Immigration Matters

Sukhram Ramkissoon

Persons who were on peace bonds can  be sponsored

A prospective client who  is in Canada on a work permit, recently told me that  about a year ago, he and his wife, a Canadian citizen, had a “domestic incident.” As a result, he was charged with assault.

After several appearances in court,  his counsel was successful in obtaining a peace bond  and he was ordered to take a three month  course on anger management which he completed.

 He said he will be soon running “out of status” and will like to know whether his spouse can sponsor him as he is in “a genuine relationship.”

From my personal knowledge,  I believe a peace bond does not make a person in his situation inadmissible under Canadian immigration law.  However, I sought an  opinion from Leroy Crosse, a well-known criminal and community lawyer,

Mr. Crosse was also of the view that it is unlikely that a peace bond will lead to an ” inadmissibility finding” against the prospective client.

Basing his argument on his research, he stated that a peace bond can be ordered at common law or pursuant to the Criminal Code. According to Mr. Cross, a peace bond is not a finding of guilt and does not result in a criminal record. The accused does not enter a guilty plea or make any admission of criminal liability. Before entering the peace bond, the accused has the option to show cause why he or she should not enter the bond or not show cause but contest a proposed condition of the bond.

 A person facing a criminal charge has the benefit of entering a peace bond to secure the withdrawal of a criminal charge and thereby avoid the risk of a criminal conviction. It is important to note that a peace bond nevertheless places restrictions on the liberty of the accused, albeit minor in nature. Further, the breach of a peace bond’s terms can result in criminal liability.

Mr. Crosse further stated that in his view, the wording of the code makes it clear that a peace bond does not result in a conviction. This is crucial because the wording of the criminality provisions in the Immigration and Refugee Protection Act which deals with criminality and serious criminality, states that:

 A permanent resident or a foreign national is inadmissible on grounds of serious criminality for

(a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed;

(2) 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;

The above wording set out the types of offences as it relates to them and there must be a conviction or it will not hold. Therefore, a person who is placed on a peace bond does not fall under inadmissibility as it is not a conviction.

Mr. Crosse further notes that under the code, if an accused completes the conditions of the court order  successfully, which may take up to a few  months, the charge is withdrawn, and the accused avoids a criminal record. If not, criminal proceedings may be instituted.  Due to the withdrawal of charges, there is no conviction.

In summing up, the learned counsel stated that “If you are not guilty, a peace bond is a good result and if you are guilty a peace bond is a great result. Insisting on going to trial when you have the option of a peace bond can be a gamble with unpredictable consequences.”

Similarly, a discharge will not lead to a conviction and inadmissibility finding under the above-mentioned provisions. A discharge is described as follows:

 A discharge — either absolute or conditional — is the least severe sentence available under the Criminal Code. Discharges are available only with respect to offences that: (i) have no minimum punishment; and (ii) are punishable by imprisonment for less than 14 years. While the Code does not restrict the availability of a discharge to trivial offences, in practice the more serious the offence the less likely a discharge will be ordered.

Again, this is the writer’s opinion based on the analysis by Mr.Crosse, that this a first-time assault that results in a peace bond and that none of the other inadmissibility provisions are likely to apply.

Yes, I believe that persons who were on peace bonds can be sponsored.

However, as I have  often pointed  out in this column, my comments are intended to provide information. With respect to legal matters, readers should seek their own independent advice.

SUKHRAM RAMKISSON specialises in Immigration Matters at No. 3089 Bathurst Street, Suite 219A, Toronto, Ontario.  Phone 416 789 5756.

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