IMM1344 APPLICATION TO SPONSOR QUESTION 18

[elmatador]

Hello all,

I am having difficulty answering the following question:

Question 16:
"Have you been charged with an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years"

The guide provides the following information:

If any of the proceedings listed below apply to you and you submit a sponsorship application to the Case Processing Centre in Mississauga (CPC-M), your application will not be processed until a final decision on that proceeding is made.
•You have been charged with an offence that is punishable by a maximum term of imprisonment of at least 10 years.


My understanding of this question is that it means "currently" have you been charged. It could easily ask "Have you ever been charged..." but it doesn't. It reads "Have you been charged..."

So I assume this question applies to anyone who has recently been charged or has an active charge with this kind of offence and it's still pending. And this would be relevant since depending on the outcome of the case, it may affect your ability to sponsor your wife if you're behind bars.

I was charged 10 years ago...basically wrong place wrong time...but all charges were dismissed shortly after therefore I was never convicted.

Please let me know your thoughts on how you understand this question.

I am been completely stressed about this

 

[Ponga]

Well I'm not a senior member here (quite junior actually), but I think the question pertains to anytime, not just `currently'.
The reason for my inclination is the fact that a person who has previously been charged would not be admissible, just as someone who has currently been charged, (albeit after a decision is made on their conviction).

The fact that the guide says "Have you been charged..." leaves that door wide-open, IMHO.

One thing's for sure; CIC could re-write a few of the guides!

You could always call CIC, and hope that the answer you get is correct, if you're at all lucky in playing telephone roulette, or...just spin around in circles until you pass out from vertigo. Both yield the same `results'. :-\

 

[elmatador]

Hi Ponga,

I think you are misunderstanding. If a person is charged and the charges are dismissed it means that person is innocent. As I explained earlier, charged and convicted are two different things. The guide does NOT say that you cannot sponsor if you have been charged. It says the following:

You may not be eligible to be a sponsor if you:
-were convicted of
an offence of a sexual nature,
a violent crime,
an offence against a relative that resulted in bodily harm or
an attempt or threat to commit any such offences, depending on the detailss of the case, such as the type of offence, how long ago it occurred and whether a record suspension was issued

It clears states Convicted and not Charged. A person that has been charged and the charges have been dismissed is innocent.

Is there some other place that says that if you are charged you cannot sponsor your family? If so, please tell me where I can find this on the CIC website. Many people confuse the words Charged vs Convicted.

If you look at the guide, it clearly implies pending charges...that's why it says that your application processing will be suspended until a final decision on that proceeding has been made. The decision to my charges was made 10 years ago when it was dismissed.

Sorry, I am just trying to understand this question properly. I just don't want to open up a can of worms by saying "yes"

 

[truesmile]

To the OP . . . Charged and subsequently all charges dismissed ? ? You're understanding is correct. No need to put something down resulting from an over-ambitious and over-keen young police officer (who also makes mistakes). Not to mention the "innocent until proven guilty" aspect of life in Canada. Turns out, you're "innocent".

 

[wowsers]

Two relevant points (1) You do not say what country you were 'charged' in. The procedure in criminal prosecutions varies from country to country and I claim no experience of the procedure either in Canada or in India, where as I understand your previous posts you have connections. I can only tell you about the procedure in England and Wales, where there is a distinction between (i) being arrested (ii) being charged with the offence and (iii) having the charges disposed of either by their not being pursued or being disposed of by a court. Are you sure that your case falls within (ii), which in England and Wales involves a formal procedure when the charges are put to the accused and he/she is asked whether he/she wishes to say anything. If you were simply arrested and then later released you would never have been charged at all and the answer to the question would then be no. You had better check with a lawyer whether what happened to you, in whatever jurisdiction it happened, is correctly described as being charged. (2) I think your interpretation and that of Truesmile is correct. What concerns CIC is that there should be no charges in existence which either resulted in a conviction or might one day result in a conviction. Charges which have been dismissed or not pursued are not of concern. So if you were charged and the charges were not pursued or were dismissed the answer to the question is also no.

 

[truesmile]

The reason for my inclination is the fact that a person who has previously been charged would not be admissible . . .

Just to be clear, this is an "application to sponsor". The OP is here already, either as a Canadian Citizen or as a PR, so it's not a question of being admissible to Canada, it's a question of being eligible to sponsor. Let's assume all this happened in Canada (I know it's possible it didn't), then it's all there for "them" to find it if they care to, and if it happened outside Canada . . . well I am not so sure they're launching CSIS investigations to prove someone's ineligibility to sponsor.

 

[wowsers]

The OP is here already
That may be correct, but where does that info appear? I must have missed it.

 

[elmatador]

Hello wowsers and truesmile. Thank you for taking the time to respond. Sorry I should have been clear on my post. I am a Canadian Citizen and the charges were in Canada as well. I am filling out the application to sponsor my wife.

I went to the local police station today and they looked me up in the system and said all the charges are listed as Withdrawn which basically means that I am proven innocent. This happened in 2003. Therefore a final decision had been made to my case.

Wowsers, yes I agree with your statement, that the CIC is concerned that "there should be no charges in existence which either resulted in a conviction or might one day result in a conviction. Charges which have been dismissed or not pursued are not of concern. So if you were charged and the charges were not pursued or were dismissed the answer to the question is also no."

I just don't see why CIC would be concerned with a charge that was withdrawn/dismissed? Like you said my inclination is that this is pertaining to any charges to which a final decision has not been made.

Any other thoughts?

 

[Ponga]

Well...why not just tell them the truth. You were charged but never convicted.

If you have proof that, as you said, the charges were withdrawn, this could earn you brownie points with CIC for being `too' honest. I don't see how it could harm you at all. If, on the other hand you are incorrect in your assumption that their language speaks to a `current' charge that is pending, it could possibly be a problem.

If you state that you have not been charged, when in fact you have (albeit that the charge(s) were later withdrawn) that doesn't change the fact that you WERE, at one time charged, right?!?! It seems like this could be deemed a misrepresentation if you have a VO that's overly aggressive and/or `employee of the month'. LOL!

I know all too well about the `how much is too much' info, but...this is merely my $0.02 worth.

 

[Ponga]

The question asks if you were charged:
Question 16:
"Have you been charged...

The guide shows:
You may not be eligible to be a sponsor if you:
-were convicted of...

Clearly the left hand isn't talking with the right hand and either the form or the guide should be revised.


Sorry, but the more I ponder on your dilemma, the more I have to wonder...

Why not answer yes to the question, after which they will want an explanation, right?
Attach a sheet of paper that says EXACTLY what happened, that the charge was removed AND because you found the question to be rather unclear,
you opted to make this full disclosure.
How could this possibly hurt your application?? I know you would not intentionally lie to CIC, but if you're wrong about this...you would be lying and
they probably wouldn't be very sympathetic as they stamp denied across your application.

 

[elmatador]

Ponga,

Yes, I see your point. I never thought that something like this would come to haunt me in the future given that these charges were withdrawn. I definitely want to add an explanation because this would come up during their checks anyway. Any misinterpretation on my end would result in serious consequences and I don't want that to happen. I am really worried now .

I will consult with a lawyer on this. I will probably just get them to submit it on my behalf. I wish they provided a better explanation

 

[Ponga]

Well, although I am not a lawyer, I personally don't think that you have anything to worry about. You're being totally honest about the situation which, since the charges were withdrawn, should have absolutely no impact whatsoever on your application.

Speaking with a lawyer is certainly a logical next step, but hopefully you can save yourself the added expense by submitting this on your own.

Now, take a deep breath and start stressing about what's really a problem...only having 11 shopping days before Christmas! AAARRRRGGGHHH!!!!

 

[elmatador]

I know I am beating this thing to death. I gathered some more information per IP 2 Processing Applications to Sponsor Members of the Family Class

It states the following:
5.36. Suspension of processing
Processing of a sponsorship application may be suspended if a sponsor or co-signer
becomes subject to:
• citizenship revocation proceedings;
• an inadmissibility report under A44(1);
• serious criminal charges (i.e. involving an offence punishable by a maximum
term of imprisonment of at least 10 years);
• suspension under A63(4) - appeal to IAD on permanent residency obligations is
outstanding.
Immigration officers will assess sponsorship requirements only when the matter has been dealt with conclusively and will use the LICO in effect on that date

Again, it's the same thing.... if one has serious pending criminal charges before or after the application has been made.

 

[truesmile]

I know I am beating this thing to death.

Yup! And "withdrawn" ! ! . . . ? ? Even better. Means that young ambitious police officer REALLY did screw it up. Also means that for all intents and purposes, it never happened. And lest we forget, this is the SPONSOR's app to "sponsor" (this is not haunting you at all), if it were the "applicant" to immigrate I'd agree it's a completely different story.

Betcha half of the lawyer's fee that he DOESN'T put it down ? ?

 

[wowsers]

Elmatador, Many thanks for your email, received this morning. I do not think I have enough knowledge of Canadian criminal procedure or indeed of the procedure of CIC to add to what I have already posted. I still think the correct answer to the question is no but am a little concerned that the police still have a record of what happened in their computer/records. Whatever is on their records can be disclosed to CIC, which suggests to me that you will be no worse off if you disclose the information now, before CIC find it out for themselves. Disclosing it by answering yes with an explanation is of course tempting fate; so in the light of that it must surely be worth making a limited inquiry to the right Canadian lawyer? You do not have to place the conduct of the whole application in his hands; a half hour consultation ought to suffice and should not break the bank! I recollect from reading David Cohen's blog that he offers a short personal consultation (ie one not farmed out to an inexperienced minion) by telephone for a smallish fixed fee: just a suggestion.