sean878787

Hi everyone,

I have been reading lots of posts on this forum, great resource, could I please get some advice on this:

I have been arrested for minor offenses and accepted/signed a caution sheet on 2 separate occasions, (approx 5 years and and 6 months ago).

I am applying for the IEC Visa,got my ACPO cert back saying "NO TRACE", I have no idea how this happened, but either way they don't seem to have records for my cautions at all.

The 2 cautions are minor and considered spent right away anyway - but I am now faced with the dilemma of saying nothing on the application as the NO TRACE asserts or being totally honest and still declaring the 2 cautions - BUT will I cause myself a world of pain by doing this..?

Anyone with a similar experience or relevant advice, I would be grateful to hear from you!

Thanks

orly

If the police have no trace...run with it.

sean878787

Thanks for the reply Orly,

Are you speaking from personal experience on this?

My worry is that it asks specifically have I been arrested or cautioned, and from all my reading it appears they take a very bad view on omitting information.

Will the ACPO cert itself satisfy them or do they tend to make further inquiries/have access to further info?

Thanks

Former Lancastrian

No trace basically means no criminal record.
No Live trace means convictions that may have been stepped down.
An individual can be arrested but never charged or cautioned or convicted so a police check would show no trace even though they have been arrested.
My advice is to declare the cautions and submit the No trace certificate.

sean878787

Hi Former Lanc,

Seems like the most sensible option on balance. I'm just wondering if me declaring the 2 cautions could open a can of worms because they aren't on the ACPO cert and could complicate my application.

Would be great to hear from someone who had similar circumstances or knows the outcome of a related case..?

Thanks

Kaye5

My OH had been arrested in 1997. We weren't sure whether he had a formal caution or informal warning, so we explained it all on the application form. There was nothing on the Police Cert about this warning/caution/whatever it was, but it is right to declare it.

As he had an army reprimand also from 30 years ago, he went through For Information Only criminal rehab, as we wanted a clean sheet to travel to Canada, and it was ignored. The army reprimand was the only thing mentioned in the decision.

Whether they show up or not, if you are asked about arrests and offences, the honest answer to the question is "yes" and then you provide full explanations along with the police cert.

I have no idea of the wording of the question nor how it would affect your application, as we are applying for PR and you are applying for something else, but this is our experience in our application. Also my OH's caution/whatever was a lot older than yours.

sean878787

Thanks Kaye,

I really appreciate you sharing your experience of it. I am getting very mixed responses from everyone I consult, so I want my decision to be as informed as possible. No doubt others will encounter this issue in the future, so whatever I decide I will try and post the outcome for reference purposes.

Kaye5

Hi Sean

If you post the actual question to the thread, then people can advise better.

People can advise what you should answer but only you can decide what you will answer!

Former Lancastrian

I believe the question is worded something like have you ever been arrested, charged/cautioned or convicted of an offence. Yes or No.

The answer is pretty simple. Answering No when you have is misrepresentation and can lead to a whole lot of pain. CIC/CBSA are only interested in CONVICTIONS for offences. Again you can be arrested and charged but never convicted so the answer would still be Yes.

Almost Canadian

The answer seems simple: answer the question asked

Kaye5

That sounds like the same wording as on the PR forms we completed. To which the answer was "yes".

I should add as a warning that at the time we applied for criminal rehab, the 30 year old army reprimand did NOT show on the Police Cert at all. The cert was "No Trace". On the next cert we applied for the following year for our PR app - it was listed.

Imagine if you answer "no" and on the next time you need to supply a cert - both cautions show up, or it comes back as No Live Trace.

No-one should be advising you to lie as these things have a habit of coming back and biting you on the bum.

sean878787

Hi Kaye,

"I should add as a warning that at the time we applied for criminal rehab, the 30 year old army reprimand did NOT show on the Police Cert at all. The cert was "No Trace". On the next cert we applied for the following year for our PR app - it was listed.

Imagine if you answer "no" and on the next time you need to supply a cert - both cautions show up, or it comes back as No Live Trace."

Yeah, it's that aspect which concerns me, no-one knows what way life will work out, I cannot rule out wanting to get permanent residency after my 2 years IEC, in that scenario, if I had an emotional tie to someone in Canada for instance, making an off the cuff call now could come back and bite me rather severely down the line.

BritishExpatriate

What were the cautions for? I'm guessing drugs and/or assault, by the fact that you haven't mentioned this yet? Nobody on this forum is going to judge you.

If you at least tell us what the cautions are for then it's easier to help?...


I assume you're talking about the form IMM1295, which asks:

"Have you ever committed, been arrested for, been charged with or convicted of any criminal offence in any country?"

Just note these points:

-Unlike the USA system, the Canadian system will not penalise you for being innocent.

-Also, with just cautions, it is highly unlikely that you will be criminally inadmissible. (Though tell us what they were for and we may be able to help you further)

-If you want to lie on the form and if that's what one of your friends has agreed with you that that's what you should do then there's nothing to stop you doing that and you'll most likely get away without being caught out by the Canadian authorities.

-However, if you tick "no", you're committing a clear misrepresentation of fact. I don't know what your life situation is but if you ever want to apply for permanent residence in Canada or citizenship, you will forever regret not ticking "yes" on this form, as one of the very few things that can cause you to be stripped of your Canadian citizenship or permanent resident status in the future is if you have misrepresented yourself in the immigration process.

-Like I mentioned- it's highly unlikely you're criminally inadmissible and the best things is probably to tick "yes" and then wait for them to get back to you, which having read about the experiences of others on this forum, will probably consist of a phone call or e-mail from the High Commission to ask why you ticked "yes" and what happened, before clearing you for the visa.

-If you tell them and in all likelihood they do grant the visa, you will feel much better about yourself, refreshed and as though the Canadians have given you a clean slate, whereas if you cover up that you were arrested you won't feel as good, and by 2015 the Canadians are introducing ETA (Electronic Travel Authorisation), any port of entry immigration officer can already request your file from the UK Police National Computer- not the same as ACRO which "steps down" certain things like cautions, and in the future the Canadian government may have unrestricted access to UK criminal records in which case you risk this coming back at you not just if moving permanently to Canada but also going there as a tourist.

But if you want to let us know what the cautions were for then I'll check and give you my opinion on whether it's would make you criminally inadmissible or not...

sean878787

British Expat thanks for response,

If you read my post above yours you'll see that what you're saying; is my current dilemma. I realise that I could probably get it without any issues for the IEC but I also know there is a very real possibility I may decide for one reason or another I want to stay and live in Canada permanently, an as you say it could come back to haunt me then.

You'll forgive me for not wanting to give specific details on an interweb forum (tinfoil hat on...lol), I said they were minor offenses, which they both were, much more minor than your incorrect assumptions. From my own research I believe I am not inadmissible either due to the offenses or due to the 1974 Rehab of Offenders Act, which deems cautions spend right away.

I'm basically weighing up the pros and cons of declaring them when I have a clean ACPO cert, which I think seems clean cut.
Con - may cause extra hassle now, but I should still get visa OK
Pro - if I ever want permanent residency I won't have to worry about this tripping me up.

BritishExpatriate

I've spent some time investigating this again- I'm familiar with it because I had to got through all of this because I had a juvenile conviction on my ACRO certificate when I applied for the IEC and a further simple caution that I had receive past the age of eighteen had been "stepped down" and didn't appear on the certificate.
I ticked "yes" on the form and expected them to ask me about it. However, to my surprise, they just sent my an LOI straight through. I think they saw the conviction and assumed this was the only factor that could have caused me to tick "yes" as nothing else had come up on my police check. Of course, when you tick "yes" there will be nothing on your certificate so in all likelihood they will drop you an e-mail or phone you quickly just to find out about the caution.

Anyway all that said, the reason I know all about this is primarily because I've had to research it for myself. I would say read my final post here. Also, do follow the link I placed on my post there to this manual that's entitled "Evaluating Inadmissibilty"- It's what the visa officer who deals with your cautions will use to process your application:
http://www.cic.gc.ca/english/resourc.../enf02-eng.pdf

If you read it carefully, you'll notice that there is no way a caution can be treated as a conviction. Read paragraph 3.2. Then go to page 9 and read carefully paragraph '3.4. Convictions outside Canada' and '3.5. "Committing an Act Provisions" A36(1)(c) and A36(2)(c)'

You'll certainly agree with me that if you are to be inadmissible is would be under paragraph 3.5 and not 3.4 as you were not convicted of anything. So lets look closely at paragraph '3.5 "Committing an Act Provisions"'.

The first paragraph under 3.5 says:

"The ―committing an act" provisions are not to be used where a conviction has been registered and where the appropriate evidence of conviction has been obtained. However, where it is not possible to obtain a certificate of conviction as indicated above, then the provisions may be used."

Notable for your particular case are two other paragraphs from 3.5. These clearly show you can't be inadmissible because of on of more a UK cautions.

Firstly there's this paragraph:

"The ―committing an act" provisions of the Act are not intended to bar the entry into Canada of persons who may have committed, but have not been convicted of, one or more summary offences.

Then there's this paragraph that states that "committing and act" provisions can be used in cases where the local police decided not to charge the person (such as in your case where they offered you a caution instead:

Officers should also recognize that a decision by a local policing authority not to prosecute is often a result of considerations that are specific to the criminal justice context and not necessarily consistent with the objectives of managing access to Canada. In other words, a decision by a local policing authority not to lay or proceed with charges should not automatically be considered as prima facie evidence that an offence was not committed; nor should officers be overly capricious in the use of the Act‘s inadmissibility provisions.

Then, in order to find out if your case is one that the "committing an act" provisions can apply to, you need to read on to the paragraph, 3.7, which you'll see requires the act committed by foreign nationals such as yourself be "indictable" offence in Canada. ("Indictable" means very serious)

Then read paragraph 3.9 which states:

"3.9. When not to use the ―committing an act‖ provisions
The ―committing an act‖ inadmissibility provisions would generally not be applied in the following scenarios:
 in most cases, when authorities in the foreign jurisdiction indicate they would not lay a charge or make known to an officer their decision or intent to drop the charges;
 the trial is concluded and no conviction results (for example, acquittal, discharge, deferral);
 the person admits to committing the act but has been pardoned or the record is expunged;
 the act was committed in Canada."
Obviously, you fall directly under the first option above, namely that:
"authorities in the foreign jurisdiction indicate they would not lay a charge or make known to an officer their decision or intent to drop the charges".

If you go on to read onto 3.10 you'll see that the purpose for the "committing an act" provisions are for people who have either committed a serious crime or have paid a bribe in a country with a legal system that is inherently different from the Canadian legal system. (Canada is a common law jurisdiction, based on the original English legal system- I studied law at university!)

So, as you can see, the odds of being barred from Canada when you weren't convicted and only committed summary offences, in response to which the local police decided not to charge you, make the odds of you not getting your visa because of ticking "yes" on the IMM1295 pretty remote!

Honestly, in your shoes I'd just tick "yes" for peace of mind if anything and then lay back and wait for you visa to come through. But it's ultimately upto you what you do.

Though given the extremely low chances of being rejected I'd say you're best off admitting the cautions- they are not convictions, you ween't convicted and you won't be treated as someone who has been convicted. Basically, as you'll have seen from above, unless you've committed a pretty serious crime that you weren't convicted for outside of Canada, or unless you paid a bribe to get out of conviction for a summary offence, there's no way you will be barred from Canada for having one or more cautions from the police. And if you did tick "yes" and against ALL odds you were barred from Canada, it wouldn't be the end of the world as I've heard New Zealand is also quite nice!