URGENT!!!!!- Provincial nominee applicant with Dui arrest but no conviction

[Femlala]

Hi guys

I have a PR application under the PNP (AINP). I also had a DUI charge with a conditional discharge disposition. This means there was no conviction with the charge.

I have done medicals and also provided CIC with RCMP background check which came back with a positive match but with a conditional discharge and also shows WITHDRAWN.

Recently CIC asked me for the below specifically and I don't know exactly what they want. Can some please help clarify what I am supposed to do or get for CIC because they said my application can be refused due to incomplete. Also I am married to a Canadian citizen and I only just got married in January of this year and I have let CIC know about this.

Essentially, CIC asked me for the below:

"- Court record / Police report: Provide an original police report or court records relating to your criminal charge/conviction.
- Court judgment: Court judgment relating to the criminal charge/conviction showing completion of sentence.
- Schedule A Online: An updated Schedule A Online.

If you fail to do so, your application will be assessed based on the information we have on file, which could result in the refusal of your application as incomplete or the removal of your spouse from the application"

This above is the exact request letter CIC sent me.

Does anyone know what they want exactly?

I have gone to the courts and the records they gave me does not show any completion of sentence. I am also going to the police tomorrow to get a report but I need to know exactly what CIC want as I do not want my application to be refused.

PLEASE HELP!!!

 

[LifeDreamer]

Since it has been withdrawn it will not affect your PR. The request letter is generic, there is no need to show completion of any sentence just your court documents.

Again there is no need to file any police report. You only need to attach an updated Schedule A form along with the court document you have. You only need to show that:

(a) you were conditionally discharged; and
(b) that you successfully followed the conditions imposed and have had the charge withdrawn.​

 

[zardoz]

Hi guys

I have a PR application under the PNP (AINP). I also had a DUI charge with a conditional discharge disposition. This means there was no conviction with the charge.

I have done medicals and also provided CIC with RCMP background check which came back with a positive match but with a conditional discharge and also shows WITHDRAWN.

Recently CIC asked me for the below specifically and I don't know exactly what they want. Can some please help clarify what I am supposed to do or get for CIC because they said my application can be refused due to incomplete. Also I am married to a Canadian citizen and I only just got married in January of this year and I have let CIC know about this.

Essentially, CIC asked me for the below:

"- Court record / Police report: Provide an original police report or court records relating to your criminal charge/conviction.
- Court judgment: Court judgment relating to the criminal charge/conviction showing completion of sentence.
- Schedule A Online: An updated Schedule A Online.

If you fail to do so, your application will be assessed based on the information we have on file, which could result in the refusal of your application as incomplete or the removal of your spouse from the application"

This above is the exact request letter CIC sent me.

Does anyone know what they want exactly?

I have gone to the courts and the records they gave me does not show any completion of sentence. I am also going to the police tomorrow to get a report but I need to know exactly what CIC want as I do not want my application to be refused.

PLEASE HELP!!!

You need to talk to a competent immigration lawyer. A conditional discharge presumes guilt and this might be a problem for IRCC.

https://www.canadianlegal.org/conditional-discharge/

A conditional discharge is defined in this excerpt from the Criminal Code of Canada:
730. (1) Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).

Though not a conviction, it is still evidence of guilt because the accused ”pleads guilty to or is found guilty of an offence.” An absolute discharge will appear on your criminal record for one year and a conditional discharge will appear on your criminal record for 3 years. If you fail to meet the conditions, the discharge may be revoked and you could be subsequently convicted.

CAUTION: The discharge will show up in employment pre-screening or at U.S. border crossings during the one or three year period that the discharge appears on your record. And, if your discharge is not automatically purged after the one or three year period, the discharge will appear on your record until you write to the RCMP to have it purged. SEE HOW TO PURGE A DISCHARGE.

It is still evidence of guilt.
Having a conditional discharge can affect you the following ways:

• It appears on your RCMP record for one year (if absolute) or three years (if conditional), following which it is either purged or you have to request in writing to have it purged.
• A discharge may prevent you from gaining legal entry to the United States if it is an excludable offence. Waivers can cost thousands over your lifetime. And, it is possible that if you need a Waiver it will not be granted until at least 5 years have past since the alleged offence was committed.
• The discharge will show up on a criminal records check for employment, volunteering, adopting, etc. until such time as it has been purged.
• If you have other convictions for which you are applying for a Pardon (now called a Record Suspension), a Conditional or Absolute Discharge may result in the denial of your Pardon or Record Suspension for a period of up to 5 years as there was an admission or finding of guilt. See Good Conduct Criteria.

What is a Criminal Record?
Many people assume that a Conditional Discharge is not a ‘conviction’. They are right–it is not a conviction. But, the question should not be ‘is it a conviction’? Rather, the question should be ‘does it constitute a criminal record’? Arguably, a criminal record is any information on file pertaining to a person that is related to a criminal charge, that resulted in a conviction, stay of proceedings, withdrawn, conviction, discharge or that was dealt with by way of alternative measures that may negatively reflect upon their character. For so long as there is any kind of information on record which is associated with your name and date of birth, it could by definition constitute a type of criminal record, even though no criminal conviction may have resulted.

Many people do not understand that by negotiating or accepting a conditional discharge that it is the interpretation of the Criminal Code that there has been an admission or finding of guilt. Had they clearly understood this, they may instead have fought the charge in hopes of a ‘not guilty’ sentence.

 

[Femlala]

Since it has been withdrawn it will not affect your PR. The request letter is generic, there is no need to show completion of any sentence just your court documents.

Again there is no need to file any police report. You only need to attach an updated Schedule A form along with the court document you have. You only need to show that:

(a) you were conditionally discharged; and
(b) that you successfully followed the conditions imposed and have had the charge withdrawn.​

Thank you @LifeDreamer

 

[Femlala]

You need to talk to a competent immigration lawyer. A conditional discharge presumes guilt and this might be a problem for IRCC.

https://www.canadianlegal.org/conditional-discharge/

A conditional discharge is defined in this excerpt from the Criminal Code of Canada:
730. (1) Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).

Though not a conviction, it is still evidence of guilt because the accused ”pleads guilty to or is found guilty of an offence.” An absolute discharge will appear on your criminal record for one year and a conditional discharge will appear on your criminal record for 3 years. If you fail to meet the conditions, the discharge may be revoked and you could be subsequently convicted.

CAUTION: The discharge will show up in employment pre-screening or at U.S. border crossings during the one or three year period that the discharge appears on your record. And, if your discharge is not automatically purged after the one or three year period, the discharge will appear on your record until you write to the RCMP to have it purged. SEE HOW TO PURGE A DISCHARGE.

It is still evidence of guilt.
Having a conditional discharge can affect you the following ways:

• It appears on your RCMP record for one year (if absolute) or three years (if conditional), following which it is either purged or you have to request in writing to have it purged.
• A discharge may prevent you from gaining legal entry to the United States if it is an excludable offence. Waivers can cost thousands over your lifetime. And, it is possible that if you need a Waiver it will not be granted until at least 5 years have past since the alleged offence was committed.
• The discharge will show up on a criminal records check for employment, volunteering, adopting, etc. until such time as it has been purged.
• If you have other convictions for which you are applying for a Pardon (now called a Record Suspension), a Conditional or Absolute Discharge may result in the denial of your Pardon or Record Suspension for a period of up to 5 years as there was an admission or finding of guilt. See Good Conduct Criteria.

What is a Criminal Record?
Many people assume that a Conditional Discharge is not a ‘conviction’. They are right–it is not a conviction. But, the question should not be ‘is it a conviction’? Rather, the question should be ‘does it constitute a criminal record’? Arguably, a criminal record is any information on file pertaining to a person that is related to a criminal charge, that resulted in a conviction, stay of proceedings, withdrawn, conviction, discharge or that was dealt with by way of alternative measures that may negatively reflect upon their character. For so long as there is any kind of information on record which is associated with your name and date of birth, it could by definition constitute a type of criminal record, even though no criminal conviction may have resulted.

Many people do not understand that by negotiating or accepting a conditional discharge that it is the interpretation of the Criminal Code that there has been an admission or finding of guilt. Had they clearly understood this, they may instead have fought the charge in hopes of a ‘not guilty’ sentence.

I know all this. I've read this so many times and honestly it's not an answer to my questios.

 

[Wonderland_1010]

You need to talk to a competent immigration lawyer. A conditional discharge presumes guilt and this might be a problem for IRCC.

https://www.canadianlegal.org/conditional-discharge/

A conditional discharge is defined in this excerpt from the Criminal Code of Canada:
730. (1) Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).

Though not a conviction, it is still evidence of guilt because the accused ”pleads guilty to or is found guilty of an offence.” An absolute discharge will appear on your criminal record for one year and a conditional discharge will appear on your criminal record for 3 years. If you fail to meet the conditions, the discharge may be revoked and you could be subsequently convicted.

CAUTION: The discharge will show up in employment pre-screening or at U.S. border crossings during the one or three year period that the discharge appears on your record. And, if your discharge is not automatically purged after the one or three year period, the discharge will appear on your record until you write to the RCMP to have it purged. SEE HOW TO PURGE A DISCHARGE.

It is still evidence of guilt.
Having a conditional discharge can affect you the following ways:

• It appears on your RCMP record for one year (if absolute) or three years (if conditional), following which it is either purged or you have to request in writing to have it purged.
• A discharge may prevent you from gaining legal entry to the United States if it is an excludable offence. Waivers can cost thousands over your lifetime. And, it is possible that if you need a Waiver it will not be granted until at least 5 years have past since the alleged offence was committed.
• The discharge will show up on a criminal records check for employment, volunteering, adopting, etc. until such time as it has been purged.
• If you have other convictions for which you are applying for a Pardon (now called a Record Suspension), a Conditional or Absolute Discharge may result in the denial of your Pardon or Record Suspension for a period of up to 5 years as there was an admission or finding of guilt. See Good Conduct Criteria.

What is a Criminal Record?
Many people assume that a Conditional Discharge is not a ‘conviction’. They are right–it is not a conviction. But, the question should not be ‘is it a conviction’? Rather, the question should be ‘does it constitute a criminal record’? Arguably, a criminal record is any information on file pertaining to a person that is related to a criminal charge, that resulted in a conviction, stay of proceedings, withdrawn, conviction, discharge or that was dealt with by way of alternative measures that may negatively reflect upon their character. For so long as there is any kind of information on record which is associated with your name and date of birth, it could by definition constitute a type of criminal record, even though no criminal conviction may have resulted.

Many people do not understand that by negotiating or accepting a conditional discharge that it is the interpretation of the Criminal Code that there has been an admission or finding of guilt. Had they clearly understood this, they may instead have fought the charge in hopes of a ‘not guilty’ sentence.

I know all this. I've read this so many times and honestly it's not an answer to my questios.

I disagree. If the offense had occurred in Canada and you were given a conditional discharged then you are not inadmissible. See link:

Have you been charged, discharged or pardoned?
This section will help you determine if you are inadmissible if you have been charged, discharged or pardoned.

For charges withdrawn or dismissed:

• If the offence occurred in Canada, you are not inadmissible.
• If the offence occurred outside Canada, you may be inadmissible.

For an absolute or conditional discharge:

• If the offence occurred in Canada, you are not inadmissible.
• If the offence occurred outside Canada, you may be inadmissible.

Pardon granted:

• If the offence occurred in Canada, you are not inadmissible if you were pardoned under the Criminal Records Act in Canada.
• If the offence occurred outside Canada, you may be inadmissible.

https://www.canada.ca/en/immigration-refugees-citizenship/services/application/application-forms-guides/guide-5312-rehabilitation-persons-inadmissible-canada-past-criminal-activity.html#5312E2

 

[Femlala]

I disagree. If the offense had occurred in Canada and you were given a conditional discharged then you are not inadmissible. See link:

Have you been charged, discharged or pardoned?
This section will help you determine if you are inadmissible if you have been charged, discharged or pardoned.

For charges withdrawn or dismissed:

• If the offence occurred in Canada, you are not inadmissible.
• If the offence occurred outside Canada, you may be inadmissible.

For an absolute or conditional discharge:

• If the offence occurred in Canada, you are not inadmissible.
• If the offence occurred outside Canada, you may be inadmissible.

Pardon granted:

• If the offence occurred in Canada, you are not inadmissible if you were pardoned under the Criminal Records Act in Canada.
• If the offence occurred outside Canada, you may be inadmissible.

https://www.canada.ca/en/immigration-refugees-citizenship/services/application/application-forms-guides/guide-5312-rehabilitation-persons-inadmissible-canada-past-criminal-activity.html#5312E2

Thanks wonderland_1010. I completely agree with you.

 

[LifeDreamer]

You need to talk to a competent immigration lawyer. A conditional discharge presumes guilt and this might be a problem for IRCC.

https://www.canadianlegal.org/conditional-discharge/

A conditional discharge is defined in this excerpt from the Criminal Code of Canada:
730. (1) Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).

Though not a conviction, it is still evidence of guilt because the accused ”pleads guilty to or is found guilty of an offence.” An absolute discharge will appear on your criminal record for one year and a conditional discharge will appear on your criminal record for 3 years. If you fail to meet the conditions, the discharge may be revoked and you could be subsequently convicted.

CAUTION: The discharge will show up in employment pre-screening or at U.S. border crossings during the one or three year period that the discharge appears on your record. And, if your discharge is not automatically purged after the one or three year period, the discharge will appear on your record until you write to the RCMP to have it purged. SEE HOW TO PURGE A DISCHARGE.

It is still evidence of guilt.
Having a conditional discharge can affect you the following ways:

• It appears on your RCMP record for one year (if absolute) or three years (if conditional), following which it is either purged or you have to request in writing to have it purged.
• A discharge may prevent you from gaining legal entry to the United States if it is an excludable offence. Waivers can cost thousands over your lifetime. And, it is possible that if you need a Waiver it will not be granted until at least 5 years have past since the alleged offence was committed.
• The discharge will show up on a criminal records check for employment, volunteering, adopting, etc. until such time as it has been purged.
• If you have other convictions for which you are applying for a Pardon (now called a Record Suspension), a Conditional or Absolute Discharge may result in the denial of your Pardon or Record Suspension for a period of up to 5 years as there was an admission or finding of guilt. See Good Conduct Criteria.

What is a Criminal Record?
Many people assume that a Conditional Discharge is not a ‘conviction’. They are right–it is not a conviction. But, the question should not be ‘is it a conviction’? Rather, the question should be ‘does it constitute a criminal record’? Arguably, a criminal record is any information on file pertaining to a person that is related to a criminal charge, that resulted in a conviction, stay of proceedings, withdrawn, conviction, discharge or that was dealt with by way of alternative measures that may negatively reflect upon their character. For so long as there is any kind of information on record which is associated with your name and date of birth, it could by definition constitute a type of criminal record, even though no criminal conviction may have resulted.

Many people do not understand that by negotiating or accepting a conditional discharge that it is the interpretation of the Criminal Code that there has been an admission or finding of guilt. Had they clearly understood this, they may instead have fought the charge in hopes of a ‘not guilty’ sentence.

This is not a problem for IRCC because they are not looking to find out if you are guilty or not, only if you were convicted. A conditional discharge, although an indication of guilt, is not a conviction but rather an agreement between the prosecutor and the defendant to admit to the offense and follow a probationary period in exchange for not receiving a criminal record. Canada honors this agreement and treats the applicant as someone who's not guilty even though a guilty plea was entered and the case documents show abundance of evidence that portray the applicant as being guilty to any lay person. This is also the case when the offense is committed abroad and was disposed of in similar manner, especially when the foreign jurisdiction has similar values and foundations as Canadian law. Take for example in many US states a charge may be dismissed with a "continuance without a finding" process which is essentially a conditional discharge agreed by the prosecutor. The defendant pleads guilty but the judge continues the case indefinitely therefore not entering a conviction record. In such case the applicant is not inadmissible if the disposition is final.

To understand this further, the IRCC never pursue the case or put the applicant under trial again for admissibility purposes, they do not act as judges or jury. The only exception is an offense committed abroad for which charges are pending or may be laid in the future in which case they only need to have some objective evidence that the applicant had committed the offense and they only need to believe this on a reasonable grounds basis (balance of probabilities for PRs).

 

[Femlala]

This is not a problem for IRCC because they are not looking to find out if you are guilty or not, only if you were convicted. A conditional discharge, although an indication of guilt, is not a conviction but rather an agreement between the prosecutor and the defendant to admit to the offense and follow a probationary period in exchange for not receiving a criminal record. Canada honors this agreement and treats the applicant as someone who's not guilty even though a guilty plea was entered and the case documents show abundance of evidence that portray the applicant as being guilty to any lay person. This is also the case when the offense is committed abroad and was disposed of in similar manner, especially when the foreign jurisdiction has similar values and foundations as Canadian law. Take for example in many US states a charge may be dismissed with a "continuance without a finding" process which is essentially a conditional discharge agreed by the prosecutor. The defendant pleads guilty but the judge continues the case indefinitely therefore not entering a conviction record. In such case the applicant is not inadmissible if the disposition is final.

To understand this further, the IRCC never pursue the case or put the applicant under trial again for admissibility purposes, they do not act as judges or jury. The only exception is an offense committed abroad for which charges are pending or may be laid in the future in which case they only need to have some objective evidence that the applicant had committed the offense and they only need to believe this on a reasonable grounds basis (balance of probabilities for PRs).

Wow! I'm clapping for you here. Thanks again. I know I'm not inadmissible, but like you said it's a generic request so I'll send what I got from the courts to CIC.

 

[Femlala]

This is not a problem for IRCC because they are not looking to find out if you are guilty or not, only if you were convicted. A conditional discharge, although an indication of guilt, is not a conviction but rather an agreement between the prosecutor and the defendant to admit to the offense and follow a probationary period in exchange for not receiving a criminal record. Canada honors this agreement and treats the applicant as someone who's not guilty even though a guilty plea was entered and the case documents show abundance of evidence that portray the applicant as being guilty to any lay person. This is also the case when the offense is committed abroad and was disposed of in similar manner, especially when the foreign jurisdiction has similar values and foundations as Canadian law. Take for example in many US states a charge may be dismissed with a "continuance without a finding" process which is essentially a conditional discharge agreed by the prosecutor. The defendant pleads guilty but the judge continues the case indefinitely therefore not entering a conviction record. In such case the applicant is not inadmissible if the disposition is final.

To understand this further, the IRCC never pursue the case or put the applicant under trial again for admissibility purposes, they do not act as judges or jury. The only exception is an offense committed abroad for which charges are pending or may be laid in the future in which case they only need to have some objective evidence that the applicant had committed the offense and they only need to believe this on a reasonable grounds basis (balance of probabilities for PRs).

So I went to get the police report from the courts and the court records of the court judgment of the case.

I also went to the police station to get the police report, but they say it will take 30 days... I already have something from the courts showing a peace officers reports,

my question is do I still need to wait for police report?

 

[LifeDreamer]

No. You can see in the letter they gave you it says court record / police report. Meaning either the court records or the police report.

You can wait and submit both, it will not harm or benefit your application. The police report will contain detailed accounts of the events surrounding your arrest such as where it happened, why the officers suspected you and everything you said or told them. These details are not relevant to PR and you probably don't wish to include them.

 

[Femlala]

No. You can see in the letter they gave you it says court record / police report. Meaning either the court records or the police report.

You can wait and submit both, it will not harm or benefit your application. The police report will contain detailed accounts of the events surrounding your arrest such as where it happened, why the officers suspected you and everything you said or told them. These details are not relevant to PR and you probably don't wish to include them.

Thanks you so much lifedreamer. I totally agree with you and will go ahead to submit the court recreco. This makes alot of sense to me now especially the way you explain it. Thanks once again ...I really appreciate it.

 

[Femlala]

No. You can see in the letter they gave you it says court record / police report. Meaning either the court records or the police report.

You can wait and submit both, it will not harm or benefit your application. The police report will contain detailed accounts of the events surrounding your arrest such as where it happened, why the officers suspected you and everything you said or told them. These details are not relevant to PR and you probably don't wish to include them.

@LifeDreamer

I've submitted the documents. Do you have any idea what the next step(s) is? Its been almost two years for me and I just can't wait for this to be over and in a very positive way. I do have faith but when I think of it, my heart beats faster for sure.

 

[LifeDreamer]

@LifeDreamer

I've submitted the documents. Do you have any idea what the next step(s) is? Its been almost two years for me and I just can't wait for this to be over and in a very positive way. I do have faith but when I think of it, my heart beats faster for sure.

What is your current status in Canada?

 

[Femlala]

@LifeDreamer

Currently, I'm on a work permit and it expires Nov this year, but I've submitted an apllapplication to extend while I await a final decision.

May I know why you ask @LifeDreamer ? Thanks