June 19, 2020
Criminal Inadmissibility, No Contest Pleas, and Withholdings of Adjudication
In some jurisdictions, persons charged with crimes can plead “no contest” or “nolo contendere” instead of pleading “guilty” or “not guilty”. According to Cornell’s Legal Information Institute, this means “the defendant does not accept or deny responsibility for the charges but agrees to accept punishment.” In some US jurisdictions, a defendant can even make an “Alford” plea, in which they plead guilty – but formally announce they are actually innocent and are only pleading guilty for pragmatic reasons!
Depending on the local laws, a judge may accept a “no contest” plea by “withholding adjudication” instead of “convicting” the defendant. Depending on the jurisdiction, a Withholding of Adjudication may be treated the same as a conviction, or have more lenient consequences than a conviction.
However, no contest pleas and Withholdings of Adjudication do not exist in Canada. So how does Canadian immigration law treat people who previously plead nolo contendere, or got a Withholding of Adjudication in a foreign court? Can they be inadmissible to Canada or excluded from Canadian refugee protection due to criminality?
Some newer case law says a no contest plea cannot be considered equivalent to a guilty plea. Some older case law says it can. But ultimately, a judge may not accept a defendant’s plea. In some jurisdictions, a judge may still adjudicate a defendant guilty even after a no-contest plea, and render a normal conviction instead of a Withholding of Adjudication.
So what about Withholdings of Adjudication themselves? Can they render someone inadmissible to Canada?
Canadian immigration law is unclear as to whether Withholdings of Adjudication count as convictions for inadmissibility purposes. A member of the Immigration Appeal Division of the Immigration and Refugee Board did once find that Withholdings of Adjudication are not convictions. However, given the limited case law on this topic and the limited legal authority of the Board, we cannot know whether other decision-makers will follow this isolated decision. So it is still not certain whether Withholdings of Adjudication trigger inadmissibility provisions that require convictions.
Regardless, a Withholding of Adjudication can be used as proof that a crime was committed – although it is one factor to be assessed among several. So in certain cases a Withholding of
Adjudication can trigger inadmissibility provisions that only require commission of a crime, rather than conviction.
As you can see, no contest pleas and Withholdings of Adjudication raise complicated legal questions without clear answers. If you have any criminal history, you should always seek personalized legal advice before taking any steps to seek immigration or refugee status in Canada.