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Dear Mrs Ffolkes-Abrahams:

I am a 32-year-old male who is currently being filed for to migrate to the US and need some advice.

I was charged with destruction of property for breaking a glass door. The incident went to court and I was found guilty. The ruling was a fine or confinement charge, so I paid $5,000 and was fingerprinted then released.

I know I now have a negative police record. I did some research and found that the offence has to be seven years old to be cleared but that time has not yet elapsed.

Will this compromise my filing?

- Concerned

Dear concerned,

I have been asked similar question by many persons. I cannot answer regarding US immigration law; however, under the Criminal Code of Canada (CCC), a conviction for an indictable offence would jeopardise your application for permanent resident status in Canada.

Section 36 (2) of the Immigration and Refugee Protection Act of Canada states that if you have been convicted of an indictable offence or two separate offences of any Act of Parliament you will be inadmissible on the grounds of criminality. Further, Section 36(3) states that an offence that could be prosecuted either summarily or by way of indictment is deemed to be an indictable offence.

It is, therefore, imperative that you are not convicted of an offence in Canada that could proceed by way of indictment, if your application for permanent residence is to be successful.

Summary conviction offences in the CCC are more minor in nature. If you receive two such convictions you will not be admitted into Canada. An example of a summary offence is 'cause disturbance'. Unless the CCC specifically states that there is a different penalty, summary conviction offences are punishable by a fine of up to $5,000 or six months in jail or both.

As an adult, a summary conviction is eligible for a pardon after a period of three years, following the completion of your sentence. Or, after you pay your fine or after you have completed your probation. For indictable offences, you must wait five years before you are eligible for a pardon.

In the case of an indictable offence, you are in a more serious category than a summary offence. Examples of indictable offences include theft over $5,000, fraud over $5,000 or mischief over $5,000.

In the case of hybrid offences, the Crown makes the election whether to proceed summarily or by indictment. Examples of such cases include assault and theft under $5,000.

If you are convicted of a criminal offence after you become a permanent resident, you could be deported.

Discharge

You could have asked the court to give you a complete discharge or at least a conditional discharge for the offence, depending, of course, on the nature of the offence. In the case of a summary conviction of a hybrid offence, this is possible. From the information you have given, it appears that you were convicted of a hybrid offence and that you were not given a discharge. A judge recently ruled in favour of a conditional discharge of a hybrid offence based on the fact that the person would be disproportionately affected by a conviction because his immigration application was in process. You should apply for a pardon as soon as you are eligible. You should be truthful about your conviction on your application. If you are found to be inadmissible, you could appeal based on humanitarian and compassionate grounds. However, there is no right of appeal for serious criminality which is defined as a crime that was punished in Canada for a term of imprisonment of at least two years; however, this does not appear to be your situation.

Sharon Ffolkes-Abrahams is a barrister/solicitor of bars in Jamaica and Ontario, Canada. She is president of the Jamaican Diaspora Canada Foundation and former counsel at the Ontario Human Rights Commission. Email: info4immigration@gmail.com or editor@gleanerjm.com.