bartjones said:
I must say, I'm a little surprised by this since there is nothing in the IRPA or the regulations stating that spent convictions in Britain are the equivalent to pardoned offences under Canadian law.
In any case, you can submit it prior to the 5 year period because you are arguing that the convictions are spent and no longer render you inadmissible. If that argument is correct, the 5 year wait period shouldn't apply. I think you have nothing to lose by applying now.
If CIC determines that your application is premature and you have to wait the 5 years, you can always resubmit the application when the 5 years are up.
You might want to look at this old thread for a similar issue http://www.canadavisa.com/canada-immigration-discussion-board/is-uk-rehabilitation-of-offenders-act-1974-recognized-for-purpose-of-immigration-t80214.0.html
Yes that is definitely some food for thought, i guess i am focusing so much on ways of it working as it has become my life goal
here is the section of the page you linked also backing what is posted above however i did read through the counter arguments which do make some good points
"I am sponsoring my spouse/partner, but he/she has a criminal conviction, how will this affect his/her application?
If a conviction is considered spent under the UK Rehabilitation of Offenders Act, this will probably not affect his/her application. However, if the conviction has not been spent or if the offence was committed in another country, it may mean that your spouse/partner is considered inadmissible. This means that he/she cannot enter Canada. In rare cases, special permission to enter is granted.
So my caution and conviction were both from crimes comitted in the UK. As such they are now deemed spent under the Rehabilitation Of Offenders Act. The most recent being a fine for disorderly conduct and was considered spent September 2004. So from reading the above these should 'probably' not effect my entry into Canada.
I went to seek clarification for this online and then found the following.
This is from ENF 14 /OP 19 Criminal rehabiliation Manual
The effect of a foreign pardon does not necessarily render a person admissible to Canada. The following factors must be taken into account.
"the UK Rehabilitation of Offenders Act automatically pardons eligible individuals without the person having to apply, if the person has been sentenced to a term of imprisonment of less than 30 months"
So if you fall under a prescribed class of person described in section A36(1) A36(2) of the IRPA then you are classed as inadmissible to Canada.
There is however a caviat to this A36(3) again taken from ENF 14 /OP19 Criminal Rehabilitation
"Inadmissibility under A36(1) and A36(2) may not be based on a conviction in respect of which: i) A Pardon has been granted and has not ceased to have effect or been revoked under the criminal records act or ii) there has been a final determination of an acquital"
Things are cloudy here also as it states a pardon under the criminal records act. (Not the UK rehabilitation of offenders act)
I then found a couple of interesting documents
cisr.gc.ca/Eng/brdcom/references/legjur/iadsai/appl/Documents/sponsor_parrain_e.pdf (Chapter 2 Page 8 )
irb-cisr.gc.ca/Eng/brdcom/references/legjur/iadsai/roaren/Documents/RoaAmrChap08_e.pdf (Page 20)
The first reference is taken from Chapter 2 page 8 Sponsorhip Appeals
Foreign convictions
Foreign dispositions in criminal matters may take forms unknown under Canadian law and their effect will have to be determined by the IAD. The use of the word “convicted” in section 36 of IRPA means a conviction that has not been expunged.(21) Foreign convictions can also be expunged.
The reference (21) in the above is Canada (Minister of Employment and Immigration) v. Burgon, [1991] 3 F.C. 44 (C.A.).
What the above represents is that the definition of "convicted" meaning you are a person described under 36(1) 36(2) of the IRPA becomes void as it is only relevant for outstanding convictions. Accepting that a foreign conviction may become spent or expunged. This is the case with the Rehabilitation of Offenders act.
Not content with what I had found so far.
This then takes us to Page 20, Removal order Appeals. Criminal Equivalency.
Effect of a Pardon
The granting of a pardon in another country does not necessarily render the person concerned admissible to Canada. The Federal Court of Appeal considered the effect of a pardon in a foreign jurisdiction in Burgon.57 The Court concluded that in using the word “convicted” in the inadmissibility provisions, Parliament meant a conviction that has not been expunged pursuant to any other legislation it had enacted. The Court further held that when the laws and legal system of the foreign country are substantially similar to those of Canada in purpose, content and result, effect should be given to a foreign pardon unless there is good reason not to do so.
The further question to consider is whether the U.K. legislation, which is similar in purpose, but not identical to the Canadian law, should be treated in the same way. In both countries, certain offenders are granted the advantage of avoiding the stigma of a criminal record so as to facilitate their rehabilitation.There is no good reason for Canadian immigration law to thwart the goal of this British legislation, which is consistent with the Canadian law.
Our two legal systems are based on similar foundations and share similar values. ...
Unless there is some valid basis for deciding otherwise, therefore, the legislation of countries similar to ours, especially when their aims are identical, ought to be accorded respect. While I certainly agree with Justice Bora Laskin that the law of another country cannot be “controlling in relation to an inquiry about criminal convictions to determine whether immigration to Canada should be permitted” (see Minister of Manpower and Immigration v. Brooks,
[1974] S.C.R. 850, at page 863), we should recognize the laws of other countries which are based on similar foundations to ours, unless there is a solid rationale for departing therefrom. ...
The burgon case is quoted below including Barnett V Canada with specific reference to the Rehabilitation Of Offenders Act 1974. The paragraph I have highlighted in Bold I believe sums it all up quite nicely.
M.E.I. v. Burgon, David Ross (F.C.A., no. A-17-90), MacGuigan, Linden, Mahoney (concurring in the result), February 22, 1991. Reported: Canada (Minister of Employment and Immigration) v. Burgon, [1991] 3 F.C. 44 (C.A.). The Court had to consider the application to the definition of “convicted” in the former Immigration Act of the United Kingdom Powers of Criminal Courts Act, 1973, which legislation provided that a person who was convicted of an offence (like Burgon's offence) and received a probation order was deemed not to be convicted of the offence. In the Court's view, Burgon was not considered convicted under United Kingdom law; therefore, because the United Kingdom and Canadian legal systems were so similar, there was no conviction for purposes of the Immigration Act. See also Barnett, John v. M.C.I. (F.C.T.D., no. IMM-4280-94), Jerome, March 22, 1996. Reported: Barnett v. Canada (Minister of Citizenship and Immigration) (1996),
33 Imm. L.R. (2d) 1 (F.C.T.D.). The Court considered another piece of legislation, the United Kingdom Rehabilitation of Offenders Act, 1974, which provided that, where a person was convicted and sentenced for certain offences and was then rehabilitated, the conviction was expunged. The Court applied the rationale in Burgon and found that, although there were differences in the two pieces of legislation, the effect was the same: under both statutes, the person could not be said to have been convicted. Therefore, Barnett was not considered to have been convicted in the United Kingdom and he was not convicted for purposes of the Immigration Act.
Futhermore I have a letter on my compter from a CIC officer dated 2010 which states the following. It is not a letter to me.
After careful review of you appliction, it has been dtermined that you are no longer a person described under sub-section A36(1)(b) or A36(2)(b) of the Immigration and Refugee Protection Act (IRPA) of Canada for criminality abroad.
Previous jurisprudence - namely the Burgon Federal Court of Appeal case - instructed immigration officials to generally assess th UK convictions under the UK Rehabilitation of Offenders Act (1974) instead of the provisions of the IRPA. As such it has been determined that you are no longer inadmissible to Canada since 2005 (5 years after the sentence imposed in your particular case) for the convictions comitted in you native England. As such, the application has been refused as you are not a person eligible or in need of Criminal Rehabilitation and/or of a Temporary Resident Permit (TRP) at this time. "
Just to finalize then you would recommend submitting my full application for rehabilitation with all character references, reasons why i will not reoffend, how ive given back to the community, what lead up to the incidences and my explanation behind them, for information purposes only, there is no need to send any payment at all and this will not affect a future attempt in a negative way?
