another crim-rehab question (serious criminality)

[Swimmer]

I was a participant in a traffic accident 17 years ago, at age 17, in which the driver of the other car died. As the rear-ending vehicle I was presumed at fault, and therefore charged with negligent homicide (and no alcohol-related or reckless driving/ speeding charges). I pled no contest, resulting in a conviction of a high court misdemeanor of the same charge. I was given a suspended sentence but due to my probation record served no time and paid only a $100 fine. (My terse treatment above in no way reflects in a desire to diminish the incident.)

Currently my Canadian common-law partner and I live in the US (of which I am a citizen), and as she has gotten a faculty position with a Canadian university we are starting the process of applying for my permanent residency (from outside Canada). Due to the above we will likely retain a lawyer; nevertheless I'm interested in getting the opinions of this forum regarding the above incident.

- Am I correct to equate the US's negligent homicide charge to Canada's manslaughter charge, with its maximum penalty of life. And am I further correct that I am therefore considered to have serious criminality, and thus even though the accident was 17 year ago I cannot assume in my PR application that I have been deemed rehabilitated?

- The fact that I was a minor at the time, or that my charge was a misdemeanor, in no way changes the above, correct?

- I'm unclear as to whether it makes more sense to apply for rehabilitation prior to applying for PR, or as part of the same package. (I feel like I've heard both advocated on this forum.) I'd love to hear folks' thoughts on my below understanding - either things that are wrong or things I'm missing:

Doing the applications together:
- Advantages: If you're deemed rehabilitated in the eyes of the V.O. you'll have the fastest of all possible processing times. Also, it may be a little cheaper?
- Disadvantages: If the V.O doesn't feel comfortable accepting your application for rehabilitation s/he'll refuse your entire PR application, perhaps resulting in another horror story like we read to much of on this forum.

Doing the Rehab application first:
- Advantages: If you're denied in your Crim-rehab app. you can appeal that w/o the refusal sullying your PR app. If you are refused
- Disadvantages: You're looking at 1yr +/- for the Crim.-rehab app to find its way through the system before even starting the PR app.

Thank you in advance for any suggestions or opinions you may have. (And yes, I understand that any answer to my questions has to include "it greatly depends on the visa officer who processes your application.")

Swimming,

 

[RobsLuv]

You need a qualified Canadian immigration attorney to answer these questions. The first one would be whether there is an issue at all because, as a minor at the time, the record of the arrest should be sealed. Order your State police clearances and FBI clearance and then speak with an immigration attorney. If the arrest/conviction shows up, you may have to apply for rehabilitated status before you can apply for PR. The longest wait period before a person is eligible to apply for rehabilitated status is 10 years after satisfying all requirements of sentencing. The first thing to find out, though, is whether or not this even shows up on your clearances. As I said, juvenile offences are supposed to be sealed, and convictions under the equivalence of the Youth Offender Act are not supposed to make a person inadmissible to Canada.

Bottom line - we're not attorneys and all you'll get here is helpful opinion. You need an expert so that you proceed properly from the beginning and get this thing resolved asap.

 

[Swimmer]

Order your State police clearances and FBI clearance and then speak with an immigration attorney.

Thanks RobsLuv - just a quick clarification: you're suggesting I get state certificates right away - just from the state of the offense, or from all states in which I've lived? Anyone have a sense of how often state clearances are requested?

Thanks,
Swimmer

 

[Kess]

Thanks RobsLuv - just a quick clarification: you're suggesting I get state certificates right away - just from the state of the offense, or from all states in which I've lived? Anyone have a sense of how often state clearances are requested?

Thanks,
Swimmer

You will be asked for state certificates if there is any indication of potential criminality. Since the police certs are only valid for 3 months, I'd recommend getting just the certificate for the state the incident occurred in to start. FBI cert takes 8-12 weeks to get but the state ones are much much faster so if you end up needed to get another one (due to the 3 month expiry) you don't have to wait that long (and haven't wasted time/money on replacing multiple state certs).

 

[RobsLuv]

Thanks RobsLuv - just a quick clarification: you're suggesting I get state certificates right away - just from the state of the offense, or from all states in which I've lived? Anyone have a sense of how often state clearances are requested?

You will be asked for state certificates if there is any indication of potential criminality. Since the police certs are only valid for 3 months, I'd recommend getting just the certificate for the state the incident occurred in to start. FBI cert takes 8-12 weeks to get but the state ones are much much faster so if you end up needed to get another one (due to the 3 month expiry) you don't have to wait that long (and haven't wasted time/money on replacing multiple state certs).

The expiration of State and/or FBI certificates is not important at this point. It's true that for purposes of PR applications, police certificates must be no older than 3 months when they are submitted with the application. But I'm not suggesting you get police certificates for the purpose of submitting them with a PR application. The point is to find out whether or not this juvenile conviction shows up on the clearances. That's the first step - before you meet with an attorney to figure out your next step . . . find out exactly what you're up against. So, yes, I would suggest getting a clearance from the State in which the offence occurred, and the FBI. Then meet with an immigration attorney.

It's possible (even probable) that, if the offence doesn't show up, you're still going to have to order at least the FBI again in order to be able to submit one with the PR application that is less than 3 months old. CIC is not routinely asking for State clearances these days, but when you're looking at the potential of a criminal offence showing up in your reports, you're best to do the preliminary work before you even begin to get CIC involved.

 

[Swimmer]

Gotcha. Thanks again RobsLuv (and others). So the FBI files have come back, as well as the state files: both claiming there's no record. The court for the county of the infraction has a record, though. So we're in touch with a lawyer, but meanwhile, I'm curious as to people's thoughts on the matter.

Thanks,
Swimmer