Generally speaking citizens and permanent residents of the US (Green Card holders) do not require a special permit or visa to travel or enter Canada as tourists. However, a criminal conviction may prevent your entry into Canadian territory since individuals are required to present proof of their legal status in the United States at a Canadian port-of-entry.
For US citizens, acceptable documents to prove this status would include: US passport, Birth Certificate, or a Naturalization Certificate. For permanent residents, acceptable documents would include: a valid Permanent Resident Card ("Green Card"), or a valid I-551 endorsement in their passport.
The Canadian consulates websites states that "Canada Border Service Agency Officers at the Port-of-Entry will determine if you will be allowed to enter Canada. They may prevent the entry of persons:
- whose willingness and means to return to the USA are in doubt
- who have a criminal conviction - including DUI/DWI convictions"
In order to determine whether you will be admissible to enter Canada you should consult a lawyer with experience in criminal and immigration matters.
Canadian authorities will consider individual's criminally inadmissible if you were previously convicted of an offense in Canada or if you were convicted of an offence outside of Canada that if committed on Canadian territory would be considered a crime in Canada.
An example of such offences that will prohibit your entry into Canada are offences involving operation of a motor vehicle while impaired by alcohol or drugs will.
If a person wishes to enter Canada and he/she has been convicted of a crime (as described above) you must obtain Approval of Rehabilitation or a Temporary Resident Permit at a Canadian Consulate or Embassy.
According to the Canadian consulate's office "Approval of Rehabilitation may be granted if you can show that you have a stable lifestyle and that it is unlikely that you will be involved in any further criminal activity. You may apply for rehabilitation if five years have passed since the end of your sentence." Once you obtain an approval of rehabilitation this will permanently overcome inadmissibility.
Please read the special notes below offered through the Canadian consulates' office:
Note: If you have urgent and compelling reasons for entry to Canada within the next 6 months and are eligible to apply for Approval of Rehabilitation (i.e. beyond the 5 year prohibition), we encourage you to submit your Approval of Rehabilitation and Temporary Resident Permit applications at the same time.
Criminal Rehabilitation
Please read the following instructions carefully:
- Your application is subject to a NON-REFUNDABLE processing fee.
- If your application is refused, the fee will not be refunded.
- The Immigration Section offers service in both of Canada's official languages, English and French.
Documents in languages other than English or French must be accompanied by a certified translation.
How to apply
You may submit your complete application by mail or in person - each receives the same priority. You will NOT receive immediate consideration of your application. We will contact you when your application has reached our review stage. Processing times may be lengthy - especially so in cases of serious criminality.
Police certificates
You may need a criminal and security check if you are coming to Canada as a live-in caregiver, tourist, student, or temporary worker. If you are applying for permanent residence, you must have one done.
Security checks, also known as police certificates, are required to determine if applicants have a criminal record. They also help visa officers make sure applicants are not a security risk to Canada.
The information in this blog entry does not constitute legal advice.
Grand juries differ from trial juries in that they meet in secret proceedings and they don't decide whether an individual is guilty of a crime, but instead they meet to decide whether an individual should be indicted (charge) for an alleged crime. Grand juries listen to preliminary evidence.
The individuals who serve on a grand jury serve for a term of 6 to 18 months and the group consists of 15-23 individuals, their findings to indict need not be unanimous so only a fraction of the individuals serving need to agree on whether to indict or not.
The reason grand juries have a lower threshold than trial juries is that they only decide to indict the alleged defendant, she/he is not legally guilty, but instead what is determined is that the prosecutor has presented enough evidence to file criminal charges against the defendant. The language used in grand juries is different than that used in criminal trials. For example, the prosecutor presents a "bill" and not a complaint and once the grand jury makes a determination on whether to indict the individual they will issue a "true bill" if enough evidence was presented to indict or a "no-bill" if they believed not enough evidence was presented.
There is no limitation on how many times the prosecutor may present the case to a grand jury even after a prior finding of "no-bill" and some jurisdiction allow prosecutors to bypass the grand jury and file the criminal complaint without the grand jury hearing the evidence.
The information in this blog entry does not constitute legal advice.
Hearsay is a statement or some conduct that is similar to a statement or assertion that is made out of the court and is offered into evidence as truth. For example, when a police officer wants to obtain an arrest warrant he may offer the judge issuing the warrant a statement made by a confidential informant who cannot be present and is a reliable source of information.
The admissbility of these statements is governed by what is called the hearsay rule, which prevents testifying witnesses from stating that either an absent individual said something that will prejudice the outcome of the case so it prevents from statements like "he said..." or "she said..." there are many exceptions to the hearsay rule and thus out-of-court statements will be allowed into evidence. The judge has a lot of leverage on determining whether a piece of hearsay evidence will be admissible or not.
The information in this blog entry does not constitute legal advice.
One commits a hate crime when he or she commits a crime against an individual or individuals who belong to specific social groups that legislators believe deserve and need special protection (e.g., sexual orientation, religious beliefs, ethnic groups, etc.).
Although hate crime laws vary state by state, a hate crime occurs, in general, when an illegal act is committed because of a victim’s color, race, religion, ancestry, national origin, disability, gender, or sexual orientation. Keep in mind that a hate crime is committed only because the victim belongs to one of the groups protected in a hate crime law.
Hate crimes were a lot more common in the past, but there have been some recent occurrences that have surfaced. For example, a series of attacks have on Mexican immigrants have recently been reported in the Port of Richmond in Staten Island. In fact, earlier in August 2010, a Staten Island grand jury indicted a man accused of assaulting and robbing a Mexican teenager.
There are two forms of hate crimes. The first type of hate crime is illegal conduct that is punishable in and of itself. For example, one may be charged with a hate crime if they were to interfere with a person’s civil rights. Therefore, a hate crime can be a separately-defined crime.
The second type of hate crime increases the punishment of those who commit a crime with a purpose for committing a hate crime. Thus, a misdemeanor can turn into a felony if it was committed with hate crime intent.
Historically, many groups have been specifically the target of illegal acts. Therefore, hate crime laws strongly-convey that anyone targeting distinct social groups, such as gays or Muslims, will not be tolerated in our communities and will face serious felony charges.
The information in this blog entry does not constitute legal advice.
A search warrant is a document, or an ORDER signed by a judge, which gives police officers authorization to search for specific items or material at a specified time and location. Therefore, when a judge authorizes a police officer to search a dwelling on a date and time and for specific objects or materials a search warrant is granted.
Before a warrant can be granted a law enforcement official needs to provide evidence and an affidavit confirming that the evidence is true and valid.
An affidavit is a written statement, made under oath. These affidavits need to suggest that there are objectively suspicious activities occurring at the site where the police officers are requesting to search. However, an affidavit must refrain from using subjective beliefs such as an individual’s opinion.
Anticipatory search warrants allow police officers, who can show probable clause, to receive a search warrant before the contraband reaches the location to be searched. For example, if a police officer can convince a judge that a shipment of cocaine is about to be delivered to a suspects residence, they can get a warrant that authorizes the police to search the residence once the cocaine is delivered.
The information in the affidavit need not be admissible at trial. For example, if a police officer tells the judge that a reliable confidential informant has stated that that a shipment of cocaine is en-route to a specific location the judge is relying on information that would fall under the hearsay rule (meaning that a person who is not present is being relied on for testimony). Here, the confidential informant is the person believed to be telling the truth even though he/she is not present nor is he/she signing the affidavit. Therefore, hearsay, which is not admissible as evidence in a trial, can be used at times to issue a warrant if a judge, magistrate, or judicial officer considers it reliable.
The following sources in an affidavit are usually considered reliable: A confidential police informant, an informant who implicates him or herself as well as the suspect, an informant whose information appears to be correct after at least partial verification by police, a victim of a crime related to a search, a witness to the crime related to the search, or another police officer.
Lastly, it is important to know that even if a search warrant is invalid, the evidence gathered from the search may still be admissible. In US v. Leon (1984), the U.S. Supreme Court ruled that as long as the search was conducted in good-faith reliance on the warrant (e.g., confidential informant stated that the material to be transported was cocaine, but in fact only illegal guns were found) than the evidence would be admissible.
***The information in this blog entry does not constitute legal advice.
The information in this blog entry does not constitute legal advice.
A detention or an arrest occurs when a police officer deprives a person (suspect) of freedom. This can occur whether the person is is out on the scene of a crime, or in jail.
After an arrest police will commonly question the suspect. However, the suspect has two rights granted by the U.S. Constitution:
1. Right to Remain Silent (5th Amendment).
2. Right to Have a Lawyer Present During the Questioning (6th Amendment).
The Miranda warnings were born out of these two rights granted by the U.S. Constitution. When you are placed in custody you may voluntarily give up these rights, but courts have long recognized that people held in custody lack free will and knowledge therefore police officers who wish to question a suspect must provide that suspect with cautions, or advice them of the rights they are forfeiting and this warning is known as the "Miranda Warning."
After a police officer deprives a person of freedom Miranda is activated and the officer must provide the following statement:
- You have the right to remain silent.
- Anything you say can be used against you.
- You have a right to consult with an attorney and have that attorney present during questioning.
- If you cannot afford a lawyer, one will be provided for you.
- If you decide to talk to the police, you have the right to stop the interview at any time.
If the police do not read the Miranda warning nothing the suspect says to the police during questioning can be used against the suspect at trial.
***The information in this blog entry does not constitute legal advice.
The information in this blog entry does not constitute legal advice.
If you have not been placed under arrest should you answer questions from a police officer?
Generally speaking, a police officer may stop you on the street to ask you a question. For example, if the officer believes you were involved in a crime he may ask for your identification card, but only if he had "reasonable" suspicion.
If he asks to search you or property in your possession (e.g., purse or backpack) the police officer must first identify you as the possible perpetrator to a crime.
But generally speaking a person is not required to answer questions or allow the officer to search you or your property without "reasonable suspicion" or "probable cause" that you were involved in a crime.
The officer may not suggest that you are legally compelled to agree to speak with him or let him conduct a search of you or your personal property (U.S. v. Dayton, U.S. Sup. Ct. 2002). Keep in mind that these rules change if the officer witnessed you breaking the law (e.g., shoplifting, speeding, etc).
Your words may be held against you so be careful. When you speak to a police officer your words may be recounted by a police officer in a manner that is a bit different than what you intended. If you have even a remote suspicion that you may facing charges or be accused of a crime make sure you talk to a lawyer before you say anything to police officers.
***The information in this blog entry does not constitute legal advice.
The information in this blog entry does not constitute legal advice.
As tragic as the shooting death of Oscar Grant was, the case against Officer Mehserle was always an accidental shooting case. Every day in the United States innocent people are accidently killed by guns. Usually it is children who are killed while playing with the gun of an adult relative.
In the BART shooting case it became clear that the officer mistakenly pulled his gun out and shot Mr. Grant by accident. As hard as the prosecutors tried, they could not find any motive or reason for Officer Mehserle to intentionally kill Mr. Grant. At trial, there was no evidence presented that the officer was a racist, had a hot temper or had mental health issues. The evidence was to the contrary, he came across as a nice young man.
The truth is, the standards for becoming a BART police officer are not very high. A good number of BART police officers are working for BART after havingbeen rejected by other police departments. The training and supervision are inadequate.
This all became apparent in this case when Mehserle panicked in a streeful situation and reached for his gun instead of the taser. Some people wonder why BART police officers are allowed to carry guns at all. The chances of BART police officers getting into a life or death struggle with some hardened criminals are miniscule.
Our society has become too gun friendly and that includes arming low level police officers such as the BART police department.
The information in this blog entry does not constitute legal advice.
California Penal Code Sections 1377 and 1378 allow for some criminal cases to be dismissed when the victim is reimbursed for damages. This underutilized defense to criminal cases is called a Civil Compromise. When the case involves property damage and no violence occured and the vicitim is cooperative, the defense can make a motion to dismiss the case after showing proof that restitution has been paid in full.
A typical case would be a minor hit and run car accident without any injuries. The steps to take after a misdemeanor complaint is filed by the San Francisco District Attorney's Office is to contact the victim and ask for a bill for all monetary damages that occured as a result of the car accident. You may want to hire an attorney for this case since the victim may be sensitive about speaking with you directly. Then prepare a letter for the victim to sign. The letter should be addressed to the judge stating that he/she would like the charges dismissed because all damages have been paid in full. Ask the vicitm if h/she would sign the letter if you paid the entire bill immediately. If the victim agrees, then send the money and letter to the vicitm. After you receive the signed letter from the victim, prepare the petition to dismiss the case and submit it to court and serve the prosecutor
Often the judge and prosecutor will agree to the civil compromise and be happy to have resolved the case in a manner that satisfies all the parties.
The judge can still approve the Civil Compromise even if the prosecutor objects.With a Civil Compromise you save yourself from having a criminal conviction.
The information in this blog entry does not constitute legal advice.
If you were convicted of a Felony or Misdemeanor in San Francisco and were sentenced to jail and not prison you are eligible to have your conviction "Expunged." Some other qualifications to have your conviction expunged are that you completed your probation without any problems and that you are not currently on probation for any other case.
Expunging your conviction means that the conviction cannot be brought up at a later time during a civil trial. It also can have positive effects if you are attempting to become a United States Citizen, attempting to join the military or trying to get some sort of California license such as a Real Estate License. Gaining an expungement means that on private job applications you can truthfully state that you were never convicted of a crime.
Unfortunately an expungement does not erase the conviction from your records, it only softens the effects of the conviction. A record of your case will typically show your arrest, underneath that it will show the conviction and finally under the conviction, it will show the expungement.
There are several ways to gain an expungement depending on the California County that you live in. Some Adult Probation offices and some Public Defender Offices such as in San Francisco will help you with the petition for an expungement free of charge. You can also get it done by hiring an expereinced San Francisco Criminal Attorney.
There is no reason not to expunge your conviction and every reason, especially having peace of mind, to clean up your record.
The information in this blog entry does not constitute legal advice.