Non-convicted Misdemeanor?

[Belinasha]

We are now waiting for stage 2 approval for sponsoring my husband from the U.S. I am worried about his criminal record and how it might effect our application. He got caught spraypainting in his hometown in 2008. He was never put in jail and his FBI check shows it was a 3rd degree misdemeanor - non convicted. He paid for the damage and got a year's probation and hasn't done anything stupid since. He was 21 at the time and was just being young and dumb. When filling out his background declaration, we checked NO for everything since he was never put in jail or convicted. His state criminal record is clean as the charges were dismissed. I've read some about inadmissibility due to criminality and almost everything refers to only convictions. Does anybody have any thoughts on this issue?

 

[rjessome]

We are now waiting for stage 2 approval for sponsoring my husband from the U.S. I am worried about his criminal record and how it might effect our application. He got caught spraypainting in his hometown in 2008. He was never put in jail and his FBI check shows it was a 3rd degree misdemeanor - non convicted. He paid for the damage and got a year's probation and hasn't done anything stupid since. He was 21 at the time and was just being young and dumb. When filling out his background declaration, we checked NO for everything since he was never put in jail or convicted. His state criminal record is clean as the charges were dismissed. I've read some about inadmissibility due to criminality and almost everything refers to only convictions. Does anybody have any thoughts on this issue?

From what you have written, I think your husband may have an issue. Section 36(2)(c) of the Immigration and Refugee Protection Act says:

(2) A foreign national is inadmissible on grounds of criminality for...
(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 indictable offence under an Act of Parliament;

The offence you describe that your husband committed looks like it would fall under the category of Mischief in the Criminal Code of Canada, specifically Section 430(4) which says:

(4) Every one who commits mischief in relation to property, other than property described in subsection (3),

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or


(b) is guilty of an offence punishable on summary conviction.


Because it can be prosecuted two ways (indictable or summary) it is considered a "hybrid" offence. For the purposes of Immigration, all hybrid offences are treated as indictable.

So even though there was no conviction per the definition of the US court system (which does not matter for Canadian immigration purposes), there was some sort of punishment as he had a sentence of a fine and a probation for a year. So for Canadian purposes it is likely still classed as a "conviction" which really doesn't make a difference because either committing or being convicted still makes a person inadmissible.

All hope is not lost however. You should look at getting some legal advice and make as submission for a Temporary Resident Permit assuming the bona fides of your relationship are accepted and he is deemed a member of the family class. This will not give him PR but will allow him to join you in Canada and be able to work until he is eligible to apply for Rehabilitation and be sponsored for PR.

 

[Belinasha]

My husband has been with me in Canada since before we got married. We already got a 1 year visitor's visa for him in Canada. When we crossed over, we had his State police clearance which shows nothing on his criminal record because his case was expunged in his State. As far as the border was concerned, he didn't have a criminal record. We drove across the border.

 

[canadiangirl78]

My husband has been with me in Canada since before we got married. We already got a 1 year visitor's visa for him in Canada. When we crossed over, we had his State police clearance which shows nothing on his criminal record because his case was expunged in his State. As far as the border was concerned, he didn't have a criminal record. We drove across the border.

I am not sure how the FBI record will affect things. I suspect he will get his PR but you'll be stuck in security clearance for awhile. Hopefully not - you'll just have to wait and see.

 

[Belinasha]

Thanks for posting on here guys, I feel a bit better about this. I found some information about non-convictions not being treated as convictions for the purpose of Canadian Immigration, but yes, we'll have to wait and see....

 

[Patriots1700]

I'll like to add that the committing an act provision doesn't always apply to non-convictions , it will depend on the person situation and every case is different . This is what the ENF 2 manual says about it:

3.9. When not to use the committing an act provisions
The committing an act inadmissibility provisions would generally not be applied in the
following scenarios:
 in most cases, when authorities in the foreign jurisdiction indicate they would not lay
a charge or make known to an officer their decision or intent to drop the charges;

 the trial is concluded and no conviction results (for example, acquittal, discharge,
deferral);

 the person admits to committing the act but has been pardoned or the record is
expunged;

 the act was committed in Canada.

 

[Belinasha]

I found that information as well when researching. His record has been expunged in Iowa and according to them (Iowa court), there is no record now of the charge and that's why his State record is clean. I think it will be a problem if CIC requests copies of his court records since they don't exist anymore.