Buck123

I am looking into applying for a spouse visa but have been concerned about a drug possession conviction I had.

I couldn't remember exactly the date so I applied for an Acpo subject access report which I have just received. The point of this was so that I made sure I put the correct details of the conviction on the forms.

However I have a new issue in that the report also shows I have a conviction for Drunk and Disorderly when I was away in Belgium in 2006. I remember being arrested and released but it was difficult because there was a language barrier. I didn't think there was a conviction for it but it seems that they convicted me in my absence 2 months later.

So my report has 2 convictions:

1) Contains 2 offences:
Possession of a class a drug - fined £50 - offence date 1999
Possession of a controlled substance (weed) - fined £25 - offence date 1999

2) Drunk and Disorderly in Belgium
Offence Date - August 2006
Disposal at court in October 2006 - Fined 110 Euros


According to the deemed rehabilitated rules that I see the drug conviction is more than 10 yrs ago and would be deemed rehabilitated.

However the rules seem to suggest 1 conviction and also mentions 2 summary convictions more than 5 years ago but I'm not clear on this.

In the Canadian criminal code doc it suggests drunk and disorderly is a summary conviction.

But will this now be a problem for deemed rehabilitation because there are 2 convictions or is it ok if the 2nd is a summary conviction?

Also how does the rehabilitation of offenders act come in because under that both would be classed as rehabilitated being non custodial etc?

Very confused and concerned now. When I thought I was dealing with a possession conviction I thought it would be ok but with a second conviction now I am not sure. I didn't even know I had this drunk and disorderly conviction and was found guilty in court without me even being there.

Any help or advice would be appreciated please

Many thanks

Former Lancastrian

Drunk and Disorderly is a summary offence and as 5 years have passed will now be removed for inadmissibility but it STILL forms part of your record.
The possession depending on the amount of marijuana could be summary only if less than 30 grammes or indictable over 30 grammes.
Based on these 2 x convictions you are not inadmissible.
Both offences still have to be declared but CIC will not find you inadmissible.

Buck123

Thanks for your reply.

i think maybe you have missed that the possession conviction contains 2 offences committed on the same date and charged at the same court appearance but they are listed separately as 2 offences:

1) Possession of cocaine - fine £50 plus £30 costs
2) Possession of controlled drug - fine £25.

It doesn't state the type of drug under the second offence but it was cannabis but was also a small amount certainly less than 30g.

I assume the cocaine is an indictable offence and then from you say the cannabis may be a summary offence?

This would therefore mean I would have 2 summary offences, 1 for the drunk & disorderly more than 5 years ago, the other for cannabis more than 10yrs ago and also an indictable offence for the cocaine more than 10 yrs ago.

I intend to list everything on the forms but still unsure if this classes as deemed rehabilitated because guidelines suggest 1 offence?

Thanks

Mike

Former Lancastrian

No I didn't miss it as that is 2 x charges arising from the same offence.
Section 36(2)(b) of the Act

(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;

Chances are the possession of cocaine would be used as the indictable offence for making you inadmissible. As 10 years have passed and the other offence was summary only you would fall under the deemed rehabilitated. Summary offences are removed after 5 years. One indictable offence only is removed after 10 years. two indictable offences are never removed and that is when individual rehabilitation is required as the person can never be deemed rehabilitated with 2 indictable offences.

Buck123

Ah ok. That was the bit I was unsure about because on the police subject access report it is laid out like this:

Disposal (Court)
details of the court/date etc
Offence Count: 2

Offence 1
Offence Number: 1
Details etc

Offence 2
Offence Number: 2
Details etc

Both offences in that section have the same crime reference number but because it was listing them as offence 1 and offence 2 I thought they may be classed as 2 separate offences by the Canadian authorities.

Buck123

I have just come off a consultation with a lawyer in Canada and he gives a worrying picture.

He says there is a problem because I didn't know about the drunk and disorderly charge in Belgium and therefore that I haven't paid the fine means I am inadmissible because changes of this type are deemed spent after 5 years from the completion of the conviction which is 5 years after the fine has been paid.

He says I could try to go for a Temporary Residence Permit but will cost in excess of 9000 CAD to do the work for this and may not succeed because it's very complex and rarely granted.

This Belgium conviction was nearly 10 years ago.

Anyone any ideas on this because if this is the case I guess we won't be going because too expensive and I am not deemed rehabilitated?

Former Lancastrian

Shit am I ever in the wrong job, $9000 for a TRP application is that lawyer smoking crack or what?
Submit the spousal application and let CIC decide how they will deal with it.
A straight forward application for rehabilitation is only $200 and you can submit the paperwork yourself.
Im betting CIC won't find you inadmissible as you only have one indictable and one summary offence.

Buck123

I think his point is that it would be rehabilitated if the fine had been paid because the 5 year period starts once the sentence has been completed, not from the offence date.

So as part of the application do I have to provide evidence that the fine was paid or just list the convictions?

Former Lancastrian

Yours is a unique situation as you have committed one indictable and one summary offence outside Canada. The summary was committed 7 years after the indictable but because the fine was not paid this will be deemed to be a conviction but not completed. Now because this offence was committed before the 10 year deemed rehabilitated provision CIC may take this as you are still inadmissible and not eligible to apply for individual rehabilitation until the fine is paid in full. You could send an info only rehabilitation query to see what they say.
Have you any idea how the Belgian authorities would be dealing with this outstanding fine. Is there a warrant or has it been discharged?
Application for Rehabilitation for Persons Who Are Inadmissible to Canada Because of Past Criminal Activity

Buck123

I know nothing about the Belgium fine and I was never in court there and never received anything to ask me to go to court so was all done in my absence. Since that time I have moved address so if they have pursued it then it would be going to the wrong address but until 2 years ago I was still being forwarded all post to that address and never had anything. So no idea what is happening with the fine.

I guess I need to contact Belgium to try to find out?

With the application and the information only rehabilitation application do I have to provide proof that the fines have all been paid because also not sure how to do that for the offences in 1999 cause so long ago. They were definitely paid but do I have to prove that?

aknuge85

$9000 for a TRP is far too much, I have just two days ago been given a TRP that was fully submitted by my lawyer in Calgary. The TRP forms are relatively simple to do yourself but I would advise use of a lawyer.
Whilst I have paid a lot of money to this lawyer a mere fraction of that was for the TRP (roughly $500 including $200 for the application itself) You will have to prove all of the fines have been paid by my experience, to do so I had to write an email to the court I was tried at and they sent me court records of the offence, trial and proof of completion of sentence. (Proof of fine payment)
I woud say your first course of action is contact with Belgium for sure.

Buck123

Thanks

I have started the process of contacting Belgium.

I got hold of the police records office and they are sending me a certificate and they say the conviction doesn't show on it cause considered spent.

I still wanted details of the fine and they said I had to contact the Police Court. Now they only have a phone contact and they only speak French which I don't.

So I looked up an interpreter service who will charge me £40 to call them but I'm thinking about this and maybe think it could be better to get an English speaking lawyer in Belgium to look at it because they would understand that I need to know about any outstanding fine, what letters I need and to find out why I had no notification re any court hearing or fine back in 2006. It may be more expensive than £40 but hopefully wouldn't be that much to cover some phone calls.

Buck123

Update on this and another question re the rehabilitation conditions from cic website.

I have a Belgian lawyer engaged to look into the issue re the conviction that I knew nothing about. They have tracked down the conviction and they are going to put together a list of options that will be open to me ranging from paying the fine to possible challenging the conviction.

Acro here have also looked into it and their request for my record check from the Belgian authorities comes back clean due to weeding. Acro are reviewing my record to see if it can also be stepped down in the UK PNC records.

I realise I can do a rehab information only request with CIC and will consider this once I have all the finalised details from Belgium.

I have just read the rehab guidelines again on the CIC website and I'm a little unsure why summary offences are worded differently from an indictment offence so maybe someone can clarify what this means:

From the site:

Eligibility for rehabilitation

This section gives a summary of the type of offences and length of rehabilitation periods.

If you were convicted of an offence outside Canada that, if committed in Canada, would be an indictable offence punishable by a maximum term of imprisonment of less than ten years:

You are deemed rehabilitated: at least ten years after completion of the sentence imposed.
You are eligible to apply for rehabilitation: five (5) years after completion of the sentence imposed.


Now this covers my 1999 conviction and suggests that is as has been said on here before qualified for deemed rehabilitation.

Then for the drunk and disorderly charge which is listed in the Canadian Code as a summary offence:

If you were convicted for two (2) or more offences outside Canada that, if committed in Canada, would constitute summary conviction offences:

You are deemed rehabilitated: at least five (5) years after the sentences imposed were served or to be served.
You are eligible to apply for rehabilitation: not applicable.

Now why under for the indictable offence does it say 10 years after sentence completion and for the summary offence it says 5 years after the sentence imposed were served or to be served?

What exactly does that mean? "served or to be served". Why does that one also not say 5 years after sentence completion? Is there a difference?

Does that still mean the 5 years starts after the fine has been paid?

If this is the case I suspect that means my only option is to apply for a temporary resident visa because the 5 years is not up. If my only option coming back from Belgium is to pay the fine then that's fine but it's the 5 year countdown rule I am concerned about.

Having to wait another 5 years could mean not going because I will be 56/57 by the time I go which could affect my work options in IT.

Thanks

Former Lancastrian

Normally the following applies when dealing with criminality.
Indictable offence is more serious than summary and any sentence where 10 years or more imprisonment can be imposed are deemed to be serious criminality and if convicted of such an offence you can never be deemed rehabilitated
Murder, Rape, Burglary, Forgery etc

Indictable offence where less than 10 years sentence imposed on conviction then you can be deemed rehabilitated after 10 years if the sentence has been completed in full. If after 5 years and no other offences committed in that time then you can apply for individual rehabilitation as opposed to waiting 10 years to be deemed.

You have one indictable (completed sentence) and one summary (not completed sentence) so therefore CIC could deem you inadmissible because of that one summary offence being committed and sentence not completed within the 10 years of the indictable offence.
Where summary convictions have been completed they are removed after 5 years for admissibility purposes.
If you want a definitive answer send an INFO ONLY request for rehabilitation and CIC will tell you if inadmissible or not.