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What is a conviction under Canadian law?

Under Canada's Immigration and Refugee Protection Act (IRPA), a criminal conviction will result in you being barred from entering Canada.  You are considered to be criminally inadmissible.

The obvious question is:  What is a conviction?

There is not an easy answer, for two reasons: (1) Canada does not use the same criminal vocabulary as we do in the Washington; (2) things that seem like convictions in Canada are not convictions in Washington (and vice versa). 

Here is how Canadian justice system and immigration typically treats the following Washington criminal judgments:

Is this a conviction? Yes

Alford Plea

When you enter a so-called Alford plea, you maintain your innocence, but you admit that the government has enough evidence to prove you guilty beyond a reasonable doubt.

When you enter an Alford plea, however, the judge will sentence you as if you did in fact plead guilty.  For this reason, an Alford plea is a conviction under Canadian law.  

Deferred Sentence

If you receive a deferred sentence, the Court puts you on probation for a certain period of time and orders you to complete certain conditions, like paying fines and completing treatment.  If you successfully comply, the judge dismisses your case.  If you fail to comply, the court can impose jail and other punitive measures. 

Because a deferred sentence results from a plea of guilt or a conviction after trial, a deferred sentence is considered a conviction under Canadian law. 

Suspended sentence

If you receive a suspended sentence, the Court imposes a jail sentence but “suspends” imposition of the jail sentence for the period of probation.  If you comply with probation, the court closes the case.  If you fail to comply, the court lifts the suspension and imposes jail. 

Because a suspended sentence—like a deferred sentence—follows a plea of guilt or a conviction, a suspended sentence is a conviction under Canadian law. 

Sealed record

In Washington, you can seal your court records, after which the public cannot access or view the records relating to your conviction.  But you cannot seal your actual conviction in Washington.  Therefore, sealing your records does not erase the conviction for Canadian immigration purposes. 

Is this a conviction? No

Deferred Prosecution

In Washington, deferred prosecutions typically occur in DUI cases

Under a deferred prosecution, you are placed on strict probation for five (5) years, during which time you must comply with strict conditions (e.g. alcohol treatment, random drug tests, probation appointments).  If you comply, the Court will dismiss your case at the end of probation. 

A deferred prosecution is sort of the equivalent of stay of judgment in Canada, which is not considered a conviction. 

Expungement

You cannot expunge (i.e. permanently delete) a record of your conviction in Washington, but you can expunge law enforcement records relating to a dismissed case.  Expunged cases are not convictions under Canadian law. 

Stipulated Order of Continuance

If you enter a stipulated order of continuance (SOC), the prosecutor agrees to continue your case in exchange for you complying with certain conditions.  Assuming you comply, the government will dismiss your case at the end of the SOC period. 

An SOC is equivalent to a “deferred judgment” under Canadian law, because the court is essentially “deferring” judgment to see how you perform on the SOC.  In Canada, a deferred judgment” is not a conviction. 

Vacated conviction

A vacated conviction is not a convicted under Washington law.  For the same reason, a vacated conviction is not considered a conviction under Canadian law. 

Note:  You should consider getting a “Legal Opinion” letter from a Canadian immigration lawyer before crossing the period if you are unsure about the effects of your sentence.  This letter would explain why your case should not make you criminally inadmissible. 

If you take your chances at the border (i.e. without a pre-approval from the Canadian government), the immigration officer has total discretion to decide whether your case is a conviction under Canadian law. 

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