IMMIGRATION MATTERS

Pardon And Immigration
It has been stated that "cross-examination is the greatest engine ever invented for the establishment of the truth". That is in reference to the criminal process. I believe however, that in the immigration context, the greatest engine ever invented for showing leniency to criminal convicts who are applying for immigration status is the pardon. Sadly, the criminal pardon is the least used or known by criminal immigrants.
Consultations continue pouring in from hundreds of people who have been turned down for immigration status because of previous convictions which were committed many years previously, but which continue to prevent criminal immigrants from acceptance because these criminal immigrants never applied for or obtained the necessary pardon .
A pardon is a process whereby your previous conviction is erased from the record upon application to the Parole Board after the passage of the stipulated time period without further criminal convictions and or activities. A pardon is like forgiveness by the Government because someone has shown that he or she is rehabilitated.
If one was convicted of a criminal offence in which the Prosecution authorities proceeded with the charge by what is called "indictment" (uponconviction there is a possibility of going to goal for 2 years and more), then the period for applying for a pardon is 5 years after completing the sentence.
Probation is part of the sentence.
Restitution which is not free standing is part of the sentence.
Let us say you are ordered by the court to make restitution in the amount of $100,000 as part of the sentence, you cannot be pardoned until you have paid the $100,000, five years after you have done your sentence including the restitution.
If the Prosecution proceeds by "summary" conviction method (for which a conviction would attract a sentence of two years less a day) the period for eligibility to apply for pardon is 3 years.
Many immigrants who have committed criminal offences are found criminally inadmissible to apply to stay in Canada because of criminal convictions which could have been erased by the pardon process. Most times it becomes too late to apply for a pardon because the immigration has already started knocking on the door.
Since a pardon takes some time to process, a person must keep a record and apply immediately upon qualifying for the pardon. It is one of the saddest experiences of my legal practice when I encounter an individual on the verge of deportation for a criminal conviction committed 10 years previously and for which the person had qualified for a pardon 5 years previously but had not availed himself or herself of the pardon process.
It goes the same for many jobs.
You cannot be employed in certain jobs or be admitted to certain professions if you have a criminal conviction for which a pardon was never received. You cannot be a lawyer for example if you have a criminal record for which you have not been pardoned.
You can never be landed even if you are accepted as a Convention Refugee if you do not get a pardon after a criminal conviction.
You can also never be a citizen of Canada if you committed an offence without a pardon after becoming a landed immigrant, even if you are allowed to stay in Canada because of the existence of humanitation and compassionate grounds.
A pardon can be revoked if one commits another offence. If you are already a citizen, you are immune from deportation, but if you never applied for citizenship, you could be subject to deportation proceedings. Consult counsel to assist you with the pardon process. Some nightmares can be avoided.

Munyonzwe Hamalengwa practices criminal and immigration law in Toronto. IF you have any questions concerning immigration, Refugee and other legal matters, e-mail mhamalengwa@sympatico.ca __________________________________________________