Philippine Affidavits of Desistance: When Dropped Charges Still Haunt Canadian Immigration Decisions

Authored by Renz Grospe, Canadian Immigration Lawyer, RCG LEGAL – Law Office of Renz Ciron Grospe.

What happens when criminal charges are dropped in the Philippines — but Canadian immigration officers still find grounds to say you’re inadmissible? This happens a lot, especially when Affidavits of Desistance are involved. 

What’s an Affidavit of Desistance? 

In the Philippines, an Affidavit of Desistance is a legal document where the complainant formally states they no longer wish to pursue criminal charges against the accused. Essentially, it’s a way to say, “I’m withdrawing my complaint” or “I no longer want to press charges.” This can happen for many reasons — sometimes because the parties have settled, sometimes due to misunderstandings, or simply because the complainant decides not to proceed. 

Sounds like good news, right? But in Canadian immigration, dropped charges don’t always mean the end of the story. 

The Legal Challenge: Section 36(1)(c) of the IRPA 

Canadian immigration officers use Section 36(1)(c) of the Immigration and Refugee Protection Act (IRPA) to decide if someone is inadmissible because of serious crimes committed outside Canada. 

Here’s the catch: 

• Officers don’t need a conviction to find you inadmissible — just reasonable grounds to believe you committed the offence (Magtibay v Canada, 2005 FC 397 at para 10). 

• They must decide if the act, if committed in Canada, would be a serious crime (punishable by 10+ years) (Garcia v Canada, 2021 FC 141 at para 18). 

This low standard means even if charges are dropped abroad, Canadian officers can still say “we believe the crime happened” — if the evidence supports it (Immigration and Refugee Protection Act, SC 2001, c 27, s 33; Garcia at paras 11, 41). 

Two Key Cases: Garcia vs. Urdas 

Garcia (2021) and Urdas (2019) are Federal Court decisions that show very different results when dealing with Affidavits of Desistance. 

In Garcia, the complainant said it was all a misunderstanding and exonerated the accused, but the visa officer ignored this and refused the application without solid reasons (Garcia at paras 39-41). The court sided with the applicant. 

In Urdas, the affidavit was vague and there were other witnesses and contradictions. The officer carefully weighed all the facts and found grounds to refuse. The court agreed (Urdas at paras 23–39). 

The Bigger Picture: Dismissed Charges Are Not Always the End 

When charges are dropped and an affidavit of desistance is filed, it’s strong initial proof the crime likely didn’t happen — as confirmed in Arevalo Pineda (2010). But it’s not a done deal. The Minister can still challenge this if there’s solid evidence suggesting the offence did occur 

In Garcia, the Federal Court also looked to Red v. Canada, 2018 FC 1271 — another case involving an affidavit of desistance from the Philippines. Justice Walker emphasized that while the affidavit and trial court order clearly withdrew the charges due to misunderstandings, immigration officers must still explain in detail why they believe an offence was committed despite this withdrawal. Simply dismissing the affidavit as a misunderstanding without supporting evidence isn’t enough. 

On the other hand, in Urdas v. Canada, 2019 FC 131, inadmissibility was upheld despite charges being dropped and an affidavit of desistance because: 

• The affidavit didn’t clear the accused of wrongdoing; 

• There were multiple witnesses supporting the allegations; and 

• The accused gave conflicting accounts about the case’s settlement. 

Chief Justice Crampton distinguished Urdas from Red by noting that in Red, the affidavit pointed to a clear misapprehension of facts, while in Urdas, it was just the complainant’s uncertainty about who was responsible. 

The Court stressed that when charges are withdrawn, officers must proceed with caution and still ensure there are reasonable grounds to find inadmissibility. 

Both Red and Urdas follow the same guiding principle from Arevalo Pineda: affidavits of desistance are important evidence but not determinative. Immigration decisions must provide clear, detailed reasons for why the evidence still supports inadmissibility despite dropped charges. 

At the end of the day, under paragraph 36(1)(c), the real question is whether there are objectively reasonable grounds, based on compelling and credible evidence, to believe the accused committed a criminal offence. (See Mugesera at para 114.) 

What Does This Mean for You? 

• An Affidavit of Desistance is strong evidence but not automatically a get-out-of-jail-free card (Arevalo Pineda v Canada, 2010 FC 454 at para 31). 

• Officers must explain clearly why they believe the offence happened despite dropped charges (Red v Canada, 2018 FC 1271 at para 28). 

• They must look at the whole picture — the affidavit, witness statements, medical records, settlements, and your own defense (Garcia at paras 40-43; Urdas at paras 23-39). 

• The burden is low (reasonable grounds), but decisions must be logical and fair (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65). 

Citations  

• Arevalo Pineda v Canada (Citizenship and Immigration), 2010 FC 454 

• Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 

• Garcia v Canada (Citizenship and Immigration), 2021 FC 141 

• Immigration and Refugee Protection Act, SC 2001, c 27, ss. 33, 36(1)(c), 42(1)(a) 

• Magtibay v Canada (Citizenship and Immigration), 2005 FC 397 

• Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40 

• Red v Canada (Citizenship and Immigration), 2018 FC 1271 

• Urdas v Canada (Citizenship and Immigration), 2019 FC 131