing a lawyer for your will include hundreds of thousands and sometimes even millions of dollars not going where you intended it to go after your passing. Relatives could fall to infighting over your assets. The government could wade in to impose heavy taxes and fees. Everything could get tied up in court for years.

I haven't conducted any kind of survey to determine what people expect to pay for a will. But in my personal opinion (not speaking as a lawyer, but as a person who needs a will himself), a lawyer doing your will is probably the best bargain you will get in the legal services world. While the price of a will can vary depending on its complexity, they start at just a few hundred dollars. And that's not just my fees, but many lawyers' fees. Adding in powers of attorney for property and personal care will only slightly raise the price, and there is usually a significant discount for two spouses who have wills done at the same time (in Ontario, spouses always need separate wills).

To be frank (and I try to be as frank and open as possible with my clients and on this blog), I too prior to becoming a lawyer used to think wills were super simple things that one could whip up all by yourself on a Saturday afternoon when watching a football game on television. But then in law school I started to read about all the will disasters when things hadn't been executed properly, or important clauses had been forgotten, or unhappy relatives whom had been intentionally forgotten decided to initiate decades-long court battles worthy of a Dickens novel to overturn a will that they perceived as unjust.

Then, when I started drafting up wills in private practice, and reviewed voluminous legal texts on just how I was supposed to do that, I increasingly appreciated all the skill and care that need to go into a properly drafted will or power of attorney. The lawyer needs to learn about and understand your life. That can't happen in a ten minute meeting that is mostly comprised of the phrase: "sign here." Often more than one lawyer-client meeting will be required, the lawyer may need to carefully review a several of your financial documents, and some legal research could even be justified to ensure you get the will you deserve, that is ideally custom-crafted to your own personal circumstances. Not just to the circumstances of some "fill in the blanks" "model client" who doesn't really exist.

We all know there is an increasing litigiousness in our society. We also know that we are all passing away richer than ever. Now, if you own a home without a mortgage (or at least plan to be mortgage free in the future), you will be passing away rich by historic standards. Now, more than ever, it's vital that your assets go where you want them to go. Plus, with fewer and fewer people getting legally married, common law spouses will not necessarily have the same rights to assets/insurance/pensions of a deceased as would a legally married spouse.

So see a lawyer about your will. And don't be put off by the cost. It'll be the best bargain you'll ever receive in legal services! Trust me. I'm a lawyer.

FIVE THINGS TO NEVER DO IF YOU WANT TO SUCCESSFULLY APPEAL AN ADVERSE JUDGMENT

There comes a time in all our lives when we receive some kind of official pronouncement that we disagree with. Being rejected for a licence or permit. Being told that we don’t have the rights we thought we had. Losing in a civil money dispute, in family court, or even at a trial for a criminal or regulatory offence.

We might find the result hurtful and unjust. We might be outraged. And we might remain firm in our convictions over the justness of our cause!

Some will just swallow the defeat and move on. But others will want to continue the fight.

Most of the world’s legal systems have created fairness check mechanisms on first level decisions, regardless of who is making the decision or what subject the decision relates to. The buck almost never stops with the government desk officer, the hearing tribunal, or the trial judge. At least one level of appeal of an adverse decision is almost always possible if you look hard enough for an appeal route.

A psychologist could probably give you a helpful take on the emotional toll that fighting on entails, and what kind of person is more likely to continue to fight rather than throw in the towel. But my professional focus is solely on whether and how the continued fight can be won.

In the over two decades I’ve been helping clients with appeals (and watching others by necessity or choice represent themselves), I’ve seen lots of missed opportunities for winning appeals because of deadly but completely avoidable mistakes that people make shortly after receiving that decision they want desperately to overturn. Here are a Canadian appellate lawyer’s insider tips for five things you should never do (and I frequently see done again and again) if you want to continue the good fight, which should help you out regardless of where you live.

1. BE LATE TO THE PARTY. It doesn't matter how great your arguments might be; if you're late on an appeal, you're almost always out of luck. And some appeal filing periods can be crazy short. Like 7 days from the decision. Usually you've got 30 days; occasionally as long as 90 days. In that time, you’ll need to find a lawyer (or figure out the process yourself), get a copy of the decision and the materials that were reviewed in making it (you might need to order transcripts or request government records), draft plausible grounds for appeal, track down the responding party to serve the appeal notice on, and file the notice with the office, tribunal or court hearing the appeal.

2. GET LOST FINDING THE PARTY. There are more places out there to appeal to than you might expect. In federations like Canada or the U.S., you need to figure out if you’re going to a provincial, state or federal appeal body. You might also need to determine if you’ve got a final order or interlocutory (interim) order, as believe it or not their respective appeals might go to different places. After being late, appealing to the wrong place is probably the most common completely avoidable reason for failed appeals. I’ve seen enough lawyers get the appeal route wrong. Sometimes, even the courts themselves disagree over which one of them should be hearing an appeal!

3. THINK IT'S SIMPLY ANOTHER KICK AT THE SAME CAN. The time to make your best pitch is with the first instance official, tribunal or court. Appeal bodies love the word “deference” to lower officials, and will liberally use that word against you if you don’t give them very good reasons why they should overturn a lower decision. You can’t usually appeal errors of fact, only errors of law (though it’s possible to turn big enough factual errors into errors of law). So it’s deadly to try to appeal on the basis that you think a decision is merely wrong, stupid, or misguided. Even if the person you’re appealing to is inclined to agree with you, she can’t simply substitute her own decision for the decision of the lower official. There has to be some kind of significant legal error you point out that is worth interfering with.

4. ASSUME YOU'VE GOT AN EVEN SHOT. Casino gamblers and appeal gamblers both sometimes suffer from magical thinking on odds not rooted in reality. And while its easy to get stats on roulette with a double zero having a 5.26% house edge, it’s a lot more difficult to pin down precise odds on appeals. They’re definitely less than 50-50. Your best shot at winning is always at first instance - when you originally submit that government form or appear before that tribunal or trial court - not on appeal. In Canada, the odds of getting some kind of remedy out of an appeal are probably somewhere between 1 in 3 and 1 in 4, based on available appellate court data. If the stakes are high, those aren't such bad odds. But if you're fighting about a minor issue, you need to reflect on whether the financial and emotional cost is really worth it.

5. ONLY MAKE ONE ARGUMENT. You might think you've found that one killer, slam dunk argument for an appeal. The one that no one could reject. But not everyone sees the world as you do. So even if a reviewer has sympathy for your cause, she may not buy your one argument wonder. Come up with more. I often come up with a dozen or more possibly viable grounds of appeal for clients. Sometimes we whittle that number down a bit for the actual appeal argument, but which of those arguments appeal officers and judges seize on as the winning strong argument continues to surprise me, so it never pays to limit your arguments other than eliminating the ones that stand no chance of success.