Inadmissiblity Question ~ Looking for similar Alberta / BC case
- Thread starter Fuzu
- Start date
Up Front: I do NOT know how any non-Canadian should answer any particular question in an immigration form related to criminal background considering the application of provincial traffic laws in regards to an incident that could have been prosecuted by the Crown as a driving while impaired offence.
I can say it depends on the question in the form.
I can say the best answer is the true and HONEST answer based on a sincere, objective understanding of what is asked and what is not just a truthful response, but what is both true AND HONEST (not in anyway evasive let alone misleading or deceptive).
I can also say: if an applicant is approaching how to answer questions in a way that will avoid disclosing something, odds are that is not a good idea, and in particular the odds are if what an applicant is trying to avoid disclosing matters, that approach is almost certainly going to make it worse. If it matters, odds are high they will know anyway.
There is a temptation to expound on the nature and limitations of advice in a forum setting like this. Some general advice is well worth heeding, like "be honest," "follow the instructions," "do your homework," and the direct application of known rules, like "avoid overstaying temporary resident status" and "don't drink and drive," and for PRs, "be sure to be IN Canada and in compliance with the Residency Obligation when making a PR card application." Lot's of good advice.
At the other end of the spectrum, as others have repeated with emphasis, well-warranted emphasis, is the caution that this is NOT a place to get legal advice.
And otherwise, generally, consider what is offered in a forum like this BUT be sure to only act on what you, you yourself, have concluded is reliable information, preferably through confirmation by cross-referencing multiple sources if not the primary sources, and according to YOUR own best judgment.
Here's the thing: within the first few days of posting your original query, in conjunction with the homework it appears you have done, including consideration of some commentary if not specifically personal advice from lawyers, you got what a forum like this can offer. That included my 3 cents (up from 2 cents due to inflation) rounded off to a nickel.
Time for you to take the wheel.
Bottom-line here: in deciding what information to give in an IRCC application form, the overriding imperative is to give an honest answer; and if not following specific advice from an attorney, do so, that is give an honest answer, based on YOUR own best but OBJECTIVE (as objective as one can be) judgment according to YOUR honest and OBJECTIVE understanding of the question.
Hint: self-serving interpretations, or what might pass as it's-an-arguable-position, generally do not offer much cover.
So no, NOT a good idea to rely on an effort to parse a justification or explanation for a particular answer, whether based on the "Charter" or an arguable interpretation of the applicable law or the question itself, anything that is NOT your best, honest, objective understanding of what, honestly, is a truthful response to the question asked. Might, but only just might, keep a person from going to jail for fraud; limited to "might" as in maybe, because as much as many get away with making misrepresentations, many do not. The far more likely reason such misrepresentation does not result in criminal charges, prosecution, and jail, is that this sort of misrepresentation is rarely criminally prosecuted (exceptions for those involving who some would characterize as crooked-consultants and patterns indicating overt fraud).
If It Makes a Difference, They Will Know Anyway; Otherwise, They Don't Care (in the sense that it will not affect decision-making):
It is not always true, which fuels so damned much irrational noise, and yeah there are exceptions (which gets complicated, very complicated), but generally the *they know* approach is so often true enough that it is generally the most efficacious approach even if one disregards moral imperatives. (Yes, yes, with exceptions, always some exceptions, here lots of exceptions, including more or less well-reasoned exceptions, as well more than a few getting-away-with-it clever maneuvering exceptions.)
There are better ways of answering some questions, and there are some language pitfalls (avoid the use of the term "offence" unless it is in reference to a prescribed offence; so avoid using "offence" when referring to a provincial traffic violation), but in general, disclosing something that does not actually matter will not hurt an application.
But if IRCC officials perceive the applicant has not honestly answered questions, but rather in a way to avoid disclosing something that just might be of importance (even if it is not), let alone a perception the applicant has deliberately not disclosed something that actually matters, that is NOT going to help.
I do not actually know, but am nonetheless very confident that IRCC is well aware of the provincial traffic violations which could be prosecuted by the Crown as driving while impaired offences, and that IRCC has a particular policy or practice approach to this.
If it matters, they almost certainly have the access needed to know about it even if not disclosed by the applicant. So an applicant should disclose it.
If it does not matter to IRCC, the applicant's disclosure of it should not hurt.
That said, what to actually disclose depends very much on the question asked, and the relevant facts. Answer the question. Answer it truthfully and honestly (emphasis on BOTH, on as accurately as one knows, and totally without guile or deception).
I can say it depends on the question in the form.
I can say the best answer is the true and HONEST answer based on a sincere, objective understanding of what is asked and what is not just a truthful response, but what is both true AND HONEST (not in anyway evasive let alone misleading or deceptive).
I can also say: if an applicant is approaching how to answer questions in a way that will avoid disclosing something, odds are that is not a good idea, and in particular the odds are if what an applicant is trying to avoid disclosing matters, that approach is almost certainly going to make it worse. If it matters, odds are high they will know anyway.
. . . forum advice?
There is a temptation to expound on the nature and limitations of advice in a forum setting like this. Some general advice is well worth heeding, like "be honest," "follow the instructions," "do your homework," and the direct application of known rules, like "avoid overstaying temporary resident status" and "don't drink and drive," and for PRs, "be sure to be IN Canada and in compliance with the Residency Obligation when making a PR card application." Lot's of good advice.
At the other end of the spectrum, as others have repeated with emphasis, well-warranted emphasis, is the caution that this is NOT a place to get legal advice.
And otherwise, generally, consider what is offered in a forum like this BUT be sure to only act on what you, you yourself, have concluded is reliable information, preferably through confirmation by cross-referencing multiple sources if not the primary sources, and according to YOUR own best judgment.
Here's the thing: within the first few days of posting your original query, in conjunction with the homework it appears you have done, including consideration of some commentary if not specifically personal advice from lawyers, you got what a forum like this can offer. That included my 3 cents (up from 2 cents due to inflation) rounded off to a nickel.
Time for you to take the wheel.
Bottom-line here: in deciding what information to give in an IRCC application form, the overriding imperative is to give an honest answer; and if not following specific advice from an attorney, do so, that is give an honest answer, based on YOUR own best but OBJECTIVE (as objective as one can be) judgment according to YOUR honest and OBJECTIVE understanding of the question.
Hint: self-serving interpretations, or what might pass as it's-an-arguable-position, generally do not offer much cover.
So no, NOT a good idea to rely on an effort to parse a justification or explanation for a particular answer, whether based on the "Charter" or an arguable interpretation of the applicable law or the question itself, anything that is NOT your best, honest, objective understanding of what, honestly, is a truthful response to the question asked. Might, but only just might, keep a person from going to jail for fraud; limited to "might" as in maybe, because as much as many get away with making misrepresentations, many do not. The far more likely reason such misrepresentation does not result in criminal charges, prosecution, and jail, is that this sort of misrepresentation is rarely criminally prosecuted (exceptions for those involving who some would characterize as crooked-consultants and patterns indicating overt fraud).
If It Makes a Difference, They Will Know Anyway; Otherwise, They Don't Care (in the sense that it will not affect decision-making):
It is not always true, which fuels so damned much irrational noise, and yeah there are exceptions (which gets complicated, very complicated), but generally the *they know* approach is so often true enough that it is generally the most efficacious approach even if one disregards moral imperatives. (Yes, yes, with exceptions, always some exceptions, here lots of exceptions, including more or less well-reasoned exceptions, as well more than a few getting-away-with-it clever maneuvering exceptions.)
There are better ways of answering some questions, and there are some language pitfalls (avoid the use of the term "offence" unless it is in reference to a prescribed offence; so avoid using "offence" when referring to a provincial traffic violation), but in general, disclosing something that does not actually matter will not hurt an application.
But if IRCC officials perceive the applicant has not honestly answered questions, but rather in a way to avoid disclosing something that just might be of importance (even if it is not), let alone a perception the applicant has deliberately not disclosed something that actually matters, that is NOT going to help.
I do not actually know, but am nonetheless very confident that IRCC is well aware of the provincial traffic violations which could be prosecuted by the Crown as driving while impaired offences, and that IRCC has a particular policy or practice approach to this.
If it matters, they almost certainly have the access needed to know about it even if not disclosed by the applicant. So an applicant should disclose it.
If it does not matter to IRCC, the applicant's disclosure of it should not hurt.
That said, what to actually disclose depends very much on the question asked, and the relevant facts. Answer the question. Answer it truthfully and honestly (emphasis on BOTH, on as accurately as one knows, and totally without guile or deception).
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This is a situation where 'self-lawyering' is a very bad idea indeed. (And see below about 'researching')
See @dpenabill's post above. My own much shorter spin on that would be: err on the side of disclosure.
Your self-lawyering is leading you away from that. That's because you are EXTREMELY biased in your own favour, you want to find the answer that is easiest for you. (That's not an accusation of bias: we are all biased in our own favour). Hence your legal 'research' is primarily turning up the answer that you are looking for (and rejecting/ignoring those that are not what you are looking for). It's also human nature to want to avoid disclosing information that is potentially risky.
In my view: get another legal opinion. Disclose EVERYTHING to that lawyer.
And be wary of advice that says not to disclose (see the post above this). If any doubt remains, it probably means disclose.
Hello-
I do have a situation for my friend:
Currently, he is on an LMIA work permit, and during Covid, he got laid off. However, there was a temporary policy that TFW could switch to a different employer and didn’t need to wait decision on his application and could start working immediately. I think this requires an LMIA as well while switching to another employer. He barely speaks English. He hired a consultant before applying. The consultant introduced to him a new employer and charged $21,000. Now the issue is, that the policy says he needs an LMIA for sure before switching jobs, but the consultant applied for him without it. As per the policy, the consultant gave him a letter from IRCC, that he can work immediately, which is a kind of automatic letter in 2023. My friend started working for a new employer. The work was applied in 2023 May- He got a letter in April that he could work. After, that no news from the consultant at all, even after calling multiple times. So I asked him if he should call IRCC directly to find out about his application. His work permit was rejected In September 2023, but he was never notified. The consultant never put the LMIA application in it, and one time 3 weeks ago he responded by saying his employer didn’t give him LMIA paperwork. During this time, he was working with the new employer which is kind of illegal or unauthorized work. His consultant never said about rejection, otherwise he could have stopped working when the letter arrived.
He is a victim of a consultant. If he finds a new LMIA, what should he do for his illegal work? However, all work is done on SIN. Also, what is the best practice, should he explain all in the paper while applying for a new work permit with a new employer, will IRCC help him?
I do have a situation for my friend:
Currently, he is on an LMIA work permit, and during Covid, he got laid off. However, there was a temporary policy that TFW could switch to a different employer and didn’t need to wait decision on his application and could start working immediately. I think this requires an LMIA as well while switching to another employer. He barely speaks English. He hired a consultant before applying. The consultant introduced to him a new employer and charged $21,000. Now the issue is, that the policy says he needs an LMIA for sure before switching jobs, but the consultant applied for him without it. As per the policy, the consultant gave him a letter from IRCC, that he can work immediately, which is a kind of automatic letter in 2023. My friend started working for a new employer. The work was applied in 2023 May- He got a letter in April that he could work. After, that no news from the consultant at all, even after calling multiple times. So I asked him if he should call IRCC directly to find out about his application. His work permit was rejected In September 2023, but he was never notified. The consultant never put the LMIA application in it, and one time 3 weeks ago he responded by saying his employer didn’t give him LMIA paperwork. During this time, he was working with the new employer which is kind of illegal or unauthorized work. His consultant never said about rejection, otherwise he could have stopped working when the letter arrived.
He is a victim of a consultant. If he finds a new LMIA, what should he do for his illegal work? However, all work is done on SIN. Also, what is the best practice, should he explain all in the paper while applying for a new work permit with a new employer, will IRCC help him?
No he will get a ban for illegal work. And this is not the correct thread for this query. Please respect forum rules and post a new thread. This thread is about dui - people that see this thread in the future seeking help could get confused
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He's out of status in Canada based on the information you have provided and it's too late to restore his status. So applying for a new work permit based on an LMIA is not possible.
The work he did was illegal. There's really no way to fix that.
The only option he has now is to try to apply for a TRP and then an open work permit if the TRP is approved. However this is a very long shot and processing times for TRPs is around 2 years. He will not be allowed to work while he waits.
Unfortunately he is held responsible for his status in Canada and the illegal work even if he uses a representative.
My goodness, more than one month and some 70 posts ago, @Fuzu wrote about his IRP (t use BC parlance), saying that 2 lawyers advised him he has no criminal conviction as a result, but he did not trust that advice.
I am not sure what further assurances can here be given. Fuzu refers to an inability to find a similar case. Probably because no one else, similarly situated, has seen it as an issue and therefore not aired it on this forum or elsewhere.
It's time the matter was brought to a head. Make a decision and proceed. If there be any residual doubt, then check "no" to question about criminal conviction, but add a letter of explanation setting out the full history and your fears and doubts and desire to make full and frank disclosure. Or get a further legal opinion. Hire a lawyer who claims expertise in criminal and immigration law to write for you a memorandum of law and legal opinion.
I'll just add that if it was my situation and I had received a 90-day IRP under the BC Motor Vehicle Act, I would happily check "no" and give it no further thought. Sounds to me like Fuzu will freeze at the clutch and not be able to check "no", without someone directing his hand. An opinion penned by the Chief Justice of the Supreme Court of Canada might do the job. It could be a complete answer to a PFL. Not that the IRCC does not stand above that august body, but it might accord it some deference.
I am not sure what further assurances can here be given. Fuzu refers to an inability to find a similar case. Probably because no one else, similarly situated, has seen it as an issue and therefore not aired it on this forum or elsewhere.
It's time the matter was brought to a head. Make a decision and proceed. If there be any residual doubt, then check "no" to question about criminal conviction, but add a letter of explanation setting out the full history and your fears and doubts and desire to make full and frank disclosure. Or get a further legal opinion. Hire a lawyer who claims expertise in criminal and immigration law to write for you a memorandum of law and legal opinion.
I'll just add that if it was my situation and I had received a 90-day IRP under the BC Motor Vehicle Act, I would happily check "no" and give it no further thought. Sounds to me like Fuzu will freeze at the clutch and not be able to check "no", without someone directing his hand. An opinion penned by the Chief Justice of the Supreme Court of Canada might do the job. It could be a complete answer to a PFL. Not that the IRCC does not stand above that august body, but it might accord it some deference.
thank you @Kaibigan your advice. Your comment is the strongest so I feel confident. I did end up putting no to that question. I am 100 percent confident irp / irs won’t lead to inadmissibility. That’s 100 percent after talking to lawyer but it’s just the broad aspect of the question that worries me.
1) have you ever committed, been charged with, arrested for or convicted of a criminal offense?
My main worry is with the word committed in the entire question. Does receiving a provincial penalty for going over 0.08 and breaking a traffic safety act provincial regulation constitute commiting a criminal offence ?
Like you said the ideal thing would be to put no and still disclose.
i would have disclosed if I was applying for pr but I am applying for a second study permit so that disclosure would make my application very negative because unlike a pr application, for a study permit application the officer might use another excuse ( lack of ties to home country ) to deny me since they cannot by law deny me via inadmissiblity.
somw would argue I am withholding material facts but based on the question I feel I have been truthful. Why create a problem when there is no problem ? However I still feel some ircc officer might think I misrepresented but I am of the opinion I have sufficient grounds to respond to a pfl. Because i can argue since i did not have my say in court and no fair trial there is reasonable doubt that I went over 0.08. This irs thing has stripped me of the protections I would have under the criminal justice system and that is not right. The burden of proof for the police was really low. It was on me to proof I am not guilty but in a criminal charge it is the burden of the state to proof , without a reasonable doubt that I am guilty.
any thoughts on that broad question? I am not one bit worried about inadmissibility but the word commission in that question bothers me. Did I commit a criminal offence by receiving a non criminal provincial citation for impaired driving ?
and lastly what I did was shameful and I am getting that punishment. 5-6k gone plus walking everyday plus many other consequences. If I were in a position of power and Canadian citizen I would change IRPA rules and send people with dui provincial offences back home. I am just trying to understand what the right answer to that question would be and if I have grounds to defend myself which anyone in my situation would plus also showing remorse.
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also to your last point of Ircc being above the body, I feel anytime ircc does not abide by IRPA that can become grounds for taking them to court. I have heard one or two people getting pr after irp on Facebook and this forum. I think if they reject me, they are being unfair and not applying the rule of law equally. That is grounds to take them to court. I am sure that they won’t even go to trial and settle out of court because I am fairly confident they would lose and wouldn’t want a negative decision against them after spending $$$
however I am very afraid and cannot sleep because of the word commission. Yesterday an evil laughing minion was screaming it to me in my dream and I felt like electric vibrations in my back. Then I woke up
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