Thanks again for your response , I really appreciate it. I am still trying to find some resources regarding this, will also be meeting few lawyers to ask about this. I still havent found a confined answer yet, I have talked to few folks from this forum who were also charged before 2018 and quiet a lot of them mentioned they were okay and not been deported, some of them are now Citizens. I still do not want to get my hopes up yet , as i am by no means out of the woods.
Deportation order
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Thanks again for your response , I really appreciate it. I am still trying to find some resources regarding this, will also be meeting few lawyers to ask about this. I still havent found a confined answer yet, I have talked to few folks from this forum who were also charged before 2018 and quiet a lot of them mentioned they were okay and not been deported, some of them are now Citizens. I still do not want to get my hopes up yet , as i am by no means out of the woods.
Just a small update
I spoke to few different immigration lawyer this week, and they are the best lawyers in my city. They have mentioned that due to the fact that my charges falls under the old DUI laws which has maximum sentence of 5 years. I am not inadmissible, and they said that they are very low chances that CBSA will reach out to me, and if they do my lawyers will prepare a legal opinion letter explaining that I am not inadmissible under section 36 serious criminality. Hoping for the best now.
I spoke to few different immigration lawyer this week, and they are the best lawyers in my city. They have mentioned that due to the fact that my charges falls under the old DUI laws which has maximum sentence of 5 years. I am not inadmissible, and they said that they are very low chances that CBSA will reach out to me, and if they do my lawyers will prepare a legal opinion letter explaining that I am not inadmissible under section 36 serious criminality. Hoping for the best now.
Thank you everyone, to everyone who recommended I speak to a lawyer was the best advice. As researching about this topic online for an answer was not fully clear.I actually spoke to two different lawyers regarding this and both of them said that DUI arrest prior to 2018 doesn't constitute inadmissibility, and there are also very low possibility a CBSA agent would reach out. They also mentioned if they reaches out, we would have to send them a legal opinion letter to explain how it does not fall under serious criminality.
Thanks to everyone for the support and help you have shared in this thread. For those who have similar issues and comes back to this thread below is what I found from my lawyer may help everyone.
Serious criminality is based on s.36(1) of the IRPA. Serious criminality refers to a permanent resident or a foreign national who has been convicted in Canada of any offence under an Act of Parliament that is punishable by a maximum term of at least 10 years or for which a term of imprisonment of more than 6 months has actually been imposed
If the offence occurred before 2018 december,
The maximum punishment for DUI, an offence under s.253(1) of the criminal code, was 5 years. This clearly falls below the threshold under s.36(1). Importantly, the maximum sentence under s.36(1) is assessed as the sentence available on the date of the commission of the offence.2 . Therefore you are not inadmissible due to serious criminality under section 36(1) or due to criminality under s.36(2) of the Immigration Refugee Protection Act (“IRPA”).
The Supreme Court reiterated this principle in Tran: “the relevant date for assessing serious criminality under s.36(1)(a) is the date of the commission of the offence, not the date of the admissibility decision.”
Serious criminality is based on s.36(1) of the IRPA. Serious criminality refers to a permanent resident or a foreign national who has been convicted in Canada of any offence under an Act of Parliament that is punishable by a maximum term of at least 10 years or for which a term of imprisonment of more than 6 months has actually been imposed
If the offence occurred before 2018 december,
The maximum punishment for DUI, an offence under s.253(1) of the criminal code, was 5 years. This clearly falls below the threshold under s.36(1). Importantly, the maximum sentence under s.36(1) is assessed as the sentence available on the date of the commission of the offence.2 . Therefore you are not inadmissible due to serious criminality under section 36(1) or due to criminality under s.36(2) of the Immigration Refugee Protection Act (“IRPA”).
The Supreme Court reiterated this principle in Tran: “the relevant date for assessing serious criminality under s.36(1)(a) is the date of the commission of the offence, not the date of the admissibility decision.”
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Happy to hear your good news!
However...at the risk of throwing a proverbial wrench into the wheel...and probably overthinking, as well...
Since the DUI happened in 2018 (under the`old rules' regarding it not being considered Serious Criminality), how was/is it now not possibly an inadmissible offence under s.36(2)?
Also, since you said that you were only`convicted' last week, wouldn't the 5 year clock have just started before you could be rehabilitated?
Did your lawyer basically say that this conviction (to a charge under the old rules) is not an issue at all now with IRCC/CBSA?
To me, it's the fact that the sentence/penalty for this has only just been imposed. Others had to wait 5 years after completing their sentence to apply for rehabilitation.
However...at the risk of throwing a proverbial wrench into the wheel...and probably overthinking, as well...
Since the DUI happened in 2018 (under the`old rules' regarding it not being considered Serious Criminality), how was/is it now not possibly an inadmissible offence under s.36(2)?
Also, since you said that you were only`convicted' last week, wouldn't the 5 year clock have just started before you could be rehabilitated?
Did your lawyer basically say that this conviction (to a charge under the old rules) is not an issue at all now with IRCC/CBSA?
To me, it's the fact that the sentence/penalty for this has only just been imposed. Others had to wait 5 years after completing their sentence to apply for rehabilitation.
Hi, from i have been told that since it was my only offence in the 5 years, and I am a low risk offender there is very low risk CBSA will deny me at the border or issue me an deportation order. At the same time my conviction still falls under the old laws which was punishable by maximum 5 year and its not a ground for inadmissibility, but they did say that there are low probability i might be contacted and if I am, we have a defence for that.
My lawyers also said that, if this was a serious issue for IRCC/CBSA they would've contacted me long time before while i was charged and have my file open under their investigation. But since the former laws doesnt constitute inadmissibility, my lawyers mention I should be good, and adviced me that I apply or PR in the nearer future disclosing the case. From their experience they have helped few folks to get their PR who had DUI prior to 2018
My lawyers also said that, if this was a serious issue for IRCC/CBSA they would've contacted me long time before while i was charged and have my file open under their investigation. But since the former laws doesnt constitute inadmissibility, my lawyers mention I should be good, and adviced me that I apply or PR in the nearer future disclosing the case. From their experience they have helped few folks to get their PR who had DUI prior to 2018
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To have a better peace of mind, I actually contacted 2 best immigration lawyers in my city. And both of them said that I am not inadmissible, and chances of deportation is very low given the time has passed since the arrest and the laws that applied during that time.
But it doesn't change the fact that 5 years have not passed since your sentence was completed, right? That's the part that seems like it could still be a bit of a problem, but...I'm not one of the two best immigration lawyers in my city. LOL!
Thanks Ponga, you raised very good point. I will ask this to my lawyers and post my reply soon.
You're referring to different five year periods.
I do not claim to know this well but: the five year period you are referring to is rehabilitation period that's required after being convicted of a crime that requires it - let's call that a major crime. And at the time this happened, this violation was not in that category (it was a crime at the time that was subject to a max five year sentence, or lesser crime, rather than 10 - sometime after 2018 this was reclassified as a major crime).
And if it was a lesser crime at the time, no rehabilitation period required.
I think. Not my area really.
*I've used the terms major and lesser crimes with no intent to use a legal term, and hope I didn't inadvertently, but rather to avoid saying felony as I know that's not the right term in Canada.
Thisss! Thanks for the explanation armoured! Tbh I was a bit confused about this as well, but you answered it. Applaud to you
Well I hope I got the basics of it but please don't rely upon my re-phrasing on this subject for anything important.