Citizenship application with DUI

[dpenabill]

Impact of impaired driving charge or conviction on the citizenship application:

I have a DUI charge prosecuted as a summary offence. I have applied for citizenship two days ago mentioning that I have a summary DUI charge. Will they process my application or will they withhold it till the conviction?

I have a criminal lawyer right now. I am not sure what an immigration lawyer will do at this stage of the process. Why do you think I should get an immigration lawyer right now? What will he be giving us at this stage of the prosecution? What is even the service that I should be getting from him at this stage as there is no hearing for a removal order or from IRCC/CBSA? A response is much appreciated.

As I have previously acknowledged, in terms of how it will affect a citizenship application, I do NOT KNOW what IRCC policy is, or practices are, in regards to hybrid criminal offences, including pending hybrid criminal charges which are in the process of being prosecuted as a summary offence.

As I addressed above, since the Citizenship Act (in contrast to IRPA, the immigration law) does not have a provision prescribing that summary convictions for a hybrid offence constitute a conviction for an indictable offence, SO when there is a summary conviction for a hybrid offence, as best I can discern, the summary conviction will not constitute a prohibition.

But, again, I am not all sure about how IRCC will approach this while the charge is still pending.

That is just one thing a reliable immigration lawyer could advise you about now. Another reason why it can be helpful (it's not compulsory) to also have an active immigration lawyer involved is to provide clarification for your criminal defense lawyer, about the potential as well as likely impact the charges will have in regards to your immigration status and citizenship application. Most criminal defense lawyers are NOT well-versed in immigration law. What might be the better disposition generally (lower fines for example) is not necessarily what is better in terms of collateral consequences for immigration matters.

At this stage, it is indeed prudent and more important to have a competent criminal defense lawyer assist you. The outcome of the criminal charge will largely dictate its consequences including in regards to immigration status and the citizenship application. So the better you can do with that, well, that's key.

Moreover, I fully understand that hiring another lawyer is no minor financial burden for most. If you are comfortable relying on the defense lawyer's understanding of your situation, that is your choice, and the better informed you are, yourself, the more that will make sense.

Meanwhile, for all that is NOT KNOWN . . .

There are a few things which we know or can say are highly likely, or somewhat likely. A request for finger prints is quite likely, for example. Probably a request for copies of the court's records as well. Elevated scrutiny generally, almost for sure, so there is a risk of significant non-routine processing (finger print requests are non-routine, but relatively not significantly so in themselves, only in relation to any substantive issues implicated) and resulting delays in the processing timeline.

I do not know that IRCC will put the application on hold, or "suspend" processing, but we know that it is possible, even if it has not done that for others in similar circumstances . . . that is, we know it can happen (because we know of cases in which it has), but I cannot say that is the general practice (anecdotal reports suggest occasions where it has not happened), or even quantify the likelihood it will or will not.

While I meant these particular comments to be about what is known, it bears emphasizing that I do not know whether your citizenship application might trigger a referral to CBSA to investigate PR inadmissibility. Since you have already applied, that train has left the station. Here's hoping that does not happen. Please be sure to come back and let the forum know if it appears that happens.

 

[yeasir1987]

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.

Thanks for your analysis. It helps a lot. I hope it ends up like you predicted not the conviction. I have changed my lawyer recently cause the last guy seems to have messed up my case a bit.

 

[yeasir1987]

Impact of impaired driving charge or conviction on the citizenship application:





As I have previously acknowledged, in terms of how it will affect a citizenship application, I do NOT KNOW what IRCC policy is, or practices are, in regards to hybrid criminal offences, including pending hybrid criminal charges which are in the process of being prosecuted as a summary offence.

As I addressed above, since the Citizenship Act (in contrast to IRPA, the immigration law) does not have a provision prescribing that summary convictions for a hybrid offence constitute a conviction for an indictable offence, SO when there is a summary conviction for a hybrid offence, as best I can discern, the summary conviction will not constitute a prohibition.

But, again, I am not all sure about how IRCC will approach this while the charge is still pending.

That is just one thing a reliable immigration lawyer could advise you about now. Another reason why it can be helpful (it's not compulsory) to also have an active immigration lawyer involved is to provide clarification for your criminal defense lawyer, about the potential as well as likely impact the charges will have in regards to your immigration status and citizenship application. Most criminal defense lawyers are NOT well-versed in immigration law. What might be the better disposition generally (lower fines for example) is not necessarily what is better in terms of collateral consequences for immigration matters.

At this stage, it is indeed prudent and more important to have a competent criminal defense lawyer assist you. The outcome of the criminal charge will largely dictate its consequences including in regards to immigration status and the citizenship application. So the better you can do with that, well, that's key.

Moreover, I fully understand that hiring another lawyer is no minor financial burden for most. If you are comfortable relying on the defense lawyer's understanding of your situation, that is your choice, and the better informed you are, yourself, the more that will make sense.

Meanwhile, for all that is NOT KNOWN . . .

There are a few things which we know or can say are highly likely, or somewhat likely. A request for finger prints is quite likely, for example. Probably a request for copies of the court's records as well. Elevated scrutiny generally, almost for sure, so there is a risk of significant non-routine processing (finger print requests are non-routine, but relatively not significantly so in themselves, only in relation to any substantive issues implicated) and resulting delays in the processing timeline.

I do not know that IRCC will put the application on hold, or "suspend" processing, but we know that it is possible, even if it has not done that for others in similar circumstances . . . that is, we know it can happen (because we know of cases in which it has), but I cannot say that is the general practice (anecdotal reports suggest occasions where it has not happened), or even quantify the likelihood it will or will not.

While I meant these particular comments to be about what is known, it bears emphasizing that I do not know whether your citizenship application might trigger a referral to CBSA to investigate PR inadmissibility. Since you have already applied, that train has left the station. Here's hoping that does not happen. Please be sure to come back and let the forum know if it appears that happens.

Hi,

As always thanks again for your awesome reply. Regarding your last comment about the CBSA PR inadmissibility, I was asked if I knew about the potential inadmissibility for the ongoing case at the border when I was coming back from my home country this year. So, that means CBSA does know about my charge and is well aware of the inadmissibility, I presume.

 

[jasperJ]

Hi,

As always thanks again for your awesome reply. Regarding your last comment about the CBSA PR inadmissibility, I was asked if I knew about the potential inadmissibility for the ongoing case at the border when I was coming back from my home country this year. So, that means CBSA does know about my charge and is well aware of the inadmissibility, I presume.

Yes, it means they do know about your pending charges and most likely tracking your court dates and outcomes.

 

[dpenabill]

. . . . about the CBSA PR inadmissibility, I was asked if I knew about the potential inadmissibility for the ongoing case at the border when I was coming back from my home country this year. So, that means CBSA does know about my charge and is well aware of the inadmissibility, I presume.

Yes, it means they do know about your pending charges and most likely tracking your court dates and outcomes.

Upon initial PIL (Primary Inspection Line) examination at a Port-of-Entry, even if just the kiosk at an airport, an IRCC client (which of course includes all PRs) is at minimum screened in the GCMS system. The extent to which that screening is AI driven (incorporating automated decision-making, advanced analytics, and machine learning) is continually evolving, continually increasing. (Make no mistake, CBSA and IRCC are there, employing AI, even if they frame it otherwise.)

Meanwhile, the GCMS system itself includes access to criminal history name-record data derived from, at the very least, both RCMP and U.S. NCIC/FBI databases. (Noting, as well, that in addition to the background check done by the RCMP, very similar screening is done in GCMS repeatedly during the processing of a citizenship application.)

I am not up-to-date in regards to whether for PRs criminal history name-record hits will automatically be flagged (by the system) during PoE entry screening, or if it only pops up if a CBSA border official actively engages access to that level of information in the client's GCMS records. Either way, whether there was an automated flag (an "alert") or an officer otherwise looked that closely, the exchange with the border officials you describe, during that entry to Canada, was likely triggered by a name-record hit in RCMP criminal history data. Obviously that was not the result of a referral from IRCC attendant your citizenship application since you only more recently made that.

And before commenting further, let me express appreciation for your reporting this. We have long known that during a PoE examination FNs are routinely screened for name-record hits in criminal history databases. Your account suggests that it may be common for returning PRs as well. My sense is that many PRs with potential criminality issues are reluctant to be forthcoming in this forum, and that tends to limit what we know. The more we know, well, duh, the more we know. So, again, thank you for sharing such details about your experience. In particular, it will be helpful for other PRs with potential criminality issues to know about this.

What does this mean? What does it signify?

The obvious is that the technology is rapidly closing the door on what slides by.

As a side note . . . I wonder to what extent the government is prepared for the full range of consequences this could have. Society has long accommodated a significant level of allowing getting-away-with-it in many regards. So, what happens when technology results in a more strict, and likely a way more strict level of scrutiny, detection, and enforcement? This is not merely an academic question. This is clearly, currently, a period of profound transition in regards to the impact of AI (and related automated decision-making) in CBSA and IRCC processing, and it is bound to make a huge difference. Again, this is just a side note.

BUT it at least clearly means that attendant any action taken by either CBSA or IRCC, the agent or officer deciding what action to take can be, and it more and more appears likely will be, informed about the status of any pending criminal cases, including of course any convictions.

I cannot say what @jasperJ means by "they" are ". . . most likely tracking your court dates and outcomes," but it is NOT likely there is any CBSA personnel involved in actively monitoring you, in the criminal justice system or otherwise. And quite unlikely CBSA is tracking your court dates. But, again, it is increasingly possible, and increasingly likely, that the technology employed is programmed to identify and flag clients with criminal cases, pending and otherwise. So when you do engage in a transaction (like an application for entry into Canada when arriving at a PoE) or IRCC is taking action on a pending application (PR card, PRTD, or citizenship), the status of any criminal case will be considered and have an impact (including triggering CBSA investigation leading to inadmissibility proceedings).

. . . 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.

Thanks for your analysis. It helps a lot. I hope it ends up like you predicted not the conviction.

I previously alluded to the prospect of a negotiated outcome in the criminal case avoiding conviction for a criminal offence or at least not a conviction that meets the definition of inadmissibility; and indeed, if at all possible, that could be one of the biggest advantages there is in obtaining the assistance of a good defense lawyer. In particular, I alluded to dispositions under provincial traffic regulations.

@jasperJ fleshes this out some. Illustrates the value of more practical, how things are actually done in practice, information. I suspected that perhaps a charge for something like reckless driving (called careless driving in at least Ontario) might be a worthwhile negotiated outcome; I know it is in many states in the U.S. Indeed, I have personally known, in a state in the U.S. and going back in time, many lawyers whose primary source of income revolved around this (none in Canada though), around negotiating pleas that avoid this or that collateral consequence for impaired driving.

And assuming you will be behaving responsibly (and lawfully) going forward . . . I hope you get a resolution that works out for you.

But beyond that there are some elements in what @jasperJ noted that warrant some emphasis. In particular, probation; the reminder that being on probation constitutes a prohibition is important. So, knowing when in practice probation is imposed, and for how long, is important information. In some other regards I am, perhaps, not so sure as @jasperJ about how these things go in practice (such as whether, for PRs on probation, IRCC promptly proceeds to deny applications on prohibition grounds, or suspends processing, or otherwise waits, pending outcome of criminal case), but this too is one of the things an immigration lawyer should be able to offer informed advice about. It undoubtedly varies widely, ranging from the particular circumstances in the individual case, to the province and which local law enforcement authorities are involved, but again, local lawyers will be far better informed about what matters and how things work THERE.

 

[Canadaimmig1]

Impact of impaired driving charge or conviction on the citizenship application:





As I have previously acknowledged, in terms of how it will affect a citizenship application, I do NOT KNOW what IRCC policy is, or practices are, in regards to hybrid criminal offences, including pending hybrid criminal charges which are in the process of being prosecuted as a summary offence.

As I addressed above, since the Citizenship Act (in contrast to IRPA, the immigration law) does not have a provision prescribing that summary convictions for a hybrid offence constitute a conviction for an indictable offence, SO when there is a summary conviction for a hybrid offence, as best I can discern, the summary conviction will not constitute a prohibition.

But, again, I am not all sure about how IRCC will approach this while the charge is still pending.

That is just one thing a reliable immigration lawyer could advise you about now. Another reason why it can be helpful (it's not compulsory) to also have an active immigration lawyer involved is to provide clarification for your criminal defense lawyer, about the potential as well as likely impact the charges will have in regards to your immigration status and citizenship application. Most criminal defense lawyers are NOT well-versed in immigration law. What might be the better disposition generally (lower fines for example) is not necessarily what is better in terms of collateral consequences for immigration matters.

At this stage, it is indeed prudent and more important to have a competent criminal defense lawyer assist you. The outcome of the criminal charge will largely dictate its consequences including in regards to immigration status and the citizenship application. So the better you can do with that, well, that's key.

Moreover, I fully understand that hiring another lawyer is no minor financial burden for most. If you are comfortable relying on the defense lawyer's understanding of your situation, that is your choice, and the better informed you are, yourself, the more that will make sense.

Meanwhile, for all that is NOT KNOWN . . .

There are a few things which we know or can say are highly likely, or somewhat likely. A request for finger prints is quite likely, for example. Probably a request for copies of the court's records as well. Elevated scrutiny generally, almost for sure, so there is a risk of significant non-routine processing (finger print requests are non-routine, but relatively not significantly so in themselves, only in relation to any substantive issues implicated) and resulting delays in the processing timeline.

I do not know that IRCC will put the application on hold, or "suspend" processing, but we know that it is possible, even if it has not done that for others in similar circumstances . . . that is, we know it can happen (because we know of cases in which it has), but I cannot say that is the general practice (anecdotal reports suggest occasions where it has not happened), or even quantify the likelihood it will or will not.

While I meant these particular comments to be about what is known, it bears emphasizing that I do not know whether your citizenship application might trigger a referral to CBSA to investigate PR inadmissibility. Since you have already applied, that train has left the station. Here's hoping that does not happen. Please be sure to come back and let the forum know if it appears that happens.

The mentioned application is prohibited as per the Citizenship Act:

"22 (1) Despite anything in this Act, a person shall not be granted citizenship under subsection 5(1), (2) or (4) or 11(1) or take the oath of citizenship

• (b) while the person is charged with, on trial for, subject to or a party to an appeal relating to an offence under subsection 21.1(1) or 29.2(1) or (2), or an indictable offence under subsection 29(2) or (3) or any other Act of Parliament, other than an offence that is designated as a contravention under the Contraventions Act;

(2) Despite anything in this Act, but subject to the Criminal Records Act, a person shall not be granted citizenship under subsection 5(1), (2) or (4) or 11(1) or take the oath of citizenship if the person has been convicted of an offence under subsection 21.1(1) or 29.2(1) or (2), or an indictable offence under subsection 29(2) or (3) or any other Act of Parliament, other than an offence that is designated as a contravention under the Contraventions Act,"

Indictable offence under any act of the parliament is indictable under the Citizenship Act. It is pretty clear. I do not know how so many lawyers and users in this forum do not see this. My brother is in the same scenario and I opened the account to get some light on the matter but I do not see anything so far that adds any value.

 

[dpenabill]

The mentioned application is prohibited as per the Citizenship Act:

"22 (1) Despite anything in this Act, a person shall not be granted citizenship under subsection 5(1), (2) or (4) or 11(1) or take the oath of citizenship

• (b) while the person is charged with, on trial for, subject to or a party to an appeal relating to an offence under subsection 21.1(1) or 29.2(1) or (2), or an indictable offence under subsection 29(2) or (3) or any other Act of Parliament, other than an offence that is designated as a contravention under the Contraventions Act;

(2) Despite anything in this Act, but subject to the Criminal Records Act, a person shall not be granted citizenship under subsection 5(1), (2) or (4) or 11(1) or take the oath of citizenship if the person has been convicted of an offence under subsection 21.1(1) or 29.2(1) or (2), or an indictable offence under subsection 29(2) or (3) or any other Act of Parliament, other than an offence that is designated as a contravention under the Contraventions Act,"

Indictable offence under any act of the parliament is indictable under the Citizenship Act. It is pretty clear. I do not know how so many lawyers and users in this forum do not see this. My brother is in the same scenario and I opened the account to get some light on the matter but I do not see anything so far that adds any value.

Given the extent to which I reference what I do NOT KNOW, and no one has filled in much of that at all, I totally get why you feel the discussion here has not enlightened you much. But that, of course, obviously, is one of the key reasons for being so emphatic and repetitive that a PR (including PRs applying for citizenship) tangled in a criminal case should Lawyer-Up. That's not a dodge.

That said, we do know a little . . .

"Indictable offence under any act of the parliament is indictable under the Citizenship Act."​

That is NOT true, not literally anyway. There are only a small number of offences prescribed by the Citizenship Act, only some of which are indictable offences that are, as one might say, "indictable under the Citizenship Act." In contrast "manslaughter," for example, is an indictable offence under the Criminal Code and can only be prosecuted as such (that is, under the Criminal Code, including its procedural requirements); there is no provision prescribing any offence of manslaughter under the Citizenship Act, indictable or otherwise. Likewise the vast majority of offences prescribed by the Criminal Act, they are not indictable under the Citizenship Act.

If you meant to say that what is prescribed to be an "indictable offence" under any act of parliament constitutes what is referred to as an indictable offence in the Citizenship Act, where the Citizenship Act refers to an indictable offence "under" any other Act of Parliament, I doubt any lawyer gets that wrong. And as for forum participants, even the dull-witted will generally grasp tautologies. Yeah, "red is red." No sign anyone here gets this wrong.

If, however, you are asserting that a hybrid offence (that is an offence which can be prosecuted either summarily or by indictment, and thus in employing the common vernacular, might be said to be an "indictable offence" because it is an offence that could be prosecuted by indictment), is an indictable offence under the Citizenship Act EVEN if prosecuted summarily, there is no provision in the Citizenship Act to support that, while in contrast there is support to the contrary, that hybrid offences being prosecuted summarily are NOT indictable offences, and do NOT constitute a prohibition.

For sure, a person convicted of a summary offence that could have been prosecuted by indictment, but was prosecuted summarily, is NOT convicted of an indictable offence under the Criminal Act, and thus without some more particular provision in the Citizenship Act otherwise, there is no support for the proposition that a summary conviction for a hybrid offence constitutes a conviction for an indictable offence under the Citizenship Act. ***also see discussion of particular statutory and case law below affirming that a summary conviction for a hybrid offence does not constitute a conviction for an indictable offence resulting in a citizenship prohibition

That said, as discussed in some length in previous posts, IRPA (Immigration and Refugee Protection Act) does contain a provision, which by its terms ONLY governs the application of what constitutes inadmissibility for criminality and serious criminality, and which is subject to some prescribed limitations, that in effect deems charges and convictions for a hybrid offence to be an indictable offence even if prosecuted summarily. There is no support, none referenced here and none I have seen otherwise, that suggests this has any application beyond Section 36(1) and 36(2) IRPA.

That is, Section 36(3)(a) IRPA does not define an offence prosecuted summarily to be an indictable offence, if it could have been prosecuted by indictment, for any purpose other than for determining whether a PR or FN is inadmissible for criminality or serious criminality. There is no comparable provision in the Citizenship Act.

Thus . . . see next post . . .

 

[dpenabill]

The mentioned application is prohibited as per the Citizenship Act:

Since the Crown has elected to proceed summarily, NO, the applicant is not prohibited from a grant of citizenship.

Statutory and Case Law Regarding Effect of Summary Prosecution of Hybrid Offences:

Having done a little more homework, I am more confident this morning, far more confident that if there is a summary conviction for an offence that could have been prosecuted either summarily or by indictment, it is NOT a conviction for an indictable offence for purposes of the prohibitions in the Citizenship Act, and actually for any and all other enactments of law "except to the extent that the enactment otherwise provides." The latter is a quote from Section 34(2) in the Interpretation Act, which is here, https://laws-lois.justice.gc.ca/eng/acts/I-21/page-2.html#h-279440 and which follows Section 34(1)(c) which states:

. . . if the offence is one for which the offender may be prosecuted by indictment or for which the offender is punishable on summary conviction, no person shall be considered to have been convicted of an indictable offence by reason only of having been convicted of the offence on summary conviction.​

Bears repeating, to make it clear: for a hybrid offence, no person shall be considered to have been convicted of an indictable offence by reason only of having been convicted of the offence on summary conviction.

As discussed at length, for purposes of determining inadmissibility for criminality and serious criminality, IRPA is an enactment that does provide otherwise, specifically. Again, that is Section 36(3)(a) IRPA as it governs inadmissibility defined by Sections 36(1) and 36(2).

Among Federal Court decisions consistent with understanding that a summary prosecution of hybrid offences means the charges are NOT for an indictable offence, see:

Ahmed v. Canada, 2009 FC 672, https://canlii.ca/t/24cps (prohibition did not apply because Crown had elected to proceed summarily)​

Kamara v. Canada, 2015 FC 572, https://canlii.ca/t/gj1d6 (prohibition applied because at the time of the decision the Crown had not elected to proceed summarily)​

Zhan v. Canada, 2010 FC 822, https://canlii.ca/t/2c4vl (ruling that stayed charges are in effect still pending, distinguishing cases in which there was an election to proceed summarily, or where the Crown affirmatively decided to not proceed with prosecution)​

Leading to pending hybrid charges in particular . . .

Pending Hybrid Charges Being Prosecuted Summarily:

As I noted, with some emphasis, I do NOT KNOW (not confidently anyway) the CURRENT policy and practice of IRCC in regards to how it is processing citizenship applications involving an applicant with a pending hybrid offence that is being prosecuted summarily. However, this is mostly in terms of whether or not IRCC has a policy or practice to suspend (hold) processing pending a final outcome of the criminal case.

In contrast (again, if I understand you correctly), you are asserting that even if the Crown has elected to proceed summarily that such an offence (those that can be prosecuted either by indictment or summarily) means the applicant is prohibited pursuant to Section 22(1)(b) in the Citizenship Act. I have seen NO authority supporting that, but rather the cases I cited above are official authority to the contrary.

In particular . . .

In past practices, before the IRCC name change, upon ascertaining that a citizenship applicant had a pending hybrid offence, CIC would send a request to the applicant asking for information about the pending case, specifically seeking information as to whether the offence pending was summary or indictable. For example, in the Kamara v. Canada, 2015 FC 572, https://canlii.ca/t/gj1d6 case CIC had sent the applicant a letter which stated:

If the case is still pending and the charge is Crown elect, we must know if the Crown has made a decision yet on how the case will proceed (i.e. summarily or by indictment). This information may be on the Court Information Sheet, or you may also have to send us your Charge Screening Form.​

I do not know if that practice was a result of Justice Mactavish's decision in Ahmed v. Canada, 2009 FC 672, https://canlii.ca/t/24cps but such a letter/request is consistent with the ruling in Mactavish's decision involving a pending charge, where Justice Mactavish stated:

The citizenship judge erred in law in finding that the applicant was subject to a statutory bar . . . hybrid offences are indictable unless and until the Crown elects to proceed summarily . . . [thus] the applicant was not facing charges in relation to an indictable offence at the time of his citizenship hearing. Consequently, the statutory bar contained in paragraph 22(1)(b) of the Citizenship Act did not apply.​

And as I have repeatedly acknowledged, I do not know the current IRCC practice . . . which is why the assistance of an immigration lawyer could be helpful.

The bigger risk for @yeasir1987 is that CBSA initiates inadmissibility proceedings, based on Section 36(1)(a) IRPA, which because of Section 36(3)(a) IRPA means the DUI charge is deemed an indictable offence, and this has been interpreted to mean that it is an offence for which the potential penalty if prosecuted by indictment renders it serious criminality. An additional risk, and this is quite likely, is that the citizenship application is diverted into non-routine processing and lengthy delays even if it is NOT suspended pending the outcome of the criminal case. And the longer things go, the longer @yeasir1987 remains at risk of inadmissibility proceedings.[/QUOTE]

 

[Fuzu]

Thank you dpenabill for your response. I guess under IRPA 36.3.a I am doomed. Could there be any ways around it ?

On another note, do you happen to know any EU countries where this wouldn’t be an issue for immigration. I come from a third world country and do not have any support there. I was thinking maybe I could go for masters in any other country and get PR through the study pathway with the small savings I have. I can find I can enter many eu countries with this summary conviction but can find very little info on immigration. Any ideas?

Also should I give up on applying for PR because of irpa 36.3.a? I am under the impression the laws are enacted fairly strong.

Since the Crown has elected to proceed summarily, NO, the applicant is not prohibited from a grant of citizenship.

Statutory and Case Law Regarding Effect of Summary Prosecution of Hybrid Offences:

Having done a little more homework, I am more confident this morning, far more confident that if there is a summary conviction for an offence that could have been prosecuted either summarily or by indictment, it is NOT a conviction for an indictable offence for purposes of the prohibitions in the Citizenship Act, and actually for any and all other enactments of law "except to the extent that the enactment otherwise provides." The latter is a quote from Section 34(2) in the Interpretation Act, which is here, https://laws-lois.justice.gc.ca/eng/acts/I-21/page-2.html#h-279440 and which follows Section 34(1)(c) which states:

. . . if the offence is one for which the offender may be prosecuted by indictment or for which the offender is punishable on summary conviction, no person shall be considered to have been convicted of an indictable offence by reason only of having been convicted of the offence on summary conviction.​

Bears repeating, to make it clear: for a hybrid offence, no person shall be considered to have been convicted of an indictable offence by reason only of having been convicted of the offence on summary conviction.

As discussed at length, for purposes of determining inadmissibility for criminality and serious criminality, IRPA is an enactment that does provide otherwise, specifically. Again, that is Section 36(3)(a) IRPA as it governs inadmissibility defined by Sections 36(1) and 36(2).

Among Federal Court decisions consistent with understanding that a summary prosecution of hybrid offences means the charges are NOT for an indictable offence, see:

Ahmed v. Canada, 2009 FC 672, https://canlii.ca/t/24cps (prohibition did not apply because Crown had elected to proceed summarily)​

Kamara v. Canada, 2015 FC 572, https://canlii.ca/t/gj1d6 (prohibition applied because at the time of the decision the Crown had not elected to proceed summarily)​

Zhan v. Canada, 2010 FC 822, https://canlii.ca/t/2c4vl (ruling that stayed charges are in effect still pending, distinguishing cases in which there was an election to proceed summarily, or where the Crown affirmatively decided to not proceed with prosecution)​

Leading to pending hybrid charges in particular . . .

Pending Hybrid Charges Being Prosecuted Summarily:

As I noted, with some emphasis, I do NOT KNOW (not confidently anyway) the CURRENT policy and practice of IRCC in regards to how it is processing citizenship applications involving an applicant with a pending hybrid offence that is being prosecuted summarily. However, this is mostly in terms of whether or not IRCC has a policy or practice to suspend (hold) processing pending a final outcome of the criminal case.

In contrast (again, if I understand you correctly), you are asserting that even if the Crown has elected to proceed summarily that such an offence (those that can be prosecuted either by indictment or summarily) means the applicant is prohibited pursuant to Section 22(1)(b) in the Citizenship Act. I have seen NO authority supporting that, but rather the cases I cited above are official authority to the contrary.

In particular . . .

In past practices, before the IRCC name change, upon ascertaining that a citizenship applicant had a pending hybrid offence, CIC would send a request to the applicant asking for information about the pending case, specifically seeking information as to whether the offence pending was summary or indictable. For example, in the Kamara v. Canada, 2015 FC 572, https://canlii.ca/t/gj1d6 case CIC had sent the applicant a letter which stated:

If the case is still pending and the charge is Crown elect, we must know if the Crown has made a decision yet on how the case will proceed (i.e. summarily or by indictment). This information may be on the Court Information Sheet, or you may also have to send us your Charge Screening Form.​

I do not know if that practice was a result of Justice Mactavish's decision in Ahmed v. Canada, 2009 FC 672, https://canlii.ca/t/24cps but such a letter/request is consistent with the ruling in Mactavish's decision involving a pending charge, where Justice Mactavish stated:

The citizenship judge erred in law in finding that the applicant was subject to a statutory bar . . . hybrid offences are indictable unless and until the Crown elects to proceed summarily . . . [thus] the applicant was not facing charges in relation to an indictable offence at the time of his citizenship hearing. Consequently, the statutory bar contained in paragraph 22(1)(b) of the Citizenship Act did not apply.​

And as I have repeatedly acknowledged, I do not know the current IRCC practice . . . which is why the assistance of an immigration lawyer could be helpful.

The bigger risk for @yeasir1987 is that CBSA initiates inadmissibility proceedings, based on Section 36(1)(a) IRPA, which because of Section 36(3)(a) IRPA means the DUI charge is deemed an indictable offence, and this has been interpreted to mean that it is an offence for which the potential penalty if prosecuted by indictment renders it serious criminality. An additional risk, and this is quite likely, is that the citizenship application is diverted into non-routine processing and lengthy delays even if it is NOT suspended pending the outcome of the criminal case. And the longer things go, the longer @yeasir1987 remains at risk of inadmissibility proceedings.

[/QUOTE]

 

[dpenabill]

I guess under IRPA 36.3.a I am doomed. Could there be any ways around it ?
. . . any EU countries where this wouldn’t be an issue for immigration . . .
Also should I give up on applying for PR because of irpa 36.3.a? I am under the impression the laws are enacted fairly strong.

I know almost nothing about immigration to most other countries.

In regards to your situation, I understood (or misunderstood?) that you were NOT charged criminally at all, but rather for a violation under provincial traffic law. Not an "offence." No application of Section 36(3)(a). Which would suggest you will be OK . . . EXCEPT . . .

What provisions of law and the actual nature of the violations in YOUR case specifically matter, and I do not know those details at all, and that is the sort of thing to get the advice of a lawyer about if you are not sure what you are specifically subject to.

And secondly, while I had referenced things are different for FNs (non-Canadians, that is neither a Canadian citizen nor a Canadian PR), it was not apparent you are not a PR. The threshold for criminal inadmissibility for FNs is significantly lower than it is for PRs. I have not been following FN inadmissibility for many years, other than what is incidentally associated with PR inadmissibility. That said, if you have only been charged with a violation of a provincial traffic regulation, that still probably does not cause inadmissibility issues. But here, again, the precise charge is what matters.

 

[Fuzu]

Thank you for your response.

I am not sure who wrote this but I had saved it.

https://laws.justice.gc.ca/eng/acts/i-2.5/section-36.html

- Serious criminality
* 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;
* Marginal note: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;

The references to “an act of parliament” in the Immigration and Refugee Protection Act means that only offences arising from federal legislation will result in inadmissibility. This means that an offence under a provincial statute will not render someone inadmissible to Canada.

This gives me hope but I am still not sure because irpa 36.3.a

I know almost nothing about immigration to most other countries.

In regards to your situation, I understood (or misunderstood?) that you were NOT charged criminally at all, but rather for a violation under provincial traffic law. Not an "offence." No application of Section 36(3)(a). Which would suggest you will be OK . . . EXCEPT . . .

What provisions of law and the actual nature of the violations in YOUR case specifically matter, and I do not know those details at all, and that is the sort of thing to get the advice of a lawyer about if you are not sure what you are specifically subject to.

And secondly, while I had referenced things are different for FNs (non-Canadians, that is neither a Canadian citizen nor a Canadian PR), it was not apparent you are not a PR. The threshold for criminal inadmissibility for FNs is significantly lower than it is for PRs. I have not been following FN inadmissibility for many years, other than what is incidentally associated with PR inadmissibility. That said, if you have only been charged with a violation of a provincial traffic regulation, that still probably does not cause inadmissibility issues. But here, again, the precise charge is what matters.

 

[jasperJ]

I would like to quickly summarize and clarify for people coming to this thread for help.

If you are charged with DUI, a hybrid offence, and crown choose to proceed summarily in the court, which usually is the case, YOU ARE NOT PROHIBITED UNDER CITIZENSHIP ACT.

But, a big BUT, if you get convicted of the same offence, you will be considered inadmissible to Canada under IRPA s36.

So in cases like these where you are subject to inadmissibility or there’s a chance you will be subject to inadmissibility in future(meaning case is still in courts), your citizenship application will be suspended and will be resumed based on the outcome of your court case(you don’t get convicted) or your admissibility hearing (you get convicted and an inadmissibility report is made by CBSA).

PS: Only applicable if you are charged after Dec, 2018. Before that DUI was not considered serious criminality offence so charges before Dec, 2018 will not lead to inadmissibility under IRPA s36

 

[dpenabill]

I would like to quickly summarize and clarify for people coming to this thread for help.

If you are charged with DUI, a hybrid offence, and crown choose to proceed summarily in the court, which usually is the case, YOU ARE NOT PROHIBITED UNDER CITIZENSHIP ACT.

But, a big BUT, if you get convicted of the same offence, you will be considered inadmissible to Canada under IRPA s36.

So in cases like these where you are subject to inadmissibility or there’s a chance you will be subject to inadmissibility in future(meaning case is still in courts), your citizenship application will be suspended and will be resumed based on the outcome of your court case(you don’t get convicted) or your admissibility hearing (you get convicted and an inadmissibility report is made by CBSA).

PS: Only applicable if you are charged after Dec, 2018. Before that DUI was not considered serious criminality offence so charges before Dec, 2018 will not lead to inadmissibility under IRPA s36

This is a very good summary, succinctly nailing the key elements of what the rules are. I envy being able to do that.

That said, a clarification and a bit of a quibble . . .

The clarification: the parliamentary change in law in 2018 was NOT in immigration law, but rather was in the Criminal Act which increased the penalties for the impaired driving offence, in particular increasing the maximum penalty if prosecuted by indictment to ten years imprisonment. What constitutes serious criminality as prescribed by IRPA has not changed since 2014 (and no big change then either). This distinction may seem technical, in the weeds, but it underlies some of the confusion that has dogged not just the technical elements of interpretation and application, but how these provisions are applied in actual practice, including the policies and practices adopted by CBSA and IRCC in regards to applying these provisions. There is a lot that continues to be UNKNOWN about actual practices in the application of these provisions.

Which leads to the quibble . . .

The quibble: Or, perhaps this too is a clarification. Meeting the definition of "inadmissible" under the statute does NOT necessarily mean that a PR will be considered (adjudicated) inadmissible. PR inadmissibility is not self-enforcing. It does mean that CBSA/IRCC could pursue inadmissibility proceedings and make a determination, valid in law, that a PR convicted of DUI on a summary conviction is inadmissible on the grounds of serious criminality. BUT five years after the change in law, I have yet to see any specific case in which a PR has been considered (adjudicated) inadmissible based on a single simple DUI offence (no property damage or personal injuries, no law enforcement evasion). Which is not to say it will not happen, or even that it has not happened. It is to say, however, it has not happened enough to easily find accounts of such a case in officially reported IAD decisions about actual cases or to even see anecdotal reporting in this forum about actual cases in which it has happened.

As I have occasionally asked . . .

Obviously, if anyone is aware of any such case, please bring it to the forum's attention.

Which bears repeating: If anyone is aware of any such case, please bring it to the forum's attention.

In that discussion, over two years ago, I also stated:

. . . Subsection 36(3)(a) has been interpreted to apply to how 36(1)(a) affects PRs . . .
. . . But the question is a lot more complicated than that. Preliminary research has not indicated that this is actually a problem for PRs convicted of minor driving while impaired offences. Anecdotal reports likewise do not indicate it is a serious criminality problem. . . .
For the moment, it appears POSSIBLE but not likely that a single DWI offence would trigger an inadmissibility proceeding for a PR. Lawyers should know more. Any other sources would be helpful.

For those affected, it is a big deal, no mere academic question. The risk of inadmissibility proceedings hanging over their heads, the possibility that their life in Canada could be terminated, is a heavy burden to bear.

I am tempted to suggest, based on the sparse reporting (virtually none actually) of PRs losing PR status because of a DUI, those affected should not worry, focus instead on pursuing a productive life and do what needs to be done to get rehabilitated status as soon as practical (that will eliminate the risk of being considered/adjudicated inadmissible). But I am also aware that many PRs are reluctant to openly discuss these things, so the absence of anecdotal reporting here may be a lot about a reluctance to talk about this, perhaps masking the fact that some PRs are facing loss of status over this. SO, what I really suggest, is that anyone potentially affected GET PROFESSIONAL LEGAL ADVICE . . . Lawyer-Up. Immigration lawyers will likely have far more information about and insight into what the risks are.

And, again, please bring any known actual cases to the forum's attention.

One More Caveat: I am not so sure as @jasperJ that the citizenship application of PRs applying for citizenship who are the subject of summary offence prosecutions which involve charges that could have been prosecuted as an indictable offence punishable by ten years, or more, "will be" suspended pending the outcome of the criminal case. They CAN be, for sure. Some are, for sure. But the anecdotal reporting also indicates some are NOT. This too depends a lot on IRCC's adopted policies and practices, and there continues to be a lot unknown here.

Not much the applicant can do if they have a citizenship application already in process. Except get a good lawyer to help them resolve the criminal case on as favourable terms as possible as soon as practical.

 

[Fuzu]

Thank you for your analysis. I called RCMP today. They mentioned my administrative penalty for impaired driving should not show up in their check and should give me a clear pass. I will do the criminal record check. In the tow seizure form officer ticked yes to ´ entered on cpic ‘ .

Question 1: I am not sure if I should check yes when asked « do you have criminal conviction > when applying for PR if rcmp check shows clear

I did call three RCMP branches and clearly explained impaired over 0.08 but they said it should not show up in results.

Question 2: what are the back ground checks IRCC does ? Which databases. I think the police entered it on CPIC as per vehicle seizure form but it says IRS fail

This is a very good summary, succinctly nailing the key elements of what the rules are. I envy being able to do that.

That said, a clarification and a bit of a quibble . . .

The clarification: the parliamentary change in law in 2018 was NOT in immigration law, but rather was in the Criminal Act which increased the penalties for the impaired driving offence, in particular increasing the maximum penalty if prosecuted by indictment to ten years imprisonment. What constitutes serious criminality as prescribed by IRPA has not changed since 2014 (and no big change then either). This distinction may seem technical, in the weeds, but it underlies some of the confusion that has dogged not just the technical elements of interpretation and application, but how these provisions are applied in actual practice, including the policies and practices adopted by CBSA and IRCC in regards to applying these provisions. There is a lot that continues to be UNKNOWN about actual practices in the application of these provisions.

Which leads to the quibble . . .

The quibble: Or, perhaps this too is a clarification. Meeting the definition of "inadmissible" under the statute does NOT necessarily mean that a PR will be considered (adjudicated) inadmissible. PR inadmissibility is not self-enforcing. It does mean that CBSA/IRCC could pursue inadmissibility proceedings and make a determination, valid in law, that a PR convicted of DUI on a summary conviction is inadmissible on the grounds of serious criminality. BUT five years after the change in law, I have yet to see any specific case in which a PR has been considered (adjudicated) inadmissible based on a single simple DUI offence (no property damage or personal injuries, no law enforcement evasion). Which is not to say it will not happen, or even that it has not happened. It is to say, however, it has not happened enough to easily find accounts of such a case in officially reported IAD decisions about actual cases or to even see anecdotal reporting in this forum about actual cases in which it has happened.

As I have occasionally asked . . .


Which bears repeating: If anyone is aware of any such case, please bring it to the forum's attention.

In that discussion, over two years ago, I also stated:



For those affected, it is a big deal, no mere academic question. The risk of inadmissibility proceedings hanging over their heads, the possibility that their life in Canada could be terminated, is a heavy burden to bear.

I am tempted to suggest, based on the sparse reporting (virtually none actually) of PRs losing PR status because of a DUI, those affected should not worry, focus instead on pursuing a productive life and do what needs to be done to get rehabilitated status as soon as practical (that will eliminate the risk of being considered/adjudicated inadmissible). But I am also aware that many PRs are reluctant to openly discuss these things, so the absence of anecdotal reporting here may be a lot about a reluctance to talk about this, perhaps masking the fact that some PRs are facing loss of status over this. SO, what I really suggest, is that anyone potentially affected GET PROFESSIONAL LEGAL ADVICE . . . Lawyer-Up. Immigration lawyers will likely have far more information about and insight into what the risks are.

And, again, please bring any known actual cases to the forum's attention.

One More Caveat: I am not so sure as @jasperJ that the citizenship application of PRs applying for citizenship who are the subject of summary offence prosecutions which involve charges that could have been prosecuted as an indictable offence punishable by ten years, or more, "will be" suspended pending the outcome of the criminal case. They CAN be, for sure. Some are, for sure. But the anecdotal reporting also indicates some are NOT. This too depends a lot on IRCC's adopted policies and practices, and there continues to be a lot unknown here.

Not much the applicant can do if they have a citizenship application already in process. Except get a good lawyer to help them resolve the criminal case on as favourable terms as possible as soon as practical.

 

[dpenabill]

I called RCMP today. They mentioned my administrative penalty for impaired driving should not show up in their check and should give me a clear pass. I will do the criminal record check. In the tow seizure form officer ticked yes to ´ entered on cpic ‘ .

Question 1: I am not sure if I should check yes when asked « do you have criminal conviction > when applying for PR if rcmp check shows clear

I did call three RCMP branches and clearly explained impaired over 0.08 but they said it should not show up in results.

Question 2: what are the back ground checks IRCC does ? Which databases. I think the police entered it on CPIC as per vehicle seizure form but it says IRS fail

Based on what you have described in multiple posts, it appears to me you were not charged with a criminal offence. BUT I do not know how these things work, matters involving provincial traffic violations, so my input about your particular situation is NOT worth much at all. I am especially not much acquainted with Alberta law and rules. Sorry.

What I do know is that if you have not been charged with a criminal offence, that makes a huge difference, probably means it is NOT an issue for you, not a problem. BUT this is a forum for Permanent Residents applying for citizenship. The rules which apply to Foreign Nationals are different, more strict, and I in particular have NOT been paying much attention to FN inadmissibility issues or FN applications for visas, not for temporary or permanent residence. There is another part of this site where questions and issues regarding FNs applying for PR visa are discussed, and I presume the subject of FN inadmissibility is discussed there.