Inadmissiblity Question ~ Looking for similar Alberta / BC case

[Fuzu]

Hello,


Here is a small backdrop.


Some months ago I was at an office party. Rarely do I drink but had 3-4 drinks that night and got stopped on the way home for doing 70kmp/h in a 60 kmph zone. They did a routine breath test with an approved screening device and I received an immediate roadside sanction for IRS Fail ( In BC it is know as IRP ) for Impaired driving over the limit ( over 0.08 BAC - Blood Alcohol Concentration ). I did not hurt anybody nor was I involved in an accident.



I know it's a serious offence however the officer on scene along with some lawyers I spoke to who specializes in criminal defence confirmed for first time offence it is 100% NOT a criminal charge and does not go on your criminal record in Alberta, Canada ( Similar to BC ) They gave me an administrative penalty ( harsh consequences, I deserve it) under the Traffic safety Act.



Other provinces in Canada might charge you criminally under Criminal code of Canada ( over 0.08 ) for 1st offence. But not in the province of Alberta unless there are aggravating factors like killing someone or injury while impaired or 2nd offence. However the consequences ( losing driving privileges, hefty fines ) are similar. I was given a penalty under the traffic safety act.



Link for rule I am talking about for context:



https://seanfagan.ca/practice-areas/driving-charges/impaired-driving/



1. Since it will not give me a criminal record, will it affect my application for Permanent Residence ? I am holding a work permit now.



I am not sure if under the Immigration and Refugee Protection Act Section Section 36 if the offence itself ( impaired driving over 0.08 ) is grounds for inadmissibility even if someone is NOT charged or convicted under the Criminal code ?



Under 36.1 of IRPA it says clearly a person should be convicted under an act of parliament ( charged and convicted under criminal code, the traffic safety act is not an act of parliament) I am guessing a conviction is required for offences in Canada but not sure. I am sure the same offence ( over 0.08 ) if committed outside Canada would make me inadmissible.



I read some people got PR with a similar situation in some forums but not 100% sure. Because these people disappeared after their comments from forum and their situation was slightly different.



The word conviction means a formal declaration that someone is guilty of a criminal offence made by a jury/judge/verdict in a court of law. I was not arrested, fingerprinted or nor did I have a court date. At most, I can appeal the IRS fail which would be reviewed by a delegate of the superintendent of Motor Vehicles.



2. Should I apply for Permanent Residence and tick no to criminal conviction ?



If the RCMP criminal check shows clear, it would not count as misrepresentation since I would already submit a clean police clearance with my application. Worst case scenario is if they send me a PFL because of a misunderstanding



Everything I worked for my entire life has potentially been ruined by that one night.



I don't expect sympathy; I understand the gravity of my actions and take full responsibility. I'm grappling with the consequences and the impact on my life, expressing sincere remorse for letting myself, my parents, and others down.


I would like thoughts on this.


I consulted two lawyers. They are saying it should be ok but I can’t find similar cases. I am not being to find similar case. Given than BC IRP ( same as IRS in Alberta) has been in force since 2010 surely there would be example of people that got in the same situation but good PR but cannot find anyone. Cannot sleep and very worried


Thank you

 

[Fuzu]

36 (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for

• (a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed

 

[Fuzu]

Thank you in advance to anyone that has insights or have heard of similar cases

 

[scylla]

Hello,


Here is a small backdrop.


Some months ago I was at an office party. Rarely do I drink but had 3-4 drinks that night and got stopped on the way home for doing 70kmp/h in a 60 kmph zone. They did a routine breath test with an approved screening device and I received an immediate roadside sanction for IRS Fail ( In BC it is know as IRP ) for Impaired driving over the limit ( over 0.08 BAC - Blood Alcohol Concentration ). I did not hurt anybody nor was I involved in an accident.



I know it's a serious offence however the officer on scene along with some lawyers I spoke to who specializes in criminal defence confirmed for first time offence it is 100% NOT a criminal charge and does not go on your criminal record in Alberta, Canada ( Similar to BC ) They gave me an administrative penalty ( harsh consequences, I deserve it) under the Traffic safety Act.



Other provinces in Canada might charge you criminally under Criminal code of Canada ( over 0.08 ) for 1st offence. But not in the province of Alberta unless there are aggravating factors like killing someone or injury while impaired or 2nd offence. However the consequences ( losing driving privileges, hefty fines ) are similar. I was given a penalty under the traffic safety act.



Link for rule I am talking about for context:



https://seanfagan.ca/practice-areas/driving-charges/impaired-driving/



1. Since it will not give me a criminal record, will it affect my application for Permanent Residence ? I am holding a work permit now.



I am not sure if under the Immigration and Refugee Protection Act Section Section 36 if the offence itself ( impaired driving over 0.08 ) is grounds for inadmissibility even if someone is NOT charged or convicted under the Criminal code ?



Under 36.1 of IRPA it says clearly a person should be convicted under an act of parliament ( charged and convicted under criminal code, the traffic safety act is not an act of parliament) I am guessing a conviction is required for offences in Canada but not sure. I am sure the same offence ( over 0.08 ) if committed outside Canada would make me inadmissible.



I read some people got PR with a similar situation in some forums but not 100% sure. Because these people disappeared after their comments from forum and their situation was slightly different.



The word conviction means a formal declaration that someone is guilty of a criminal offence made by a jury/judge/verdict in a court of law. I was not arrested, fingerprinted or nor did I have a court date. At most, I can appeal the IRS fail which would be reviewed by a delegate of the superintendent of Motor Vehicles.



2. Should I apply for Permanent Residence and tick no to criminal conviction ?



If the RCMP criminal check shows clear, it would not count as misrepresentation since I would already submit a clean police clearance with my application. Worst case scenario is if they send me a PFL because of a misunderstanding



Everything I worked for my entire life has potentially been ruined by that one night.



I don't expect sympathy; I understand the gravity of my actions and take full responsibility. I'm grappling with the consequences and the impact on my life, expressing sincere remorse for letting myself, my parents, and others down.


I would like thoughts on this.


I consulted two lawyers. They are saying it should be ok but I can’t find similar cases. I am not being to find similar case. Given than BC IRP ( same as IRS in Alberta) has been in force since 2010 surely there would be example of people that got in the same situation but good PR but cannot find anyone. Cannot sleep and very worried


Thank you

I'm not a lawyer and this is lawyer territory. The advice I can give is the follows:
- Make sure you also look at bill c46 which introduced changes in 2018 and made DUIs serious criminality in Canada. The changes this bill introduced is what's had a big impact on individuals temporarily in Canada and also PRs.
- When you are looking at old cases or forum posts, ignore everything before the introduction of that bill.
- Do everything you can to get the charges dropped or reduced to a non DUI conviction

 

[scylla]

Hello,


Here is a small backdrop.


Some months ago I was at an office party. Rarely do I drink but had 3-4 drinks that night and got stopped on the way home for doing 70kmp/h in a 60 kmph zone. They did a routine breath test with an approved screening device and I received an immediate roadside sanction for IRS Fail ( In BC it is know as IRP ) for Impaired driving over the limit ( over 0.08 BAC - Blood Alcohol Concentration ). I did not hurt anybody nor was I involved in an accident.



I know it's a serious offence however the officer on scene along with some lawyers I spoke to who specializes in criminal defence confirmed for first time offence it is 100% NOT a criminal charge and does not go on your criminal record in Alberta, Canada ( Similar to BC ) They gave me an administrative penalty ( harsh consequences, I deserve it) under the Traffic safety Act.



Other provinces in Canada might charge you criminally under Criminal code of Canada ( over 0.08 ) for 1st offence. But not in the province of Alberta unless there are aggravating factors like killing someone or injury while impaired or 2nd offence. However the consequences ( losing driving privileges, hefty fines ) are similar. I was given a penalty under the traffic safety act.



Link for rule I am talking about for context:



https://seanfagan.ca/practice-areas/driving-charges/impaired-driving/



1. Since it will not give me a criminal record, will it affect my application for Permanent Residence ? I am holding a work permit now.



I am not sure if under the Immigration and Refugee Protection Act Section Section 36 if the offence itself ( impaired driving over 0.08 ) is grounds for inadmissibility even if someone is NOT charged or convicted under the Criminal code ?



Under 36.1 of IRPA it says clearly a person should be convicted under an act of parliament ( charged and convicted under criminal code, the traffic safety act is not an act of parliament) I am guessing a conviction is required for offences in Canada but not sure. I am sure the same offence ( over 0.08 ) if committed outside Canada would make me inadmissible.



I read some people got PR with a similar situation in some forums but not 100% sure. Because these people disappeared after their comments from forum and their situation was slightly different.



The word conviction means a formal declaration that someone is guilty of a criminal offence made by a jury/judge/verdict in a court of law. I was not arrested, fingerprinted or nor did I have a court date. At most, I can appeal the IRS fail which would be reviewed by a delegate of the superintendent of Motor Vehicles.



2. Should I apply for Permanent Residence and tick no to criminal conviction ?



If the RCMP criminal check shows clear, it would not count as misrepresentation since I would already submit a clean police clearance with my application. Worst case scenario is if they send me a PFL because of a misunderstanding



Everything I worked for my entire life has potentially been ruined by that one night.



I don't expect sympathy; I understand the gravity of my actions and take full responsibility. I'm grappling with the consequences and the impact on my life, expressing sincere remorse for letting myself, my parents, and others down.


I would like thoughts on this.


I consulted two lawyers. They are saying it should be ok but I can’t find similar cases. I am not being to find similar case. Given than BC IRP ( same as IRS in Alberta) has been in force since 2010 surely there would be example of people that got in the same situation but good PR but cannot find anyone. Cannot sleep and very worried


Thank you

I just realized you were already given a penalty under the traffic safety act. Missed that the first time. Good luck.

 

[Fuzu]

I just realized you were already given a penalty under the traffic safety act. Missed that the first time. Good luck.

Yes I was not convicted under Criminal Code. No court, arrests, fingerprints or photos.
Could it still be a problem? Maybe the offence is there somewhere but I just ordered a police clearance and it shows no record. It’s just that I am not finding similar cases.

 

[scylla]

Yes I was not convicted under Criminal Code. No court, arrests, fingerprints or photos.
Could it still be a problem? Maybe the offence is there somewhere but I just ordered a police clearance and it shows no record. It’s just that I am not finding similar cases.

None of us here are lawyers. These are questions for lawyers. There are records of everything. I personally think you would need to mention this somewhere in the PR application and then provide evidence of how it was disposed. That's my two cents.

 

[scylla]

Yes I was not convicted under Criminal Code. No court, arrests, fingerprints or photos.
Could it still be a problem? Maybe the offence is there somewhere but I just ordered a police clearance and it shows no record. It’s just that I am not finding similar cases.

To be clear, the police record does not tell you want IRCC can and cannot see.

 

[Fuzu]

None of us here are lawyers. These are questions for lawyers. There are records of everything. I personally think you would need to mention this somewhere in the PR application and then provide evidence of how it was disposed. That's my two cents.

Let’s say I tick no to the criminal conviction question since it’s not a criminal charge ( lawyers confirmed this ) but don’t disclose the offence although it’s best to do so. The officer sees the offence, gets confused and gives me a procedural fairness letter for misrepresentation. Do you think I have a good chance to respond to it and succeed with the help of a lawyer explaining IRPA law and how a conviction under criminal code is needed by law? I know there is two ways to approach this; was just wondering if the second way of non-disclosure and then later responding to a procedural fairness letter is also an okay strategy although not the best?

 

[scylla]

Let’s say I tick no to the criminal conviction question since it’s not a criminal charge ( lawyers confirmed this ) but don’t disclose the offence although it’s best to do so. The officer sees the offence, gets confused and gives me a procedural fairness letter for misrepresentation. Do you think I have a good chance to respond to it and succeed with the help of a lawyer explaining IRPA law and how a conviction under criminal code is needed by law? I know there is two ways to approach this; was just wondering if the second way of non-disclosure and then later responding to a procedural fairness letter is also an okay strategy although not the best?

All I can say is that you want to avoid anything in your application that may be misrepresentation and certainly want to avoid getting a PFL. No one here is going to be able to comment on your chances of being able to favourably argue against a PFL.

 

[scylla]

Let’s say I tick no to the criminal conviction question since it’s not a criminal charge ( lawyers confirmed this ) but don’t disclose the offence although it’s best to do so. The officer sees the offence, gets confused and gives me a procedural fairness letter for misrepresentation. Do you think I have a good chance to respond to it and succeed with the help of a lawyer explaining IRPA law and how a conviction under criminal code is needed by law? I know there is two ways to approach this; was just wondering if the second way of non-disclosure and then later responding to a procedural fairness letter is also an okay strategy although not the best?

So to be clear, I personally would never say that a PFL strategy is a good or even an okay strategy. IMO anything that puts you at risk of a PFL is a bad strategy.

 

[armoured]

Let’s say I tick no to the criminal conviction question since it’s not a criminal charge ( lawyers confirmed this ) but don’t disclose the offence although it’s best to do so. The officer sees the offence, gets confused and gives me a procedural fairness letter for misrepresentation. Do you think I have a good chance to respond to it and succeed with the help of a lawyer explaining IRPA law and how a conviction under criminal code is needed by law? I know there is two ways to approach this; was just wondering if the second way of non-disclosure and then later responding to a procedural fairness letter is also an okay strategy although not the best?

I was listening to a podcast by immigration lawyers on the misrepresentation topic and I'll permit myself to summarize a bit (danger, I'm not an expert): -even lawyers find IRCC approach, subsequent treatment on appeal (IAD/courts) to often be strict and difficult to predict (with significant consequences); -the 'innocent error' defense does not always work; -'reasonable person' test implies knowing that having the information wouldn't lead IRCC officer to inquire further.

I think this last is where your approach is dangerous - if most DUI cases do cross the line into causing immigration barriers and BC/Alberta approach is different, presumption would be that it very much would be something that would cause an IRCC officer to inquire further.

Whereas if it really was disposed without the charge/conviction, disclosing the information should not result in a bar. The result of being mistaken is not symmetrical.

That said: not an expert, you really do need to see a lawyer. But due to this asymmetry, I echo @scylla's comment that relying on being successful with a PFL does not seem a sound strategy.

I provide the link to the podcast for anyone interested: https://podcasts.apple.com/ca/podcast/72-misrepresentation/id1140657563?i=1000568200048

But I warn it's a couple years old and I'd really caution against any interpretation of what they say for motivated reasons - once again, the main lesson I drew was that one really does not want to rely on not disclosing somethign important.

 

[Ponga]

Things are definitely different in BC in terms of how a person that is driving impaired are treated. I, for one, don't understand why at times it's merely a decision that the officer can make to not charge the driver under the `normal' rules, by instead using the Immediate Roadside Prohibition option. The license is revoked on the spot, the car is impounded, but as the OP states, no `processing' of the driver 'down at the station' occurs. The driver is free to leave, but needs to find their own way to wherever they're going. I've heard of people having more than one which is simply mind boggling to me, but that's just me.

The penalties seem to range from minimal (in comparison to an actual DUI) to heavy fines, classes and sometimes an interlock device, not to mention having to wait a very long time to regain driving privileges that start from scratch...the dreaded `L' decal on the back of their car.

So while it doesn't answer the OP's question regarding misrepresentation, I would lean towards the `should mention it' in the application and take solace in knowing that the IRP, in and of itself, doesn't appear to make them inadmissible.

 

[Fuzu]

Thank you for your answers gentlemen just one last follow up question. Let’s say my response to PFL gets rejected, can I seek judicial review using lawyers ? If yes, I am just thinking how in the right mind a judge could rule in favor of IRCC since it seems to be crystal clear I was not charged or convicted under the criminal code hence by law I did not make any misrepresentation by ticking no to criminal conviction. A clean police record would act as an evidence in court against ircc in this case. Please let me know your thoughts @scylla @Ponga @dpenabill

 

[Fuzu]

A bit of backdrop. I got accepted in masters program. I did bachelor and had pgwp for 3 years. I worked 3 years - two years with good box code so my CRS score is 499. No one. WP expires next month. Applying for study permit for masters now. Been learning French for two years so I think I can give exam in Nov - dec which will give me 65 extra points for express entry and also qualify me for French category draw. So a 2nd study permit application now and PR application in December after French.

I just wanted to confirm that I intend to answer "no" to the criminal question in both the study permit and permanent residence applications. However, I am considering not disclosing the offense at all in the study permit application.

Nevertheless, I have no issue disclosing the offense and providing a legal opinion letter when applying for permanent residence.

I am seeking a risk assessment for the study permit application question based on the broad wording of the question. Unlike the study permit application, the question in the PR application is not as broad.

Again, my police clearance is clear and shows no criminal record.