Welcome

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Hi! I’m Lauren and I write Law Inform. I am a practicing lawyer in Halifax, Nova Scotia. I’m also an experienced legal researcher. I graduated from Dalhousie with a combined degree in Law (Juris Doctor) and Master of Library and Information Studies. My background is in English Literature and Psychology. I’ve also worked for the Canadian Public Service in a few different roles. I love learning about the law, especially areas that affect individuals’ daily lives. I research a broad area of law including: family, criminal, immigration, LGBTQ+ and mental health/disability.

The mission of Law Inform Blog is to provide the public with well-researched, professional, and accessible legal information that is pertinent to everyday life.

I guess you could say that the mission of Law Inform is to INFORM. The information in this blog is just that, information. Law Inform does not provide legal advice. You should speak to a lawyer you if you need legal advice.

 

New Brunswick’s proposed cannabis legislation: the basics.

New Brunswick's Proposed Cannabis Legislation

On November 9, 2017, the New Brunswick Finance Minister introduced proposed legislation regarding recreational marijuana in the province. The proposed legislation was introduced in the NB legislature for a first reading.

The legislation is in response to the Federal government’s anticipated legalization of marijuana planned to be enacted by July 2018.

The NB proposed legislative framework includes three new acts:

The legislative framework also amends the existing Motor Vehicle Act (Bill 19) and the New Brunswick Liquor Corporation Act (Bill 20, An Act to Amend the New Brunswick Liquor Corporation Act).

  1. New Cannabis Management Corporation

The proposed Cannabis Management Corporation Act establishes a new crown corporation called the Cannabis Management Corporation. A provincial crown corporation is a corporation fully owned by the provincial government. A crown corporation functions like a private company. An example of a crown corporation is the New Brunswick Liquor Corporation.

The Cannabis Management Corporation will oversee the sale of all recreational marijuana in the province. The corporation will not have its own retail stores, but will instead partner with the NB Liquor Corporation to establish retail locations.

  1. Sale of Recreational Cannabis

The proposed legislation states that cannabis will be sold in stand-alone retail stores operated by the NB Liquor Corporation. There will be about 20 retail locations in 15 communities and be online sales. Retail outlets will also sell “cannabis accessories” which are defined in the Federal Cannabis Act.

There are strict laws in relation to advertising cannabis. Retail outlets are prohibited from displaying any package or labels that could be seen by someone under the age of 19. However, cannabis accessories can be displayed inside the retail outlet.

  1. Minimum Age of 19

The Cannabis Control Act will establish the minimum age at 19. According to the government’s November 7th statement, 19 will be the legal age to:

  • Purchase, attempt to purchase, possess or cultivate cannabis in any form;
  • Purchase or attempt to purchase cannabis-smoking or vaping supplies or cannabis plant supplies; and
  • Enter, or attempt to enter a cannabis retail store even when accompanied by an adult.
  1. Consumption of Recreational Cannabis

The law proposes that recreational cannabis cannot be consumed in public spaces. Further, cannabis cannot be consumed in a motor vehicle on a road or highway, whether the vehicle is in motion or not. Vehicle includes off-road vehicles like snowmobiles and four-wheelers.

Section 17(1) of the Cannabis Control Act states that a person 19 years of age or older can consume cannabis:

  • In a private dwelling if they have consent of the occupant;
  • On vacant land if they obtained the consent of the owner or occupant

The law also proposes that no one over the age of 19 shall knowingly permit a minor to consume cannabis while that minor is in their supervision or control.  

  1. Drug Impaired Driving

Proposed amendments to the Motor Vehicle Act outline new sanctions on driving under the influence of cannabis. First, there is zero tolerance for new drivers and drivers under the age of 21.

The amendments propose a three-step test for impaired driving. The first step involves a device that tests saliva for THC. *stay tuned for a more detailed analysis of the proposed amendments to the Motor Vehicle Act*.

  1. Possession of Recreational Cannabis

The Cannabis Control Act specifies that adults over the age of 19 can legally carry up to 30 grams of cannabis, unsealed.

There is no limit to the amount of cannabis a person over 19 year of age can have at home. However, cannabis stored in a private home must be in a locked container or locked room. The purpose of this requirement is to prevent youth from accessing cannabis.

  1. Growing Cannabis

The Cannabis Control Act proposes that no person under 19 years of age can cultivate cannabis. The Act defines cultivation as including propagation and harvesting.

The law proposes that individuals 19 and older can cultivate cannabis if they are in lawful possession of cannabis seeds or plants. The plants must be surrounded by a 1.52 metre fence if grown outside. If grown inside, the plants must be in a separate locked space.

  1. Cannabis Education and Awareness Fund

The Cannabis Education Fund Act proposes to establish a fund to support research and education about recreational cannabis. The fund will be administered by the provincial finance minister.

According to the government’s November 3rd statement, the purpose of the fund includes:

  • Education and awareness programs on the responsible use of cannabis including the development and implementation of policies and programs regarding harm reduction and the sale of cannabis for recreational use, and strategies for the reduction of the health effects of cannabis.
  • Research projects on the recreational use of cannabis.
  • Departments, corporations or agencies of the provincial government that pursue education and awareness initiatives regarding the recreational use of cannabis.
  1. Suppliers

The NB government announced that it would be partnering with two cannabis growers: Organigram and Canopy Growth Corp.

 

Express Entry

Canadian Express Entry

Note: stars (*) indicate notes and definitions at the bottom of the blog post.

Express Entry is a system used by Canadian government to manage permanent residency* candidates. The system is electronic, with each candidate creating an online Express Entry Profile. The government department responsible for immigration, Immigration, Refugees and Citizenship Canada (IRCC) manages the Express Entry system and permanent residency applications.

Express Entry was established by the federal Canadian government in January 2016 to provide a different approach from the first-come-first serve approach to permanent residency applications.

Not everyone can apply for Express Entry. Only applicants for permanent residency under the Federal Economic Class can apply for Express Entry. The federal economic class includes:

  1. Federal Skilled Worker Program
  2. Federal Skilled Trades Program
  3. Canadian Experience Program
  4. Provincial Nominee Program (select programs to fill labour shortages)

Click each program for links to IRCC’s eligibility criteria.

How Express Entry Works

There are five stages to the Express Entry process:

Stages of Express Entry

  1. Candidate creates an online Express Entry Profile

Candidates interested in Express Entry first create an online**. Express Entry profile through IRCC’s website.  There is no fee for creating an Express Entry Profile.This online profile is considered an expression of interest***.

To be eligible, candidates must:

IRCC’s “Come to Canada Tool” helps potential candidates assess their eligibility.

  1. Candidates Enter Express Entry Pool

Candidates with eligible Express Entry Profiles are entered into a pool of candidates and remain in the pool for one year.

  1. Minister of Immigration gives ministerial direction for Express Entry Draw

There are regular rounds of draws from the Express Entry Pools. The timing of the rounds is not known until the round occurs. The Minister of Immigration issues a direction for a draw. In 2017, there have been approximately two rounds per month. Below is an overview of the draws in 2017:

2017 Express Entry Rounds
Month Number of Rounds Dates
January 3 January: 4, 11, 25
February 2 February: 8, 22
March 2 March: 1, 24
April 3 April: 5, 12, 19
May 4 May: 4, 17, 26, 31
June 1 June: 28
July 1 July: 12
August 3 August: 2, 9, 23
September 2 September: 6, 20

4. Candidates with highest CRS scores issued invitation to apply 
Candidates in the pool are ranked against one another based on their scores under the Comprehensive Ranking System (CRS). Those candidates with the highest CRS scores are given an Invitation to Apply (ITA) for permanent residency.

The amount of candidates invited to apply and the points required for an invitation to apply are different for each round. CRS scores are determined by assigning each candidates points based on the information in their profile.

In 2017, the lowest CRS score to be issued ITA was 433. The highest CRS score required for an ITA was 449. The most ITAs issued in a draw was 3,877. The least amount of ITAs issued in a draw was 2,801****.

5. Candidate applies for permanent residency

The ITA specifies which program the candidate can apply to. The candidate cannot apply for a program that is not specified on the ITA. The candidate has 90 calendar days to either apply for permanent residency online or decline the ITA. A candidate who does not reply within 90 days must reapply for Express Entry.

How Express Entry is Legally Regulated

In 2013, the federal government passed the Economic Action Plan 2013 Act No. 2, SC 2013, c 40, which amended sections of the Immigration and Refugee Protection Act (IRPA) (see specific amending provisions here).

The 2013 amendment added sections 10.1 – 10.4 to IRPA  . These sections provide the Minister of Immigration, Refugees and Citizenship Canada (IRCC) with the authority to determine criteria for permanent residency applications. As a result, the Minister now has authority to give Ministerial Instructions to immigration officers to meet the goals of IRPA. Section 10.3(1) outlines what the Ministerial Instructions can include:

  • Which economic immigration programs are included in Express Entry;
  • How candidates are ranked in the Express Entry pool;
  • Eligibility criteria;
  • The electronic system that manage applications;
  • Information on Invitation to Apply draws; and
  • Certain time limits;

See section 10.3(1) of IRPA for complete list. The Minister issues instructions about when an Express Entry draw will occur, the CRS cut-off and the number of invitations to apply per draw.

Ministerial Instructions regarding Express Entry are published on the IRCC website as mandated by s. 10.3(4) of IRPA.

Notes:

*Express Entry does not apply to temporary residents (visitor, study, work).

**Section 10.1(3) mandates that the Expression of Interest be submitted through an “electronic system” unless the Minister provides instructions for alternative submission.

***The Immigration and Refugee Protection Act requires all candidates applying under an economic immigration program to submit an Expression of Interest as specified by the rules and regulations.

****Not including the May 26 draws where two draws which were specific to Provincial Nominees and Federal Trades class.

Notarizations 101

Notarizations 101

So you have to get something notarized. First, you stop and think, what is a notarization? What does it mean and how do I go about getting one? Here are some frequently asked questions with brief answers to calm your curiosity and lead you on your notary path.

Why do I need a notarization?

You most likely need a notarization because you’ve been told you need one, though you may not have been specifically told “you need a notarization”. There are many reasons why you may need to engage a notary. Perhaps you’re signing an agreement that requires an official witness – a notary can be that witness. Maybe you’ve been told that you need “certified copies” of a document – a notary can verify photocopies of original documents. Or, you may be need to make a declaration that requires an oath or affirmation.  These are only some of the reasons why you may require a notarization. Below is a brief explanation of some of the reasons you may need a notarization:

Administer oath or affirmation

Oaths and affirmations are verbal promises to tell the truth. Both have the same effect. However, oaths have religious connotations (for example swearing on a religious text), whereas affirmations do not haver religious connotations.

Affidavits are sworn (under oath or affirmation) written statements to be used as evidence in court. A notary is legally authorized to witness affidavits. The notary confirms when, where and by whom the document is sworn.

Oaths and affirmations are also required for statutory declarations. The Canadian Law Dictionary defines “statutory declaration”:

In effect, an oath; a written statement of facts signed and solemnly declared to be true by the person making it (the declarant) before a person with the authority to take such declarations, such as a Commissioner of Oaths (p. 266).

Certify a true copy of a document

A notary public can certify copies of an original document

A certified copy is a verified true copy of an original document. Rather than submitting the original document (for example a diploma, marriage certificate, or birth certificate) a photocopy of that document is sufficient. A notary verifies that the photocopy is a “true” copy of the original. Some examples of when certified copies are needed include:

  • Academic documents;
  • International travel documents;
  • Identifying documents (photo ID, birth certificate, etc.);
  • Marriage documents (including marriage abroad);
  • Wills & powers of attorneys;
  • Certify signature on document;
  • Consent to travel with child;
  • Statutory declarations

Witness execution of documents

As previously mentioned, a notary has the legal authority to witness legal documents such as wills, business transactions and contracts. A notary verifies the identity of the parties signing the document and ensures that the parties understand what they are signing.

What/who is a notary public?

A notary public (notary) is a person who is authorized by the provincial government to perform specific legal functions. A notary is impartial (neutral) and has the main function of preventing fraud. Essentially, a notary verifies your identity and the authenticity of documents. A notary can also administer oaths and affirmations, which are solemn statements that you are telling the truth (for example in an affidavit or a statutory declaration).

A notary’s legal functions include: witnessing the signing of legal documents, administering oaths and affirmations, and certifying copies of a document (see below for more details). In Nova Scotia, a notary also has the power to receive and draft certain legal documents including:

  • Deeds;
  • Contracts;
  • Wills & power of attorneys;
  • Business & commercial transactions; and
  • Other legal documents.

In Canada, notaries are appointed by the provincial government. This means that a notary is a public officer. Each province has their own legislation governing notaries. Here are links to the relevant legislation in Canada’s common law provinces and territories:

Is there a difference between a “Commissioner of Oaths” and a Notary Pubic?

A commissioner of oaths has the power to administer oaths and affirmations, but cannot verify true copies of documents or draft documents. Therefore, notaries have broader powers than commissioners.

The provincial Governor in Council appoints commissioners. The following professionals are automatically deemed commissioners in Nova Scotia:

  • Barristers of the Supreme Court of NS (lawyers);
  • Officer of the Canadian Armed Forces being on active service;
  • Members of Legislative Assembly;
  • Certain police officers; and
  • Funeral directors.

How do I find a notary public?

As previously mentioned, most lawyers are notaries. You can call a law office to inquire about their notary services. Make sure to bring identification to your appointment and do not sign the document beforehand!

Reference:

Yogis, John A. & Cotter, Catherine, The Canadian Law Dictionary, 2nd ed. (New York: Barrons, 2009).

OxyContin Class Actions

PAINT AND PAPER

Overview of OxyContin Class Action

Lawsuits against the maker and manufacturer of OxyContin and OxyNEO came back into the headlines in August 2017. This is because of a proposed nation-wide settlement in Canada. So far the settlement has been approved by Ontario and Nova Scotia courts.   However, we are still waiting for Quebec and Saskatchewan to hear the proposed settlement.

Class action law suits against Purdue Pharma, the manufacturer of OxyContin and OxyNeo, were started in several Canadian provinces. The first class action was started in 2007 in Nova Scotia. Over the past 10 years class action law suits were started in other provinces including Ontario, Quebec, Saskatchewan, British Columbia, New Brunswick, PEI, Newfoundland and Alberta. The parties are now seeking to settle all of the class actions in Canada.

The main claim in the lawsuits is that Purdue Pharma, the manufacturer of OxyCotin, failed to properly advertise the drug’s addictiveness. The Statement of Claim (a written statement of the plaintiff) filed in Nova Scotia claims:

During the Class Period, the Defendants [Purdue Pharma] falsely and misleadingly marketed Oxycontin as less addictive, less subject to abuse and less likely to cause withdrawal than other pain medications (at p. 3).

The class action is limited to people who had been legally prescribed OxyCotin or OxyNeo by a doctor between January 1996 and February 2017. The class action does not include people who took the drug illegally (i.e. without a doctor’s prescription). Claimants seek damages caused by addiction to the drug.

OxyContin is an opiod analgesic drug that was approved by Health Canada as a prescription opiod in 1996. The drug was approved the previous year, in 1995, by the United States Food and Drug Administration. OxyContin is most often prescribed to relieve pain.

The addictive properties of OxyContin are well recognized. According to the Canadian Centre on Substance Abuse, 14.9% of Canadians used opiod pain killers in 2015. This number was down from 21.9% the previous year. Prescription opiod misuse has been termed “Canada’s Prescription Drug Crisis”. Addiction has a significant impact on people’s lives. CBC’s Fifth Estate took an indepth look at opiod prescriptions and class actions in their 2013 episode, “Time Bomb”.

In the United States, the manufacturer of OxyContin has paid hundreds of millions of dollars in civil and criminal damages resulting from its misbranding of the drug. Three of Purdue’s high-level executives plead guilty to misbranding (a criminal offence) and agreed to pay $34.5 million in fines.

The Basics of Class Actions

A class action is a civil law suit where a representative of a group of people brings a law suit on behalf of that group. In other words, the representative seeks compensation on behalf of a group of people who have experienced the same harm. Anyone seeking compensation under the law suit must fit into the conditions of the class.

In the OxyContin class action, the representatives are individuals who were legally prescribed OxyContin or OxyNeo between January 1996 and February 2017.

The first step in a class action is “certification”. A representative starts the certification process in court. If approved by the court issues a “Certificate of Certification,” which describes the specific characteristics of the class.

Each province and territory has it’s own class action legislation. Nova Scotia’s Class Proceedings Act is similar to legislation in other provinces and territories. NS’s Act specifies that a Court will certify a class action if the following criteria are met:

(1) The court shall certify a proceeding as a class proceeding on an application                    under Section 4, 5 or 6 if, in the opinion of the court,

(a) the pleadings disclose or the notice of application discloses a cause of action;

(b) there is an identifiable class of two or more persons that would be represented by a representative party;

(c) the claims of the class members raise a common issue, whether or not the common issue predominates over issues affecting only individual members;

(d) a class proceeding would be the preferable procedure for the fair and efficient resolution of the dispute; and

(e) there is a representative party who

(i) would fairly and adequately represent the interests of the class,

(ii) has produced a plan for the class proceeding that sets out a workable method of advancing the class proceeding on behalf of the class and of notifying class members of the class proceeding, and

(iii) does not have, with respect to the common issues, an interest that is in conflict with the interests of other class members.

(2) In determining whether a class proceeding would be the preferable procedure for the fair and efficient resolution of the dispute, the court shall consider

(a) whether questions of fact or law common to the class members predominate over any questions affecting only individual members;

(b) whether a significant number of the class members have a valid interest in individually controlling the prosecution of separate proceedings;

(c) whether the class proceeding would involve claims or defences that are or have been the subject of any other proceedings;

(d) whether other means of resolving the claims are less practical or less efficient;

(e) whether the administration of the class proceeding would create greater difficulties than those likely to be experienced if relief were sought by other means; and

(f) any other matter the court considers relevant.

The Proposed Nation-wide Settlement

The proposed settlement provides $20 million dollars, part of which would be used to compensate “Approved Claimants”. The settlement establishes a mechanism for administering and submitting claims.

Inclusion in the Proposed Settlement

The Canadian class action law suits have not been certified. Instead, there is a proposed “OxyContin and OxyNeo National Settlement Agreement” proposes a settlement that would apply to all Canadians meeting the class criteria. Anyone who meets the class criteria is automatically included and must opt-out of the settlement. This is important because a member of the class, who did not opt-out, releases Purdue Phrama from future lawsuits.

Courts in Ontario, Nova Scotia, Quebec and Saskatchewan must approve the proposed settlement. So far Ontario and Nova Scotia courts have approved it. Quebec and Saskatchewan courts will hear the proposed settlement in August 2017. The settlement agreement does not take affect until all courts have approved it.

The class in the proposed settlement is:

Canadians (including their estates and provincial health insurers) who were legally prescribed and ingested OxyContin and/or OxyNEO between January 1, 1986 and February 28, 2017, that was manufactured, marketed and/or sold or otherwise placed into the stream of commerce in Canada by Purdue Pharma (or one of the other named defendants).

The proposed settlement defines class members as the Ontario Class, the Atlantic Canada Class, the Quebec Class and the Saskatchewan Class (p. 5). The four regional classes cover the entire country. The Atlantic Class covers NS, NB, NFLD and PEI. The Saskatchewan class covers SK, AB, MB, YT, NT and NU. The Ontario Class covers ON and BC and the Quebec class covers QC exclusively.

 

Canadian study visas: Information from IRCC’s Reddit AMA

Things we learned from IRCC’s Reddit AMA on Studying in Canada

On July 18, 2017, Immigration, Refugees and Citizenship Canada (IRCC) hosted an AMA on Reddit. Say what? AMA stands for “Ask me anything”. Reddit is a social news platform where users post content and comments. A subreddit is a forum dedicated to a specific topic. For instance, there is a “AMA” subreddit. There are over 15 million /r/IAmA subreddit subscribers. So, IRCC decided to host a Reddit AMA on the topic of studying in Canada.  Essentially, IRCC experts answer users’ questions.

Here is an advertisement that was passed around Twitter:

reddit

IRCC’s AMA was posted in the Canada subreddit. The discussion title read: “We’re experts n the international students file from Immigration, Refugees and Citizenship Canada. Ask us Anything!

In classic Reddit fashion, IRCC’s AMA was not entirely topical. There were, of course, the trolls who wanted to spark political discussion. There were also many Reddit users asking questions beyond the scope of the Reddit AMA. Moderators restated that the topic was limited to studying in Canada and that IRCC would not be answering questions outside of that scope.

Despite how off-topic some of the discussion was, there is still important information that can be gleaned from the AMA. There are some golden nuggets of knowledge to be minded out of lengthy comment threads and I plan to summarize them for you.

According to my review of the comments, users identified as being from the following :

  • Vietnam
  • Nigeria
  • Lebanon
  • Ghana
  • India
  • United States
  • Pakistan
  • Philippines
  • Kuwait
  • Jordan

Processing time was a common concern

There was a reoccurring concern from users regarding the processing time for study visas. Some users were concerned that their visa would not be processed in time to begin their studies in September. Planning to study in Canada involves a number of steps including getting accepted to an educational institution. The timelines between IRCC application processing and the beginning of fall semester do not always align. Check processing time.

According to IRCC’s answers, the processing time on the IRCC website is calculated based on how long it takes to process 80% of paper and online applications. The applications are processed on a first-come-first-serve basis. The province where you are planning on studying has no effect on processing time of your application.

IRCC’s general response to processing time questions was that processing time depends on the region you are applying from, the volume of applications and the complexity and completeness of your application.

There was a number of users from Nigeria and India that raised the issue of processing time. Both Nigeria and India are experiencing a high volume of applications. According to one Reddit user, the processing time for Nigeria is 12 weeks. According to another, the processing time for India is 6 weeks.

A user from Ghana stated the processing time is 16 weeks.

IRCC stated that they are trying to have applications completed for September 2017.

Users had questions about being denied a study visa on the grounds of “purpose of visit”

The general answer was that IRCC could not comment on specific cases. IRCC explained that the applicant has the onus of providing information to the immigration officer that will satisfy their application. The applicant can reapply if they have new information to support their application. However, reapplying does not guarantee that the application will be successful.

According to IRCC, you cannot provide additional information to the immigration officer after applying. However, you can use the webforum to submit information if there is a change in your circumstances. The officer will ask you for additional information if they require it.

Applying for a study visa will not affect your permanent residency application

The two applications will not affect the other, nor will cancelling your PR application speed up your study visa application.

Graduates can apply for a work permit

According to IRCC, graduates can apply for a one-year work permit after graduating. The permit is not renewable and the graduate does not have to find a job during that year. Learn more here: http://www.cic.gc.ca/english/study/work-postgrad.asp

IRCC encourages students to stay in Canada

IRCC responded with the following when asked about the future of international students:

We agree that international students are a key source of immigration for Canada’s future. In fact, this Department and the Government of Canada have numerous programs for attracting international students and encouraging them to stay in Canada. Former international students are a key source for permanent residence applicants because of their age, education, skills and experience. We all agree that because of the time already spent in Canada, integrating into Canadian society permanently will be easier for students because they will have established social networks and familiarized themselves with life in Canada.

One of the best opportunities for international students to stay in Canada permanently after they graduate is the Express Entry program. For example, in 2016, 35% of Express Entry candidates who were invited to apply for permanent residence were former international students.

Some provinces and territories also offer opportunities for international students under their provincial/territorial programs.

 You can change the designated learning institute (“DLI”) on your visa

You do not need to apply to change the conditions of your study visa. IRCC says to make sure you have all of the documentation (acceptance letter, etc.) when you come to Canada so that an immigration officer can make the change.

 

 

10 things you should know about criminal pardons in Canada.

10 things you should know about criminal pardons in canada

  1. The legal term for a pardon is a “record suspension”

The term Record Suspension is now used instead of “pardon”. In 2012, the Federal government passed the Safe Streets and Communities Act, which removed the definition of “pardon” and added “record suspension”. The effect of a pardon and a record suspension are essentially the same. The federal Criminal Records Act outlines the law of record suspensions.

  1. A record suspension/pardon does not erase your criminal record

A record suspension does not erase your criminal record. Once a record suspension is granted, police will not be provided with any information of the criminal record or the fact that it existed. When someone is granted a record suspension their criminal record is kept separate from other criminal records. Further, the record and the fact that it exists, cannot be disclosed.

A record suspension is evidence of the fact that the Parole Board of Canada is satisfied that the applicant is of good conduct and the conviction should no longer reflect adversely on the applicant’s character.

Canadian Passport

You do not require a record suspension to apply for a Canadian Passport. A passport is a travel document that verifies an individual’s identity and nationality. A passport does not guarantee you entry into a foreign country because different countries have different requirements for entry. Also, depending on the purpose, length and location of your travel, you may be required to apply for a travel visa from the destination country, which could be denied on the basis of your criminal record.

International Travel

A record suspension does not automatically guarantee that you will be allowed entry to foreign countries. The rules for entering a country depend on that country’s laws. Each country has different criteria for entry and visa permits. The PBC suggests that you contact the authorities for any country you wish to travel to.

Travel to the United States

The United States and Canada have a close relationship and share criminal conviction information. If you have traveled to the US before getting a record suspension, then the US authorities may have entered your criminal information into their database. You may be detained by the US authorities if you try to re-enter the US, even if you’ve been granted a record suspension. You must apply for a US Entry Waiver to travel to the US after being granted a record suspension.

  1. There are time period requirements when applying for a record suspension

First, you must have completed all of your sentences including fines, imprisonment, conditional sentences (including parole), probation orders, costs, restitution and compensation charges.

You must wait:

  1. five years for a summary conviction; and
  2. ten years for an indictable conviction.

As explained below, your criminal record may be automatically purged from the national criminal record database if you received a conditional sentence (see # 5 below).

  1. Some offences are ineligible for a record suspension

First, Schedule 1 of the Criminal Records Act lists convictions that are ineligible for a record suspension. These offences relate to offences involving a child. Examples include: sexual assault, gross indecency ad sexual exploitation.

Second, the law excludes individuals that have a certain number of criminal convictions. Individuals with more than three offences prosecuted by indictment, each with a prison sentence of two years or more, are not eligible for a record suspension.

  1. You may not have a criminal record if you received a conditional or absolute discharge

Discharges occur where an individual is found guilty of an offence but not convicted. An absolute discharge occurs where the Judge does not order any punishment. A conditional discharge occurs where the Judge orders a punishment (often probation, community service or fine).

The criminal record is automatically purged from the criminal record database. A criminal record is created when an individual receives a discharge. However, no record of an absolute discharge may be disclosed after one year from the discharge date. As for conditional discharges, the record cannot be disclosed after three years from the discharge date. The records are automatically purged from CPIC when the time period is met.

  1. You apply to the Parole Board of Canada for a record suspension

The Parole Board of Canada (PBC) is the only federal agency responsible for administering record suspensions. The PBC has the authority to order, refuse and revoke record suspensions.

PBC has an application with a step-by-step guide for applying for a record suspension. As of July 2017, the cost of applying for a record suspension is $631 (CDN). This cost does not guarantee that you will be granted a record suspension. The PBC has discretion to refuse your application based on the information you provide.

  1. Record suspensions are approved on a case-by-case basis

First, the PBC considers whether the applicant has been of good conduct and has not been convicted of an offence during the periods mentioned in #3. Once the applicant meets this criteria, the applicant has the onus of satisfying the PBC that “the record suspension provide a measurable benefit to the applicant, would sustain his or her rehabilitation in society as a law-abiding citizen and would not bring the administration of justice into disrepute.” The Record Suspension Application contains a “Measurable Benefit/Sustained Rehabilitation Form” to address this requirement.

The PBC must consider whether granting a record suspension would bring the administration of justice into disrepute. Factors the PBC considers when determining this include:

  • The nature, gravity and duration of the offence;
  • The circumstances surround the commission of the offence;
  • Information relating to the applicant’s criminal history; and
  • Other factors in the Criminal Records Act
  1. Where your criminal record is stored depends on the type of conviction

Approximately 10% of Canadian adults have a criminal record. Generally, criminal records are disposed of when an individual turns 80 and there has been no criminal activity for 10 years. A criminal record contains an individual’s criminal charges, convictions and discharges. Fingerprint information is included if the individual was charged or convicted.

Criminal records are either stored in the Canadian Police Information Centre (CPIC) computerized database or local police records depending on the type of conviction.

All offences under the Criminal Code are classified as either indictable, hybrid or offences punishable on summary conviction.  The type of conviction is stated on an individual’s criminal record.

Indictable and hybrid offences

Indictable offences are more serious than summary offences and include treasons and felonies. Generally, the accused elects whether the trial is heard by judge and jury or judge alone.  Indictable offences have maximum terms of imprisonment. A hybrid offence is one where the Crown chooses to proceed either by indictment or summary conviction.

Criminal records relating to hybrid or indictable convictions are stored in the CPIC, a system operated by the Canadian Police Information (CPI) Centre on behalf of Canadian law enforcement. The RCMP manages CPIC. Police across Canada have access to CPIC. A criminal record is entered into CPIC once an individual is convicted of an offence.

CPIC is connected to the United States National Crime Information Centre through the Automated Canadian United Sates Police Information Exchange System. Refer to #2 to see how this may affect travel to the US.

Summary conviction

Summary offences are generally less serious than indictable offences. Summary offences are heard before a Provincial Court Judge or a Justice of the Peace. Section 787(1) of the Criminal Code specifies the maximum punishment for summary convictions:

Unless otherwise provided by law, everyone who is convicted of an offence punishable on summary conviction is liable to a fine of not more than five thousand dollars or to a term of imprisonment not exceeding six months or to both.

Criminal records of summary offences are generally kept by local police services. Each jurisdiction has different recordkeeping practices. There is no legal requirement that local services include their local records in CPIC. However, some may include the records in CPIC.

  1. You have the right to access your own criminal record at anytime and must consent to others’ access.

Canada’s Privacy Act states that an individual has the right to request and access their record at anytime. No one, including employers, educational institutions and volunteer agencies, can access an individual’s criminal record without that individual’s consent. Consent is given in writing, usually by signing a form.

Many volunteer and employment positions require a criminal record check. The employer/organization may submit a signed consent form with the individual’s full name and birth date or ask the individual to submit a criminal record themselves. The request can be made at the local police station.

There are two possible responses to the record check: (1) “cleared” or “no records found” and (2) “not cleared” or “record may or may not exist”. In the case of the second response, an employer/organization can request that the individual submit fingerprints to the police station. The individual will receive a copy of their Full Record.

A third party (someone other than the individual whose record is being requested) must state the kind of record they are seeking. A Criminal Name Index only shows that a record may exist. A Criminal Record Synopsis contains personal information and conviction history. On the other hand, a full criminal record shows personal information, a full conviction history, dates, discharges and acquittals.

  1. The PBC has discretion to revoke record suspensions.

An individual who was granted a record suspension can have that record suspension revoked. This means that the individual’s criminal record will no longer be kept separate and apart from other criminal records. Therefore, their criminal record will appear in CPIC.

The PBC may revoke a record suspension if:

  • The individual is convicted of another offence;
  • There is evidence satisfying the PBC that the individual is no longer of good conduct; or
  • There is evidence satisfying PBC that the individual made misrepresentations in their application.

The PBC will notify you if it proposes to revoke your record suspension. You have the right to make representations or have representations made on your behalf. These representations can be in writing or orally at a hearing before the PBC. The PBC is required to consider your representations within a reasonable time.

 

 

The Language of Parenting in Family Law

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The terms commonly used to describe parenting arrangements are “custody” and “access”. This is the traditional language of parenting. Indeed, these are the terms used in the Divorce Act and, until recently, Nova Scotia’s relevant legislation. But times are changing and so is the language of parenting.

A new definition of custody, a change in the terminology of “access” and new concepts in parenting can leave us speaking different parenting languages. However, these changes are important for addressing the way that we talk about parenting and ultimately the law’s conceptualization of parenting

Custody

Traditionally, the term “custody” includes physical custody and legal custody. Physical custody refers to where the child lives and legal custody refers to a parent’s right to make decisions regarding the child. Both the Divorce Act and Nova Scotia’s Parenting and Support Act (PSA) use the term “custody”.

On May 26, 2017, the Parenting and Support Act (“PSA”) came into effect in Nova Scotia. The PSA amended the Maintenance and Custody Act (“MCA”). The PSA added a definition of “custody”:

2(ba)  means the responsibility and authority for the care and upbringing of a child and for the making of decisions regarding the care, supervision and development of the child.

Therefore, “custody” is a general term that describes the responsibility for the child’s care (“physical custody”) and a parent’s right to make decisions (“legal custody”).

Parents share decision-making unless they agree that one parent will have “sole custody” or the Court orders that one parent will have sole custody. Where the Court orders “joint custody” both parents have legal and physical custody. However, joint custody does not mean that the child spends equal time with each parent. A written parenting plan sets out “parenting time” when the parent is with the child.

Joint custody does mean that the parents have a duty to consult the other parent about major decisions affecting the child, for example, the child’s: education, spirituality, well-being and health.

A parent with “sole custody” has final decision-making rights. The other parent may have “parenting time” with the child but not have custody. Note, however, that a parent with access has a right to receive information about the child.

“Parenting time” is the new “access”

The biggest language changes are in relation to “access”. While the Divorce Act still uses the term “access”, the PSA has replaced the term with “parenting time”.

The Divorce Act still uses the term “access.” However, the new Parenting and Support Act does not use the term access. Instead, the term “parenting time” refers to any time that a child spends with a parent or guardian under an agreement or Court order. The Act defines “parenting time” as follows

2(ib) “parenting time” means the time when, under an agreement or a court order, a parent or guardian is with the child.

The amendments to replaced “access” and “visiting privileges” with “parenting time”. A “parenting plan” is a written agreement regarding the custody and living arrangements of the child.

Contact Time and Interaction Time

The PSA introduced two defined two concepts: contact time and parenting time.  “Contact time” refers to the time a child spends with someone who is neither a parent or guardian. The Court may order contact time or it may be agreed to by the parties.

“Interaction time”, on the other hand, refers to a parent’s association with a child other than “in person”. Interaction time includes phone calls, Skype, letters, cards, attending school events and more. This concept was not defined in the MCA and is not defined in the Divorce Act.

So why do these changes matter?

While these changes may seem superficial, they are not. These changes reflect the larger evolution of how the law approaches parenting issues. The old “custody” and “access” language is sometimes described as encouraging combativeness in custody disputes. This language promotes the winner and loser mentality. The new language encourages co-operation between parents, keeping the focus on the child. The old language is out-dated and does not reflect the reality of many families. The new concepts of contact time and interaction time are a reflection of the changing ways that families communicate.

Words are powerful. The new language of parenting is a reflection of legislative efforts to keep up with society’s changing values and perceptions that are intricately shape family law.

 

A note on jurisdiction:

It is important to understand that different legislation applies to divorcing (married) couples and non-divorcing couples. The Federal Divorce Act only applies when a couple is divorcing. Child support and child custody orders are considered “corollary relief” under the Divorce Act.  On the other hand, provincial legislation, the Parenting and Support Act in Nova Scotia, applies to unmarried parents or married parents who are separating but not divorcing.  The language used to describe parenting is different depending on the applicable legislation.