Brother in law visitors visa
Mar 3rd 2015, 9:20 am
#16
Lost in BE Cyberspace
Joined: Nov 2011
Location: Somewhere between Vancouver & St Johns
Posts: 19,847
Re: Brother in law visitors visa
The conditional discharge is the sentence he was given, not the name of the conviction. Presumably it was a conviction for assault from what the OP's said, it went to court and he was given a conditional discharge as he'd already spent time on remand (as above, that would normally indicate the charge wasn't minor, otherwise they'd have just let him go). Do he was definitely convicted of a fairly serious offence.
I don't see how he can be admissible based on all of that personally?
I don't see how he can be admissible based on all of that personally?
having been convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, or of two offences not arising out of a single occurrence that, if committed in Canada, would constitute offences under an Act of Parliament.
CIC ENF Manual 2 section 15.2 states the following
Conviction
A conviction is a finding by a competent authority that a person is guilty of an offence. A charge or a confession is not a conviction.
In cases involving a charge or a confession, the use of the “committing an act” provisions within IRPA may be appropriate.
A conviction does not exist in the following situations:
the conviction is set aside on appeal;
the court grants an absolute or conditional discharge as provided for in the Criminal Code;
the person is granted a pardon in a foreign jurisdiction and the pardon is recognized as equivalent to a Canadian record suspension.
Regardless of the charge laid and what transpired regarding remanded in custody for the charge or released on bail etc the sentence for the actual offence must be a conviction. There are several court decisions that can be rendered which are also not deemed to be convictions.
This is where a lot of confusion appears when dealing with UK police cautions and the 1974 UK ROA.
Here is an example
A person shoplifts $500 or 500 quids worth of stuff and is arrested. In the UK they could receive a police caution if they admit the offence and accept the caution. In Canada there is no such thing as a police caution so the offender normally goes to court and a plea is made. If they plead guilty and are fined then that is a conviction for theft under $5000 and they now have a criminal record.
So due to the difference in the law are we saying the Canadian is a criminal and the UK person is not?
Section 730 of the Criminal Code of Canada states
Conditional and absolute discharge
730. (1) Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).
Some days I just love my job
Mar 3rd 2015, 9:38 am
#17
Home and Happy
Joined: Dec 2002
Location: Keep true friends and puppets close, trust no-one else...
Posts: 93,809
Re: Brother in law visitors visa
True but CIC and the Act say under section 36(2)(b)
having been convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, or of two offences not arising out of a single occurrence that, if committed in Canada, would constitute offences under an Act of Parliament.
CIC ENF Manual 2 section 15.2 states the following
Conviction
A conviction is a finding by a competent authority that a person is guilty of an offence. A charge or a confession is not a conviction.
In cases involving a charge or a confession, the use of the “committing an act” provisions within IRPA may be appropriate.
A conviction does not exist in the following situations:
the conviction is set aside on appeal;
the court grants an absolute or conditional discharge as provided for in the Criminal Code;
the person is granted a pardon in a foreign jurisdiction and the pardon is recognized as equivalent to a Canadian record suspension.
Regardless of the charge laid and what transpired regarding remanded in custody for the charge or released on bail etc the sentence for the actual offence must be a conviction. There are several court decisions that can be rendered which are also not deemed to be convictions.
This is where a lot of confusion appears when dealing with UK police cautions and the 1974 UK ROA.
Here is an example
A person shoplifts $500 or 500 quids worth of stuff and is arrested. In the UK they could receive a police caution if they admit the offence and accept the caution. In Canada there is no such thing as a police caution so the offender normally goes to court and a plea is made. If they plead guilty and are fined then that is a conviction for theft under $5000 and they now have a criminal record.
So due to the difference in the law are we saying the Canadian is a criminal and the UK person is not?
Section 730 of the Criminal Code of Canada states
Conditional and absolute discharge
730. (1) Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).
Some days I just love my job
having been convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, or of two offences not arising out of a single occurrence that, if committed in Canada, would constitute offences under an Act of Parliament.
CIC ENF Manual 2 section 15.2 states the following
Conviction
A conviction is a finding by a competent authority that a person is guilty of an offence. A charge or a confession is not a conviction.
In cases involving a charge or a confession, the use of the “committing an act” provisions within IRPA may be appropriate.
A conviction does not exist in the following situations:
the conviction is set aside on appeal;
the court grants an absolute or conditional discharge as provided for in the Criminal Code;
the person is granted a pardon in a foreign jurisdiction and the pardon is recognized as equivalent to a Canadian record suspension.
Regardless of the charge laid and what transpired regarding remanded in custody for the charge or released on bail etc the sentence for the actual offence must be a conviction. There are several court decisions that can be rendered which are also not deemed to be convictions.
This is where a lot of confusion appears when dealing with UK police cautions and the 1974 UK ROA.
Here is an example
A person shoplifts $500 or 500 quids worth of stuff and is arrested. In the UK they could receive a police caution if they admit the offence and accept the caution. In Canada there is no such thing as a police caution so the offender normally goes to court and a plea is made. If they plead guilty and are fined then that is a conviction for theft under $5000 and they now have a criminal record.
So due to the difference in the law are we saying the Canadian is a criminal and the UK person is not?
Section 730 of the Criminal Code of Canada states
Conditional and absolute discharge
730. (1) Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).
Some days I just love my job
So a conditional discharge, which certainly in the Uk is a "sentence" not a "conviction" doesn't figure in Canadian inadmissability rules. And if the reason that person just gets a Con Dis is because they have already spent time on remand, then it matters not what the actual charge was.
However if the magistrate had said that the sentence was 80 days imprisonment, but time already served would be taken into account, and this the person was free to go.........things would be completely different.
I loved my job too, and am still interested in the stuff I was doing back then - producing criminal record details for prospective migrants!
Mar 3rd 2015, 11:00 am
#18
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Thread Starter
Joined: Jan 2008
Location: Near Kingston, Ontario
Posts: 1,318
Re: Brother in law visitors visa
Former Lancastrian says not.
Mar 3rd 2015, 11:51 am
#19
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Joined: Oct 2007
Location: In a darkened room somewhere.............
Posts: 34,029
Re: Brother in law visitors visa
OP, personally I'd suggest your BIL does an 'info only' application so that he knows for sure whether or not he's inadmissible to Canada and that he won't lose money on a flight etc if he's refused entry.
Mar 3rd 2015, 4:42 pm
#20
BE Forum Addict
Thread Starter
Joined: Jan 2008
Location: Near Kingston, Ontario
Posts: 1,318
Re: Brother in law visitors visa
True but CIC and the Act say under section 36(2)(b)
having been convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, or of two offences not arising out of a single occurrence that, if committed in Canada, would constitute offences under an Act of Parliament.
CIC ENF Manual 2 section 15.2 states the following
Conviction
A conviction is a finding by a competent authority that a person is guilty of an offence. A charge or a confession is not a conviction.
In cases involving a charge or a confession, the use of the “committing an act” provisions within IRPA may be appropriate.
A conviction does not exist in the following situations:
the conviction is set aside on appeal;
the court grants an absolute or conditional discharge as provided for in the Criminal Code;
the person is granted a pardon in a foreign jurisdiction and the pardon is recognized as equivalent to a Canadian record suspension.
Regardless of the charge laid and what transpired regarding remanded in custody for the charge or released on bail etc the sentence for the actual offence must be a conviction. There are several court decisions that can be rendered which are also not deemed to be convictions.
This is where a lot of confusion appears when dealing with UK police cautions and the 1974 UK ROA.
Here is an example
A person shoplifts $500 or 500 quids worth of stuff and is arrested. In the UK they could receive a police caution if they admit the offence and accept the caution. In Canada there is no such thing as a police caution so the offender normally goes to court and a plea is made. If they plead guilty and are fined then that is a conviction for theft under $5000 and they now have a criminal record.
So due to the difference in the law are we saying the Canadian is a criminal and the UK person is not?
Section 730 of the Criminal Code of Canada states
Conditional and absolute discharge
730. (1) Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).
Some days I just love my job
having been convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, or of two offences not arising out of a single occurrence that, if committed in Canada, would constitute offences under an Act of Parliament.
CIC ENF Manual 2 section 15.2 states the following
Conviction
A conviction is a finding by a competent authority that a person is guilty of an offence. A charge or a confession is not a conviction.
In cases involving a charge or a confession, the use of the “committing an act” provisions within IRPA may be appropriate.
A conviction does not exist in the following situations:
the conviction is set aside on appeal;
the court grants an absolute or conditional discharge as provided for in the Criminal Code;
the person is granted a pardon in a foreign jurisdiction and the pardon is recognized as equivalent to a Canadian record suspension.
Regardless of the charge laid and what transpired regarding remanded in custody for the charge or released on bail etc the sentence for the actual offence must be a conviction. There are several court decisions that can be rendered which are also not deemed to be convictions.
This is where a lot of confusion appears when dealing with UK police cautions and the 1974 UK ROA.
Here is an example
A person shoplifts $500 or 500 quids worth of stuff and is arrested. In the UK they could receive a police caution if they admit the offence and accept the caution. In Canada there is no such thing as a police caution so the offender normally goes to court and a plea is made. If they plead guilty and are fined then that is a conviction for theft under $5000 and they now have a criminal record.
So due to the difference in the law are we saying the Canadian is a criminal and the UK person is not?
Section 730 of the Criminal Code of Canada states
Conditional and absolute discharge
730. (1) Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).
Some days I just love my job
Thanks for your help!
