Canada, Breaking up the family unit

[Eric Parker]

All I can say is that Canada does not mess around when it comes to drinking and driving. I have a lot of aquaintences who have gone through the less intense laws of the US (going though "diversion" classes after a drunk conviction and such) who have been turned away at the border - even when going for vacation - because of the drinking and driving.

We have to remember that Canada is a different country all together - just because you are a visitor does not expempt you from Canada's laws just because the laws you are under in another country are less severe. Wherever you are at the time of the crime is what you are judged under.

While I simpathize with the person in this, and feel some empathy as well, there still has to be some accountablility. While you feel that you are not a hardcore criminal, Canada's laws say differently - in the fact that it really isn't hardcore, just that Canadian law is more intensly different (in regards to drinking and driving) than most countries in the world.

I realize this sounds blundt, but it is a lot about respecting the country you are visiting and not about what entitlements you belive you have simply because you are from another country.

[whoopi83]

Hi mb - just an afterthought here, and not that it will offer you much help, but the Immigration and Refugee Protection Act states at s36(3)(a), that for those seeking to enter Canada, a hybrid offence is deemed to be an indictable offence even if it has been prosecuted summarily.

My point here is be careful what you pay out when the result may not change. 

The Canadian Criminal Code lists DWI/DUI as a hybrid offence and therefore under IRPA it is treated as indictable.  In the US DUI/DWI is a misdemeanor however if you were convicted of a US misdemeanor for DUI it would still be an indictable Canadian offence as it is not the law of that country (US) which determines the offence but the comparitive Canadian offence.

I hope this makes more sense because it looks as though you will go the whole 5 years - so 4 years left.  It was never a summary conviction - it couldn't legally have been.  If you are paying a lawyer you should refer to the TRP as suggested by PMM.

[Ssarah183]

Hi - I don't think the OP is looking to be absolved of his offence, or to be reminded that he made a mistake, merely that he is frustrated that he cannot be with his wife and child in Canada. 

I agree, however the OP was making excuses for his actions AND saying that Canada is a disgrace, a farce and breaking up the family unit so some people will feel the need to point out that when you eff up it is not Canada's fault.

4 years IS a harsh punishment for one mistake (and god knows we all make them)  luckily there are ways around the problem. Good Luck!

[whoopi83]

He wasn't making excuses he was venting. He never said he did it because of something, he merely got annoyed because he is seperated from his family.  Anyway I'm sure all will work out just it may take the whole 5 years. 

[rjessome]

Hi mb - just an afterthought here, and not that it will offer you much help, but the Immigration and Refugee Protection Act states at s36(3)(a), that for those seeking to enter Canada, a hybrid offence is deemed to be an indictable offence even if it has been prosecuted summarily.

My point here is be careful what you pay out when the result may not change. 

The Canadian Criminal Code lists DWI/DUI as a hybrid offence and therefore under IRPA it is treated as indictable.  In the US DUI/DWI is a misdemeanor however if you were convicted of a US misdemeanor for DUI it would still be an indictable Canadian offence as it is not the law of that country (US) which determines the offence but the comparitive Canadian offence.

I hope this makes more sense because it looks as though you will go the whole 5 years - so 4 years left.  It was never a summary conviction - it couldn't legally have been.  If you are paying a lawyer you should refer to the TRP as suggested by PMM.

I think you almost have it Whoopi.  You're good.  Do you have legal training? Lawyer maybe?  Here's my opinion.

The OP has the ability to apply for a Pardon from the National Parole Board of Canada.  He CAN be convicted summarily of DUI as it is hybrid under the CCC.  You are right that for the purposes of Immigration, hybrids are treated as indictable.  BUT, he becomes eligible to apply for a pardon 3 years after he has completed his sentence as far as the Parole Board is concerned because it's a summary conviction.

Taken from the National Parole Board site: 

When can a person apply for a pardon?
Before a person is eligible to apply for a pardon, he/she must have 1) completed all sentences and 2) waited a certain period from the completion of all sentences.

When is a sentence completed?
When a person has paid all fines, surcharges, costs, restitution and compensation orders in full;
When a person has served all of his/her time, including parole or statutory release; and
When a person has satisfied his/her probation order.
What is the waiting period?
For convictions under the Criminal Code and other federal statutes:
Three years for summary convictions; and
Five years for indictable offences.

See:  http://www.npb-cnlc.gc.ca/infocntr/factsh/pardon-eng.shtml#5

Section 36(3)(a) of the Immigration Refugee Protection Act states:

(b) inadmissibility under subsections (1) and (2) may not be based on a conviction in respect of which a pardon has been granted and has not ceased to have effect or been revoked under the Criminal Records Act, or in respect of which there has been a final determination of an acquittal;

See:  http://laws.justice.gc.ca/en/showdoc/cs/I-2.5/bo-ga:l_1-gb:l_4/20090920/en#anchorbo-ga:l_1-gb:l_4

The OP seems to have completed his sentence 1 year ago.  Thus he can apply for a pardon in 2 years.  If granted, he is no longer inadmissible and does not need to apply for Rehabilitation when applying for PR.

[Liuzhou]

4 years IS a harsh punishment for one mistake (and god knows we all make them)  luckily there are ways around the problem. Good Luck!

One mistake ?  I doubt it.  It's an extreme case of bad luck to get drunk one night, get in the car and get caught the first time.

Most people that drink and drive, have done it several times, and continue to do it, even after a slap on the wrist.

The mistake was that he got caught and is now paying for it.

I do agree however, 4-5 years is ridiculous for this type of offence.

[New2Canada]

while 5 years does seem harsh but life could have been different had the drinking and driving resulted in worse.

Best to speak to a lawyer about this and follow PMM's advice regard TRP.

Remember, you don't have to split your family up. Your wife and kids can come live with you in isles until the 5 years are up. So you could blame Canada for their harsh rules but not for splitting family up.

I do wish you good luck.

[mb23]

Hello all,

well it seems like they lawyer is very hopeful that i should get a pardon in two years.  She informed me that Hybrid offences carry two charges (summary and indictable).  However if one is charged with a summary offence then a pardon is possible after 3 years.  On top of that she informed me once a pardon is obtained I will be then be able to apply for PR straight away.  This is sounding alot better than what I had originally thought. 

I know even drinking and driving is a horrible offence to commit and i am paying the price for it.  And although i am still bitter about the letter i got on Friday last I can honestly say that it could have been alot worse. 

That night i felt fine after the 3 beers over 2 hours, but it goes to show you how easily one can become impaired and not realise it.

I will keep all informed on how my case goes.

Many thanks

[vivam]

One mistake ?  I doubt it.  It's an extreme case of bad luck to get drunk one night, get in the car and get caught the first time.

Most people that drink and drive, have done it several times, and continue to do it, even after a slap on the wrist.

The mistake was that he got caught and is now paying for it.

I do agree however, 4-5 years is ridiculous for this type of offence.

4-5 years is crazy for DUI. It's possible that you could be caught the one time you did it. If you drink socially or otherwise you have probably had a drink and driven, thinking I only had one drink or that last drink was a few hours ago. When I drink I never drive, it's just not worth it.

Good Luck with your pardon
few hours ago I am good now, we all know alcohol impairs your judgement.