Citizenship application with DUI

[Ottawa-applicant]

You would think that IRCC has guide for answering such complex scenarios. If the help agent is not able to answer or even, ask their direct experienced supervisor who can answer it then?

I’m not expert in law making but there is no way this question never been raised/asked before.

Why does the applicant have to go through multiple channels to find such an answer, spend more money on consultations and at the end still no clear answer?

Assuming my case, conviction was done back in 2015 no matter what I answer “Yes/No” in the form it will result in longer processing. If I answer Yes then RCMP fingerprint and etc. if I answer No then I’m taking the chance of misrepresentation.

I will research more and share any finding, thank you again.

 

[jasperJ]

I will be answering no and will detail it anyways in a letter. That way I am not hiding/misrepresenting anything.

Just an advice, don’t worry about the delay, as long as at the end there is a positive decision, we are good.

you live only once and don’t want to spend a year or more of your life just stressing about the stupid thing.

 

[dpenabill]

You would think that IRCC has guide for answering such complex scenarios. If the help agent is not able to answer or even, ask their direct experienced supervisor who can answer it then?

I’m not expert in law making but there is no way this question never been raised/asked before.

Why does the applicant have to go through multiple channels to find such an answer, spend more money on consultations and at the end still no clear answer?

Assuming my case, conviction was done back in 2015 no matter what I answer “Yes/No” in the form it will result in longer processing. If I answer Yes then RCMP fingerprint and etc. if I answer No then I’m taking the chance of misrepresentation.

I will research more and share any finding, thank you again.

Based on the fact (as you have reported) that the conviction was clearly for a summary offence, there should be no chance of a misrepresentation determination if you check "no." (But this is specific to the individual . . . and depends on many factors, not the least of which is completing the driving prohibition period and interlock program without any breaches.)

And the information you obtained from the court appears to confirm NO probation, so that should not be a problem. (And again, this is specific to the individual and depends on the court not imposing any probation.)

There is some chance of a name-record hit in the RCMP database, and that triggering some concern . . . finger print request and, just possibly, a request for copies of the court record to verify it was a summary conviction and perhaps to verify no probation. But this chance is more about what pops up as a hit in the RCMP name-record database than it is about how you respond to item 16.8.

And the latter is about having been charged and convicted of an operating-while-impaired offence. That is what it is. But even at that, it should not delay the processing by much.

And the approach suggested by @jasperJ seems prudent enough:

I will be answering no and will detail it anyways in a letter. That way I am not hiding/misrepresenting anything.

Just an advice, don’t worry about the delay, as long as at the end there is a positive decision, we are good.

you live only once and don’t want to spend a year or more of your life just stressing about the stupid thing.

Some particular observations:

"You would think that IRCC has guide for answering such complex scenarios. If the help agent is not able to answer or even, ask their direct experienced supervisor who can answer it then?"​

The answer requires an analysis of facts in the specific case and applying the law and rules to those facts. IRCC rarely, if ever, will do this in the abstract or hypothetically. Again, unless there is an obvious, definitive answer (and not usually even then). BUT there is NO clear or definitive answer for this question, since it depends on the particular facts in the case, and it also depends on analyzing those facts under the law.

Which leads to the other observation:

"I’m not expert in law making but there is no way this question never been raised/asked before."​

Actually it has not. An answer is specifically dependent on the particular details in your case. The question cannot be answered except in the particular case. And again, IRCC will not attempt to answer questions like this in the abstract or hypothetically. In my previous post I referenced a number of details which are relevant in trying to answer a question like this.

[Note: if you ask "do I need to check "yes" in item 16.8 if I was convicted of an indictable offence?" OR "do I need to check "yes" in item 16.8 if I have not been convicted of an indictable offence?" There is a fair chance the help centre agent will answer, "yes" in response to the first, and "no" in response to the latter. Although if properly trained, the agent will decline to say how YOU should respond, and will instead restate the instruction: "if you have been convicted of an indictable offence in Canada or of any offence abroad during the four years, you need to check "yes" and give an explanation."]

IRCC rarely if ever offers advisory opinions. A person can call the help line and be told what the eligibility requirements are . . . for sponsored partner PR, say, or for citizenship. But a person cannot call the help line and list their circumstances and get an answer as to whether they are eligible. There are many, many reason for this. I alluded to some in my previous post (one being that clients tend to leave out this or that important detail, not intentionally but without knowing what is important).

To be clear, the answer for you is not necessarily the same answer for someone else with a driving while impaired offence.

It is easier to know once there is a conviction and sentence. Based on what happened in court in the particular case, the individual should know (1) whether or not it was a summary process, and (2) whether or not probation was imposed.

If it was a summary conviction, it is NOT a conviction for an indictable offence. I know of no provision in the Citizenship Act that is comparable to the IRPA provision that @jasperJ alerted us to, which states that for purposes of the particular IRPA provisions governing PR and FN inadmissibility for criminality and serious criminality, a conviction for a hybrid offence is considered a conviction for an indictable offence . . . so there should be no issue about the summary conviction NOT constituting a prohibition, not requiring a "yes" check in response to item 16.8 . . . BUT AGAIN this depends on the specific facts.

In contrast, if the charge has not been resolved, if it is still pending, the individual should wait . . . or he or she may need to check "yes" in response to item 16.3 . . . that is, as long as there has not been a formal election, by the prosecutor, to proceed by summary procedure, it remains an indictable offence (because it can still possibly be prosecuted by indictment).

The SUMMARY I previously posted covers it . . . and for those who, on an individual basis, have confirmed they were not on probation, that question too is settled.

SUMMARY . . . FOR PURPOSES OF PRIMARY SUBJECT AS TO CONSEQUENCES OF DWI/DUI CHARGES FOR CITIZENSHIP APPLICANTS:

-- Until it is established that the prosecution has elected to proceed as a summary offence, DWI is a hybrid offence and thus an indictable offence, which constitutes a prohibition . . . at least until the prosecution has determined to proceed as a summary offence

-- A conviction for operating while impaired IN CANADA prosecuted as a summary offence does NOT constitute a prohibition --

-- -- and does not constitute inadmissibility so long as actual imprisonment is not for more than six months
-- -- BUT if prosecuted by indictment, that not only would constitute a prohibition, but also could be deemed serious criminality and grounds for a finding of inadmissibility leading to loss of PR status EVEN IF less than six months jail is actually imposed
​

-- If PROBATION is imposed as part of the sentence for a conviction of driving while impaired, prosecuted as a summary offence --

-- -- there is a prohibition for however long the individual remains on probation; prohibition ceases as of the day probation is completed
-- -- for purposes of the actual physical presence calculation, time on probation is counted as days ABSENT from Canada (online presence calculator automatically calculates it this way so long as the applicant properly enters the data about dates of probation)​

 

[jasperJ]

Found another official resource (Ontario Legal Aid) which supports the fact that only convictions of hybrid offences prosecuted by indictment prohibits you from applying citizenship.

Page 34
https://www.legalaid.on.ca/en/info/downloads/2016-04-Immigration-consequences-of-criminal-dispositions-and-sentencing.pdf

I know there is a similar document from BC Legal aid which I read few years ago and it mentions the same. I will find it and post the link.

EDIT:
BC document: Page 7 and 8
https://lss.bc.ca/sites/default/files/inline-files/immigrationConsequencesAtSentencing.pdf

 

[Nick_01]

Hey guys,

This thread has been one of the most helpful that I have found regarding my case and i thank everyone for commenting and sharing their thoughts here. I do have a similar situation.

I have a DUI offence which took place in early 2018 and falls under the old DUI laws. However, after 5 years of waiting and fighting I was given a conviction with just a fine of 1000$. I was initially given a conditional discharge by the provincial court with 1 year probation and 1 year driving probation. However, the higher court has overturned the provincial court decision and gave me a 1000$ fine. Note that I was not given any probation order and driving probation as I have already served them.

I am not sure if this conviction now will make be inadmissible, I would need to travel outside Canada and i am scared if I would be denied entry to Canada or issued a deportation order. My charges were a summary conviction.

 

[yeasir1987]

First part is for sure. As I have stated and restated:

And even though the conviction is for a SUMMARY OFFENCE, the term of probation affects a PR's path to citizenship in two ways:​

-- the PR is PROHIBITED from a grant of citizenship while the PR is on probation, and​

-- the period of time a PR is on probation is counted as time ABSENT from Canada​

The second part of your post, regarding probation attendant a conditional discharge, is NOT correct, at least not insofar as I can discern (but I am NO expert either). Once the charge is in fact DISCHARGED, the time on probation no longer matters. That is, once the offence is dismissed, that is "discharged," which is what happens when all the conditions have been met including going through the period of probation without any breach of the peace, it is then as if the individual was NOT charged. So, that time on probation still counts toward days in Canada for the presence calculation. BIG, BIG advantage in getting a conditional discharge.

This is explained in FAQs for the Physical Presence Calculator, question 11, where the answer states:

• Time on probation as a result of a conditional discharge may count towards physical presence if the probation was completed successfully (i.e. you were not charged with a breach of probation or a failure to comply during that probation). This time does not have to be declared for the purposes of the physical presence calculator.

The question being wrestled with here is whether or not there was a period of probation imposed in the particular cases discussed here (and if so, for what period of time). And it would be helpful to know if a conviction for driving while impaired typically includes a period of probation (my guess is that it does), and if so, for how long.

That is, we know what the consequences of probation are. We do not know whether probation was imposed.




With the caveat, again, that Justice Mactavish's decision in the Syed Ali Asghar Iqbal Ahmed case IS NOT BINDING and, more significantly, INTERPRETS and APPLIES OLD LAW, NOT THE CURRENT LAW . . . and thus cannot possibly make how the current law is interpreted and applied entirely clear.

What actually makes some aspects of the hybrid offence issue clear is not so much Justice Mactavish's opinion (which is a learned source, yes, and an official source as well, BUT it is not a binding precedent, thus not a definitive determination of how the law is applied EXCEPT as to Mr. Ahmed in particular) BUT rather the provisions of the Interpretation Act which Justice Mactavish cited.

Beyond that I doubt it is worth wandering much further into the weeds than I already did in my previous post except . . .

WHEN HYBRID OFFENCE BECOMES A SUMMARY OFFENCE:

The general principle seems simple enough. Multiple court decisions state this happens when the prosecutor/Crown makes the decision ("elects") to proceed by way of a summary prosecution. To be clear, it is NOT true "This is only true for Citizenship Act." Actually Justice Mactavish, and at least one other Federal Court justice, are extending Criminal law analysis to provisions in the Citizenship Act. (There are many more cases outside the scope of citizenship which address hybrid cases.)

Once there is a conviction, though, there is no doubt. This is explicitly covered by Section 34.(1)(c) in the Interpretation Act. A conviction for a hybrid offence prosecuted summarily is definitively NOT an indictable offence.

The case decided by Justice Mactavish (Ahmed) involved PENDING charges at the time of the hearing with a Citizenship Judge. Likewise in the Lahai Kamara case, decided by Justice Diner (see http://canlii.ca/t/gj1d6 ), Kamara had a hybrid offence pending at the time Kamara went to an interview with a Citizenship Judge. The difference in outcome depended on the conclusion, in Ahmed, that at the time of the CJ hearing the prosecution had in fact made an election to proceed summarily, versus that at the time of the CJ hearing for Kamara it was NOT determined, yet, if the prosecution would proceed summarily on the pending charge. So the hybrid offence pending against Kamara constituted an indictable offence, and thus a prohibition, since the prosecution had not yet elected to proceed summarily.

To be clear, the discussion in this topic has, so far, been about CONVICTIONS. And, as noted, if the prosecution proceeded according to summary offence procedures, there is no doubt once there is a conviction, it is NOT an indictable offence.

Sorting out how to establish, for purposes of a hearing or proceeding before IRCC, that the prosecution has elected to proceed by way of a summary procedure for a PENDING hybrid charge, so as to establish it is NOT an indictable offence, is more about the criminal law procedure than I can begin to sort out.


REGARDING INADMISSIBILITY:

Quote: "For purpose of IRPA’s section 36 (inadmissibility), it is clear that hybrid offences are considered indictable."

IRPA section 36 does not mention hybrid offences. PR inadmissibility does not depend on whether a charge is indictable or not, at least not directly.

But for purposes of operating while impaired charges, whether the offence is actually prosecuted by indictment or as a summary offence, that can make a huge difference. As of December, if a driving while impaired offence is prosecuted by indictment, that makes it punishable by up to ten years. Thus a conviction will meet the serious criminality criteria for PR inadmissibility EVEN IF less than six months jail is imposed. Most first or second DWI offences not involving injury accidents, however, will be prosecuted as summary offences . . . so these will only make a PR inadmissible if there is six months or more actual jail time imposed.

For purposes of determining if a Foreign National is inadmissible on grounds of criminality, the effect of a hybrid offence depends on where the offence occurred and was prosecuted.

If the hybrid offence was committed IN Canada and was prosecuted by summary procedure, that alone does NOT constitute inadmissibility and is NOT a conviction for an indictable offence. (Two or more summary offences, however, will make a FN inadmissible.)

In contrast, if the offence took place outside Canada and its Canadian equivalent is a hybrid offence, IRCC will generally consider it to be an indictable offence for purposes of FN inadmissibility.

Hi, thank you so much for the great response. You mentioned that a DUI with a summary proceeding will not be inadmissible if jail time is less than 6 months. Do you have any type of reference for this or is it just your assumption? Because I saw in other places that DUI is automatically a serious criminality regardless of summary proceeding, so DUI case is by default inadmissible. It would be of great help if you could respond.

 

[yeasir1987]

Hey guys,

This thread has been one of the most helpful that I have found regarding my case and i thank everyone for commenting and sharing their thoughts here. I do have a similar situation.

I have a DUI offence which took place in early 2018 and falls under the old DUI laws. However, after 5 years of waiting and fighting I was given a conviction with just a fine of 1000$. I was initially given a conditional discharge by the provincial court with 1 year probation and 1 year driving probation. However, the higher court has overturned the provincial court decision and gave me a 1000$ fine. Note that I was not given any probation order and driving probation as I have already served them.

I am not sure if this conviction now will make be inadmissible, I would need to travel outside Canada and i am scared if I would be denied entry to Canada or issued a deportation order. My charges were a summary conviction.

Hi,

Did the summary conviction make you inadmissible in Canada? I am looking to find the answer if a summary conviction for DUI results in inadmissible in Canada.

 

[yeasir1987]

I agree with what you said except regarding inadmissibility.

I am going a little bit off the topic but since this is related to DUI I will put it here.

As per the new rule, if you are charged with DUI after Dec 21st 2018, it doesn't matter if you were prosecuted summarily or by indictment, in case of a conviction, a person (PR or Foreign National) is automatically inadmissible to Canada. CC266 (DUI) charges have a maximum sentence of 10 years (used to be 5 years) and Sections 36's provisions state:

36 (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for

• (a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed;
  
  Application
  
  (3) The following provisions govern subsections (1) and (2):
  • (a) an offence that may be prosecuted either summarily or by way of indictment is deemed to be an indictable offence, even if it has been prosecuted summarily;

Hi,

The reference that you are mentioning CC266 is not for DUI. For DUI the CC is 320.19 and there it states that there are two types of convistion for DUI. One is indictable and one is summary. Summary is for a maximum 2 years jail and the other is for 10 years. So, a summary conviction can not be inadmissible as it is only for 2 years. Do you have any reference where it says that all DUI conviction is inadmissible? Greatly appreciate it if you could provide any references.

 

[dpenabill]

Hi, thank you so much for the great response. You mentioned that a DUI with a summary proceeding will not be inadmissible if jail time is less than 6 months. Do you have any type of reference for this or is it just your assumption? Because I saw in other places that DUI is automatically a serious criminality regardless of summary proceeding, so DUI case is by default inadmissible. It would be of great help if you could respond.

I suspect this is an issue for more PRs than discussions in this forum indicate; but sparse anecdotal reporting in addition to the variables involved, hampers our ability to offer good information . . . other than the formalities of the law itself . . . which means a impaired driving conviction is indeed a serious matter for a PR.

Overall: For any PR affected by this, anyone who is charged, let alone convicted of a driving while impaired offence, SEE a LAWYER, and probably not just one lawyer, but BOTH an experienced criminal defense lawyer (especially soon after being charged; best chance to avoid more serious consequences is a lawyer negotiating an outcome minimizing not just the penalties imposed in the criminal case, but minimizing collateral consequences, like how it can affect a PR's status in Canada), AND an experienced immigration lawyer, asking them to coordinate their representation.

Otherwise, unfortunately it appears to be true that a driving while impaired conviction is considered serious criminality. (I would have to revisit the research to confirm, but this is my current recollection.)

The discussion you quote is dated, more than four years old, and among mistakes I made (I am NO expert), I did not anticipate, back then, that the immigration authorities and justices in the Federal Court would conclude that given the provision a conviction for a "hybrid" offence is deemed a conviction for an "indictable" offence, that despite the maximum penalty for a summary impaired-driving offence being just two years, it would be deemed a conviction for an offence punishable for up to ten years, which is the punishment applicable to a conviction for the offence if prosecuted by indictment.

I have excuses, in addition to the obvious excuse that I am NO expert and NOT a Canadian lawyer, including excuses rooted in the provisions of law itself (such as distinguishing the classification of an offence, as summary or indictable, from the potential punishment, which is not how the Canadian authorities have interpreted and applied it). But that's largely irrelevant now. Note too that much of that discussion was overtly just "musing," rife with a lot of "GUESSES," and an effort by a number of forum participants to unravel some recent changes in law and forecast how they would be applied.

While I have not recently addressed or wrestled with this, my vague recollection is that others and I have discussed it, and the serious criminality outcome, in other discussions significantly more recent than that 2019 one.

Current State of Law: In any event . . . in addition to it being quite certain that a conviction in a country other than Canada for what is the equivalent of the basic driving while impaired criminal offence in Canada, that is Section 320.14(1) in the Criminal Code, constitutes serious criminality and means the PR meets the definition of inadmissible, it appears that indeed, a straight-up conviction of this offence IN Canada also constitutes serious criminality and means the PR meets the definition of inadmissible.

Continuing Uncertainty:

In regards to PRs convicted of this offence, whether CBSA or IRCC will proceed with inadmissibility proceedings, leading to a Removal Order and loss of PR status, is a separate matter; it appears this is NOT uniformly enforced, leading to inconsistencies in consequences and significant uncertainty about how this will affect any particular PR's future in Canada.

And for offences committed IN Canada, it appears to be even more complicated than that, and in particular, given the lack of uniformity in enforcement actions by immigration authorities, there have been wide variations in actual, practical outcomes, which means it can be very difficult to predict what will happen in the particular case.

Moreover, there appears to be a lot of wiggle room in negotiating variable outcomes in impaired-driving cases, for charges in Canada, which will enable many to avoid the more serious collateral consequences. I am not certain, but it is my impression that in addition to potential outcomes involving some sort of diversionary or conditional discharge dispositions, in some cases the driver can have the case disposed of under provisions of provincial traffic law (Ontario, for example, has so-called "warn range penalties" which do not involve a criminal conviction). This dramatically elevates the importance and value of obtaining the help of a skilled, experienced criminal lawyer for PRs. But this makes it difficult to rely on anecdotal experiences to map likely, let alone definite consequences for any other particular individual.

The extent of variability in the enforcement of PR inadmissibility, in particular, makes it especially difficult to forecast what will happen for any particular individual PR. This variability appears to be even more widespread in regards to residency obligation enforcement, in regards to which flexibility and leniency have been so prevalent it is almost as if many PRs rely on lax enforcement. Comparatively, there has not been much anecdotal reporting from PRs who meet the definition of inadmissible for serious criminality, in contrast to the scores and scores of anecdotal reporting from PRs meeting the definition of inadmissible due to breaching the RO. For the latter, this reporting in conjunction with the IAD and Federal Court decisions, gives us some idea of the risk parameters -- NO guarantees, not close, and no reliable quantification of the risks beyond general characterizations based on key factors, but enough to indicate that despite the risk, many who are inadmissible for a breach of the RO never face inadmissibility proceedings let alone formal adjudication.

For inadmissibility based on criminality, we just do not know. Not enough anecdotal reporting to get a sense of the parameters of enforcement. The IAD and Federal Court cases tend (with some exceptions) to be about serious criminality in the vernacular sense, not just what technically meets the definition of serious criminality.

And this means it is very difficult to reliably assess what anecdotal reporting there is. One PR's report of having no problems despite a so-called DUI conviction does not illuminate much at all. Assuming that reporting is true, we know the outcome could be very different than that. But we have no idea of the numbers.

 

[yeasir1987]

I suspect this is an issue for more PRs than discussions in this forum indicate; but sparse anecdotal reporting in addition to the variables involved, hampers our ability to offer good information . . . other than the formalities of the law itself . . . which means a impaired driving conviction is indeed a serious matter for a PR.

Overall: For any PR affected by this, anyone who is charged, let alone convicted of a driving while impaired offence, SEE a LAWYER, and probably not just one lawyer, but BOTH an experienced criminal defense lawyer (especially soon after being charged; best chance to avoid more serious consequences is a lawyer negotiating an outcome minimizing not just the penalties imposed in the criminal case, but minimizing collateral consequences, like how it can affect a PR's status in Canada), AND an experienced immigration lawyer, asking them to coordinate their representation.

Otherwise, unfortunately it appears to be true that a driving while impaired conviction is considered serious criminality. (I would have to revisit the research to confirm, but this is my current recollection.)

The discussion you quote is dated, more than four years old, and among mistakes I made (I am NO expert), I did not anticipate, back then, that the immigration authorities and justices in the Federal Court would conclude that given the provision a conviction for a "hybrid" offence is deemed a conviction for an "indictable" offence, that despite the maximum penalty for a summary impaired-driving offence being just two years, it would be deemed a conviction for an offence punishable for up to ten years, which is the punishment applicable to a conviction for the offence if prosecuted by indictment.

I have excuses, in addition to the obvious excuse that I am NO expert and NOT a Canadian lawyer, including excuses rooted in the provisions of law itself (such as distinguishing the classification of an offence, as summary or indictable, from the potential punishment, which is not how the Canadian authorities have interpreted and applied it). But that's largely irrelevant now. Note too that much of that discussion was overtly just "musing," rife with a lot of "GUESSES," and an effort by a number of forum participants to unravel some recent changes in law and forecast how they would be applied.

While I have not recently addressed or wrestled with this, my vague recollection is that others and I have discussed it, and the serious criminality outcome, in other discussions significantly more recent than that 2019 one.

Current State of Law: In any event . . . in addition to it being quite certain that a conviction in a country other than Canada for what is the equivalent of the basic driving while impaired criminal offence in Canada, that is Section 320.14(1) in the Criminal Code, constitutes serious criminality and means the PR meets the definition of inadmissible, it appears that indeed, a straight-up conviction of this offence IN Canada also constitutes serious criminality and means the PR meets the definition of inadmissible.

Continuing Uncertainty:

In regards to PRs convicted of this offence, whether CBSA or IRCC will proceed with inadmissibility proceedings, leading to a Removal Order and loss of PR status, is a separate matter; it appears this is NOT uniformly enforced, leading to inconsistencies in consequences and significant uncertainty about how this will affect any particular PR's future in Canada.

And for offences committed IN Canada, it appears to be even more complicated than that, and in particular, given the lack of uniformity in enforcement actions by immigration authorities, there have been wide variations in actual, practical outcomes, which means it can be very difficult to predict what will happen in the particular case.

Moreover, there appears to be a lot of wiggle room in negotiating variable outcomes in impaired-driving cases, for charges in Canada, which will enable many to avoid the more serious collateral consequences. I am not certain, but it is my impression that in addition to potential outcomes involving some sort of diversionary or conditional discharge dispositions, in some cases the driver can have the case disposed of under provisions of provincial traffic law (Ontario, for example, has so-called "warn range penalties" which do not involve a criminal conviction). This dramatically elevates the importance and value of obtaining the help of a skilled, experienced criminal lawyer for PRs. But this makes it difficult to rely on anecdotal experiences to map likely, let alone definite consequences for any other particular individual.

The extent of variability in the enforcement of PR inadmissibility, in particular, makes it especially difficult to forecast what will happen for any particular individual PR. This variability appears to be even more widespread in regards to residency obligation enforcement, in regards to which flexibility and leniency have been so prevalent it is almost as if many PRs rely on lax enforcement. Comparatively, there has not been much anecdotal reporting from PRs who meet the definition of inadmissible for serious criminality, in contrast to the scores and scores of anecdotal reporting from PRs meeting the definition of inadmissible due to breaching the RO. For the latter, this reporting in conjunction with the IAD and Federal Court decisions, gives us some idea of the risk parameters -- NO guarantees, not close, and no reliable quantification of the risks beyond general characterizations based on key factors, but enough to indicate that despite the risk, many who are inadmissible for a breach of the RO never face inadmissibility proceedings let alone formal adjudication.

For inadmissibility based on criminality, we just do not know. Not enough anecdotal reporting to get a sense of the parameters of enforcement. The IAD and Federal Court cases tend (with some exceptions) to be about serious criminality in the vernacular sense, not just what technically meets the definition of serious criminality.

And this means it is very difficult to reliably assess what anecdotal reporting there is. One PR's report of having no problems despite a so-called DUI conviction does not illuminate much at all. Assuming that reporting is true, we know the outcome could be very different than that. But we have no idea of the numbers.

Thanks a whole lot for the amazing reply. I have appointed a criminal lawyer. Let's hope I can get out of the charge. I applied for citizenship yesterday as I have a DUI summary offence.

 

[Fuzu]

Immigration and DUI - Alberta, Canada

6 months ago I was at an office party. Rarely do I drink but had 3-4 drinks that night and got stopped on the way home for doing 70 in a 60 zone. They did a routine breathalyzer and I was convicted with impaired driving over the limit ( over 0.08 ).

I know it's a serious offence however the officer on scene along with some lawyers I spoke to who specializes in DUI confirmed for first time offence it is 100% NOT a criminal charge and does not go on your criminal record ONLY in Alberta, Canada. They gave me an administrative penalty ( harsh consequences, I deserve it) under the traffic safety Act.

Other provinces in Canada might charge you criminally under Criminal code of Canada for 1st offence. But not in the province of Alberta unless something more serious happens like killing someone while impaired or 2nd offence. However the consequences ( losing driving privileges, hefty fines ) are similar.

Link for rule I am talking about for context:

https://seanfagan.ca/practice-areas/driving-charges/impaired-driving/

Since it is not a criminal record, will it affect my immigration. I am on work permit.

Everything I worked for my entire life has potentially been ruined by that one night.

I suspect this is an issue for more PRs than discussions in this forum indicate; but sparse anecdotal reporting in addition to the variables involved, hampers our ability to offer good information . . . other than the formalities of the law itself . . . which means a impaired driving conviction is indeed a serious matter for a PR.

Overall: For any PR affected by this, anyone who is charged, let alone convicted of a driving while impaired offence, SEE a LAWYER, and probably not just one lawyer, but BOTH an experienced criminal defense lawyer (especially soon after being charged; best chance to avoid more serious consequences is a lawyer negotiating an outcome minimizing not just the penalties imposed in the criminal case, but minimizing collateral consequences, like how it can affect a PR's status in Canada), AND an experienced immigration lawyer, asking them to coordinate their representation.

Otherwise, unfortunately it appears to be true that a driving while impaired conviction is considered serious criminality. (I would have to revisit the research to confirm, but this is my current recollection.)

The discussion you quote is dated, more than four years old, and among mistakes I made (I am NO expert), I did not anticipate, back then, that the immigration authorities and justices in the Federal Court would conclude that given the provision a conviction for a "hybrid" offence is deemed a conviction for an "indictable" offence, that despite the maximum penalty for a summary impaired-driving offence being just two years, it would be deemed a conviction for an offence punishable for up to ten years, which is the punishment applicable to a conviction for the offence if prosecuted by indictment.

I have excuses, in addition to the obvious excuse that I am NO expert and NOT a Canadian lawyer, including excuses rooted in the provisions of law itself (such as distinguishing the classification of an offence, as summary or indictable, from the potential punishment, which is not how the Canadian authorities have interpreted and applied it). But that's largely irrelevant now. Note too that much of that discussion was overtly just "musing," rife with a lot of "GUESSES," and an effort by a number of forum participants to unravel some recent changes in law and forecast how they would be applied.

While I have not recently addressed or wrestled with this, my vague recollection is that others and I have discussed it, and the serious criminality outcome, in other discussions significantly more recent than that 2019 one.

Current State of Law: In any event . . . in addition to it being quite certain that a conviction in a country other than Canada for what is the equivalent of the basic driving while impaired criminal offence in Canada, that is Section 320.14(1) in the Criminal Code, constitutes serious criminality and means the PR meets the definition of inadmissible, it appears that indeed, a straight-up conviction of this offence IN Canada also constitutes serious criminality and means the PR meets the definition of inadmissible.

Continuing Uncertainty:

In regards to PRs convicted of this offence, whether CBSA or IRCC will proceed with inadmissibility proceedings, leading to a Removal Order and loss of PR status, is a separate matter; it appears this is NOT uniformly enforced, leading to inconsistencies in consequences and significant uncertainty about how this will affect any particular PR's future in Canada.

And for offences committed IN Canada, it appears to be even more complicated than that, and in particular, given the lack of uniformity in enforcement actions by immigration authorities, there have been wide variations in actual, practical outcomes, which means it can be very difficult to predict what will happen in the particular case.

Moreover, there appears to be a lot of wiggle room in negotiating variable outcomes in impaired-driving cases, for charges in Canada, which will enable many to avoid the more serious collateral consequences. I am not certain, but it is my impression that in addition to potential outcomes involving some sort of diversionary or conditional discharge dispositions, in some cases the driver can have the case disposed of under provisions of provincial traffic law (Ontario, for example, has so-called "warn range penalties" which do not involve a criminal conviction). This dramatically elevates the importance and value of obtaining the help of a skilled, experienced criminal lawyer for PRs. But this makes it difficult to rely on anecdotal experiences to map likely, let alone definite consequences for any other particular individual.

The extent of variability in the enforcement of PR inadmissibility, in particular, makes it especially difficult to forecast what will happen for any particular individual PR. This variability appears to be even more widespread in regards to residency obligation enforcement, in regards to which flexibility and leniency have been so prevalent it is almost as if many PRs rely on lax enforcement. Comparatively, there has not been much anecdotal reporting from PRs who meet the definition of inadmissible for serious criminality, in contrast to the scores and scores of anecdotal reporting from PRs meeting the definition of inadmissible due to breaching the RO. For the latter, this reporting in conjunction with the IAD and Federal Court decisions, gives us some idea of the risk parameters -- NO guarantees, not close, and no reliable quantification of the risks beyond general characterizations based on key factors, but enough to indicate that despite the risk, many who are inadmissible for a breach of the RO never face inadmissibility proceedings let alone formal adjudication.

For inadmissibility based on criminality, we just do not know. Not enough anecdotal reporting to get a sense of the parameters of enforcement. The IAD and Federal Court cases tend (with some exceptions) to be about serious criminality in the vernacular sense, not just what technically meets the definition of serious criminality.

And this means it is very difficult to reliably assess what anecdotal reporting there is. One PR's report of having no problems despite a so-called DUI conviction does not illuminate much at all. Assuming that reporting is true, we know the outcome could be very different than that. But we have no idea of the numbers.

 

[Fuzu]

Hi dpenabill looking for your input

Immigration and DUI - Alberta, Canada

6 months ago I was at an office party. Rarely do I drink but had 3-4 drinks that night and got stopped on the way home for doing 70 in a 60 zone. They did a routine breathalyzer and I was convicted with impaired driving over the limit ( over 0.08 ).

I know it's a serious offence however the officer on scene along with some lawyers I spoke to who specializes in DUI confirmed for first time offence it is 100% NOT a criminal charge and does not go on your criminal record ONLY in Alberta, Canada. They gave me an administrative penalty ( harsh consequences, I deserve it) under the traffic safety Act.

Other provinces in Canada might charge you criminally under Criminal code of Canada for 1st offence. But not in the province of Alberta unless something more serious happens like killing someone while impaired or 2nd offence. However the consequences ( losing driving privileges, hefty fines ) are similar.

Link for rule I am talking about for context:

https://seanfagan.ca/practice-areas/driving-charges/impaired-driving/

Since it is not a criminal record, will it affect my immigration. I am on work permit.

Everything I worked for my entire life has potentially been ruined by that one night.

 

[jasperJ]

Thanks a whole lot for the amazing reply. I have appointed a criminal lawyer. Let's hope I can get out of the charge. I applied for citizenship yesterday as I have a DUI summary offence.

When were you charged and convicted?

Edit: Please ignore the above, seems like you are still dealing with it in the courts. They will most likely suspend your citizenship file until this is resolved in the courts. If this is your first charge, you might be able to get a plea deal, probably with a careless driving ticket under HTA and 12 months probation(at least in Ontario, a lot of other provinces don't have provisions for probations for provincial offences). If thats the case, you get probation with careless driving ticket, your citizenship file will be rejected because you are prohibited from granting citizenship or taking oath while on probation. Still better than getting convicted (because you can reapply after your probation is over) but if you get convicted for the DUI offence then it’s different ball game, things can get nasty.

In short, get a good criminal lawyer who can beat it or get it reduced to a HTA offence.

Good Luck and best wishes.

 

[dpenabill]

. . . applied for citizenship two days ago mentioning that I have a summary DUI charge . . .

I have a criminal lawyer right now . . .

As noted in that topic, where these were posted, I am making further observations here, trying to keep the discussion to one thread (easier to follow any tangents). See below and, in regards to what I can offer about the impact on a citizenship application in particular, including question about why you might want to hire an immigration lawyer sooner rather than later, the next post.

Hi dpenabill looking for your input

I believe you have gotten my response elsewhere. Looks like you are OK.

For DUI the CC is 320.19 and there it states that there are two types of convistion for DUI. One is indictable and one is summary. Summary is for a maximum 2 years jail and the other is for 10 years. So, a summary conviction can not be inadmissible as it is only for 2 years. Do you have any reference where it says that all DUI conviction is inadmissible? Greatly appreciate it if you could provide any references.

Further Observations:

Unfortunately, as I noted above, it appears that any impaired driving conviction (for convenience, a "DUI"), even if for a summary offence, constitutes serious criminality which means a PR convicted of this offence meets the definition of inadmissible. As I also noted, however, it is not at all clear to what extent CBSA or IRCC pursues inadmissibility proceedings against PRs with just one impaired driving conviction.

However, as the situation presented above by @Fuzu illustrates, there can be a difference between provincial traffic act violations versus charges for criminal offences, even though they are for similar acts. I alluded, for example, to the Ontario warn range penalties under the province's traffic act in my previous response. I do not know if it is possible to have the matter disposed of under provincial traffic regulations after the individual is already charged under the Criminal Act. That's something for a lawyer.

In addition to elements of this issue inviting uncertainty, and some confusion, as I also discussed above, the Citizenship Act does not have a provision comparable to Section 36(3)(a) IRPA (immigration law) providing:

. . . an offence that may be prosecuted either summarily or by way of indictment is deemed to be an indictable offence, even if it has been prosecuted summarily​

So, for example, a summary offence DUI conviction in Canada should not constitute a prohibition under the Citizenship Act, and thus should not itself preclude a grant of citizenship. But by more recent accounts, it does constitute serious criminality which is grounds for adjudicating a PR inadmissible. (The fact it is grounds for being adjudicated inadmissible does not necessarily mean the convicted PR will be subject to inadmissibility proceedings.)

More Re the Inadmissibility Issue In Particular:

While I have found a couple occasions in which I more recently (more recent than the early 2019 discussion above) acknowledged that the 2018 changes in law appear to mean any DUI conviction constitutes serious criminality, I failed to cite let alone link the sources. Ouch. One of these is here: https://www.canadavisa.com/canada-immigration-discussion-board/threads/pr-renewal-criminal-charges.773434/#post-10163013 . . . post #6 in that thread, posted July 24, 2022. There I stated (with a nod to @Ponga for correcting me):

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. ​

I further noted, there, that I had found . . .

. . . 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.​

And damn me for not including a reference for a single one of those cases. But especially the domestic assault case upholding a Removal Order, which is probably clearly on point and worth reviewing (I, like everyone, make mistakes, and stuff like this warrants a re-check, so I really should cite the source). I expect to research this and eventually find the decisions.

But unfortunately this is not something easily researched because there are so many criminal inadmissibility cases (most not involving PRs, but a large number involving PRs nonetheless) it is difficult to frame search criteria to obtain manageable results. As I also noted last summer:

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).​

It is always hard to extrapolate reliable conclusions from an absence of information, and I hope to avoid being overly reassuring, but the prevalence of what some might say are hard-rock cases, involving extensive criminal activity, seems to suggest that isolated offences may be overlooked or otherwise often do not result in inadmissibility proceedings. A big difference between an inadmissible Foreign National and an inadmissible PR, for example, is that the FN will be denied entry into Canada just on the basis of any conviction rendering them inadmissible, whereas for a PR to be deemed inadmissible either CBSA or IRCC must prosecute an inadmissibility proceeding against the PR resulting in an adjudication of inadmissibility.

PR inadmissibility is NOT self-enforcing. So, in a sense, there are no consequences for being inadmissible UNLESS the PR is, in effect, prosecuted in inadmissibility proceedings, including a hearing following the preparation of a 44(1) Report.

This is not quite the escape hatch for PRs potentially subject to inadmissibility, for serious criminality, that it is for PRs inadmissible for a breach of the RO. While neither is self-enforcing, inadmissibility for a breach of the RO is curable (so long as the PR does not get tangled in inadmissibility proceedings); all the PR needs to do is STAY in Canada long enough to have been here at least 730 days within the previous five years, and that means they are no longer inadmissible. Absent proceedings in the courts that in one sense or another vacate a criminal conviction, however, the PR inadmissible for serious criminality remains inadmissible indefinitely. How long is the PR at risk? Undoubtedly varies, including relative to the capacity to obtain rehabilitation-status for some convictions.

Question I cannot answer: for a PR with a criminal conviction that could be grounds for adjudicating the PR inadmissible, but so far no inadmissibility proceedings have been initiated, might applying for citizenship cause/trigger inadmissibility proceedings? That is certainly possible. A risk. And leads to . . .
. . . what impact is there on the citizenship application in particular? Including before final disposition of the criminal case.

 

[yeasir1987]

When were you charged and convicted?

I am not convicted. I was charged back in Nov 2022. I changed my lawyer a few months ago.