Spousal sponsorship

[qtazngal]

I would advise you to speak with an immigration lawyer, because his case may not fall under the usual criminal inadmissibility rules.

Normally, when a person has a conviction on their record, it makes them inadmissible to Canada unless a minimum of five years has passed since the date of the conviction, or they've applied for rehabilitation. However, both of those conditions apply only to cases where the same crime would've resulted in a prison sentence of under 10 years if the crime had been committed in Canada. So the question is, would he have received a jail sentence of any kind had the offense taken place in Canada. In all likelihood, the answer is no.

In your husband's case, he didn't receive a sentence in his home country, but he did get a fine and (from what you said) he's been convicted, which means it will be on his police record which he will have to submit to CIC as part of his application.

All of this is addressed in the Sponsorship Guide for the applicant, and Table 1 deals with the time frames and conditions, but I would urge you to contact an immigration lawyer and pay for one hour of their time just to give you a qualified answer. The lawyer would need to consult the Criminal Code to look up your husband's exact offense and to see if it would require any jail time in Canada.

Hi Tuyen

Thanks. I might have to speak to a lawyer just to clarify. Actually this happened 2 years ago. We have declared it to CIC and it is in his England police record which we sent along with the application forms. To be honest just like I said to CJG that I thought this conviction does not fall under the unadmissible rules as his conviction was not including jail term or suspended sentence, basically just like a slap on the wrist. But just to be on the clarification side, will speak to a lawyer.

Thanks

 

[tamarindball]

My advice to you is to do your own research as even with advice from several immigration lawyers you can be guided on the wrong path. Some of them have years of experience and are very senior but still they are not that versed and I am speaking from experience here! Still do what you feel is important as the choice is yours to contact a well recommended lawyer. Some of the lawyers only want money and while you get 30 mins free consultation, sometimes they don't go into lots of detailed advice so as to get you to come back and pay so be prepared to do that if necessary. But as long as you're satisfied with the info received, then you can make your decision accordingly. If I had followed the advice of two different immigration lawyers I wouldnt' even have applied, at least not right now given their advice until certain matters were more clarified and sorted out. However, after joining this forum, reading detailed info on CIC's website, calling CIC numerous times and repeating myself and getting the same replies, and also reading documentation sent by CIC, I realised the advice received from the lawyers were so incorrect as the issues we were concerned about were not bars to sponsorship even though the lawyers said they were! I remember a participant of the forum in another thread even said to me that it's either my lawyers were stupid or I wasn't understanding them. I felt it was the former as my husband and friend who were present on the two occasions we met with the two different lawyers also had the same understanding so we felt we could not all be stupid! So this is just to tell you that you have to be properly guided and the advice can be varied and can be correct as well as incorrect. You just never know but it's up to you to decide what to accept and use. One would imagine that if you seek professional advice it would be accurate but like doctors these lawyers are not always on point no matter their years of service and experience.

 

[tuyen]

My advice to you is to do your own research as even with advice from several immigration lawyers you can be guided on the wrong path. Some of them have years of experience and are very senior but still they are not that versed and I am speaking from experience here!

As with any other profession, there are good lawyers and bad lawyers. But this particular case isn't difficult at all, and even a mediocre lawyer could quickly answer it for her. The issue is whether the specific charge laid in England would've resulted in any jail time here in Canada. If yes, then he's inadmissible for five years. If no, then he can proceed with his application to CIC. And to get a definitive answer, the lawyer needs to simply look up the offense in the Criminal Code. An immigration lawyer might not be all that familiar with the Criminal Code, so he may have to consult with an attorney that specializes in criminal law. But in either case, it's a very simple matter that isn't based on hypothetical advice centered around a bunch of unanswered questions, and would cost no more than one hour's consultation to get a definite yes/no answer.

 

[Kev1n]

As with any other profession, there are good lawyers and bad lawyers. But this particular case isn't difficult at all, and even a mediocre lawyer could quickly answer it for her. The issue is whether the specific charge laid in England would've resulted in any jail time here in Canada. If yes, then he's inadmissible for five years. If no, then he can proceed with his application to CIC. And to get a definitive answer, the lawyer needs to simply look up the offense in the Criminal Code. An immigration lawyer might not be all that familiar with the Criminal Code, so he may have to consult with an attorney that specializes in criminal law. But in either case, it's a very simple matter that isn't based on hypothetical advice centered around a bunch of unanswered questions, and would cost no more than one hour's consultation to get a definite yes/no answer.

Well said Tuyen.

 

[CanadianJeepGuy]

Copied from the CC of Canada:

"Fraud

Marginal note:Fraud

380. (1) Every one who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this Act, defrauds the public or any person, whether ascertained or not, of any property, money or valuable security or any service,

(a) is guilty of an indictable offence and liable to a term of imprisonment not exceeding fourteen years, where the subject-matter of the offence is a testamentary instrument or the value of the subject-matter of the offence exceeds five thousand dollars; or

(b) is guilty

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

(ii) of an offence punishable on summary conviction,

where the value of the subject-matter of the offence does not exceed five thousand dollars.

Marginal note:Minimum punishment

(1.1) When a person is prosecuted on indictment and convicted of one or more offences referred to in subsection (1), the court that imposes the sentence shall impose a minimum punishment of imprisonment for a term of two years if the total value of the subject-matter of the offences exceeds one million dollars.

Marginal note:Affecting public market

(2) Every one who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this Act, with intent to defraud, affects the public market price of stocks, shares, merchandise or anything that is offered for sale to the public is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

R.S., 1985, c. C-46, s. 380;
R.S., 1985, c. 27 (1st Supp.), s. 54;
1994, c. 44, s. 25;
1997, c. 18, s. 26;
2004, c. 3, s. 2;
2011, c. 6, s. 2.

Previous Version
Marginal note:Sentencing — aggravating circumstances

380.1 (1) Without limiting the generality of section 718.2, where a court imposes a sentence for an offence referred to in section 380, 382, 382.1 or 400, it shall consider the following as aggravating circumstances:

(a) the magnitude, complexity, duration or degree of planning of the fraud committed was significant;

(b) the offence adversely affected, or had the potential to adversely affect, the stability of the Canadian economy or financial system or any financial market in Canada or investor confidence in such a financial market;

(c) the offence involved a large number of victims;

(c.1) the offence had a significant impact on the victims given their personal circumstances including their age, health and financial situation;

(d) in committing the offence, the offender took advantage of the high regard in which the offender was held in the community;

(e) the offender did not comply with a licensing requirement, or professional standard, that is normally applicable to the activity or conduct that forms the subject-matter of the offence; and

(f) the offender concealed or destroyed records related to the fraud or to the disbursement of the proceeds of the fraud.

Marginal note:Aggravating circumstance — value of the fraud

(1.1) Without limiting the generality of section 718.2, when a court imposes a sentence for an offence referred to in section 382, 382.1 or 400, it shall also consider as an aggravating circumstance the fact that the value of the fraud committed exceeded one million dollars.

Marginal note:Non-mitigating factors

(2) When a court imposes a sentence for an offence referred to in section 380, 382, 382.1 or 400, it shall not consider as mitigating circumstances the offender’s employment, employment skills or status or reputation in the community if those circumstances were relevant to, contributed to, or were used in the commission of the offence.

Marginal note:Record of proceedings

(3) The court shall cause to be stated in the record the aggravating and mitigating circumstances it took into account when determining the sentence."

Based on what I know I understood his offence to be fraud. Section 381.1 (e) though it is also covered under the Private Security and Investigative Services Act as a breech of Code of Conduct. See this link: http://www.e-laws.gov.on.ca/html/regs/english/elaws_regs_070363_e.htm

 

[qtazngal]

Oh heck! Looks like our application will be denied based on the info CJG posted.

Thanks anyways guys. If our application is denied then, will just have to try again or abandone it altogether. Just getting fed up of waiting and the amount of money required. I am still a Canadian Citizen anyway and my children so we can just visit whenever we want to.

Good luck to the rest of you. If I hear anything from them, I will certainly let you know.

 

[computergeek]

Oh heck! Looks like our application will be denied based on the info CJG posted.

No, there's just an additional step in the process. Your spouse would need a "Temporary Resident Permit" as that's the only way to overcome this type of criminal inadmissibility. Given the circumstances you've described, I'd say you at least have a shot.

In addition, while CJG has attempted to translate this into a comparable Canadian charge, there's a high degree of subjectivity here and in the end what will matter is how the visa officer views it.

Thanks anyways guys. If our application is denied then, will just have to try again or abandone it altogether. Just getting fed up of waiting and the amount of money required. I am still a Canadian Citizen anyway and my children so we can just visit whenever we want to.

Good luck to the rest of you. If I hear anything from them, I will certainly let you know.

Don't give up hope yet!

 

[qtazngal]

No, there's just an additional step in the process. Your spouse would need a "Temporary Resident Permit" as that's the only way to overcome this type of criminal inadmissibility. Given the circumstances you've described, I'd say you at least have a shot.

In addition, while CJG has attempted to translate this into a comparable Canadian charge, there's a high degree of subjectivity here and in the end what will matter is how the visa officer views it.


Don't give up hope yet!

Thank you very much CG.
Would this mean that I need to submit a temporary resident permit now or wait for the VO's reply? Please I need guidance I have no clue what to do, my head is absolutely empty, cant think clearly.

I just pulled out a copy of my husband's police certificate and it says: he used an unlicence security operative, the court was a magistrate court, date of sentence Aug 28, 2009 and the disposal is Sentence Postpone but he needed to pay a fine.

Thats all i've got, oh ya, checked the application status on line it says that the second application is in process since Dec 17 last year.

 

[computergeek]

Thank you very much CG.
Would this mean that I need to submit a temporary resident permit now or wait for the VO's reply? Please I need guidance I have no clue what to do, my head is absolutely empty, cant think clearly.

I just pulled out a copy of my husband's police certificate and it says: he used an unlicence security operative, the court was a magistrate court, date of sentence Aug 28, 2009 and the disposal is Sentence Postpone but he needed to pay a fine.

Thats all i've got, oh ya, checked the application status on line it says that the second application is in process since Dec 17 last year.

Well, any case that involves potential criminal inadmissibility benefits from the perspective of an experienced immigration attorney as such cases are never simple. But if you're already at 13 months for London office, it sounds like they may be struggling with this issue as much as we are in this forum.

Have you requested the GCMS notes? If not, I'd strongly suggest doing so, as that will tell you quite a bit more about the current status of the application.

Normally, the rules of procedural fairness would require that the VO contact you with their concerns - they generally don't send a rejection without giving you an opportunity to address their concerns. One way of addressing their concerns would be to request a TRP. Note that usually TRP applications are included along with the application, so if you can obtain a legal opinion that he's criminally inadmissible due to this charge, I would suggest putting together a TRP application. Check and see if London has a TRP application form (probably not), in which case you will just have to write a letter requesting that they consider your request for a TRP if they deem he is criminal inadmissible. I'd also try to point out any arguments you have that the applicant is not criminally inadmissible.

If you wish to go down this route, you need to get a copy of OP 20 "Temporary Resident Permits" from the CIC website and read through it. There is a $200 fee for processing a TRP application and you will need to provide them with detailed information about the criminal charges as well as their equivalent under Canadian law. CJG has picked one interpretation, but I suspect if you search you can find others - and picking the most innocuous of them would be your best bet. You can argue mitigating circumstances, the fact it was a one-time offence, did not involve jail time, etc. You might also wish to point out it is not an indictable offence under the law of the country where it occurred as that would suggest matching this infraction up against the indictable offence of fraud is inappropriate.

If a TRP is necessary: this is a highly discretionary area, so you need to be fairly persuasive: the applicant regrets the past actions and is unlikely to reoffend.

Good luck!

 

[tuyen]

Oh heck! Looks like our application will be denied based on the info CJG posted.

I wouldn't jump to that conclusion at all, and certainly wouldn't throw in the towel without at least talking to an attorney specializing in criminal law.

The issue with CIC is a very simple one: would the exact same crime, if committed in Canada, result in a jail sentence? The reality is, there are FAR more serious crimes being committed in this country, and the morons who commit them are walking away with zero jail time, when they SHOULD be rotting in prison for at least 2-5 years. So for a far lesser crime which resulted in nothing but a fine in England - I would be REALLY shocked if it resulted in any jail time here.

The thing about the Criminal Code is that only specifies what's considered a crime, but for actual sentencing, that's always left up to the judge because there's no mandatory sentencing requirements in Canada with VERY few exceptions, such as murder and gun crimes.

And even when there ARE mandatory sentences on the books, you can have a bleeding-heart judge who completely ignores the law and declares it to be "too tough". This is exactly what happened a few months ago when this scumbag tried to sell a gun to an undercover police officer. This was AFTER the same scumbag had already sold crack cocaine on MULTIPLE occasions to that same officer. But none of that mattered to the "honorable" judge Paul Bellefontaine who - in his infinite wisdom - declared that a three-year mandatory jail time would be too unfair and disproportionate to the crime committed.

Canadian "justice" is a joke, even on the best of days, so I'm willing to bet just about anything that your husband will not have any problems.

And if you do speak with a criminal lawyer and he tells you that the same crime in Canada would not result in any jail time, get him to put it into writing, and then submit that to CIC as additional proof. That way, the case officer working on your husband's file would have no guesswork because he would have a signed document from a lawyer specializing in criminal law right in front of him telling him that this particular crime was minor and is not something that would warrant jail time in Canada. That should be more than enough to satisfy CIC.

 

[computergeek]

I wouldn't jump to that conclusion at all, and certainly wouldn't throw in the towel without at least talking to an attorney specializing in criminal law.

The issue with CIC is a very simple one: would the exact same crime, if committed in Canada, result in a jail sentence? The reality is, there are FAR more serious crimes being committed in this country, and the morons who commit them are walking away with zero jail time, when they SHOULD be rotting in prison for at least 2-5 years. So for a far lesser crime which resulted in nothing but a fine in England - I would be REALLY shocked if it resulted in any jail time here.

The issue is what it COULD have been given as a sentence in Canada and if it is an indictable offence. I'm not convinced the fraud statute applies here, but that's a complex technical analysis with some degree of subjectivity.

The thing about the Criminal Code is that only specifies what's considered a crime, but for actual sentencing, that's always left up to the judge because there's no mandatory sentencing requirements in Canada with VERY few exceptions, such as murder and gun crimes.

And even when there ARE mandatory sentences on the books, you can have a bleeding-heart judge who completely ignores the law and declares it to be "too tough". This is exactly what happened a few months ago when this scumbag tried to sell a gun to an undercover police officer. This was AFTER the same scumbag had already sold crack cocaine on MULTIPLE occasions to that same officer. But none of that mattered to the "honorable" judge Paul Bellefontaine who - in his infinite wisdom - declared that a three-year mandatory jail time would be too unfair and disproportionate to the crime committed.

Canadian "justice" is a joke, even on the best of days, so I'm willing to bet just about anything that your husband will not have any problems.

And if you do speak with a criminal lawyer and he tells you that the same crime in Canada would not result in any jail time, get him to put it into writing, and then submit that to CIC as additional proof. That way, the case officer working on your husband's file would have no guesswork because he would have a signed document from a lawyer specializing in criminal law right in front of him telling him that this particular crime was minor and is not something that would warrant jail time in Canada. That should be more than enough to satisfy CIC.

This is really off-topic, but I would note that the US uses mandatory minimums and "get tough on crime" and it doesn't seem to help. While I understand that some people view prison as a retributive punishment scheme, that's actually not beneficial for society - it's costly, it tends to take people guilty of non-violent crimes and teach them how to be better violent criminals. I'd prefer if the goal were to decrease crime and the policies were chosen with an emphasis on doing exactly that. I recall reading this interesting article about Norway's system last year.

If the only goal is retribution, then capital punishment, mandatory minimum sentences and three strikes laws are all the way to go - but beware the cost involved for the public purse. The current government has been mulling over the greater use of private prisons and such firms are looking forward to the Canadian market, given the problems they're having in the US (http://www.guardian.co.uk/world/2012/jun/19/private-prison-companies-canada-lawsuits).

There are going to be abuses in the system regardless of what you do. The question should be "how do we minimize same" and "how do we keep the cost of prisons, both in terms of the human cost as well as the economic cost, at a minimum while improving public safety?"

 

[CanadianJeepGuy]

Oh heck! Looks like our application will be denied based on the info CJG posted.

Thanks anyways guys. If our application is denied then, will just have to try again or abandone it altogether. Just getting fed up of waiting and the amount of money required. I am still a Canadian Citizen anyway and my children so we can just visit whenever we want to.

Good luck to the rest of you. If I hear anything from them, I will certainly let you know.

Sorry I did not explain those things that I posted. I just posted it to make it easier for you to find.

There are 2 references of law. The criminal code and the provincial law concerning the actual code of conduct for that profession. The Criminal Code was referenced to show that the court may consider aggravating circumstances ( like the judge did in the UK) in your husband's case. The provincial link was to confirm that it is also considered a violation of the code of conduct.
This by no means automatically discludes your husband from immigrating to Canada.

Sorry if I mislead you.

 

[IvanP]

I'm not convinced the fraud statute applies here, but that's a complex technical analysis with some degree of subjectivity.

I'm not a Canadian lawyer (I am a lawyer, just not barred anywhere in Canada), and it doesn't sound like a fraud conviction to me (based upon the information I've seen in this thread). It also doesn't sound like more than a misdemeanor.

When thinking about how this might be prosecuted in Canada, one question you would ask is: does Canada require a license to work as a bouncer?

 

[Kev1n]

I'm not a Canadian lawyer (I am a lawyer, just not barred anywhere in Canada), and it doesn't sound like a fraud conviction to me (based upon the information I've seen in this thread). It also doesn't sound like more than a misdemeanor.

When thinking about how this might be prosecuted in Canada, one question you would ask is: does Canada require a license to work as a bouncer?

I did a search and found this..A security license in Ontario allows you to work as a private investigator, security guard, loss prevention officer, bodyguard or bouncer. Previously, a security license was not required to perform these occupations in Ontario. However, this is no longer the case. The Private Security and Investigative Services Act of 2007 now requires that a security license be obtained in order to work in any of these roles. In fact, some of those who worked in these occupations might now be required to obtain this license to continue working in their respective occupations.

 

[computergeek]

I did a search and found this..A security license in Ontario allows you to work as a private investigator, security guard, loss prevention officer, bodyguard or bouncer. Previously, a security license was not required to perform these occupations in Ontario. However, this is no longer the case. The Private Security and Investigative Services Act of 2007 now requires that a security license be obtained in order to work in any of these roles. In fact, some of those who worked in these occupations might now be required to obtain this license to continue working in their respective occupations.

So then the question becomes "is working without a licence as a bouncer an indictable offence in Canada?" I'd be surprised if it is, but one never knows. That's why I wasn't terribly comfortable with the application of the fraud statute before - it's possible, but it seems like a stretch.