Criminality Question

[Great Sage]

Hello all, new here but I've found some useful tips before I registered by searching in google, which led me to this forum.

Anyway, my common-law partner is spnsoring me, she being Canadian and myself being British but based in Korea.

So, today I finally got all of my documents in order and sent to Laurie (my girlfriend) so that she can combine with her sponsorship application etc. Now, after posting I spotted something in the guide that I had missed regarding the criminality stuff.

Story thus: In 1998 as a young man I was arrested for drunk and disorderly and spent a night in a cell. I was convicted and paid £80 + costs. This is all on my police certificate.

Filling in the background declaration I answered yes to both "have you ever been convicted of an offense" and "been detained or spent time in jail". Following this, I explained in the box provided that I had been convicted of drunk and disorderly in 1998 but that I hoped they would understand that this was long ago and was a foolish and regrettable incident of my youth. Now being a mature, responsible adult/family man.

So everything is posted off when I spot the bit in the guide that says that if you have been convicted you should explain in detail what happened and provide a court record. It would be easy enough for me to type up a more detailed account of that fateful 1998 night and Email to Laurie but getting a court record for such a relatively minor offense back in the UK would probably not be easy and would take time.

Any advice? Does my explanation on the form seem adequate? Is such a 12 year old offense likely to cause any issues with my application?

Thanks
John

 

[Great Sage]

Something wrong with the forum, won't let me see what I am typing when I get so far down.

Anyway, our application is not really a normal case. Laurie went to Canada from Korea to visit family in the summer whilst pregant and ended up going into emergency labour which resulted in our son being born at 25-26 weeks at the end of July. i.e very early indeed. She has consequently had to stay in Canada with our son and I am only able to visit from Korea as my job and finance allows. Connor (our son) should be released from hospital any time now.

We have explained our situation in a cover letter. Does anyone know whether they are likely to take this into account when processing our application? Hopefully to the end that it would be processed more quickly.

 

[eyeoftheocean]

I can help you with this one as I have a similar charge from 1998 as drunk and disorderly also resisting arrest in 2005. When I applied inland , I was honset on my application about both incidents , I wasnt sent to prison , I too recieved a fine.
Now what happens is, you apply for a pardon if your applying inland , which costs from $200-1000 depending on the severity of the crime, D&D is $200.

Just explain on your application form what happened on a seperate peice of paper , and further down the line you will be informed to apply for a pardon...However, your charge is from 1998 and 5 years has passed since you committed the offence so as it happens you are rehabilitated so doubt you will need to ask for a pardon .

The Police certificate was quite sufficient when I sent my application , I was never asked for a court record.

Hope this helps

http://www.cic.gc.ca/english/information/security/police-cert/intro.asp

http://www.cic.gc.ca/english//information/applications/guides/5312E4.asp#tphp idtphp

 

[Great Sage]

Thanks for the help. Are you saying that in the event that a pardon is required, you are informed by the authority? This isn't something I would have to foresee and arrange myself?

 

[Great Sage]

Anybody know how the "deemed rehabilition" rule works?

Is this decided by the officer dealing with your application and if the application goes through and a visa is given, does one not have to worry about what happens at the port of entry?

Deemed rehabilitation
You may be deemed rehabilitated if you meet the requirements of the Immigration and Refugee Protection Act. Depending on the nature of your offence, at least five years and as many as 10 years must have passed since you completed the sentence imposed for your crime. Deemed rehabilitation also depends on whether you have committed one or more offences. In all cases, you may only be deemed rehabilitated if the offence committed would be punishable in Canada by a maximum term of imprisonment of less than 10 years.

You are not required to submit an application to be deemed rehabilitated. However, before arriving at a port of entry, we strongly advise you to contact a Canadian embassy, high commission or consulate outside Canada to see if you qualify.

 

[RobsLuv]

Deemed rehabilitation
You may be deemed rehabilitated if you meet the requirements of the Immigration and Refugee Protection Act. Depending on the nature of your offence, at least five years and as many as 10 years must have passed since you completed the sentence imposed for your crime. Deemed rehabilitation also depends on whether you have committed one or more offences. In all cases, you may only be deemed rehabilitated if the offence committed would be punishable in Canada by a maximum term of imprisonment of less than 10 years.

You are not required to submit an application to be deemed rehabilitated. However, before arriving at a port of entry, we strongly advise you to contact a Canadian embassy, high commission or consulate outside Canada to see if you qualify.

Anybody know how the "deemed rehabilitation" rule works? Is this decided by the officer dealing with your application . . . ?

That's the million dollar question, and the answer doesn't seem to be consistent. In addition, the last paragraph of what you quoted would seem to indicate that this particular blurb is directed more towards temporary residents, not permanent residents, because - if you are issued a permanent resident visa, there would not be issues with qualification to be admitted at a Canadian port of entry.

For issues of criminality for permanent resident applicants, the assessing officer needs the court documents in order to make an assessment that compares your offence to the equivalent offence under Canadian law. It does not matter how the offence was actually dealt with in your home country . . . i.e. that you did no jail time and paid a fine. What matters is how the offence would have been punished had it happened in Canada - and from there they make the determination of whether a five year, or ten year, period is required before you are eligible to be deemed rehabilitated. The other piece of this is that the five (or ten) year period starts from the date that you actually completed all restitution for your offence including all fines paid, probation served, etc.

Now, the big question: will the assessing officer make the "deemed rehabilitated" determination, or do you have to apply for rehabilitated status before submitting the PR application? It's difficult to know for sure. It seems that some assessing officers just do not want to deal with these types of situations and they refuse the applications - preferring to let an appeal panel decide whether to agree on humanitarian and compassionate grounds. I remember the story of someone with a 30 yr old offence who was refused PR . . . but stories on forums like these, when people don't always disclose the details of their particular offence, aren't really that dependable for the sake of saying one way or the other. Unfortunately, that means nobody here should be telling you that things will be fine anymore than we can say that, for sure, your application will be refused.

In my opinion, the best thing you can do is give the processing office all of the info they require. You will have to get the court transcripts, the arrest record, and everything else you can get your hands on that tells exactly what happened and how it was dealt with. You only do yourself a favour in this because, if you don't provide details, they make assumptions. For example, my son was arrested for unauthorized possession of prescription pain medication. Turns out there are drug classifications in assessing these types of offences, and because we didn't think to disclose what exactly he had in his possession, they took worst case scenario and made their assessment based on him having been arrested for possession of hallucinagenics. It was a completely different drug classification, with different penalties. In the end it didn't really matter because he wasn't eligible for rehabilitated status because it hadn't been long enough - and he wasn't asking to immigrate anyway. However, under different circumstances it could have been a real issue. (Not that me being refused PR because of it wasn't a big issue!) The point: don't let them guess at this - it's in your best interest to give them as much information as possible . . . and I'm not talking about your "take" on the situation. They're going to expect you to minimize what happened, so there's no real credibility there. You need official documentation of your offence: what the charges were, how the case was dealt with, and when you completed all the terms of restitution. They will ask for it - so you might as well start tracking it down now.

 

[Great Sage]

You need official documentation of your offence: what the charges were, how the case was dealt with, and when you completed all the terms of restitution. They will ask for it - so you might as well start tracking it down now.

This is on the Police Certificate but I suppose I might as well give the magistrates court a call and see if I can get the details. Just so happens that the arresting police officers at the time lied on their statement as well, but that is by the by.

Edit: Well, the court doesn't have the record anymore so the police record will hopefully be enough.

 

[eyeoftheocean]

For Rehabilitation , I had to write a letter for a pardon to the local office inland , so what happens is the Minister of the local office makes a decision as the IO does not have the authority . as long as 5 years or more has passed since the crime committed you will not need rehabilitation , you may need a pardon .


PS, The IO at local office asked me to do a letter for the pardon after I received AIP .I had to do reb as my latest conviction was in 2005 , so had to wait out the rest of the year until 5 years had passed to be deemed Rehabilitated.

 

[Kess]

My husband had a DUI in the US (California) in 1998. We mentioned it on the application and it doesn't appear on the FBI background check but we didn't know to send in the court documents and the state police certificate. We've since sent those in after they were requested (the charge doesn't show up on the state police certificate) and are now waiting for a decision. I am so petrified that they will not approve his application even though it's been more than 10 years and he should be "deemed rehabilitated".

I think if you have a charge on your record within 5 to 10 years ago, you have to apply for rehabilitation before submitting the PR application. After 10 years ago I couldn't find anywhere that said you needed to apply for rehabilitation.

 

[heatherusa]

Are you going to have trouble with a common law application as you are not living together presently? Can anyone more knowledgeable in this weigh in?

 

[Great Sage]

As long as you have lived together for sufficient amount of time (i.e. 12 months or more), it apparently does not matter if you are subsequently living apart for a while.

 

[kelKel]

You can live apart for a period of time as long as you have lived together for the one year when the application is submitted as long as you will be reunited as when you can.

You can sponsor a person as your common-law partner if

that person is of the opposite or same sex,
you and that other person have cohabited in a conjugal relationship for a period of at least one year, and
your relationship with that person is continuing, even though you are temporarily living apart.