PR Renewal & Criminal charges

[Cavin]

I am currently looking for some info on the a case , my PR is up for renewal and my currently I'm fighting criminal charges which are laid against me and it's in Ontario court of Justice, it will go on even after my card expires.

Since PR renewal process asks for biometrics , will this outstanding charges become a hurdle when I they run the records?

If anyone has any experience please share.

 

[dpenabill]

I am currently looking for some info on the a case , my PR is up for renewal and my currently I'm fighting criminal charges which are laid against me and it's in Ontario court of Justice, it will go on even after my card expires.

Since PR renewal process asks for biometrics , will this outstanding charges become a hurdle when I they run the records?

If anyone has any experience please share.

For purposes of your PR status, only a conviction would have an impact. And ONLY if the offence for which you are convicted meets the serious criminality criteria. Otherwise, it is not a problem that would affect your PR status or your eligibility for a new PR card.

Which is not to say it will not trigger non-routine processing and a longer processing time. I do not know the extent to which IRCC cross-checks name-record hits in the criminal name record data bases, or what internal process is followed if there is a hit. But absent a conviction, the fact that charges are pending does NOT affect your PR status.

The PR card application does not ask for information about criminal charges.

And again, even a conviction will not affect your PR status unless it constitutes "serious criminality;" that is, only if the conviction is for an offence which can carry a sentence of ten years imprisonment (regardless of the actual sentence imposed), or if the sentence actually imposed is for a term of incarceration for at least six months plus a day (as in "more" than six months).

There is a broader potential impact on eligibility for citizenship.

 

[Ponga]

And again, even a conviction will not affect your PR status unless it constitutes "serious criminality;" that is, only if the conviction is for an offence which can carry a sentence of ten years imprisonment (regardless of the actual sentence imposed), or if the sentence actually imposed is for a term of incarceration for at least six months plus a day (as in "more" than six months).

In researching a question from another member, in a different forum, I was surprised to discover that a reckless driving conviction would constitute serious criminality (as of Dec 2018).

 

[dpenabill]

In researching a question from another member, in a different forum, I was surprised to discover that a reckless driving conviction would constitute serious criminality (as of Dec 2018).

Probably not.

I would say most likely not, by a big, big margin, noting the distinction between what "could" rather than what "would" constitute an offence meeting the IRPA definition of serious criminality under IRPA, in regards to the inadmissibility of a Permanent Resident, but I am not sure which provisions of the Canadian Criminal Code you might be referring to.

Overall, the overwhelming majority (very nearly all) actually charged and prosecuted cases for "dangerous operation" of a "conveyance" (there is no "reckless driving" offence as such in the Canadian Criminal Code), in Canada and not involving a crash resulting in bodily harm or death to another person, let alone resulting in a conviction, would NOT [omission corrected in edit] constitute serious criminality under IRPA -- that is an offence as defined in Section 320.13(1) in the Criminal Code, the punishment for which is prescribed by Section 320.19(5), are almost always not indictable offences but rather summary offences, which will not constitute serious criminality UNLESS a sentence of more than six months is actually imposed, which is RARE.

The Criminal Code allows this offence to be prosecuted by indictment, which if convicted means the individual is liable to imprisonment for a term of not more than 10 years, which does meet the IRPA definition of serious criminality. But this one is similar to a huge range of other hybrid offences which likewise can be, but except in the most egregious circumstances are NOT generally or at all commonly prosecuted as an indictable offence.

That is, it would be a highly unusual case, involving extreme circumstances, or at least one of the more serious offences involving crashes resulting in bodily injury or death, for a "reckless driving" (or, again, "dangerous operation") charge to result in a conviction that meets the IRPA definition of serious criminality.

Note, while the term "reckless" is used in reference to some of the "Offences Relating to Conveyances," (sections 320.11 to 320.4), none of those are in reference to the manner of driving or operation, but rather to an individual's state of mind in regards to awareness of certain facts (such as to whether the vehicle has been involved in an accident).

Convictions for "careless driving" (such as under a provincial traffic law, such as the Ontario Traffic Act) are not an offence "under an Act of Parliament," and thus even though in some provinces, again in more extreme cases, could potentially result in imprisonment for more than six months, such convictions and sentences do not constitute serious criminality under IRPA.


Observation Re Brief Overreach In Harper Era:

There was a short period of time, until the Federal Courts said no, no, no, that the Harper government attempted to interpret the change in IRPA making it serious criminality if a sentence of imprisonment for more than six months was ordered but not actually imposed (such as all or in part being suspended), and my recall is not as clear but I also think that for a period of time the Harper government also attempted to interpret it to apply to a sentence of six months, until the courts thereto said no, that "more than six months," means it must be for more than six months (hence the six months plus a day often referred to).

IN Any Event . . . generally, no, being prosecuted for typical reckless driving, even if convicted, will not, not ordinarily, not at all commonly, mean a PR has a serious criminality conviction.


All That Said:

For any charges under the Criminal Code, the charged individual should very seriously consider hiring a competent lawyer to represent them. And for any hybrid offence, unless they are certain it is being prosecuted as a Summary offence, it is especially important to obtain the assistance of a lawyer.

 

[Ponga]

Probably not.

I would say most likely not, by a big, big margin, noting the distinction between what "could" rather than what "would" constitute an offence meeting the IRPA definition of serious criminality under IRPA, in regards to the inadmissibility of a Permanent Resident, but I am not sure which provisions of the Canadian Criminal Code you might be referring to.

Overall, the overwhelming majority (very nearly all) actually charged and prosecuted cases for "dangerous operation" of a "conveyance" (there is no "reckless driving" offence as such in the Canadian Criminal Code), in Canada and not involving a crash resulting in bodily harm or death to another person, let alone resulting in a conviction, would NOT [omission corrected in edit] constitute serious criminality under IRPA -- that is an offence as defined in Section 320.13(1) in the Criminal Code, the punishment for which is prescribed by Section 320.19(5), are almost always not indictable offences but rather summary offences, which will not constitute serious criminality UNLESS a sentence of more than six months is actually imposed, which is RARE.

---

Good to know. Based of your info, is a person that is in the process of PR approval, versus a FN simply seeking to `enter' Canada assessed differently, if they have been charged and convicted of Reckless Driving in the U.S., or elsewhere where Reckless Driving is a criminal offense?

I had found the information below, which states that reckless driving (as of Dec 2018) was considered to be serious criminality:

Depending on the exact wording, a misdemeanor reckless driving charge in the United States may be equivalent to the charge of "dangerous operation of a motor vehicle" in Canada. This hybrid infraction, found in section 249(1)(a) of the Canadian Criminal Code, may be an indictable offense punishable by up to ten years imprisonment, and as a result, any foreign conviction that equates to this crime can render a person inadmissible to Canada for life. In December 2018, Canada passed new impaired driving laws and as a result crimes such as reckless driving, hit and run, flight from a police officer, and operating with a suspended license are now considered serious criminality.

 

[dpenabill]

Good to know. Based of your info, is a person that is in the process of PR approval, versus a FN simply seeking to `enter' Canada assessed differently, if they have been charged and convicted of Reckless Driving in the U.S., or elsewhere where Reckless Driving is a criminal offense?

I had found the information below, which states that reckless driving (as of Dec 2018) was considered to be serious criminality:

Depending on the exact wording, a misdemeanor reckless driving charge in the United States may be equivalent to the charge of "dangerous operation of a motor vehicle" in Canada. This hybrid infraction, found in section 249(1)(a) of the Canadian Criminal Code, may be an indictable offense punishable by up to ten years imprisonment, and as a result, any foreign conviction that equates to this crime can render a person inadmissible to Canada for life. In December 2018, Canada passed new impaired driving laws and as a result crimes such as reckless driving, hit and run, flight from a police officer, and operating with a suspended license are now considered serious criminality.

Good to be corrected.

Well, to at least be questioned enough to evoke doing the homework and sorting it out.

It does appear there is case law affirming that the provision in IRPA, 36(3)(a) deeming hybrid offences to be an indictable offence, even if prosecuted summarily, renders a conviction of a summary offence to be serious criminality if it could have been prosecuted by indictment and punishable by at least ten years imprisonment. So, yeah, technically under such an interpretation and application, there is a huge range of hybrid offences, including almost all of the offences in the Criminal Code relating to the operation of conveyances, for which not just Foreign Nationals can be determined to be inadmissible, but Permanent Residents as well.

There is very little indication that this is at all typical. And in particular it is not easy to find all that many actual applications of this in that way. The PR criminal inadmissibility cases are overwhelmingly about individuals with either convictions for very serious crimes punished by indictment (like crimes of violence resulting in serious injury or at least involving weapons, big drug dealing or organized crime cases, sexual assaults) or at least extensive criminal histories involving multiple "serious" offences including either convictions for offences prosecuted by indictment or resulting in terms of actual imprisonment for more than six months (typically a lot more).

I did find some cases involving non-driving hybrid offences where PRs were determined to be inadmissible for serious criminality based on a single hybrid offence conviction resulting in a jail term of less than six months, such as one such case involving a domestic assault with a weapon (a belt) offence, and the Removal Order was upheld by the IAD. But it is not easy to find such cases, so this does not appear to be at all typical.

But yeah. It does indeed appear that if IRCC or CBSA chooses, it could determine a PR to be inadmissible for serious criminality on the basis of just about any of the driving offences prescribed by the Criminal Code, even if it was prosecuted summarily and no jail term at all imposed.

So, when Section 249 in the Criminal Code was repealed, in 2018, and Section 320.13 and 320.19(5) adopted, increasing the maximum penalty for dangerous operation of a vehicle, if prosecuted by indictment, to ten years, it does indeed appear that a conviction for dangerous operation of a vehicle could be grounds for determining a PR is inadmissible for serious criminality, even when there is no bodily injury or death involved, even if no jail at all is imposed. I cannot find a single case where this has happened, or even any such case (for a PR rather than a FN) involving a first offence, not resulting in injuries or death, for driving while impaired.

Note: in the case I mentioned above, in which a Removal Order was based on a determination of serious criminality for assault with a weapon prosecuted summarily, the appellant did not contest the validity of the Removal Order but was in effect applying for H&C relief. Frankly, seems likely there is reason to challenge the way 36(3) IRPA has been applied in these kinds of case, again in what appears to be a remarkably few cases relative to the number in which it could (I've been following forums like this, and PR status issues in particular, for well over a decade, and yet to see any anecdotal reporting of a PR losing PR status for hybrid offences prosecuted summarily). But that is for lawyers to sort out.

 

[Cavin]

For purposes of your PR status, only a conviction would have an impact. And ONLY if the offence for which you are convicted meets the serious criminality criteria. Otherwise, it is not a problem that would affect your PR status or your eligibility for a new PR card.

Which is not to say it will not trigger non-routine processing and a longer processing time. I do not know the extent to which IRCC cross-checks name-record hits in the criminal name record data bases, or what internal process is followed if there is a hit. But absent a conviction, the fact that charges are pending does NOT affect your PR status.

The PR card application does not ask for information about criminal charges.

And again, even a conviction will not affect your PR status unless it constitutes "serious criminality;" that is, only if the conviction is for an offence which can carry a sentence of ten years imprisonment (regardless of the actual sentence imposed), or if the sentence actually imposed is for a term of incarceration for at least six months plus a day (as in "more" than six months).

There is a broader potential impact on eligibility for citizenship.

Thank you for your response. This has surely cleared some doubts on my mind.
I thought this post didn't go through so I created another one. Charges are of serious criminality which are being fought.
I am also eligible to apply for citizenship so I am thinking to do both at same time. If the hit comes on checks I will provide the current status

 

[Ponga]

Obviously, if the application asks, you must disclose that you have been charged, but have not yet been convicted. This is mandatory, else you could be found to have misrepresented yourself!

 

[dpenabill]

Thank you for your response. This has surely cleared some doubts on my mind.
I thought this post didn't go through so I created another one. Charges are of serious criminality which are being fought.
I am also eligible to apply for citizenship so I am thinking to do both at same time. If the hit comes on checks I will provide the current status

Reminder: for purposes of the PR card application, which does NOT ask the applicant to disclose criminal charges, PENDING charges in Canada do not affect the PR's status or affect eligibility for a new PR card.

In contrast, if you are charged with an indictable offence (which it appears you are), you are NOT eligible for citizenship . . . so "I am also eligible to apply for citizenship" is obviously incorrect.

In particular, in contrast to the PR card application, the citizenship application does ask the applicant to disclose if they are "now charged with . . . an indictable offence in Canada," and other information related to criminal matters. If charges are pending, they must be disclosed. Does not matter if "hit comes on checks" or not, pending charges must be disclosed in a citizenship application. In addition to NOT being eligible for citizenship while charged with an indictable offence, if convicted of an indictable offence an individual is prohibited from getting citizenship for at least four years. I say "at least," because in addition to the prohibition itself, any period of probation or imprisonment cannot be counted toward meeting the presence requirement, so depending on the sentence for a conviction, that can practically mean it takes significantly longer than four more years to become eligible for citizenship again.

Additional Caution:

As the subsequent exchange with @Ponga addresses and illuminates: if you are charged with an offence that could result in imprisonment for ten years or more which is a hybrid offence, that is a charge that could result in a conviction for a summary offence rather than an indictable offence, and that is the outcome, that is you end up with a conviction for a summary offence (such as in the case of a plea bargain), there is case law that EVEN then, regardless of the actual sentence (even no jail time), that can constitute grounds for determining the PR is inadmissible for serious criminality.

It is very, very difficult to forecast whether there will be, in fact, proceedings to determine inadmissibility brought against a PR who has a summary conviction for a hybrid offence that, if prosecuted by indictment, could result in imprisonment for ten years. This does not appear to be common for Summary convictions resulting in little or no jail time, but there are some cases (including cases where jail time was just 30 days) and it is not at all clear what led to actions to terminate PR status in those cases.

So, for example, if you are charged with an indictable offence punishable by ten years of imprisonment (which it appears you are), even if there is a plea bargain to proceed as a summary offence resulting in probation, that will technically put your PR status at risk. And to be clear, even if you have recently been issued a new PR card.

Should be obvious, but the obvious is often worth stating out loud: this is a situation for which not only a good criminal defense lawyer is needed, but a lawyer well versed in how a criminal matter can affect immigration as well. Many criminal defense lawyers will not be sufficiently aware of the immigration implications. PROCEED CAUTIOUSLY.

Beyond That:

Who, when, and why PRs with criminal convictions are subject to inadmissibility proceedings, leading to the loss of PR status and deportation, is a very broad, complex, and not easily navigated subject. It is a subject not addressed much here, in this forum, other than what is more or less at the surface, such as what offences constitute criminality, in contrast to, again, who, when, or why PRs with criminal convictions are actually determined to be inadmissible.

This really is lawyer-up terrain.

The case law does not help much because, with isolated exceptions, it is overwhelmingly dominated by egregious cases. In particular it does not illuminate much about the risks for a PR with a summary conviction for a "serious" hybrid offence (that is, punishable by imprisonment for ten years or more if prosecuted by indictment), meaning PRs who could be deemed inadmissible even if (as it appears) rather few are.

I have long understood (erroneously) that if the charges resulted in a summary conviction, there was no risk a PR (but not a Foreign National) would not be inadmissible unless actually given imprisonment for six months plus a day, or more. Again, that was WRONG. My impression is that in most cases that is not likely, but I am not so sure of that now.

Which goes back to what I previously cautioned, here and often elsewhere as well, but now edited some:

For any charges under the Criminal Code, the charged individual should very seriously consider hiring a competent lawyer to represent them. And for any hybrid offence punishable by ten years of imprisonment it is especially important to obtain the assistance of a lawyer.​

I previously excepted "unless certain the case is being prosecuted as a summary offence" (which, in the context of the exchange with @Ponga above, is typical of driving related offences not involving bodily injury or death). Again, that was in ERROR.

 

[Cavin]

Reminder: for purposes of the PR card application, which does NOT ask the applicant to disclose criminal charges, PENDING charges in Canada do not affect the PR's status or affect eligibility for a new PR card.

In contrast, if you are charged with an indictable offence (which it appears you are), you are NOT eligible for citizenship . . . so "I am also eligible to apply for citizenship" is obviously incorrect.

In particular, in contrast to the PR card application, the citizenship application does ask the applicant to disclose if they are "now charged with . . . an indictable offence in Canada," and other information related to criminal matters. If charges are pending, they must be disclosed. Does not matter if "hit comes on checks" or not, pending charges must be disclosed in a citizenship application. In addition to NOT being eligible for citizenship while charged with an indictable offence, if convicted of an indictable offence an individual is prohibited from getting citizenship for at least four years. I say "at least," because in addition to the prohibition itself, any period of probation or imprisonment cannot be counted toward meeting the presence requirement, so depending on the sentence for a conviction, that can practically mean it takes significantly longer than four more years to become eligible for citizenship again.

Additional Caution:

As the subsequent exchange with @Ponga addresses and illuminates: if you are charged with an offence that could result in imprisonment for ten years or more which is a hybrid offence, that is a charge that could result in a conviction for a summary offence rather than an indictable offence, and that is the outcome, that is you end up with a conviction for a summary offence (such as in the case of a plea bargain), there is case law that EVEN then, regardless of the actual sentence (even no jail time), that can constitute grounds for determining the PR is inadmissible for serious criminality.

It is very, very difficult to forecast whether there will be, in fact, proceedings to determine inadmissibility brought against a PR who has a summary conviction for a hybrid offence that, if prosecuted by indictment, could result in imprisonment for ten years. This does not appear to be common for Summary convictions resulting in little or no jail time, but there are some cases (including cases where jail time was just 30 days) and it is not at all clear what led to actions to terminate PR status in those cases.

So, for example, if you are charged with an indictable offence punishable by ten years of imprisonment (which it appears you are), even if there is a plea bargain to proceed as a summary offence resulting in probation, that will technically put your PR status at risk. And to be clear, even if you have recently been issued a new PR card.

Should be obvious, but the obvious is often worth stating out loud: this is a situation for which not only a good criminal defense lawyer is needed, but a lawyer well versed in how a criminal matter can affect immigration as well. Many criminal defense lawyers will not be sufficiently aware of the immigration implications. PROCEED CAUTIOUSLY.

Beyond That:

Who, when, and why PRs with criminal convictions are subject to inadmissibility proceedings, leading to the loss of PR status and deportation, is a very broad, complex, and not easily navigated subject. It is a subject not addressed much here, in this forum, other than what is more or less at the surface, such as what offences constitute criminality, in contrast to, again, who, when, or why PRs with criminal convictions are actually determined to be inadmissible.

This really is lawyer-up terrain.

The case law does not help much because, with isolated exceptions, it is overwhelmingly dominated by egregious cases. In particular it does not illuminate much about the risks for a PR with a summary conviction for a "serious" hybrid offence (that is, punishable by imprisonment for ten years or more if prosecuted by indictment), meaning PRs who could be deemed inadmissible even if (as it appears) rather few are.

I have long understood (erroneously) that if the charges resulted in a summary conviction, there was no risk a PR (but not a Foreign National) would not be inadmissible unless actually given imprisonment for six months plus a day, or more. Again, that was WRONG. My impression is that in most cases that is not likely, but I am not so sure of that now.

Which goes back to what I previously cautioned, here and often elsewhere as well, but now edited some:

For any charges under the Criminal Code, the charged individual should very seriously consider hiring a competent lawyer to represent them. And for any hybrid offence punishable by ten years of imprisonment it is especially important to obtain the assistance of a lawyer.​

I previously excepted "unless certain the case is being prosecuted as a summary offence" (which, in the context of the exchange with @Ponga above, is typical of driving related offences not involving bodily injury or death). Again, that was in ERROR.

Thank you so much for your advice I will do the needful and proceed with caution.

 

[mpkr]

Dear @Ponga @dpenabill expert members,


To provide a brief overview of my situation, my sister became Permanent Resident in 2017. However, due to marital issues, she encountered legal complications during a visit to UK to meet her husband in July 2019, resulting in a criminal harassment conviction and a restraining order in UK also a fine. Then she returned to Canada in end july 2019 and she is working full time . Field her taxes and also running small business from past 4.5 years. In addition tot that she also did not leave Canada till today. Even though as per UK law it is summary but As per the Canadian criminal code of equivalency it is Hybrid offence but IRCC would consider it as indictable offence for immigration.

I have several inquiries regarding her immigration.

1. Can she apply for PR renewal which expired in October2022 from inside Canada with the UK conviction?

2. If PR renewal is not feasible, should she pursue a Temporary Resident Permit (TRP)?

3. What is the timeline for eligibility to apply for Canadian citizenship?

4. Do she need to seek criminal rehabilitation before applying for PR renewal or citizenship?

any insights about this matter would be greatly appreciated .

thank you in advance!

 

[dpenabill]

Best approach would be to see a qualified and competent immigration lawyer.

I will offer what I can, but in many respects this is about illuminating why it would be better to see a lawyer.

I dive into this in some depth, so it will take two posts.

To provide a brief overview of my situation, my sister became Permanent Resident in 2017. However, due to marital issues, she encountered legal complications during a visit to UK to meet her husband in July 2019, resulting in a criminal harassment conviction and a restraining order in UK also a fine. Then she returned to Canada in end july 2019 and she is working full time . Field her taxes and also running small business from past 4.5 years. In addition tot that she also did not leave Canada till today. Even though as per UK law it is summary but As per the Canadian criminal code of equivalency it is Hybrid offence but IRCC would consider it as indictable offence for immigration.

I have several inquiries regarding her immigration.

1. Can she apply for PR renewal which expired in October2022 from inside Canada with the UK conviction?

2. If PR renewal is not feasible, should she pursue a Temporary Resident Permit (TRP)?

3. What is the timeline for eligibility to apply for Canadian citizenship?

4. Do she need to seek criminal rehabilitation before applying for PR renewal or citizenship?

I am NOT an expert. NOT close. For an expert's analysis or advice, see a qualified immigration lawyer. This is not merely a pro forma disclaimer. In this regard, no one should be distracted by what I know, which I freely share; it is what I do not know (especially how some things work in practice) that too often can be important and problematic.

There is a real risk the conviction here meets the definition of serious criminality, which could result in the loss of PR status and DEPORTATION (no TRP either). So it is really important to recognize the limitations of what I offer.

An Overview:

As long as they are not traveling outside Canada, there is no need to apply for a new PR card. They continue to be a PR.

Given the criminal conviction, there should be no rush to apply for citizenship. If it has been more than four years since the date of the conviction they are probably eligible, but since an application for citizenship will for sure result in criminal history screening, which could trigger inquiry into this conviction even though they will not need to disclose it in the application (assuming the conviction itself was more than four years previous), it is a good idea to wait awhile more, at the least, and better to consult with a qualified lawyer before proceeding to make the application (will address this further below).

I do not know whether an application for a new PR card might trigger inquiry into the foreign conviction. The application itself does not require disclosure of criminal charges or convictions. Generally there is NO need to rush making an application for a new PR card unless international travel is planned; although sometimes a valid PR card might be needed to renew things like provincial health care coverage or drivers' license (I never had to show a PR card for renewing either of these, but I did not change address, let alone move to a different province).

My sense is the odds are good a PR card application does not trigger a problem due to the criminal conviction, so many would likely be inclined to take the risk and make the application without incurring the cost of a lawyer. However, the prudent approach would be to consult with a lawyer, and have that cover questions about making a citizenship application as well.

Further Observations . . . noting, again, I am NOT an expert. NOT close.

In regards to this situation in particular, my lack of expertise looms large; for example, what the precise Canadian equivalent offence is could make a big difference in what impact it has on a Canadian PR's status in Canada, and I'd be guessing what the equivalent is. Additionally, I do not know and cannot say if (let alone when) the individual might be able to obtain rehabilitated status for the offence. The availability of rehabilitated status could matter, making a difference in whether the individual is inadmissible for serious criminality, or how long the person might be prohibited from obtaining Canadian citizenship. But whether obtaining rehabilitated status is even necessary, I do not know, and if it is, again I do not know if, let alone when, it would be available.

Note: if the equivalent offence in Canada is "criminal harassment" as defined in Section 264 in the Criminal Code (Canada), which is here https://laws-lois.justice.gc.ca/eng/acts/C-46/page-37.html#h-120223 then yes, unfortunately, a conviction for that offence is punishable by a term of imprisonment up to ten years, and that meets the definition of serious criminality (no matter how minor the actual criminal acts were, or how minimal the actual punishment imposed was).

Thus, if this is the equivalent, technically there are grounds to bring inadmissibility proceedings against this individual which could result in a Removal Order being issued leading to deportation.

My GUESS, much emphasis on it being a GUESS, is that in practical terms there is a low risk of inadmissibility proceedings for this.

Nonetheless, BEFORE taking any action that might trigger inquiry, investigation, and possibly full blown inadmissibility proceedings, the prudent thing to do would be at least engage in a consultation with a qualified lawyer . . . not a free consultation, or a general consultation, but where the lawyer is hired (paid) to review and analyze the situation in detail. I can only guess what this would cost; at least $300 but my guess is more like $500 to $800.

In addition to responding more particularly to your questions, I will address the serious criminality and potential inadmissibility issue further in another post.

 

[dpenabill]

1. Can she apply for PR renewal which expired in October2022 from inside Canada with the UK conviction?

There is NO renewal of PR status. Many refer to an application for a new PR card as an application to renew. However, it is more like an application to replace an expiring passport (citizenship does not expire even though the person no longer has a currently valid passport) than it is an application to renew a drivers' license (license to drive does expire if the drivers' license is not renewed).

A PR continues to have PR status barring some affirmative action terminating PR status. Actions terminating PR status are:

-- renouncing PR status​

-- PR status is terminated when a PRTD application is denied or a Removal Order for inadmissibility is issued (both of these are subject to right of appeal; person remains a PR as long as appeal is pending, and keeps PR if they win the appeal)​

-- becoming a Canadian citizen, or​

-- for PR-refugees, upon cessation of protected person status​

So, question numbered 2 is easily answered:

"2. If PR renewal is not feasible, should she pursue a Temporary Resident Permit (TRP)?"​

No need to renew the PR card as long as the PR remains IN Canada. PR card is needed for the purpose of boarding a flight outside Canada that is flying to Canada. A person with a UK passport can usually travel via the U.S. and use ground transportation to come back to Canada.

Whether to make the PR card application, or when, is a separate question. In the meantime, as long as the person remains a PR (even if deemed inadmissible and is involved in an appeal to save PR status), they are not eligible for a TRP (only non-Canadians can be eligible for a TRP, whereas PRs are Canadians). Note, too, that the threshold for what constitutes inadmissibility is lower for non-Canadians (that is, FNs, meaning Foreign Nationals), so any conviction that would cause the loss of PR status is almost certain to mean they will not be granted a TRP.

Question numbered 3 is also easily answered, subject to potential impact of conviction on the individual's PR status:

"3. What is the timeline for eligibility to apply for Canadian citizenship?"​

In addition to other qualifications (like compliance with tax filing obligations and no prohibitions), an individual who has been a PR for five or more years is eligible for a grant of citizenship when they have been physically present IN Canada for at least 1095 days within the five year period of time immediately preceding the day the application is made, that is the date they sign and submit the application. (A PR for less than five years gets half day credits for days in Canada prior to becoming a PR and within the previous five years, limited to total of 365 days credit for pre-PR days.) Note: it is prudent to wait to apply with a month margin over the minimum (further noting that many here suggest a week to ten days is enough).

But that is subject to the impact of any criminal offence conviction.

For the situation you describe, the PR's eligibility for citizenship may be affected by the criminal conviction. Since the conviction is for a hybrid offence, that is considered an indictable offence. This constitutes a prohibition for FOUR years. Thus, at the soonest, they should NOT make an application for citizenship until at least FOUR years after the date of conviction.

Additionally, a PR is not eligible for a grant of citizenship (in effect precluded from being granted citizenship), if they are determined to be inadmissible and "under a Removal Order." For this situation, the question is whether the foreign conviction meets the definition of serious criminality which would make this PR inadmissible, subject to being issued a Removal Order.

If the foreign conviction meets the definition of serious criminality, the impact of inadmissibility potentially poses a much bigger problem than just blocking eligibility for citizenship. A determination of inadmissibility for serious criminality terminates the individual's PR status. And, as already noted, if this happens, it will block eligibility for a TRP.

So, the main question is whether or not the conviction constitutes serious criminality.

Again, the precise equivalent offence in Canadian law is what matters. In particular:

If the equivalent in Canada law is an indictable offence that can be punished by ten years of imprisonment, no matter how minor the crime physically committed was, or how minimal the punishment actually imposed, that would mean the conviction meets the serious criminality definition. ​

​

If the equivalent offence in Canada is punishable, at the very most, by imprisonment for a term LESS than ten years, the conviction has NO impact on the person's PR status. As a hybrid offence, it still constitutes a prohibition for FOUR years, but once it has been more than four years from the date of conviction (not just date of the offence), it will not affect the PR's eligibility for citizenship. ​

Conviction for Criminal Harassment in Canadian Law Constitutes Serious Criminality:

As previously referenced, "criminal harassment" as defined in Section 264 in the Criminal Code (Canada), which is here https://laws-lois.justice.gc.ca/eng/acts/C-46/page-37.html#h-120223 is an offence that is potentially punishable by a term of imprisonment up to ten years. That meets the definition of serious criminality (no matter how minor the actual criminal acts were, or how minimal the actual punishment imposed was).

There may be a real question, however, whether the elements of the UK offence make it the equivalent of the Canadian "criminal harassment" offence. I am aware, for example, that in some U.S. states there can be different classifications of harassment, and thus can be a minor crime that probably is NOT the equivalent of the Canadian criminal harassment offence (this is usually due to how the criminal law in U.S. states does not have hybrid offences, so there must be distinctly different elements distinguishing different grades or classifications of similar offences).

The precise language in the UK law matters. If the elements of the respective offences (UK and Canadian) are very nearly identical, stated the same way, that makes it more difficult to challenge whether the Canadian criminal harassment offence is its equivalent. If the terminology is much different, that can open the door to claiming the UK offence is not the equivalent of the Canadian offence, and I do not really know but my sense is this could easily be enough to avoid a determination of inadmissibility for serious criminality. HOWEVER, if CBSA/IRCC have the view they are equivalent, it is best to have a lawyer, best by far to have a lawyer.

Whether or not CBSA/IRCC is likely to commence inadmissibility proceedings in this scenario, even if it is clear the UK and Canadian offences are equivalent, I do NOT know. I have very little idea other than it appears that Canada has so far NOT pursued inadmissibility proceedings for this. Beyond that, it is my sense, not much more than a guess, is that a solitary incident like this is NOT likely to trigger inadmissibility proceedings, but I am NOT at all confident of this, and given the RISK, the loss of PR status, the prudent approach is to exercise caution, at least in terms of avoiding doing something that might trigger investigation let alone trigger inadmissibility proceedings.

I am afraid I may have made this far more confusing than it should be. Part of this is that there is clearly a significant risk of a real problem, but the scope of that risk is very uncertain. Now that four years have passed, the risk of a problem might be very low. I just don't know.

A lawyer will not only be more informed about the applicable law, but should be far more informed about actual practices and the parameters of risk.

 

[dnounou]

Please we need help.. is a dismissed assault could effect permenant resident renewel?

Is a dismissed assault immigration canada considere it as a crime..the case is dismissed and the person didn't go to jail !!!

 

[dnounou]

A son with a first dui since 2017 and he paid the fine in 2021 still waiting for a 5 years period to be able to do his pardon..

The son with cr8 permenant resident status he got his case in 2017 paid the whole fine in 2021.

His father doesn't have no criminal record in canada. He wants to renew his pr resident card. The question is:

Is the dui criminality of the son could effect the father permenant resident cr8 renewel in canada?

The son is adult not under age ..

The father is considering himself as a victim for the behavior of his son..

What is the best solution to save the father status in canada?