Traffic Offence/Violation and Criminal Inadmissibility Question

[isaacr]

My common-law spouse had a car accident where she drove through the stop light and hit a pedestrian. The incident occurred in early 2009, and occurred outside of Canada. The pedestrian was slightly injured. She was found guilty in court, and had to pay a fine, but that was all. This is reflected on the police certificate from her country.

My question is as follows:

Is this considered an offence that would be classified as a traffic/driving offence that falls under the Canadian criminal code as: Dangerous Driving (injury occurs), Section 249(3)?

and,

Would this mean the application would be rejected due to criminal inadmissibility?
Would the offence require criminal rehabilitation before application for PR?

I'm also curious if anyone has had a similar experience, and if your application was approved or rejected, etc..

I've spent quite a bit of time searching other posts here and there are some varying opinions on traffic offences. Most of them talk about speeding/parking tickets being OK, and DUIs being a definite rejection unless they have been deemed rehabilitated.

Any knowledge/experience would be sincerely appreciated!

 

[Pharoh]

This sounds like a misdemeanor to me, but you'd better check with a lawyer. I'd trust a lawyer's answer over anyone here. You could also try calling the CIC Help Centre and see what advice they can give, if any.

 

[isaacr]

I did speak with a CIC call centre agent today, as well as a lawyer; both were of the opinion that the incident would be considered a traffic offence, and not a criminal offence, and it shouldn't have an impact on our application's approval. Both were however careful to state that the immigration officer will make the final decision.

I will be sure to include along with our application evidence that the fine was paid, but the police certificate from my spouse's home country shows the accident.

By misdemeanour, do you mean this would be considered a summary conviction offence? Therefore, not a serious criminal offence?

 

[sheila la]

I did speak with a CIC call centre agent today, as well as a lawyer; both were of the opinion that the incident would be considered a traffic offence, and not a criminal offence, and it shouldn't have an impact on our application's approval. Both were however careful to state that the immigration officer will make the final decision.

I will be sure to include along with our application evidence that the fine was paid, but the police certificate from my spouse's home country shows the accident.

By misdemeanour, do you mean this would be considered a summary conviction offence? Therefore, not a serious criminal offence?

I guess it would depend on how she was charged in her home country. I'm only familiar with the Canadian legal system but in Canada if she was charged under the Highway Traffic Act and not under the Criminal Code, then it shouldn't be showing up on a criminal record check. You might want to check with the courts from her area to see how the charge was proceeded with.

 

[isaacr]

She wasn't charged criminally... I will try to gather more information about this and talk to the CIC again.

 

[DEEVAL]

I'M A TEMPORARY WORKER HERE IN CANADA UNDER THE LIVE-IN CAREGIVER PROGRAM AND JUST RECENTLY, GOT A VIOLATION TICKET FOR FAILING TO PROVIDE PROOF OF INSURANCE. ON THAT DAY, I HAVE WITH ME A COPY OF THE TEMPORARY LIABILITY INSURANCE CARD THAT I PRESENTED TO THE POLICE OFFICER BUT IT WAS 5-DAYS EXPIRED AND I DON'T HAVE THE "PINK CARD" WHICH THE INSURANCE COMPANY FAILED TO SEND ME, BUT I HAVE PRESENTED THE INSURANCE POLICY CONFIRMATION WITH THE EFFECTIVITY AND EXPIRATION DATE WRITTEN ON IT. I WAS REQUESTED EITHER TO PAY A FINE OR TO APPEAR BEFORE A JUSTICE.

MY QUESTION IS, SHOULD I JUST PAY THE FINE? AND, IF I WILL BE CHARGED WITH THIS TRAFFIC OFFENCE, WILL IT AFFECT MY APPLICATION FOR PERMANENT RESIDENCY HERE IN CANADA LATER ON?
ANY SUGGESTION ON WHAT I SHOULD DO?

THANKS!

 

[lhet_sept2010]

WE applied Inland spousal sponsorship last Sept 2010. My husband got pulled over last December 2010 for failing to provide a breath sample. We cannot afford to pay a lawyer ($5000.00 / court visit) so he just plead guilty.. But before he plead guilty, we asked CIC about affecting the sponsorship. they said, there's no problem with that. But still, of course im still worried about that.. Im will feel relieve only once i get the result (cross fingers for good result).. As far as I check the forms to filled up by the sponsor Form IMM1344EA Application to Sponsor and undertaking (under Eligibility Assessment)sPonsorship undertaking)..it only asked there in #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..

 

[PMM]

Hi

I'M A TEMPORARY WORKER HERE IN CANADA UNDER THE LIVE-IN CAREGIVER PROGRAM AND JUST RECENTLY, GOT A VIOLATION TICKET FOR FAILING TO PROVIDE PROOF OF INSURANCE. ON THAT DAY, I HAVE WITH ME A COPY OF THE TEMPORARY LIABILITY INSURANCE CARD THAT I PRESENTED TO THE POLICE OFFICER BUT IT WAS 5-DAYS EXPIRED AND I DON'T HAVE THE "PINK CARD" WHICH THE INSURANCE COMPANY FAILED TO SEND ME, BUT I HAVE PRESENTED THE INSURANCE POLICY CONFIRMATION WITH THE EFFECTIVITY AND EXPIRATION DATE WRITTEN ON IT. I WAS REQUESTED EITHER TO PAY A FINE OR TO APPEAR BEFORE A JUSTICE.

MY QUESTION IS, SHOULD I JUST PAY THE FINE? AND, IF I WILL BE CHARGED WITH THIS TRAFFIC OFFENCE, WILL IT AFFECT MY APPLICATION FOR PERMANENT RESIDENCY HERE IN CANADA LATER ON?
ANY SUGGESTION ON WHAT I SHOULD DO?

THANKS!

1. Don't write in CAPS it is considered shouting and is hard to read.
2. If you had valid insurance at the time, then go to court to dispute it, otherwise pay the fine.
3. It has no effect on your application, as it is not a criminal offence.

 

[PMM]

Hi

WE applied Inland spousal sponsorship last Sept 2010. My husband got pulled over last December 2010 for failing to provide a breath sample. We cannot afford to pay a lawyer ($5000.00 / court visit) so he just plead guilty.. But before he plead guilty, we asked CIC about affecting the sponsorship. they said, there's no problem with that. But still, of course im still worried about that.. Im will feel relieve only once i get the result (cross fingers for good result).. As far as I check the forms to filled up by the sponsor Form IMM1344EA Application to Sponsor and undertaking (under Eligibility Assessment)sPonsorship undertaking)..it only asked there in #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..

there is a problem. Failure to Blow is a criminal code offence and by pleading guilty is now inadmissible for criminality. He will probably be reported under as inadmissible an a decision will be made to either remove him from Canada or issue a TRP (Temporary Resident Permit) to allow 5 years to pass, so he can apply for rehabilitation, or to be able to apply for a pardon.

From the Criminal code

Failure or refusal to comply with demand

(5) Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section.

Only one determination of guilt

(6) A person who is convicted of an offence under subsection (5) for a failure or refusal to comply with a demand may not be convicted of another offence under that subsection in respect of the same transaction.

255. (1) Every one who commits an offence under section 253 or 254 is guilty of an indictable offence or an offence punishable on summary conviction and is liable,
(a) whether the offence is prosecuted by indictment or punishable on summary conviction, to the following minimum punishment, namely,

(i) for a first offence, to a fine of not less than $1,000,

(ii) for a second offence, to imprisonment for not less than 30 days, and

(iii) for each subsequent offence, to imprisonment for not less than 120 days;
(b) where the offence is prosecuted by indictment, to imprisonment for a term not exceeding five years; and
(c) if the offence is punishable on summary conviction, to imprisonment for a term of not more than 18 months.

 

[lhet_sept2010]

Hi

there is a problem. Failure to Blow is a criminal code offence and by pleading guilty is now inadmissible for criminality. He will probably be reported under as inadmissible an a decision will be made to either remove him from Canada or issue a TRP (Temporary Resident Permit) to allow 5 years to pass, so he can apply for rehabilitation, or to be able to apply for a pardon.

From the Criminal code

Failure or refusal to comply with demand

(5) Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section.

Only one determination of guilt

(6) A person who is convicted of an offence under subsection (5) for a failure or refusal to comply with a demand may not be convicted of another offence under that subsection in respect of the same transaction.

255. (1) Every one who commits an offence under section 253 or 254 is guilty of an indictable offence or an offence punishable on summary conviction and is liable,
(a) whether the offence is prosecuted by indictment or punishable on summary conviction, to the following minimum punishment, namely,

(i) for a first offence, to a fine of not less than $1,000,

(ii) for a second offence, to imprisonment for not less than 30 days, and

(iii) for each subsequent offence, to imprisonment for not less than 120 days;
(b) where the offence is prosecuted by indictment, to imprisonment for a term not exceeding five years; and
(c) if the offence is punishable on summary conviction, to imprisonment for a term of not more than 18 months.

-----

****He will probably be reported under as inadmissible an a decision will be made to either remove him from Canada or issue a TRP (Temporary Resident Permit) ??

-- >> but my husband is a Canadian Citizen.. Are they going to remove him from Canada?

-->> will it affect him to sponsor me? our paper is 6 months already from receipt of our application.

 

[PMM]

Hi

-----

****He will probably be reported under as inadmissible an a decision will be made to either remove him from Canada or issue a TRP (Temporary Resident Permit) ??

-- >> but my husband is a Canadian Citizen.. Are they going to remove him from Canada?

-->> will it affect him to sponsor me? our paper is 6 months already from receipt of our application.

Since you didn't state that he was a CC in your post, (my crystal ball was cloudy that day) It has no effect on your application, unless he does jail time.

 

[isaacr]

** bumping this original thread **

So it's been a few years since I posted here... just thought I would update this for anyone else in the same situation.

We received a procedural fairness letter from the Seoul VO back in January 2013 saying that my spouse was criminally inadmissible. We made submissions on humanitarian and compassionate grounds and have yet to receive any other response, except for a new medical exam result in May 2013 which was completed.

No further progress since May 2013.

Here's the text of the officer's response:

This refers to your application for permanent residence in Canada. After careful and thorough consideration of all aspects of your application and the supporting information provided, I have determined that you do not meet the requirements for a permanent resident visa/temporary resident visa because you are a person described in paragraph 36(1)(bb) of the Immigration and Refugee Protection Act.

Paragraph 36(1)(b) of the Immigration and Refugee Protection Act renders inadmissible a foreign national on grounds of serious criminality for having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum of imprisonment of at least ten years.

You have been convicted in Korea of an offence, namely occupational negligence inflicting injury. If committed in Canada, this offence would be punishable under article 249(3) of the Criminal Code of Canada and would be punishable by a maximum term of imprisonment of at least ten years.

As a result, you are criminally inadmissible to Canada. This inadmissibility also extends to any stay in Canada as a visitor. You should therefore not attempt to enter Canada before being rehabilitated.

I note you requested an opportunity to make submissions for considerations of humanitarian and compassionate grounds per section 25 of the Immigration and Refugee Protection Act.

By this letter, I am providing you an opportunity to make full submissions of humanitarian and compassionate factors. Please provide your written submissions within 30 days of the date of this letter. If you choose to make submissions, please ensure to provide evidence of the facts stated in your submissions.

In addition, please attach the following documentation to your submissions:
-evidence of continued relationship with your sponsor (proof of communication, continued financial interdependency, visits to each other, etc.)
-updated Korean police certificate which include criminal, investigation, and lapsed record searches.

If no submissions are received, your application will be assessed based on the information on file at the time of the assessment and may be refused for the reasons noted above. If you do reply, I will consider your reply before rendering a final decision on your application. You will be advised in writing of my decision.

Sincerely,

Immigration Officer

 

[bartjones]

Have you made an application for criminal rehabilitation? Your original post says the offence happened in early 2009 and the penalty was a fine. If the fine was paid more than 5 years ago you would be eligible for criminal rehabilitation.

 

[isaacr]

@bartjones

Not yet. We are trying to determine if that will help our existing application or not, as we have not yet received a final decision.

 

[bartjones]

It will help a lot. Your wife's criminal inadmissibility is the only thing preventing her from getting her PR. You need to address that issue right away. I would file the criminal rehabilitation application ASAP if the 5 years have passed and email the VO immediately to tell them you will be filing it soon. If your H&C argument doesn't fly (and it probably won't), you can always ask them to put your PR application on hold pending their determination of the criminal rehabilitation application. Hopefully the VO will then wait for the criminal rehabilitation application to be approved instead of just dismissing your PR application.