Criminal Rehab - London office - unbelieveable!!

[StressedT]

Hi All - I am really hoping that someone out there can shed some light on the situation we now face. A few months ago I joined the forum and started this thread -
http://www.canadavisa.com/canada-immigration-discussion-board/-t19077.0.html .

We emailed the London office a few days ago chasing any progress on the sponsorship application as it is now 10 months since we won our appeal (Oct 08) and we are still waiting.

The London office has just a day ago replied advising that due to the criminal rehab application they are now sending this file back to Canada. this is just unbelievable - we submitted both the sponsorship and rehab applications in early 2007 and now towards the end of 2009 - after we won an appeal proving our relationship they are sending it away for a process that from what our lawyer tells me takes 12 months plus to be looked at?

Are they doing this because we appealed and won?

Has any one else had any experience with a successful or even unsuccessful criminal rehab application that was send back to Canada to be dealt with?

The "crime" itself was committed in 1995 and the conviction in 1996 - so by Canada's own statements he should be able to be considered deemed rehabilitated as he has no issues at all with the law since. He had to pay a small fine and there was no jail time.

The country the conviction was given in does not have anything online at all regarding its legal system. The Canadian criminal code states that the same conviction here
http://laws.justice.gc.ca/en/showdoc/cs/C-46/bo-ga:l_VIII-gb:s_244/20090812/en#anchorbo-ga:l_VIII-gb:s_244

Assault with a weapon or causing bodily harm
267. Every one who, in committing an assault,
(a) carries, uses or threatens to use a weapon or an imitation thereof, or
(b) causes bodily harm to the complainant,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months. R.S., 1985, c. C-46, s. 267; 1994, c. 44, s. 17.



Any comments would be appreciated.

 

[PMM]

Hi[

quote author=StressedT link=topic=23814.msg128639#msg128639 date=1250284815]
Hi All - I am really hoping that someone out there can shed some light on the situation we now face. A few months ago I joined the forum and started this thread -
http://www.canadavisa.com/canada-immigration-discussion-board/-t19077.0.html .

We emailed the London office a few days ago chasing any progress on the sponsorship application as it is now 10 months since we won our appeal (Oct 08) and we are still waiting.

The London office has just a day ago replied advising that due to the criminal rehab application they are now sending this file back to Canada. this is just unbelievable - we submitted both the sponsorship and rehab applications in early 2007 and now towards the end of 2009 - after we won an appeal proving our relationship they are sending it away for a process that from what our lawyer tells me takes 12 months plus to be looked at?

Are they doing this because we appealed and won?

Has any one else had any experience with a successful or even unsuccessful criminal rehab application that was send back to Canada to be dealt with?

The "crime" itself was committed in 1995 and the conviction in 1996 - so by Canada's own statements he should be able to be considered deemed rehabilitated as he has no issues at all with the law since. He had to pay a small fine and there was no jail time.

The country the conviction was given in does not have anything online at all regarding its legal system. The Canadian criminal code states that the same conviction here
http://laws.justice.gc.ca/en/showdoc/cs/C-46/bo-ga:l_VIII-gb:s_244/20090812/en#anchorbo-ga:l_VIII-gb:s_244

Assault with a weapon or causing bodily harm
267. Every one who, in committing an assault,
(a) carries, uses or threatens to use a weapon or an imitation thereof, or
(b) causes bodily harm to the complainant,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months. R.S., 1985, c. C-46, s. 267; 1994, c. 44, s. 17.



Any comments would be appreciated.






[/quote]

Assault Bodily Harm he could have got 10 years in Canada, for deemed rehabilitation the sentence would have been for a crime of LESS than 10 years

"Conviction or commission of an offence outside Canada, that, if committed in Canada, would be punishable by a maximum term of
imprisonment of ten years or more"
Deemed Rehabilitation Not applicable
Rehabilitation Five years from completion of the sentence or commission of the offence"

PMM

 

[StressedT]

HI PMM - thank you for your reply. From what I have found on the internet as per my link - the timeframe states a term not exceeding ten years. Where do you read that the sentence for this would have been ten years or more?

In the file/transcript that we have in hand (we were able to get this from the lawyer in Africa) it does state what the sentence was as a first time offender "$1000 (about $700 canadian) and 3 months in jail but suspended for 5 yrs. (So if he had committed another crime within the 5 years he would have to have served the 3months plus whatever else) But as I said before he has never had an issue with the law since.

Also would you know whether they consider what that sentence would have been for that charge in that year - or do they look at what that charge would get in our current year? I ask this after considering that over time various crimes are expanded on within the legal system and sentences for such crimes updated too. So perhaps what could have been a sentence of say for example 18 months in 1996 is now a sentence of 3 years in 2009?

Our lawyer who has reviewed the actual transcript of the trial submitted a letter (with all documents from africa) to the london office in 2007 with the reasons/argument as to why the London office should be able to consider him "deemed rehabilitated".

My greatest frustration with this is the fact that yes we did recognise that this was a red flag for the sponsorship that is why we submitted the crim rehab package and payment for same - for consideration to london in 2007 together with the sponsorship app. Why is only now 10 months after we won the appeal do they decided to send back to Canada - if they decided/felt it was something that they (london office) could not deal with why not send it in 2007!! Our lawyer tells us that the fact that it is now been sent back to Canada - its going to take at least 12 months for Canada to make a decision then send the file back to London for London to proceed one way or the other. People are born and die within the time it takes to get a decision.

 

[PMM]

Hi

HI PMM - thank you for your reply. From what I have found on the internet as per my link - the timeframe states a term not exceeding ten years. Where do you read that the sentence for this would have been ten years or more?

In the file/transcript that we have in hand (we were able to get this from the lawyer in Africa) it does state what the sentence was as a first time offender "$1000 (about $700 canadian) and 3 months in jail but suspended for 5 yrs. (So if he had committed another crime within the 5 years he would have to have served the 3months plus whatever else) But as I said before he has never had an issue with the law since.

Also would you know whether they consider what that sentence would have been for that charge in that year - or do they look at what that charge would get in our current year? I ask this after considering that over time various crimes are expanded on within the legal system and sentences for such crimes updated too. So perhaps what could have been a sentence of say for example 18 months in 1996 is now a sentence of 3 years in 2009?

Our lawyer who has reviewed the actual transcript of the trial submitted a letter (with all documents from africa) to the london office in 2007 with the reasons/argument as to why the London office should be able to consider him "deemed rehabilitated".

My greatest frustration with this is the fact that yes we did recognise that this was a red flag for the sponsorship that is why we submitted the crim rehab package and payment for same - for consideration to london in 2007 together with the sponsorship app. Why is only now 10 months after we won the appeal do they decided to send back to Canada - if they decided/felt it was something that they (london office) could not deal with why not send it in 2007!! Our lawyer tells us that the fact that it is now been sent back to Canada - its going to take at least 12 months for Canada to make a decision then send the file back to London for London to proceed one way or the other. People are born and die within the time it takes to get a decision.

1. From the Immigration and Refugee Protection Act.

18. (1) For the purposes of paragraph 36(3)(c) of the Act, the class of persons deemed to have been rehabilitated is a prescribed class.

Members of the class
(2) The following persons are members of the class of persons deemed to have been rehabilitated:

(a) persons who have been convicted outside Canada of no more than one offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, if all of the following conditions apply, namely,

(i) the offence is punishable in Canada by a maximum term of imprisonment of less than 10 years,

(ii) at least 10 years have elapsed since the day after the completion of the imposed sentence,

2. Once an application is refused, ALL processing stops.

PMM

 

[StressedT]

Hi PMM - thanks again for your reply. I am alittle confused by your reply. I wanted to know where you read that this particular charge "Assault with a weapon or causing bodily harm" attracted sentences of ten year or more.

Your last reply actually supports what I think is correct - that such a charge would have attracted a sentence "up to a max of ten years". So if this is as I believe it correct - my partner should qualify for Deem Rehabilitated - for 2 reasons - the sentence would have attracted a time of max 10 year not 10 years plus AND it has been more than 10 years since the conviction.

You have raised another point for us to consider - as there was no jail time served - what does the phrase "at least 10 years that have elapsed since the day after the completion of the imposed sentence" mean? At the time is was a fine that was paid and 3 months in jail but suspended for 5 yrs. So 10 years from the date of conviction - or 10 years from the last date of the suspended 3 months?

The 2nd point you raise is also interesting "Once an application is refused, ALL processing stops." Technically these were two separate applications although submitted together "to save time (ha ha)". So even if the sponsorship application was refused and our relationship ended - he had still submitted this application and payment so that he would have the ability to travel freely to and from Canada in the future.

Consider this - Just because the bank has refused you a loan to buy a car does mean you should be prevented from trying to get a drivers license. (I am up rather late typing this and cant think of a better comparison).

My eyes are closing even as I type this - I have not looked again at the Immigration and Refugee act as yet but will do so this week.

Regards

 

[ImmOfficer]

Your partner does not qualify for "deemed rehab" provisions. Period.

"Less than 10 Years" = 9 years and 364 Days.

Assault with a weapon/cause bodily harm = 10 years.

10 years (or more) = Serious Criminality under A36(1) = NOT ELLIGIBLE FOR DEEMED REHAB

The math couldn't be any easier to understand.

The application will be assessed, if approved then they will look at the sponsorship. Sometimes mistakes have a way of coming back and biting someone in the rear. This is one of those cases. Tough luck.

 

[StressedT]

Hi ImmOfficer - thanks for your reply. Yes the maths could not be simpler as you have phrased it - however perhaps it is the English that should be better phrased in the link I am reading.

In the link I provided earlier - http://laws.justice.gc.ca/en/showdoc/cs/C-46/bo-ga:l_VIII-gb:s_244/20090812/en#anchorbo-ga:l_VIII-gb:s_244

What I have seen here is this

Assault with a weapon or causing bodily harm
267. Every one who, in committing an assault,
(a) carries, uses or threatens to use a weapon or an imitation thereof, or
(b) causes bodily harm to the complainant,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.
R.S., 1985, c. C-46, s. 267; 1994, c. 44, s. 17.

So yes the crime could have attracted a max term of 10 year and not "exceeding" 10 years but he was not imprisioned the 3 month sentence was suspended. We have provided a transcript of the trial. I am not sure what is meant by summary conviction section and will have to research it.

Please could you provide the link to A36(1) info you mention. Thats why this forum is so great - I am here looking for help - looking to hear back from people like yourself who may be able to point out something I do not know - people who perhaps have had/heard of similar experiences - every bit of info helps.

And perhaps you can shed some light on this point i asked - it may be a long grasp but it is a question that i still dont know the answer to,
[size=10pt]
"would you know whether they consider what that sentence would have been for that charge in that year - or do they look at what that charge would get in our current year? I ask this after considering that perhaps over time various crimes are expanded on within the legal system and sentences for such crimes updated too. So perhaps what could have been a sentence of say for example 18 months in 1996 is now longer in 2009?"[/size]

And yes situations like this do come back to kick you in the butt even when you have long forgotten about them. Tough luck perhaps. But I try to maintain a high internal locus of control.

Regards

 

[ImmOfficer]

What he was sentenced to is irrelevant. He could have got 10 years in Canada. That is all that matters.

http://laws.justice.gc.ca/en/showdoc/cs/I-2.5/bo-ga:l_1-gb:l_4/20090825/en#anchorbo-ga:l_1-gb:l_4

Serious criminality

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;

(b) having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; or

(c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years.

 

[StressedT]

Hi ImmOfficer - thank you for the link I will be going through it.

If anyone else has additional info or comments these are welcome. Our clock is at 851 days and counting.

 

[StressedT]

I am very happy to report that finally we have received the request for the passport to be sent in as "the file has been approved and is now ready for visa issuance". This after almost 900 days and literally 60lbs of paperwork!!

A huge big thank you to all who contributed to my various postings and also to those who offered prayers for us. It has been a long tedious journey but the light at the end of the tunnel can be seen. My hopes and prayers remain with those still on this journey - never give up - you will get there.

I will post again as soon we get the passport back and landing has happened.

 

[tgchi13]

Congratulations! I for one am genuinely surprised but that does not make my sentiment any less sincere

 

[Swede]

Congrats! 900 days is quite the wait...

 

[Rami Farah]

Congratulations , after 900 days!!

All the best wishes in Canada