The conviction was failing to provide a specimen for analysis (he was driving while he had consumed alcohol) , he was fined 350 pounds and he was not allowed to drive for 12 months. It has been a year and half since the conviction.
We went to a lawyer and she said that the residency will be rejected because the officers look at the law and if law does not permit it then they cannot approve it.
Below is content of the letteR:
Dear :
I am now completing the assessment of your application for a permanent resident visa. It appears that you
may not meet the requirements for immigration to Canada.
Paragraph 36(2)(b) of the Immigration and Refugee Protection Act states that a foreign national is
inadmissible on grounds of criminality for having been convicted outside Canada of an offence that, if
committed in Canada, would constitute an indictable offence under an Act of Parliament, or of two
offences not arising out of a single occurrence that, if committed in Canada, would constitute offences
under an Act of Parliament.
You have provided evidence from your police certificate from the United Kingdom dated September 22,
2015 and from a letter issued by Berkshire Magistrates’ Courts dated November 11, 2014, that you have
been convicted of failing to provide specimen for analysis while driving.
I have found online the infraction for which
you were convicted under paragraph 6(1), (2) and (6) of the Road Traffic Act of 1988, which can be read
as follows:
6 Power to administer preliminary tests
(1)If any of subsections (2) to (5) applies a constable may require a person to co-operate with any one or
more preliminary tests administered to the person by that constable or another constable.
(2)This subsection applies if a constable reasonably suspects that the person—
(a)is driving, is attempting to drive or is in charge of a motor vehicle on a road or other public
place, and
(b)has alcohol or a drug in his body or is under the influence of a drug.
(3)This subsection applies if a constable reasonably suspects that the person—
(a)has been driving, attempting to drive or in charge of a motor vehicle on a road or other public
place while having alcohol or a drug in his body or while unfit to drive because of a drug, and
(b)still has alcohol or a drug in his body or is still under the influence of a drug.
(4)This subsection applies if a constable reasonably suspects that the person—
(a)is or has been driving, attempting to drive or in charge of a motor vehicle on a road or other
public place, and
(b)has committed a traffic offence while the vehicle was in motion.
(5)This subsection applies if—
(a)an accident occurs owing to the presence of a motor vehicle on a road or other public place,
and
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(b)a constable reasonably believes that the person was driving, attempting to drive or in charge of
the vehicle at the time of the accident.
(6)A person commits an offence if without reasonable excuse he fails to co-operate with a preliminary test
in pursuance of a requirement imposed under this section.
I have found the Canadian equivalent under paragraph 254(2) and (5) of the Canadian Criminal Code,
which can be read as follow:
254(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their
body and that the person has, within the preceding three hours, operated a motor vehicle or vessel,
operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a
motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace
officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with
either or both of paragraphs (a) and (b), in the case of alcohol:
(a) to perform forthwith physical coordination tests prescribed by regulation to enable the peace
officer to determine whether a demand may be made under subsection (3) or (3.1) and, if
necessary, to accompany the peace officer for that purpose; and
(b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a
proper analysis to be made by means of an approved screening device and, if necessary, to
accompany the peace officer for that purpose.
(5) Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a
demand made under this section.
The punishment for an infraction committed under paragraph 254 appears as paragraph 255 of the
Canadian Criminal Code and can be read as follow:
255 (1) Every one who commits an offence under section 253 or 254 is guilty of an indictable offence or
an offence punishable on summary conviction and is liable,
(a) whether the offence is prosecuted by indictment or punishable on summary conviction, to the
following minimum punishment, namely,
(i) for a first offence, to a fine of not less than $1,000,
(ii) for a second offence, to imprisonment for not less than 30 days, and
(iii) for each subsequent offence, to imprisonment for not less than 120 days;
(b) where the offence is prosecuted by indictment, to imprisonment for a term not exceeding five
years; and
(c) if the offence is punishable on summary conviction, to imprisonment for a term of not more
than 18 months.
Consequently, I have concerns that you may be inadmissible to Canada because you have been convicted
in the United Kingdom of an offence that, if committed in Canada, would constitute an indictable offence
under an Act of Parliament.
Before I make a final decision, you may submit additional information relating to this issue. You have 60
days from the date of this letter to submit additional information to me. Please ensure that you quote the
application number indicated at the top of this letter on any information you submit. If you choose not to
respond with additional information I will make my decision based on the information before me, which
may result in the refusal of your application.
I look forward to receiving your additional information.
Thank you for the interest you have shown in Canada.
