Citizenship Application - Withdrawn Charges

[DevH]

Hi, I was wondering if anyone could guide how to accurately answer the question related to the time served on probation under the physical presence section in the application form. The question asks: "During your 5-year eligibility period, did you spend time serving a sentence? Time spent in prison, on parole or on probation won’t count toward your physical presence."

However, I also found the below on this link: Physical Presence Calculator (cic.gc.ca) which says "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.

Obviously, there is clear contradiction. I have similar situation where the charges were dropped and a peace bond was given. The peace bond however had probation conditions which are now dropped by the judged (after successful completion). I couldn't find a clear answer so appreciate your views. The concern is that IRCC will come to know through the background check and would ask for an explanation or potentially deem the application inadmissible on the basis of withholding material facts. Thank you in advance.

 

[dpenabill]

Hi, I was wondering if anyone could guide how to accurately answer the question related to the time served on probation under the physical presence section in the application form. The question asks: "During your 5-year eligibility period, did you spend time serving a sentence? Time spent in prison, on parole or on probation won’t count toward your physical presence."

These matters are indeed difficult to address (let alone definitively answer) precisely for the reasons you stated in the other topic where you have raised and discussed related questions -- so much depends on the specific details in the individual case, which can and do vary widely from one person to another, and which depend very much on the precise content of court records, which in turn can be cryptic or otherwise not easily understood.

I have been working on some observations in regards to questions you and @lovekumar86 have asked in regards to probation in particular, in regards to the physical presence calculation. I cannot directly answer the questions posed by either of you. However, I am working on some comments I hope will help, but those will take some thought and time.

Meanwhile, generally if the conditions imposed pursuant to a conditional discharge are FULLY COMPLETED, successfully completed, and the court in fact finalizes the case by discharging/dismissing the charges, there is NO conviction for an offence, NO sentence, NO probation, and even though there was a kind of probation imposed while the conditional discharge was pending, there is no need to disclose that time as a time on probation. GENERALLY. Usually even.

The problem is that when giving IRCC information, what happens generally, what happens usually, does not matter. What matters is what actually happened in the applicant's own particular instance.

And the specific question being answered matters. Responding to the prohibition questions in the application is related, but still in some respects different than what may need to be disclosed in response to physical presence calculator questions.

For the specific purpose of responding to the did-you-do-time question in the physical presence calculator, if there was a final discharge, upon the successful completion of all conditions imposed attendant a conditional discharge, there was NO probation period to disclose even if the conditions included a period of probation.

You reference the applicable FAQ answer. That does not actually contradict other IRCC information, but it is easy to see how it invites questions and confusion. I will address this in the other topic, later.

For now, the main caution is that as long the charge of an offence technically remains pending, it is not discharged. A conditional discharge does not actually mean the charges are dismissed or such UNLESS and UNTIL the conditions are successfully completed, and that is documented of record.

Yeah, what's in the records dictates.

. . . and, well, yeah, and . . . I will try to address all this further . . .

 

[DevH]

These matters are indeed difficult to address (let alone definitively answer) precisely for the reasons you stated in the other topic where you have raised and discussed related questions -- so much depends on the specific details in the individual case, which can and do vary widely from one person to another, and which depend very much on the precise content of court records, which in turn can be cryptic or otherwise not easily understood.

I have been working on some observations in regards to questions you and @lovekumar86 have asked in regards to probation in particular, in regards to the physical presence calculation. I cannot directly answer the questions posed by either of you. However, I am working on some comments I hope will help, but those will take some thought and time.

Meanwhile, generally if the conditions imposed pursuant to a conditional discharge are FULLY COMPLETED, successfully completed, and the court in fact finalizes the case by discharging/dismissing the charges, there is NO conviction for an offence, NO sentence, NO probation, and even though there was a kind of probation imposed while the conditional discharge was pending, there is no need to disclose that time as a time on probation. GENERALLY. Usually even.

The problem is that when giving IRCC information, what happens generally, what happens usually, does not matter. What matters is what actually happened in the applicant's own particular instance.

And the specific question being answered matters. Responding to the prohibition questions in the application is related, but still in some respects different than what may need to be disclosed in response to physical presence calculator questions.

For the specific purpose of responding to the did-you-do-time question in the physical presence calculator, if there was a final discharge, upon the successful completion of all conditions imposed attendant a conditional discharge, there was NO probation period to disclose even if the conditions included a period of probation.

You reference the applicable FAQ answer. That does not actually contradict other IRCC information, but it is easy to see how it invites questions and confusion. I will address this in the other topic, later.

For now, the main caution is that as long the charge of an offence technically remains pending, it is not discharged. A conditional discharge does not actually mean the charges are dismissed or such UNLESS and UNTIL the conditions are successfully completed, and that is documented of record.

Yeah, what's in the records dictates.

. . . and, well, yeah, and . . . I will try to address all this further . . .

Thank you for the detailed response. This is very helpful indeed in terms of shedding light on the complexity of seemingly an easy/straight forward question. What I understood from your response is that such information is not typically disclosed which is consistent with the FAQ answer. My worry is that the application form does not have this FAQ or any clarification, so could IRCC potentially accuse of misrepresentation/withholding material facts if they find out through background check (as they'll most likely). I'm thinking it would be a good idea to get some legal advise to be on the safer side. I have no intensions to hide information or mispresent anything (I have suffered a lot for a crime that I didn't commit), but at the same time, I want to make sure that I disclose only what's required.

Also, when you say " What matters is what actually happened in the applicant's own particular instance" I am guessing they don't need to know the details of actual charges rather what happened to the charges and evidence that those were dropped or say in case of probation, evidence from the court that probation conditions were completed successfully? The only thing that is open is a few months on the peace bond, but then a peace bond is a peace bond and is not required to be reported as it is not a sentence. Looking forward to hearing your thoughts and thanks again.

 

[dpenabill]

Thank you for the detailed response. This is very helpful indeed in terms of shedding light on the complexity of seemingly an easy/straight forward question. What I understood from your response is that such information is not typically disclosed which is consistent with the FAQ answer. My worry is that the application form does not have this FAQ or any clarification, so could IRCC potentially accuse of misrepresentation/withholding material facts if they find out through background check (as they'll most likely). I'm thinking it would be a good idea to get some legal advise to be on the safer side. I have no intensions to hide information or mispresent anything (I have suffered a lot for a crime that I didn't commit), but at the same time, I want to make sure that I disclose only what's required.

Also, when you say " What matters is what actually happened in the applicant's own particular instance" I am guessing they don't need to know the details of actual charges rather what happened to the charges and evidence that those were dropped or say in case of probation, evidence from the court that probation conditions were completed successfully? The only thing that is open is a few months on the peace bond, but then a peace bond is a peace bond and is not required to be reported as it is not a sentence. Looking forward to hearing your thoughts and thanks again.

I understand your concerns, in particular:

My worry is that the application form does not have this FAQ or any clarification, so could IRCC potentially accuse of misrepresentation/withholding material facts if they find out through background check (as they'll most likely).​

Yeah.

And I am NO expert. NOT close.

Moreover, without engaging in a draft test of the physical presence calculator, my guess is that a "yes" answer does not then give the applicant an option to, in effect, say "yeah, but . . . " those days should still count, unlike a "yes" response in the prohibitions section of the application, which can be an honest answer to the question but is a situation that does not constitute a prohibition, allowing the applicant to give an explanation for the "yes" response that will show it does not constitute a prohibition.

That said, if for sure the court case has resulted in the charges being withdrawn or discharged with NO conviction, that means there was no offence, no sentence, the individual subject to a conditional discharge is NOT an "offender" (see definition of "probation" at IRCC, which is here: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/canadian-citizenship/terms-definitions-related.html#p ). The key to this is to make sure there is an actual FINAL order disposing of the charge in the court's records. There should be little risk then.

However, I have the impression that courts can be a bit sloppy about this, in effect leaving the case open by failing to make or enter that final order . . . and as long as the case is open, any probation imposed as one of the conditions could be said to be, technically, a period of probation that would need to be disclosed. So, again, the key to this is to make sure there is an actual FINAL order disposing of the charge in the court's records, showing the charge withdrawn, dismissed, or fully discharged without any conviction.

And that said, in turn, if you have any reservations and can afford paying for a lawyer's review of the facts and advice (free consultations are worth little more than what you pay for), that is for sure a prudent approach. And perhaps a lawyer might be needed to make sure the court does make that final order conclusively disposing of the charges.

Meanwhile, I will make a concerted effort to offer more in the other topic. I cannot answer these questions, for either of you, but again I hope I can provide some insight and context that will help each of you figure this stuff out for yourselves, or with the assistance of legal counsel.

"What matters is what actually happened in the applicant's own particular instance"​

This is about distinguishing what usually happens in many similar cases, like whether or not there is a period of "probation" in addition to a peace bond, and like whether or not the court record will reflect the final order. What usually happens in most cases does not matter. What matters is whether there was probation, and if so whether that was successfully completed, if it was attendant a conditional discharge. And of course whether in fact the disposition of the case was a conditional discharge, and whether or not in that case the court enters the final discharge in the record.

Actually the underlying facts do not matter much. It is what is in the record that matters. To preview some of the observations I am working on (albeit not at the moment and probably not until later), I note:

Unless charges are still pending and it is in a conversation with a lawyer, save any "but I was actually innocent" or "not so guilty" explanations for friends and family, or maybe prospective employers (but probably not), or before the mirror if need be (I have tended to be of the latter sort, sigh). What matters is what is in the records. Any "yeah, that, BUT . . ." effort to qualify or characterize the actual disposition, as any more or less than what it actually is on its face, will NOT help, and it typically tends to send the wrong message (no matter how true it is).​

I do not mean to be unsympathetic to protests of defense. I get how important this can be to someone. But for purposes of what to answer in a citizenship application or the physical presence calculator, or in response to immigration generally, protests that charges were unfair or wrong are a distraction, not helpful.

Will try to complete the other observations within a day.

 

[DevH]

I understand your concerns, in particular:

My worry is that the application form does not have this FAQ or any clarification, so could IRCC potentially accuse of misrepresentation/withholding material facts if they find out through background check (as they'll most likely).​

Yeah.

And I am NO expert. NOT close.

Moreover, without engaging in a draft test of the physical presence calculator, my guess is that a "yes" answer does not then give the applicant an option to, in effect, say "yeah, but . . . " those days should still count, unlike a "yes" response in the prohibitions section of the application, which can be an honest answer to the question but is a situation that does not constitute a prohibition, allowing the applicant to give an explanation for the "yes" response that will show it does not constitute a prohibition.

That said, if for sure the court case has resulted in the charges being withdrawn or discharged with NO conviction, that means there was no offence, no sentence, the individual subject to a conditional discharge is NOT an "offender" (see definition of "probation" at IRCC, which is here: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/canadian-citizenship/terms-definitions-related.html#p ). The key to this is to make sure there is an actual FINAL order disposing of the charge in the court's records. There should be little risk then.

However, I have the impression that courts can be a bit sloppy about this, in effect leaving the case open by failing to make or enter that final order . . . and as long as the case is open, any probation imposed as one of the conditions could be said to be, technically, a period of probation that would need to be disclosed. So, again, the key to this is to make sure there is an actual FINAL order disposing of the charge in the court's records, showing the charge withdrawn, dismissed, or fully discharged without any conviction.

And that said, in turn, if you have any reservations and can afford paying for a lawyer's review of the facts and advice (free consultations are worth little more than what you pay for), that is for sure a prudent approach. And perhaps a lawyer might be needed to make sure the court does make that final order conclusively disposing of the charges.

Meanwhile, I will make a concerted effort to offer more in the other topic. I cannot answer these questions, for either of you, but again I hope I can provide some insight and context that will help each of you figure this stuff out for yourselves, or with the assistance of legal counsel.

"What matters is what actually happened in the applicant's own particular instance"​

This is about distinguishing what usually happens in many similar cases, like whether or not there is a period of "probation" in addition to a peace bond, and like whether or not the court record will reflect the final order. What usually happens in most cases does not matter. What matters is whether there was probation, and if so whether that was successfully completed, if it was attendant a conditional discharge. And of course whether in fact the disposition of the case was a conditional discharge, and whether or not in that case the court enters the final discharge in the record.

Actually the underlying facts do not matter much. It is what is in the record that matters. To preview some of the observations I am working on (albeit not at the moment and probably not until later), I note:

Unless charges are still pending and it is in a conversation with a lawyer, save any "but I was actually innocent" or "not so guilty" explanations for friends and family, or maybe prospective employers (but probably not), or before the mirror if need be (I have tended to be of the latter sort, sigh). What matters is what is in the records. Any "yeah, that, BUT . . ." effort to qualify or characterize the actual disposition, as any more or less than what it actually is on its face, will NOT help, and it typically tends to send the wrong message (no matter how true it is).​

I do not mean to be unsympathetic to protests of defense. I get how important this can be to someone. But for purposes of what to answer in a citizenship application or the physical presence calculator, or in response to immigration generally, protests that charges were unfair or wrong are a distraction, not helpful.

Will try to complete the other observations within a day.

Thank you so much once again for your insights. It's really helping me to gather the facts and understand the intricacies of the legal system.

I don't have a court order that specifically says the charges were dropped/withdrawn/dismissed, but the fact that the trial date was cancelled and a peace bond was signed (on this basis), shouldn't it be sufficient for evidential purposes that the charges were dropped? I can check with the court registry if there is any documentation that I can obtain. As you rightly pointed out, certain important items are discussed during the hearing but which don't always end up in form of a court order. However, there is a court order disposing the reporting conditions on the peace bond after the "counselling" was completed which I believe should be sufficient as evidence that the probation conditions were fulfilled.

I totally agree with you on what matters is what's on the record, and not what we think. There's no second thought about it and I have stopped thinking about what and why things happened for the sake of being at peace with myself (my stoic meditations helped me a lot). The legal system is complex and extremely onerous to navigate despite the golden rule of presumption of innocence. It has many puzzling things and paradoxes and sometimes you don't have a choice other than moving on.

Thank you so much for sharing your time and knowledge

 

[pari1908]

Hello I had pending charges for theft under 5000 x 3x in 2021 and the case was dsicharged on oct 22 2021 and I was not plead guilty.

I have my citizenship application going and people with same AOR date completed their LPP but mine is still inprogress. My BG was completed on 20th Feb 2023 and nothing after that. Does the charges for which I not even guilty and removed from file affects this process?

How much delay should I expect?

Can I also do RCMP on my own and provide that document or I should wait for them ?