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Pending convictions ground for inadmissibility

hbhatia

Newbie
Sep 10, 2018
7
0
Hi

I have tried get some help at a lot of places, but nothing. I am hoping to get some support from learned men and women here.

I was convicted of Careless Driving causing injury in New Zealand in 2011 but, on medical grounds, had to leave NZ and return to my home country. So the sentencing could never take place while I was there. Because there was no fixed date of my return then, the judge on the next hearing, issued a warrant of arrest against me. Now, after 7 years which is in a couple of months, I will be cleared off all the convictions and possibly the arrest warrant too.

I wish to know if not having been sentenced for your convictions can be a reason for inadmissibility? I had medical reasons to not attend sentencing.
If only convictions were to be seen, more than 5 years have lapsed and I should be deemed rehabilitated.

Please provide some guidance on this.

Thanks!
 

hbhatia

Newbie
Sep 10, 2018
7
0
Yes I have and it does give the date of conviction and the charges But there is nothing under the column of 'date of sentencing' as there has been no sentencing. And it has no mention of the arrest warrant either. But the warrant is very much there as confirmed by an official at NZ immigration.
 

mk11s

Star Member
Mar 28, 2018
62
17
Conviction,if recorded will make you inadmissible for 10 Years from date of conviction.
 

hbhatia

Newbie
Sep 10, 2018
7
0
Another 3 years for me then! :(

But I would really like to get a clear answer on this if non-sentencing of those convictions is going to be a problem after 10 years. A couple of things -

1. From what I have understood, you are required to submit PCC only for places where you have lived in the past 10 years so will that mean that I will not be required to submit the PCC from NZ?
2. After the NZ Clean Slate, my convictions will not show up in the 'regular' NZ PCC (as those convictions have been concealed), unless applied for a 'full' PCC. Does Canada require PCC or full PCC?
3. If sentencing is a necessity, I might not even be able to get sentencing for convictions after the clean slate program kicks in.
 

mk11s

Star Member
Mar 28, 2018
62
17
Well,if you apply in 2021,then you don't require PCC from NZ but on personal description once you get ITA,there will be one question "has XXX ever committed,been arrested for ,been charged with or convicted0f any criminal offense outside Canada ?
If you answer No and they get to know about it,then you'll be in trouble and in case if you answer Yes,they'll ask for further details.

Maybe @legalfalcon can help you.
 

hbhatia

Newbie
Sep 10, 2018
7
0
@legalfalcon is busy. No response from him. :(

@mk11s I will not answer 'No', I will answer 'Yes' but will I be on the right side of law then is what I am concerned about. If I answer 'Yes' and they expect me to get sentencing done then, then I'll have to wait for another 5 years after the sentencing, right?
If that is the case, wouldn't you suggest that it'll be better if I go back now and get sentenced? So, that the 5 years period starts now and not after another 3 years.
 

mk11s

Star Member
Mar 28, 2018
62
17
I cannot suggest you anything since I have limited knowledge about Canadian Immigration Law,but I think for you to be considered as deemed rehabilited, 5 years will be counted from the date when you complete the sentence/pay the fine.


There's a dedicated thread on the forum where you can ask question and get response from legalfalcon
Howsoever busy he might be,he usually takes out time and does help the community members here.We should appreciate it.:)
 

legalfalcon

VIP Member
Sep 21, 2015
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Hi

I have tried get some help at a lot of places, but nothing. I am hoping to get some support from learned men and women here.

I was convicted of Careless Driving causing injury in New Zealand in 2011 but, on medical grounds, had to leave NZ and return to my home country. So the sentencing could never take place while I was there. Because there was no fixed date of my return then, the judge on the next hearing, issued a warrant of arrest against me. Now, after 7 years which is in a couple of months, I will be cleared off all the convictions and possibly the arrest warrant too.

I wish to know if not having been sentenced for your convictions can be a reason for inadmissibility? I had medical reasons to not attend sentencing.
If only convictions were to be seen, more than 5 years have lapsed and I should be deemed rehabilitated.

Please provide some guidance on this.

Thanks!
You make a few assumptions here.

How do you say that "[n]ow, after 7 years which is in a couple of months, I will be cleared off all the convictions and possibly the arrest warrant too." This is not how it works. This concept of charges clearing after a period of time in Canadian immigration law called “deemed rehabilitation,” which holds that an individual is no longer inadmissible simply as result of the passage of time since the offence. The requisite amount of time is 10 years from the completion of sentence, but this time having elapsed does not necessarily resolve the situation. Firstly, if the offence is serious, meaning it has the potential to be punished by at least 10 years of incarceration according to Canadian law, the inadmissibility never goes away with the passage of time. This is also most often the case if an individual has two or more offences on his record. Secondly, even if an individual should qualify for deemed rehabilitation, the vast discretion of the immigration officer could work against the traveler; if the officer is of the mind that the traveler could pose a security risk to Canadians, he is within his rights to deny entry even if the conditions for deemed rehabilitation have been met. As well, sometimes the officer might be unfamiliar with the concept of deemed rehabilitation and its application, which is also a situation in which individuals are commonly denied entry into Canada.

If you were convicted of an offence, and never sentenced, because you "fled" adds to the seriousness of it.
 

hbhatia

Newbie
Sep 10, 2018
7
0
@legalfalcon
Thank you for your detailed response. I really appreciate that.
Thanks.

I am not planning to flee the case but rather go back and get sentenced for it.
There are 3 charges from the same incident because 3 people were injured in that road accident. All 3 same - same date and time. Will that count as multiple offences? I tried to get one representative charge for all 3, but the public prosecutor would not budge. So it is going to be 3 (same - Careless/inconsiderate driving) charges for me (but only one offence).

I am a little confused now. Do I need to wait for 10 years after the sentencing or 5 years?

Can I still apply after 3 years which will be 10 years since my time in NZ? Then I will not have to provide the police clearance certificate for NZ. By the time ITA comes, that would have bought me some time and then I can answer 'yes' to the 'ever been convicted?' question. Do you think that'll work?
 

hbhatia

Newbie
Sep 10, 2018
7
0
@mk11s ; @legalfalcon
I am now confused about the time I need to wait after the sentencing because @mk11s was advising that it is 5 years (See: I think for you to be considered as deemed rehabilited, 5 years will be counted from the date when you complete the sentence/pay the fine). However, @legalfalcon in his last reply said 10 years. (See: The requisite amount of time is 10 years from the completion of sentence...). I googled and noticed the period for deemed rehabilitated is 5 years. So @legalfalcon was it a typing error or am I missing something?

Please advise!
 

legalfalcon

VIP Member
Sep 21, 2015
19,030
9,888
Montréal, Quebec, Canada
Category........
FSW
Visa Office......
Ottawa
NOC Code......
4112
App. Filed.......
03-09-2015
Doc's Request.
01-10-2015
AOR Received.
03-09-2015
Med's Done....
17-08-2015
Passport Req..
05-04-2016
VISA ISSUED...
12-04-2016
LANDED..........
05-05-2016
@legalfalcon
Thank you for your detailed response. I really appreciate that.
Thanks.

I am not planning to flee the case but rather go back and get sentenced for it.
There are 3 charges from the same incident because 3 people were injured in that road accident. All 3 same - same date and time. Will that count as multiple offences? I tried to get one representative charge for all 3, but the public prosecutor would not budge. So it is going to be 3 (same - Careless/inconsiderate driving) charges for me (but only one offence).

I am a little confused now. Do I need to wait for 10 years after the sentencing or 5 years?

Can I still apply after 3 years which will be 10 years since my time in NZ? Then I will not have to provide the police clearance certificate for NZ. By the time ITA comes, that would have bought me some time and then I can answer 'yes' to the 'ever been convicted?' question. Do you think that'll work?
Here you go:

Convictions / offences outside Canada
If you were convicted of or committed a criminal offence outside Canada, you may overcome this criminal inadmissibility

  • by applying for rehabilitation, or
  • you may be deemed to have been rehabilitated if at least ten years have passed since you completed the sentence imposed upon you, or since you committed the offence, if the offence is one that would, in Canada, be an indictable offence punishable by a maximum term of imprisonment of less than ten years.
If the offence is one that would, in Canada, be prosecuted summarily, and if you were convicted for two (2) or more such offences, the period for rehabilitation is at least five (5) years after the sentences imposed were served or are to be served.

For you to overcome inadmissibility, you will first have to determine for what offence you are charged and sentenced. In your case, the 3 charges are from the same incident, so it will count as one offence, and not 3 different.

Only after it is determined the offence and its corresponding offence in Canada will you be able to determine whether you are inadmissible or not. Since your post neither lists the section under which you re charged nor does it mention the jurisdictions in which the accident happened, its is difficult to answer your questions.

Once the corresponding offence in Canada has been spotted, you can then know whether you will be deemed rehabilitated after 10 or 5 years, or you need to apply for rehabilitation.
 

hbhatia

Newbie
Sep 10, 2018
7
0
@legalfalcon

I know I'll need a formal equivalency check for matching the offence in New Zealand to its counterpart in Canada.
For now, I read the legislation on my own and this is what I found that closely matches the nature of charges and their description in both the acts -
For most states in Canada, the penalties are the same. I am quoting for Ontario.

Careless driving causing bodily harm or death
A new careless driving offence has been added to the Highway Traffic Act, effective September 1, 2018. The new offence of careless driving causing bodily harm or death is committed when a driver drives without reasonable care or attention to other drivers and causes bodily harm or death to any person.

Penalties
If you have been charged with careless driving causing bodily harm or death, the penalty is:

  • a fine of not less than $2,000 and not more than $50,000,
  • a possible two-year term (or both a fine and jail term),
  • up-to five years licence suspension, and
  • six demerit points.


BC also has something similar.

Careless driving
The offence of careless driving is committed when a driver drives without reasonable care or attention to other drivers. It is an offence under your provincial or territorial Highway Traffic Act and is not criminal. If you have been charged with careless driving, you will be convicted if the facts suggest you were driving without proper care and attention. The penalty for careless driving in most jurisdictions is a fine, a possible six-month jail term, up-to two years’ licence suspension, and usually licence demerit points.


So from what you have shared.
  • you may be deemed to have been rehabilitated if at least ten years have passed since you completed the sentence imposed upon you, or since you committed the offence, if the offence is one that would, in Canada, be an indictable offence punishable by a maximum term of imprisonment of less than ten years.
I will be deemed rehabilitated after 10 years since I committed the offence, because the maximum term of imprisonment for the equivalent offence in Canada is less than 10 years (it is 2 years). So another 3 years for me provided I get sentencing done for those charges?
Or am I still missing something here?