Conditional Sentence to Child Pornography Charge

Record Suspension/Appeals

  • Waiting Period: Criminal Records Act 4(1) states that an individual is ineligible for a Record Suspension until the following time periods have elapsed after the expiration of any sentence, including a sentence of imprisonment, a period of probation and the payment of any fine imposed for an offence;
    • (a) 10 years, where the case is prosecuted by indictment or is an offence for which the offender was punished by a fine of more than $5,000.00 or imprisonment for more than six months.
    • (b) five years, where the case is prosecuted by summary conviction.
  • Ineligible Persons: Criminal Records Act 4(2) indicates that subject to subsection (3), a person is ineligible for a record suspension if he or she has been convicted of:
    • (a) an offence referred to in schedule 1
      • Schedule I s. 1
      • (v) Child Pornography (s. 163.1 cc)
  • Exception: Pursuant to s. 4(3) of the Criminal Records Act an individual who is convicted of an offence under Schedule I may apply for a record suspension if the Board is satisfied that
    • (a) the person was not in a position of trust or authority towards the victim of the offence and the victim was not in a relationship of dependency with him or her
    • (b) the person did not use, threaten to use to attempt to use violence, intimidation, or coercion in relation to the victim; and
    • The person was less than five years older than the victim.

US Waiver

  • A person would be inadmissible with a child pornography conviction. An person would be required to apply for a US Waiver of inadmissibility, however given the nature of the offence its very unlikely the waiver would be granted.

 

Conditional Sentence to Obscene Materials

Record Suspension/Appeals

  • Waiting Period: Criminal Records Act 4(1) states that an individual is ineligible for a Record Suspension until the following time periods have elapsed after the expiration of any sentence, including a sentence of imprisonment, a period of probation and the payment of any fine imposed for an offence;
    • (a) 10 years, where the case is prosecuted by indictment or is an offence for which the offender was punished by a fine of more than $5,000.00 or imprisonment for more than six months.
    • (b) five years, where the case is prosecuted by summary conviction.
  • Ineligible Persons: Criminal Records Act 4(2) indicates that subject to subsection (3), a person is ineligible for a record suspension if he or she has been convicted of:
    • (a) an offence referred to in schedule 1
      • Schedule I s. 2
      • (iv) Obscene Materials (s. 163(1) cc); and
      • (v) Obscene Materials (s. 163(2)(a) cc)
  • Exception: Pursuant to s. 4(3) of the Criminal Records Act an individual who is convicted of an offence under Schedule I may apply for a record suspension if the Board is satisfied that
    • (a) the person was not in a position of trust or authority towards the victim of the offence and the victim was not in a relationship of dependency with him or her
    • (b) the person did not use, threaten to use to attempt to use violence, intimidation, or coercion in relation to the victim; and
    • The person was less than five years older than the victim.

US Waiver

  • An individual who has been convicted of an Excludable Offense is inadmissible for entry into the US and will need a Waiver of Inadmissibility each time they wish to enter.
  • Excludable offenses include any sexual offences and crimes of moral turpitude. Mailing obscene materials (US offence) is listed under 9 FAM 302.3-2(B)(2) (U) Defining Moral Turpitude – s. c. (3)(b)(vi).
  • Due to inadmissibility, the offender will be required to submit a Form I-601 US Waiver of inadmissibility each time he wishes to enter the US. The process can take up to a year each time.

 

Conditional Discharge to Obscene Material Charge

Criminal Record

  • The record of the conditional discharge will appear on a record a three-year waiting period.
  • RCMP: After the three-year period has ended, the RCMP seals the records. An application must be sent in to have the records permanently destroyed.
  • The RCMP may deny an application to have the records destroyed permanently if the offence is a sexually based offence. If a person applies to have these records destroyed it is likely he would be denied and would need to appeal the denial.
  • Arresting Police Service database:  The record of the discharge will remain in the local police data base even after the three-year waiting period has expired and the records have been purged from the RCMP database. An offender would need to apply to the arresting police service to have the fingerprints and photographs destroyed and they could refuse.
  • Courthouse: The Courthouse where the offender was given the discharge will also keep a record of the discharge even after the RCMP has purged it from their records. An offender will need to apply to the courthouse to have their records destroyed. The courthouse may refuse.

Background Checks

  • If an employment background check is run prior to the three-year waiting period expiring, the discharge will appear on the individual’s record check.
  • If an employment background check is run after the three-year waiting period has expired, the discharge itself will not show up, but the FPS (arresting police department number) may still appear since their records are not automatically disposed of. If the arresting police department does not purge the records this FPS number will remain.
  • Vulnerable Sector Checks: A discharge will appear on a vulnerable sector check prior to the expiration of the waiting period.
  • After the waiting period, the discharge may appear on a vulnerable sector check if the arresting police department feels it is in some way related to the position for with the offender is applying. (e., if you have a discharge for child pornography and are applying for a job working with children).

US Waiver

  • Prior to the expiration of the three-year waiting period, the discharge will appear on the offender’s record when they attempt to enter the US and will be viewed as a conviction, making him inadmissible.
  • An individual who has been convicted of an Excludable Offense is inadmissible for entry into the US and will need a Waiver of Inadmissibility each time they wish to enter.
  • Excludable offences: include any sexual offences and crimes of moral turpitude. Mailing obscene materials (US offence) is listed under 9 FAM 302.3-2(B)(2) (U) Defining Moral Turpitude – s. c. (3)(b)(vi).
  • Process takes up to one year for each waiver and costs $585.00 USD each time you apply.

 

Stay of Proceedings

Criminal Record

  • A stay of proceedings may be reactivated within a one-year period and will appear on the accused’s record during that period.
  • The Stay will appear on a background check.

Record Suspension/Appeals

  • File Destruction: A person will be required to wait one year prior to applying for the file destruction. Due to the nature of the charges, it is likely that the application would be denied initially.
  • An Appeal would likely be necessary. The appeal may also be denied because of the nature of the offences. A non-conviction cannot be pardoned, so if the arresting police department refuses to destroy the records they will remain forever.

US Waiver

  • Those who are convicted of, or have admitted to engaging in criminal activity (crimes of moral turpitude or drug offences) are presumptively inadmissible under INA 212(a)(2)(A,B,C). To gain entry, they must submit a Form I-601 Waiver of Inadmissibility prior to entering the country.
  • INA 101(a)(48) indicates that a “conviction” exists where there is a formal judgement of guilt entered by the court, if adjudication is withheld, a finding of guilty by a judge or jury, a plea of nolo contendere by the alien, of an admission from the alien of sufficient facts to warrant of finding of guilt and where there has been an imposition of some form of punishment, penalty, or restraint of liberty by a judge.
  • Based on this definition, a stay of proceedings is not a conviction.

Determination of Conviction by Consular Officer: A consular officer may determine that an individual has been convicted of a criminal offence even where no record exists or the record has been expunged, where the traveler replies to questions, including as part of a visa application, or submits any reports or documents that suggest that they have committed an offence. Valid admission requires that the traveler be provided with a description of the crime including all essential elements.