SPEAKER_00 0:00

Welcome to Beat the Prosecution, presented by Northern Virginia criminal defense and DUI lawyer Jonathan Katz, where we are here to regularly present you information and ideas for beating your prosecution as best as possible. Nothing on any of our media sources, such as our podcast or website, is legal advice. John Katz only provides legal advice to current clients or for individuals who have paid for a consultation. And now for your host, John Katz.

SPEAKER_02 0:31

Hello, everybody. This is John Katz of Beat the Prosecution. I'm a criminal defense and DUI defense lawyer in Fairfax, Northern Virginia. I am delighted to have today's guest. Her name is Marissa Field. She's over somewhere in Quebec, I think in Montreal today. She'll let us know. I heard about her a few years ago, well, many years ago, because many of my clients who get convictions in uh the U.S., they still want to be able to travel to Canada. And oops, there's certain things that'll be in the way there. So we're going to talk to her about that and a multitude of other things. I consider her to be a crimigration lawyer, meaning an immigration lawyer first, but who's able to advise people on uh immigration consequences with convictions? And uh with that, Marissa Field, please introduce yourself. And are you over there in Montreal?

SPEAKER_01 1:24

Yes, I am. Thank you so much, John, for having me. It's a pleasure to be here and chat with you today. I am in Montreal, the Great White North, as they call us up here, not your 51st state. And uh it's a pleasure to be here talking to you today.

SPEAKER_02 1:44

Okay, so what is the name of your law firm? What's your URL? Are you as solo as I am?

SPEAKER_01 1:50

Sure. My law firm is FWCanada, and our URL is duicanadaentry.com. So we are not a solo firm. There's three lawyers on staff here, and we have various support staff. Um, but in terms of representation, I am the person who represents all of the firm's clients to the Canadian government.

SPEAKER_02 2:16

So is this a partnership? Are you the owner?

SPEAKER_01 2:19

I'm the owner, and all the lawyers on staff are my employees.

SPEAKER_02 2:23

What does FW stand for?

SPEAKER_01 2:27

So it has a dual meaning. I originally had a partner when I started this firm and I no longer do. So the F was for me and a W is for him. Um, but he's no longer. And one of the the way that the government instructs government officials on how to um process people at the borders and process people who apply for Canadian immigration, one of the manuals is called FW1. It's called Foreign Worker One. And it's everything to do with anyone who's coming into Canada for work. What is work? What requires a work permit, all those kinds of things. So for me, it was like a double meaning. Our initials happen to be FW, but FW is the name of this very famous manual with the Canadian government that tells officials how to process applications.

SPEAKER_02 3:16

Now, when I saw that you were in Montreal, one of the first things I thought of uh on a non-legal basis, my son and I actually went to Canada three times last year. Uh, first to uh Montreal during spring break, then to Toronto uh July 4th weekend, an interesting time to go then. And then again uh uh around uh uh late July of last summer. And and we included over, I'm trying to, what's the name of that island to the east of uh Quebec City? That was our first time there. That's great, and uh including getting the uh the maple syrup there, you may not even remember. But anyway, in Montreal, my favorite place to eat is Tula Indian Vegan Restaurant. If you're not vegetarian, you may not have had reason to go, but it's even great for the uh the non-vegetarians.

SPEAKER_01 4:03

I'll have to check that out. I can't say that I that I've heard of that. Montreal is known for their food scene um and restaurants, and we have so, so many great places here.

SPEAKER_02 4:15

What made you choose to go to law school or what made you choose immigration law?

SPEAKER_01 4:20

That's an interesting story. So I always wanted to be a lawyer. When I was really little, like when I was two, three years old, I guess, I used to argue with my parents a lot, and they would be like, you would make a really good, a really good lawyer. But growing up, when I was little, like all the books I like to read, all the movies I like to watch, all the TV shows, everything was law. I was obsessed with law and order, I was obsessed with um legal stories and and books. And it was always just like totally fascinating to me. And to this day, there's really not a TV show that comes on TV that's about a lawyer that I don't find, that I don't find interesting. So law was always the path that that I was on. And then while I was in law school, I was an after-school tutor. I helped a couple of kids with their homework, like kids who were just having trouble keeping up. And it turned out that all three of the kids that I was tutoring, all their dads were lawyers. One was a tax lawyer, one was a corporate lawyer, and one was an immigration lawyer. And one day the immigration lawyer came into one of our tutoring sessions and he said, My law student just quit on me. Don't you have a law degree? I said, Yes. And he said, Well, forget all this, you know, like you don't need to be tutoring anymore. You need to focus on your career. Come to my office and come work for me. So it was really kind of by accident or not really by design that I ended up doing that. And throughout my law school career and even in my undergrad before I went to law school, I'd done a lot of internships because I didn't know what area of law I really wanted to do. And I tried everything. I tried family, I tried constitutional, I tried contracts, I tried criminal, I tried a whole bunch of things. I had a whole bunch of wonderful experiences, but I didn't feel like any of them were really me. And when I went to my first day of work in the immigration law firm, I was like, this is what I meant to be doing with my life. This really speaks to me. It felt like an area of law where you mostly win, an area of law where you get to help people and you really get to make a big impact in people's lives.

SPEAKER_02 6:36

Well, you mostly win over there, maybe. I don't know about in the US, at least with asylum. Um what is your breakdown of immigration work for advising the American lawyers, uh, doing the cremigration work, the non-crimigration work? And am I correct that you are also licensed to practice law in New York State or in other of the U.S. states?

SPEAKER_01 6:56

Yeah. So 95% of the work that we do is cremigration. We submit more of these applications, these we call them post-conviction travel waivers. They have specific names in Canadian law, but for the general public, we call them the special waivers that you can get to travel after a conviction. So 95% of my practice is that. We also do other immigration services, but usually there's also a piece of crimigration that fits into that puzzle as well. Um, and then I'm licensed as a foreign legal advisor in the state of New York, which means that I can practice this area of law in the state of New York.

SPEAKER_02 7:36

All right. So to what extent uh does federalism affect uh immigration law in uh in Canada, or is it all just uh one set of laws? And also when you're in law school uh and and in court in Canada, uh is it affected whether it's in French or or English, depending on whether you're in Quebec or elsewhere, and or is it also bilingual?

SPEAKER_01 8:01

So the Quebec courts are French by default. You can um have ask for an interpreter or translator to help you in English, and some judges are able to speak English as well, but primarily things happen in French. The difference with Quebec versus the rest of Canada is that we practice civil law here versus common law in the rest of the country. I think Louisiana's the same in the United States. I think they're also civil law.

SPEAKER_02 8:32

I've heard that.

SPEAKER_01 8:34

So we are this jurisdiction, Quebec, is French and civil law. And then there is in the rest of Canada, it's English and common law. But again, Canada has two official languages, uh, French and English. So I believe when it comes to federal services, you are required to be able to be serviced in French or English at your request. It's just that in Quebec, most of the people speak French and elsewhere, most of the people speak English. Um, immigration is federal jurisdiction, exclusive federal jurisdiction. However, they did at some point, and I don't know at what point in time this was, they did open a way for provinces to nominate or sign off on people who are going to come and contribute to their provinces. We call them provincial nominee programs, whereby the provincial governments can give you a certificate which bypasses all of the other federal immigration laws and gets you permanent residence or the equivalent of a green card in the United States in Canada. So the provinces have some role to play. Quebec is also unique in that regard because Quebec has a special agreement with the federal government that says that anybody who is applying for a permanent resident visa, so like a green card in Quebec, or people who are coming here to work for um Canadian, Quebec-based Canadian companies, have to also get an approval by Quebec. So there's like a very small area of joint jurisdiction with Quebec specifically, and then an even smaller area of joint jurisdiction for the rest of the Canadian provinces via the provincial nomination programs.

SPEAKER_02 10:21

So I don't bore the audience too much about these technicalities, but this is important for me to know with me visiting Canada so often. I do want to ask uh, are all the statutes or are all the written laws in Canada bilingual? And if so, uh if you know, which language controls? You can't have them exactly the same. And are appellate court opinions going to be in uh in French only if they come from Quebec and in English from the rest of the provinces?

SPEAKER_01 10:48

Correct. So it's the same thing that applies in French, it's primarily French, and that's the language that prevails. The English is the translation in the rest of the country. Technically, the criminal code, which applies to everybody, including Quebec, has two official languages. Both the English and the French are both official translations of that criminal code.

SPEAKER_02 11:10

So if the French version of uh uh of a code is more favorable to a defendant and the English version is more favorable to the prosecutor, how do the courts resolve that?

SPEAKER_01 11:22

I don't know the answer to that. To my knowledge, they're pretty equivalent. Like I don't think that there's those kinds of discrepancies. Certainly, I think that in law, we've had a lot of years of experience of trying to translate things so that they can be equal or equitable at the very least. Um, so I I've never actually heard of a case where there would be more advantages in using one language or the other.

SPEAKER_02 11:48

Okay, so I've read on your website and elsewhere, and you've given me a cheat sheet, you'll let me know of anything. Uh, you know, if I just give a URL back to your website or just put on my liner notes. Uh but I I hear about uh that with a wet reckless that that can be problematic. But what is a wet reckless? Because here in Virginia, the law doesn't describe a wet reckless. Wet reckless typically in Virginia means we amend a reckless driving charge to reckless driving generally, which means driving recklessly to the disregard of people andor property. Uh the person then has to do the Virginia Alcohol Safety Action Program, which is required for a DWI conviction as well, and uh has to have uh a suspended driving license using the maximum possible for reckless driving, which is six months, and the maximum possible in Virginia for DWI is is is up to a year, so is a year. So so the wet in that is having the uh the suspended license where you can get restricted driving privileges and the Virginia Alcohol Safety Action Program. So, would the Canadian authorities look at uh such a reckless driving disposition as wet, reckless, or do I have to do something to massage that to have it not being categorized that way?

SPEAKER_01 13:06

Great question. So in Canada, we don't have reckless, wet, reckless, we don't have that distinction. We do have reckless, or we call it dangerous operation of a motor vehicle. That's our reckless driving. But what you described as the actual statute is almost verbatim the same, having regard to the security of person, places, or things that you've conducted yourself on a public highway that could potentially cause danger. So that's our dangerous operation. So in most US states that have a reckless driving provision, wet or otherwise, in general, we have an equivalent dangerous operation of a motor vehicle that's going to cause inadmissibility to Canada. So if you have wet, reckless, or reckless, it will be equivalent to the Canadian Dangerous Operation. The Canadian Dangerous Operation carries a maximum sentence of 10 years in Canada, making it one of the most serious offenses in the criminal code. And that actually makes you inadmissible to Canada forever until you apply for one of these post-conviction travel waivers to allow you to resume your rights to travel to Canada. And what's interesting about it in Canada is that our dangerous operation or the equivalence of reckless is not a step down from DUI. So a DUI maximum sentence is 10 years, and a dangerous operation maximum sentence is also 10 years.

SPEAKER_02 14:35

Now I kind of put the court cart before the horse because that was one of my most burning questions. But now I'm going to invite you to just walk the audience through uh what the uh risks are for entering Canada uh with a a DUI driving influence of alcohol or drugs conviction or driving while impaired conviction uh versus uh reckless. And I'll also be interested in knowing about how that works with other other convictions. And I'm not interested in knowing only about how this affects being able to go in with uh just a tourist visa for a few days or for a few weeks, but how this would affect a person's ability to go into Canada to have a student visa, to get uh you know a work permit, or to even uh eventually uh get citizenship for whatever path there is to get citizenship.

SPEAKER_01 15:21

Sure. So let's take this from the very top. So what I like to first start with is that the rules about traveling to Canada after a criminal conviction only apply to foreign nationals. These do not apply to Canadians. So a lot of times people will call me up and be like, I have family in Canada. And we'll go through the motions and we'll actually find out that these people who have family in Canada are Canadians themselves, and Canadians cannot be denied entry to Canada. So I want to start this off by saying, who do these rules apply to? The general rule is that if you have a criminal conviction, you cannot travel to Canada. And for those who are interested in looking it up, it's section 36 of the Immigration and Refugee Protection Act. And it says that these rules apply to foreign nationals, so non-Canadians. That's that's step number one. Step number two of that statute is you have to have been convicted, or the border officer has to have reasonable grounds to believe that you actually committed this act, which is an offense in Canada. So you're either looking at an admission or you're looking at a conviction for these purposes. And there's many states with who have alternative dispute resolutions who do things in different ways. And in um in the state of Massachusetts, there's continuance without a finding. Um, in other states, there's conditional discharge. In some places, there's deferred adjudication. All of these mechanisms whereby the court can impose requirements but then not have a conviction are not considered convictions for the purposes of traveling to Canada. So the first step is, are you actually uh a foreign national? Second is were you actually convicted? And then the third thing is, were is what you were convicted of an offense in Canada? Because although Canada and the United States have very similar criminal justice systems, we're not a carbon copy. And even in the United States itself, each state has their own criminal code and there's no uniformity across the US states as to what is an offense in one state and what is an offense in another state. And like people think I'm being facetious or joking about this, but there's like very well-known things that are not offenses in Canada. For example, the possession of drug paraphernalia. That's an example of a of a crime, of a criminal statute in many US states that is not a criminal offense in Canada. You can have a trunk filled with scales and baggies and whatever else you want, as long as there's no drugs, it's not a criminal offense that will make you inadmissible to Canada. Um, and then there are some offenses that are not fully equivalent to Canada. There's some that are like partially the classic example of that one is trespassing. So in Canada, our trespassing statute is very limited. It says it's only trespassing if you're next to a dwelling house and it's at night. So there's no such thing as commercial trespass. You want to hang out and sleep on the stoop of a liquor store, that's not criminal in Canada. Um, you want to hang out in front of a person's house during the day, that's also not criminal. Um, so and in many US uh states and in under many US statutes, none of those requirements apply. You can be trespassing on a on a commercial property, you can be trespassing during the day as well. Um, and in Canada, we draw the distinction. So a person who's convicted of criminal trespass in the United States, unless it meets all of the requirements of the Canadian statute, would not be inadmissible to Canada. So that's the sort of that's the state of the law. You're not allowed to come in if you're a foreign national who's been convicted of an equivalent offense. Those are the three kinds of things that we look for. Um and then beyond beyond that, how do the officials know, right? Like that's a question we get all the time. Like I want to know that how do they know? So if you've ever noticed when you give in your passport at passport control, whether it's a land border or an airport, or you show up on a cruise ship at a seaport, they take your passport and they have this like little scanner machines and they hold your passport up to the scanner machine. And that scanner machine actually has direct access to the FBI. So what we do when we're preparing files and we want to know what the officials at the border will see when you arrive there, we say, okay, let's go get a copy of your FBI background check. Um, it's relatively easy to do in the US. You can go online via the FBI's website, you can register for an appointment at a USPS location, you can go have your fingerprints electronically taken, they take your social security number, and then they will email you the results. And whatever's written there is the same thing that the border officers will have when you arrive in Canada.

SPEAKER_02 20:36

Well, they must have a pretty fast database because they never make me wait very long at the border.

SPEAKER_01 20:41

It's very fast. So I I think uh if I'm not mistaken, and I might be, but it seemed to me that after 9-11, we really beefed up the accessibility of these databases. Before you had to go into secondary screening, like pull over your car and go into the little booths and like wait for someone to look it up in a computer. And since 9-11, they installed these scanner machines, and now pretty much every single officer has access to one of those fast scanning machines that's attached to your passport.

SPEAKER_02 21:13

Before we go into more detail about the different convictions that cause problems with Canada and how to get relief, I do want to ask, you know, since I told you I went into Canada three times last year. I remember when I was over at the Athap at the Thousand Islands a few years ago, I thought that would be pretty cool to just zigzag back and forth between New York State and Canada, but then I wondered if I'd be suspected, so I didn't bother doing it. Uh what kind of red flags would that uh raise with the uh Canadian immigration authorities if I had done that?

SPEAKER_01 21:44

So, generally speaking, if you're a person with nothing on your record, coming in and out of Canada like in rapid succession is not necessarily a flag in and of itself. It could be if they have some reason to believe that you're you know suspicious. And they want to look into it. It's much more problematic when people who have criminal records come up, try one border crossing, get denied entry, and then go to another one? That is a big no. Big no. Because you will find that once you arrive at the second one and they realize that you were denied at the first one, they're calling the police. They're going to detain you. Like that's that's not a good thing to be doing for sure.

SPEAKER_02 22:31

And so so, how much discretion do these uh Canadian Border Patrol authorities or whatever you really call them, uh have in the questions they ask people driving over the border? I remember uh on our uh first entry last year, the uh the the border agent asked me what my uh license plate was, and that was easy because it's a vanity plate, and I know that one. And then when we were going into uh to Toronto, uh I was asked what my um what hotel I was staying at, and I said, I haven't decided yet because I'm to Toronto for so long. I want to check out the neighborhoods. He said, You're gonna go in without a reservation? I said, I always find a room. He he didn't uh cause a problem with that. Uh would whether uh is it wise uh if you're driving into Canada to have to have a hotel reservation, if it's clear that you're not just going in for the day? And uh also uh to what extent is it more of a hassle to enter Canada uh by air versus by car?

SPEAKER_01 23:32

Sure. So the question about set travel plans, that is a classic in terms of questions that the border will ask you. If you are driving, they want to see hotel reservation that's for a specific number of nights. If you are flying, they want to see a round trip ticket. They want to see that you have plans to return to where you came from. So going in without a um going in without a hotel reservation and going flying in without a return ticket are typically red flags for them that ask them to that tell them that they should be asking more questions of a person. It's not something that's going to lead to an automatic exclusion, far from that, but it's one of the factors that raises suspicion when a person comes in without set travel plans.

SPEAKER_02 24:27

What's being done to avoid uh racial profiling of people entering uh Canada at the border uh on a legal basis, training basis, and cultural basis?

SPEAKER_01 24:38

Sure. So when I was talking to you about the name of my firm and we were talking about those policy manuals, like those are manuals that get sent to all of the border officers and as part of their training programs. And there is, you know, a chapter on sensitivities to racial profiling, but also the Canada Border Services Agency is tasked with keeping Canada safe. And so it's this, you know, it's this age-old question of how do we keep the bad people out? How do we not hold things against people unnecessarily, but how do we ask the right questions of the right people that we are legitimately suspicious of? So, you know, it's a it's a it's a really hard line to to walk. Canada is a is a country that's made up of immigrants. We are very diverse and we are proud of our diversity here. We are, we we say that it's something that sets us apart from other nations that are more or that aim for more to be more homogeneous. We we appreciate diversity and we put it in all of our policy manuals. What happens on an individualized basis with an officer, you can never really tell because pretty much anything can be justified in the name of national security, as as as you've experienced. Um, so it is it is a really hard line to to tow.

SPEAKER_02 26:14

And uh what are the risks that I'm gonna have my uh cell phone or laptop uh searched when I'm to the Canadian border? Because this is just happening too much when people are entering into the into the United States, even plenty of uh United States citizens when they return from other countries.

SPEAKER_01 26:31

Yeah. So in general, they they're pretty well, in my experience, I've seen that they've been pretty good about having reasonable grounds to believe that a person is doing something that may be against the law before they're undertaking those kinds of searches and seizures. It's really not as widespread in Canada as we hear about in the media or in the news or online of what's currently happening in the United States. That's not to say it doesn't ever happen. It does happen. There is there, or I don't even know if it's still on TV, there was a TV show called Border Security, and they were following the Canadian Border Services Agency officers and they were pulling people over. And there was one case of a guy who was suspected of coming to Canada to work illegally. They thought he was coming here to do some jobs, and they ended up taking his laptop, opening his computer, seeing his emails, and his emails were all filled with people whose jobs he was coming to do. His bags were filled with tools and work clothes and all of these things, and the government or the border officer had reasonable grounds to believe that he was engaging in something that was illegal, and he was. And the search sort of revealed that. I'm sure that there are searches that happen that pull up nothing, but they do have to sometimes randomly search people. But in general, they have to have reasonable grounds to believe that you're doing something that may be against the law to do that type of search.

SPEAKER_02 28:05

Okay, now let's talk about particularly the uh uh the crimes that uh a large majority or percentage of my clients are charged with, which is uh DWI, DUI, the same here, uh, as well as drugs, uh drug possession, drug dealing. And um actually before we get to that, okay. So in Maryland, reckless driving is an infraction, it is not a crime. So I'd like uh your take on whether that could be wet reckless then, because it has no relationship uh to DWI at all, uh, um unless it's amended from DWI. And uh Maryland, uh the neighboring state also have what's called has what's called a probation before judgment, which I'm sure you you know what that is, which is uh after being found guilty, you're not convicted. And in Virginia, the closest thing we have to that is a suspended imposition of sentence, which is after being found guilty or entering a no-contest plea, that uh that is delayed to be dismissed later on. And we also have a new law called uh code section 19.298.02, where you can enter a plea. It could even be a not guilty plea if the judge agrees, and then the parties and judge can agree that that would be uh dismissed after a certain amount of time with terms and conditions. So if I've gone through too many things, I'll remind you.

SPEAKER_01 29:27

Okay. So this speaks to the second thing, the second factor that we talked about. Is there a conviction? So, in general, um, PBJ, probation before judgment, is not considered to be a conviction for the purposes of Canadian immigration. So we there's like a whole list of them. That's what I was talking about before: deferred adjudication, um, CWOF, PBJ is one of those. Um those are all things where the conditions are set before any judgment is entered into the system. And that is equivalent to what we have in Canada called a conditional discharge, where they can sentence you to complete some probation or pay some fines or complete some community service. And then afterwards they dismiss the criminal charge and there is no criminal offense, and you can legally say, I was never convicted of any offense. So, in the cases where the US state has a mechanism that is equivalent to a conditional discharge in Canada, like PBJ is a great example, we don't consider that to make that person inadmissible to Canada. The suspended imposition of sentence is a different mechanism because in that case, judgment actually is rendered and the only part that is suspended is the punishment. And in Canada, we have a similar mechanism. Um, and we consider those to be convictions, even if you were never sentenced to prison or completed the minimum sentences. Like if that gets suspended, that doesn't mean that the judgment or the conviction was suspended. So those are considered to be convictions for the purposes of traveling to Canada. So there's like a really important distinction there is was judgment rendered or was it deferred or or was it or was it set aside in some way um before any guilty plea was entered?

SPEAKER_02 31:36

Are you talking specifically about uh the Virginia suspended imposition of sentence statute? Because I always saw that as being no worse than a probase for our judgment, because in Virginia uh you you enter for a suspended imposition of sentence, you enter a a uh conditional guilty or or not guilty, uh sorry, conditional guilty or no contest plea, and uh no sentences imposed, and the case gets dismissed unless you're found to have violated the terms and conditions to dismiss it.

SPEAKER_01 32:07

So I'm talking about all like in every state that has suspended imposition of sentence. Like uh Virginia is not the only one that has it. We there's many US states that have it, and Canada has it too. We call it just instead of SIS, it's just suspended sentence, that's what we call it here. And those are considered because a guilty plea or a no-contest plea is entered and the person is sort of accepting responsibility for what had been done, that is like uh an admission to the facts, and that creates inadmissibility in Canada.

SPEAKER_02 32:41

Okay, so then for the probation before judgment, if the probation before a judgment follows a person uh entering a guilty or no contest plea, uh does that still mean that the person's not uh gonna have that treat as a conviction as long as they see before judgment?

SPEAKER_01 32:57

Usually I see that there is no plea that's entered or that it's a non-guilty plea. They complete the probation and then the judgment is rendered after that that the person isn't. It's a question of did the court ever say this person is guilty, yes or no?

SPEAKER_02 33:14

Okay. And if the court says the person's guilty, then that's a conviction for the Canadian immigration purposes?

SPEAKER_01 33:21

Correct. But here's the interesting part, which is gonna come back to the very first part of the question that you asked me. And this is where being a lawyer is different than being someone who's experienced in the field, right? Because legally, if a person is found guilty of an offense that is a criminal offense in Canada, they are inadmissible. We agree. That's what section 36 says. So by that logic, your DWAI, is that what you called it?

SPEAKER_02 33:53

Uh is DWI and D UI are the same here in Virginia.

SPEAKER_01 33:57

Which one is the one that is not criminal?

SPEAKER_02 33:59

Which is the one you mentioned one that is that was the Maryland Reckless Driving, and Maryland reckless driving is just an infraction, it just means true reckless. That's it.

SPEAKER_01 34:10

Okay, so Maryland reckless driving. Let's take that as an example. So Maryland reckless driving is equivalent to the dangerous operation of a motor vehicle in Canada. We have a conviction, we have equivalence. Now the question is, where does where do those charges and that um conviction lie? Where is the record of that? Because, like I told you before, when you come up, it's the FBI database that we're searching when we have that passport. For many um administrative infractions or many like traffic-related things, they never get reported to the FBI because there's specific rules in each state of what needs to get reported to the FBI and what doesn't need to be reported to the FBI. What I often see is that when the original charge is DUI and then it's played down to a lesser thing later on in the game, that original DUI charge is going to live in the FBI's database and that's going to be searchable by Canada. But if somehow you had someone who was just charged with the Maryland um reckless and it was never entered into the FBI, it's that old thing, like if a tree falls in the woods and no one's there, does it make a sound? Like if we can't see it in the database, is it something that makes you inadmissible? Legally, yes, but like practically, how are you going to enforce that? Right.

SPEAKER_02 35:40

Got it. Now in Virginia, we have a multitude of uh reckless driving uh code sections, including it being reckless driving to drive 20 miles an hour or more over the speed limit, or to drive uh 85 uh 85 miles an hour or over, or to have uh defective equipment. I forget the the exact description there. Do any of those offenses that I just described count as uh the type of reckless driving that will cause admissibility problems in Canada?

SPEAKER_01 36:13

So I usually argue no, and the way that I go about it is in Canada we have the criminal code that sets out uh select number of driving offenses. So DUI is one of them, um, a dangerous operation is another one, racing, drag racing is another one, um driving in a way that causes bodily harm or death is another one. But that's sort of what it's limited to. I might have forgotten buttershoe. I don't know enough by art, but basically those are the big ones that are covered by the criminal code. Then we have in each province, we have a highway code. And in the highway code, you have offenses that are more similar to what you just described, driving 20 kilometers, also kilometers, miles, same thing, 20 kilometers over the speed limit, or with defective equipment, without having rear lights, whatever the case may be. And those are usually provincial statutes. And going back to section 36, which is what creates inadmissibility, it says that only things that are covered by a federal statute are things that make you criminally inadmissible to Canada. So if it's not in the criminal code and it is something that would have been handled via a provincial highway code provision, then we can say there that is not a real equivalent. Yes, it's true that dangerous operation is really broadly worded, but in general, when there is like a very specific um infraction, when it's 20 kilometers over the speed limit or without taillights or those types of things, it's easier for us to make the argument that this would have been covered. If it happened in Canada, it would have been covered by a highway code provision.

SPEAKER_02 37:55

Okay, so recently a prosecutor uh for a DWI case for mine here in Virginia had offered what he called a dry reckless, meaning reckless driving with a fine. Uh, but that was the reckless driving generally, meaning driving recklessly to the disregard of people and or property. And I convinced him to change that to amending it to the uh reckless driving based on speed. So is my client still in a safe harbor there with the result, or are the Canadian authorities going to also look uh at, hey, that but this was amended down from a DWI charge?

SPEAKER_01 38:30

So that's like not exactly a black and white question because they have the discretion to look at the underlying charge, the original charge. Um, so we used to, I used to play this game in the state of Washington. So the state of Washington, we figured out that the courts would allow to amend a DUI charge down to what we called reckless endangerment. In Canada, the reckless endangerment statute is not a standalone statute. It has to attach to another criminal offense. So you can't have just general endangerment. You have to have reckless endangerment in the in the use of a firearm or in the commission of another offense, that type of thing. It has to attach to something else. So we used to use that and say, hey, reckless endangerment is not a standalone offense in Canada. This person is not inadmissible. But after we did that a couple hundred times, the border officers kind of started to catch on and it's really not working anymore. Now they're saying, sorry, but like the original charge was DUI, kind of has nothing to do with reckless endangerment. You guys did some like fancy dancing over here with the law, and like we're not accepting that. And so they do have the discretion to go back to the original charge.

SPEAKER_02 39:47

Okay, now for a selfish one, this is a quote I'm gonna give prosecutors. You can therefore decline if you want. I want to I want to give the prosecutor a clip from here. Prosecutor, even though my client's not guaranteed to be able to get to Canada by amending the DWI to reckless base on speed. My clients' chances are better on getting it to Canada on changing to reckless base on speed than reckless generally, which once again is driving recklessly to the disregard of people andor property.

SPEAKER_01 40:15

In my professional opinion, yes.

SPEAKER_02 40:18

That made this uh interview worth its weight and gold for me and so many of my colleagues. Moving along. We also have a law in Virginia called improper driving, which essentially, in so many words, is one rung below reckless driving. It's an infraction. And what we also often do to get to improper driving is not to do that uh from reckless driving itself, but to take uh DWI down to reckless down to improper driving. There is one judge who said to me, uh, because I I'm not gonna change improper from DWI. Technically, she was right, so I said, Well, I'm gonna check with the prosecutor about first amending to reckless, then amending to improper. She wouldn't do that, and then the prosecutor just dropped the case, which was pretty cool. But for purposes of what happens in the future, where do I get safe harbor there with getting the improper driving? And to what extent, once again, are the Canadian immigration authorities looking at, oh, you did some sort of subterfuge there from the DWI to the reckless and the improper, or going from DWI, skipping to improper, where improper is an infraction and not jailable. But then again, in Maryland, the reckless is also an infraction and not jailable.

SPEAKER_01 41:30

So in those kinds of scenarios, I make the I make the following argument. I say the standard that would be required to convict the client of DUI is of the highest level. This the next level down, the dangerous operation standard, is a little bit below because you don't have to prove impairment and you don't have to prove the 0.08 blood alcohol. And then going down a third step to mean taking away the language that would be equivalent. So if we are able to avoid that reckless driving language that is like pretty much word-for-word dangerous operation, I would say the prosecution did not have what it took to be able to convict the client at the two upper levels. And therefore, you can't hold him responsible in Canada either.

SPEAKER_02 42:21

Is there any extra protection to be able to is there a fudge factor for letting people into Canada with certain convictions or letting them uh have a shorter waiting period? And we're gonna get to that. I'm putting the cart before the horse in some ways, if they have uh certain extenuating circumstances like family over there, if the person uh is is uh the only person who can uh uh perform a certain type of heart surgery in Montreal, for instance.

SPEAKER_01 42:50

So there's two ways to use that in your favor. One is what we're doing here is great, and you can play this clip for the court, but often what we end up doing is clients retain us to provide a legal opinion based on the charge that they are originally convicted or originally charged with, and then the proposed statutes that they may accept a plea for. And then we go very detailed into what exactly are the risks and what exactly is are the likely chances of this person getting in based on this new information, and we do a letter that's detailed for that client. Um, so and in that letter, we also say this client is a heart surgeon who saves people's lives in Canada, and it would really be beneficial for the court to amend this charge to this other thing that would help him get in. So that's one way of using it. The other way of using it is in the remedies. So that wouldn't change the application of the law. The person would still be inadmissible to Canada, but it would give them a leg up, a better chance of getting one of the post conviction uh travel waivers to allow. To come to Canada.

SPEAKER_02 44:01

And what are those waivers?

SPEAKER_01 44:03

Sure. So we have two waivers, one's temporary and one's permanent. We'll start with the permanent one because it's more stringent. And basically, that cannot happen until five years have passed from the completion of the sentence. Completion of the sentence includes probation. In the state of California, they regularly give five years of probation on a DUI. And so if you are a person who has plans to travel to Canada in the future or think that they might, the most important thing that criminal defense attorneys can do is to try and shorten the period of probation because the clock does not start ticking until all probation is completed and all fines are paid.

SPEAKER_02 44:42

Very important.

SPEAKER_01 44:43

Five years from that time, you can apply to the Canadian government for essentially the equivalent of a Canadian expungement. It's something that clears your record permanently so that you can resume your rights as an American citizen to travel to and from Canada without restriction. That is also the same mechanism that we use for people who are inadmissible to Canada and want to immigrate to Canada. You cannot permanently immigrate to Canada while you are criminally inadmissible. That application, which is called criminal rehabilitation, is what's required before you can complete an application for permanent residence, which is, again, the equivalent of a green card. If five years have not passed since you completed your sentence, you have another option, which is called a temporary resident permit, TRP. It's essentially a hall pass. You say, I need to be in the hallway, I need to be in Canada for this particular period of time for this particular purpose. And they will grant you a TRP to come up to Canada for that particular purpose. Usually it's something related to business or to work. We represent lots of pilots, flight attendants, truck drivers, people who have business meetings, board meetings, conferences, those types of things in Canada who need to be here for temporary periods to be able to come in. Similarly, if you're offered a job in Canada, or you are someone who's going to be performing some life-saving surgeries or some major repairs to something that can't easily be done in Canada without this person's expertise, those are the types of temporary permits that get issued for those purposes.

SPEAKER_02 46:27

Got it. Now, after I put the cart before the horse so many times, what is the flow chart for uh how long uh someone is uh inadmissible or asked to uh wait to get into Canada? What kind of convictions are they? And uh what kind of convictions are there that that allows some sort of waiting period to finally get in? And and what uh what can be done to speed that along, whether it's with you or the person trying to go alone with some sort of application?

SPEAKER_01 46:56

Sure. So there are many, um there are a bunch of of offenses that will make a person permanently inadmissible to Canada, the most well-known one being DUI. So since December 2018, DUI is now categorized as an offense that will make you permanently inadmissible to Canada unless you apply for criminal rehabilitation. That is the only way to get over that, and that's the one that requires the five-year waiting period. So the only real thing that can be done to expedite is to shorten that sentence as much as possible in terms of probation, paying fines, those types of things. If you can avoid having a conviction for that, obviously that would be preferable with the PBJ or with another mechanism or by pleading it down to something else. That would be the only other way. But if you are convicted of DUI, it creates inadmissibility forever. And the way that we determine which offenses create inadmissibility forever is we look at the maximum sentence in the criminal in the Canadian Criminal Code. So if it carries a maximum sentence of 10 years or more, it is one that makes you inadmissible forever. So DUI, assault causing bodily injury, assault causing death, um, trafficking of narcotics, sex offenses, murder, um, those types of offenses, those really bad ones, are the ones that make you inadmissible forever. The ones that have a maximum sentence of less than 10 years, which are your standard theft, fraud, um basic assaults like not causing bodily injury, those ones are ones where you can, after 10 years, once 10 years have passed from completion of your sentence, if you only have one thing on your record, it's like a get out of jail free card. It's called deemed rehabilitation, and you don't have to do anything technically. Um, but that would only apply if it's only one thing. If you've had any other arrests or any other convictions, that's a no-go, and you'd be back in the category of people who need to apply for criminal rehabilitation. And then the people who don't have to wait are the people who were convicted of things that aren't criminal offenses in Canada. So that's the trespass, that's the uh possession of marijuana, that's those types of offenses that are not criminal in Canada, would not create any kind of an admissibility waiting period for people with that on the record.

SPEAKER_02 49:28

Okay, I'm sorry if I missed it, Marissa. So what what are the limits uh for for drug convictions and the difference between drug possession and drug trafficking then for admissibility to Canada?

SPEAKER_01 49:39

So it does depend on the type of drugs. So in Canada, we have a controlled drugs and substances act, which is separate from the criminal code, but it is a piece of federal legislation that creates the inadmissibility. So basically, in that thing, in that code, there are for our purposes, I say it's marijuana and everything else, because everything else is kind of they do categorize them into different categories of drugs, but for inadmissibility purposes, if you have possession of marijuana, you are not inadmissible to Canada. If you have trafficking of marijuana, you are inadmissible to Canada, but it's one of those lower level offenses. It's one of those ones that's more like assault and theft. It's one that goes away after 10 years if you have nothing else on your record. If you only have one and it's and it's been more than 10 years. On possession of every other type of drug, those are also ones that create inadmissibility, but not permanent inadmissibility. Those are also ones that after 10 years, if you only have one, it goes away. If you have more than one, then you have to apply for rehabilitation. And then trafficking of all other drugs besides marijuana, those are ones that create permanent inadmissibility.

SPEAKER_02 50:56

And what about convictions for uh possession or distribution of child pornography, uh soliciting a minor for sex, and uh obscenity?

SPEAKER_01 51:07

So obscenity is easy because it has nothing to do with the person's age. Because in Canada, the age of consent matters in the criminal code. We have certain offenses for that are that happen with people of the age of 12 and under. We have other ones that are 14 and under, and then we have other ones that are 16 and over. So in Canada, the legal age of consent is is 14 for many things. It's 16 for other things, and then it depends on the nature of the relationship between the two people. How many years apart are they? Is it a person who's in a position of power or in a position of trust? Um, so it's really complicated the sex offenses because it really depends. How old were they? How old were you? What is the relationship between the two people? Were you married? Were you not married? Do you know what I mean? Like there's so many iterations of that where you can go from anything from not admissible, not inadmissible at all, to permanently inadmissible. Certainly, um child pornography ones are you know much more serious and and are likely to result in permanent inadmissibility.

SPEAKER_02 52:27

And um now, uh so what has to be done for this rehabilitation application? And is the rehabilitation application ever do anything to uh shorten that uh five-year minimum waiting period?

SPEAKER_01 52:41

So the five minimum waiting period is statutory and there's nothing that you can do to shorten it. The way that that works is that you fill out some, so it's called rehabilitation, and people get nervous you actually have to present yourself somewhere to like a rehabilitation center. It's not that at all. It's a paper application that gets handled by the Canadian government where you're submitting proof that you've changed your life, essentially. So we fill out a form explaining where you've lived, the jobs that you've done, just personal biodata in these forms. And then you're producing evidence of a rehabilitated person. You're producing reference letters, you're producing um the reasons why you want to travel to Canada, you're producing a personal statement where you're expressing remorse for what you did and an understanding that what you did could have had negative consequences on other people. And then that is the mechanism that will clear your record permanently.

SPEAKER_02 53:44

Okay. So if the person does that on their own versus having someone of your caliber doing it, uh that can make a difference between the petition being granted and not, I take it.

SPEAKER_01 53:55

Absolutely. It's like representing yourself in court. Are you allowed to do it? Yes, is a good idea. Not sure. We've done more of these applications than any other law firm in all of Canada, and we've helped thousands of people clear their records permanently.

SPEAKER_02 54:10

Yes, very important because there's a reason why I asked you and no one else to be on the show about this topic. Now, let's say the person does this on their own, the applications is and it's denied. Is there any chance of having a second bite of the apple of going back with a lawyer and making a second effort?

SPEAKER_01 54:28

Yes. So usually when that happens, we just find that the statements and the letters just didn't have the language or the information that we know that the government is looking for and they will deny on that basis. But it's very hard for a lay person who doesn't do this all the time to know exactly what goes in it because the government just says reference letters. They don't provide information about what's supposed to be in those reference letters. So it's really a shot in the dark. And the problem right now is that these applications are taking a year or more. It's a long time to wait to know if you like tried and didn't succeed, because that's a whole year that you couldn't travel to Canada. Um, and so I feel like because of that waiting period, it's much more prudent to work with someone who knows what's required to be able to get that approved on the first shot.

SPEAKER_02 55:25

Now, the name of this show is Beat the Prosecution. I know you don't do criminal law, so at least uh uh and I don't even know how much how often you get into court. So, how often do you go to court and whether or not you go to court, what are your uh secrets or approaches to persuade those? So beating with the prosecution is persuasion, you're doing persuasion. What do you do beyond being just fully prepared, knowing it all, and uh making sure you know your client and make sure you're telling the client's story as effectively as possible? Or is that all there is to it?

SPEAKER_01 55:56

So I don't go to court ever. All of our work is done with the consulates outside of Canada, sometimes inside of Canada, but they're done with consulates that are not located where we are located. So most often we're working with the Canadian consulate in New York or the Canadian consulate in Los Angeles. Um, and we communicate only in writing with them. And so this is uh working with us is an exercise in legal writing, in legal persuasion via writing. So I don't get to litigate, I don't get to stand up in court and persuade a jury or persuade a judge with my with my spoken words, but I do get to do that every single day with the written words. And what I try and do is I try and focus on the impact. I try and focus on what would Canada be missing out if we were to deny this person entry and weigh that against the risk of allowing this person in. If a person had one-time mistake in their lives that's not indicative of how they conduct themselves in business and in life, um, and they're someone who's producing something or an idea or a service that would be of benefit to Canadians, how that would be much more beneficial to allow Canada to allow that person in and to complete that type of work once they get here.

SPEAKER_02 57:23

Okay, now I told you we'd go until 3 o'clock and it's 3.01. If I could be permitted, one final question then about this writing. Two of my favorite persuasive writers are Jerry Goldstein, this uh very colorful criminal defense lawyer in Texas, and Mark Rondota, uh a very colorful First Amendment defense lawyer who's all over the map. And uh Mark does things like he borrows from literature and he says, Well, the person doesn't want to pay this judgment. It reminds me of a Shakespeare or something from uh Dickens where the character says, Me thinks not. And uh Goldstein just uh does all these highlights of some of the funniest quotes. Does that get anywhere with what you're doing, or do you have to do more uh more straight-lays kind of argument?

SPEAKER_01 58:08

So the other thing that I tell people is that what's interesting about what I do is I have to keep in mind who my audience is. My audience is not necessarily someone with any legal training. Most of the time it's border officers, it's people with law enforcement backgrounds, not with you know, lawyer backgrounds or judge backgrounds or any legal type of background. So I have to keep it as real and as down to earth as possible to appeal to their good sense, to appeal to their common sense. Um, and I find that that's much more effective given who I know is making the decision in my cases.

SPEAKER_02 58:48

Marissa, you've been shimendis. I have 5,000 more questions, and those are going to only be able to get uh asked at your hourly rate, I'm sure. I really thank you for being with us. I want you to have this final opportunity to say anything you wish, including reminding people of your URL, uh, who you accept as clients and how they onboard with you.

SPEAKER_01 59:10

Great. Thank you so much, John, for having me. It's been a pleasure talking with you. And one of the things about me is that I really love collaboration. I work with so many criminal defense lawyers in the United States. And you can ask any of them that I am one of the fastest draws in the East. You send me an email, I write you right back. And that not only applies to attorneys, but that also applies to clients. We offer a free consultation to any person who wants to call us. Um, we will talk to you particularly about your case and explain your options to you in a real, down-to-earth, honest kind of way. And again, my URL is duicanadaentry.com. Um, you can also follow me on TikTok.

SPEAKER_02 59:55

I have some pretty interesting content over there.

SPEAKER_01 1:00:00

Um, and my name on TikTok is Marissa the lawyer. Um, so you can look that up if you want to see this portrayed in a different, in a different light. Um, and then the last thing I'll do is I'll leave my toll-free number that anyone can call with their questions. It's 1855-316-3555.

SPEAKER_02 1:00:22

Thank you again, Marissa Field. You've heard from Marissa Field, the go-to lawyer in Canada, for how to get in there if you have any convictions or something similar to that anywhere else in the world. This is John Katz at Beat the Prosecution because there is no other way to go. I am a criminal defense and DUI defense lawyer here in Fairfax, Northern Virginia. Thank you again, Marissa.

SPEAKER_00 1:00:46

Thank you for listening to this week's episode from Beat the Prosecution. This is a regular podcast giving people a leg up against police investigations and prosecutions. Nothing discussed on our media sources, such as our podcast or website, is legal advice. John Katz only provides legal advice to current clients or to individuals who have paid for a consultation. We welcome you contacting us via email at info at beatheprosecution.com by calling our office at 703 383 1100 or texting us at 571 406 7268.